Minister of Welfare and Population Development v Fitzpatrick and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Madala J, Goldstone J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J, Cameron AJ
• Judgment Date: 31 May 2000
• Citation: 2000 (3) SA 422 (CC)
• Docket Number: CCT 08/00
• Hearing Date: 09 May 2000
• Counsel: R F van Rooyen for the applicant. D Unterhalter (with him T Mosikatsana) for the amicus curiae (the Centre for Applied Legal Studies).
• Court: Constitutional Court

Goldstone J:

Introduction

[1] Mr and Mrs Fitzpatrick (the respondents) are British citizens who have been living permanently in South Africa since March 1997. Mr J

Goldstone J

Fitzpatrick works for a United States corporation and expects to be A transferred to the United States. The respondents wish to adopt a minor child, to whom I shall refer as 'the child', who was born to a South African citizen. However, s 18(4)(f) of the Child Care Act [1] (the Act) absolutely proscribes the adoption of a child born of a South African citizen by a non-citizen or by a person who has the necessary residential qualifications for the B grant of South African citizenship but has not applied for a certificate of naturalisation. [2]

[2] The respondents applied to the Cape of Good Hope High Court for an order declaring s 18(4)(f) to be inconsistent with the Constitution and therefore invalid. In the alternative they applied to be appointed as joint guardians of the child and to be C awarded joint custody and control of the child. Mr D A J Uijs SC, the third respondent, was appointed by the High Court as curator ad litem to represent the child in the proceedings. I shall refer to him as 'the curator'. He supported the grant of the relief sought by the respondents.

[3] In the High Court the Minister for Welfare and Population D Development (the Minister) conceded that the provisions of s 18(4)(f) were unconstitutional to the extent that they proscribed the adoption of a child born of a South African citizen by persons who are not South African citizens or persons who qualify for naturalisation but have not applied therefor. However, she sought and E was granted an order suspending the declaration of invalidity for a period of two years in order to allow Parliament to correct the defect in the legislation. It follows that during the period of the suspension it is not possible for the respondents to adopt the child. With the support of the Minister, the High Court appointed the respondents as the joint guardians of the child and awarded them joint custody and F control of the child.

[4] In terms of the provisions of ss 167(5) [3] and 172(2)(a) and (d) [4] of the Constitution (the Constitution of the Republic of South Africa Act 108 G

Goldstone J

of 1996) the Minister now approaches this Court for confirmation of the order of the A High Court. The curator was invited by the Court to furnish it with a written report on whether the interests of the child are likely to be affected by any order this Court might make in the confirmation proceedings. In his report, the curator informed us that there would be no appearance on behalf of the respondents who are possessed of no B further funds with which to pursue their opposition to the suspension of the order and accept that they will not be able to adopt the child until the period of suspension has expired. However, in the view of the curator, the child's interests would best be served by an immediate adoption order in favour of the respondents and for that reason he opposed the suspension of the order of invalidity. C

[5] Having regard to the non-appearance of the respondents, the Centre for Applied Legal Studies at the University of the Witwatersrand was requested by the Court to act as an amicus curiae and to submit written argument. The amicus was invited also to make oral submissions and that was done most helpfully by Professors Unterhalter and Mosikatsana. Their assistance is D much appreciated by the Court.

The background

[6] The suitability of the respondents as parents of the child is not in dispute. However, it would be for the children's court, and not this Court, to assess an application by the respondents for the E adoption of the child. I refer to the respondents' circumstances only as illustrative of why the child's best interests may be prejudiced by the current formulation of s 18(4)(f) of the Act.

[7] The respondents were married in England and four children were born of their marriage. The eldest is 12 years and the F youngest five years. From November 1994 to March 1997 the respondents lived in the state of Oklahoma in the United States of America. During that period they qualified to foster infant children and fostered ten infants with stays ranging from a few weeks to 15 months. After their arrival in Cape Town, the respondents contacted G and were interviewed by the Child Welfare Society of South Africa and obtained approval to act as foster parents in South Africa. The Child Welfare Society of South Africa employs social workers as defined by the Act [5] who are registered in terms

Goldstone J

of the provisions of the Social Service Professions Act. [6] In October 1997 the respondents had two-month-old twins placed with them for three weeks after which the twins were placed with their adoptive mother.

[8] In November 1997, the child, then aged two-and-a-half months, was placed with the respondents. He had been neglected and then abandoned by his biological parents soon after his birth. In March 1998 B the child was moved to another foster home. The respondents supported the move, believing that the provisions of s 18(4)(f) of the Act would preclude them from adopting the child. A month later, in April 1998, the child was returned to the respondents because he had not settled in his new foster home. C

[9] A strong bond had already been forged between the respondents, their children and the child and the respondents decided to take whatever steps were necessary to adopt the child. In this endeavour the respondents were assisted by Ms Janine Kleynhans, a social worker employed by the Child Welfare Society of South Africa. The considerable effort expended by Ms Kleynhans to D further the best interests of the child is commendable. Through her offices the respondents and the curator made contact with the biological parents of the child. After some initial prevarication the biological parents consented to the adoption.

[10] The curator, a senior member of the Cape Town Bar, E thoroughly investigated the unusual and difficult circumstances of this case. He furnished the High Court with a full and informative report of his investigations and made helpful submissions on the legal position. I would like to express my admiration for that investigation and report and also express my gratitude for the valuable assistance he subsequently afforded this Court in a supplementary report. It emerges F from the report that the biological parents are incapable of looking after the child and that this situation is unlikely to change. On the other hand, with regard to the home of the respondents, the curator says:

'In short, the visit at the home of the Fitzpatricks with the Fitzpatrick family was a pleasure, and to observe the family interact G was to receive a rather humbling lesson in good parenting.'

[11] Both Ms Kleynhans and the curator firmly support the adoption of the child by the respondents. The curator points out that there are no members of the biological family of the child who would be suitable foster parents and that most other prospective adoptive parents would H wish to adopt a younger child. He states further that, unless the child is adopted by the respondents, he will spend his early years in foster care and his later years in an institution.

[12] That the best interests of the child lie in his being adopted by the respondents is accepted by the Minister and the amicus curiae. I have I

Goldstone J

referred to sufficient facts to indicate the background against which they do so. It remains only to A mention that Mr Fitzpatrick has been able to delay his transfer back to the United States until 2003 in order to enable his wife and himself to pursue their endeavours to adopt the child.

The issues

[13] There are two broad issues which we are required to consider. B They are:

(a)

whether the provisions of s 18(4)(f) are in conflict with the Constitution; and

(b)

if so, the form of the order that should be made and, in particular, whether an order of invalidity should be suspended. C

I shall consider each in turn.

The constitutionality of s 18(4)(f) of the Act

[14] Presumably in the light of the Minister's acceptance of the unconstitutionality of the section, the High Court's judgment gives no D consideration to this question. In order to confirm the order of invalidity this Court must, of course, be satisfied on that score. Counsel for the Minister submitted that the provisions of the section were inconsistent with the rights to equality (s 9 of the Constitution), human dignity (s 10 of the Constitution) and the rights of the child (s 28 of the Constitution). Counsel for the amicus curiae relied on ss 9 and 28 but not s 10. E

[15] We are concerned in this case with the rights of both the respondents as prospective adoptive parents, on the one hand, and the rights of the child, on the other. The equality attack relies primarily on unfair discrimination against prospective adoptive parents and indirectly against the children concerned; the human dignity attack F is based on the effect of the impugned provision on the prospective adoptive parents, whilst the reliance on s 28 is concerned solely with the rights of children.

[16] I have reached the firm view that s 18(4)(f) of the Act, to the extent that it absolutely proscribes adoption of a South African born child by non-South Africans, is inconsistent with G the provisions of s 28 of the Constitution. The section reads as follows:

'28(1) Every child has the right -

(a)

to a name and a nationality from birth;

(b)

to family care or parental care, or to appropriate H alternative care when removed from the family environment;

(c)

to basic nutrition, shelter, basic health care services and social services;

(d)

to be protected from maltreatment, neglect...