Written by: Natasha van Deventer

23 August 2024

What is the difference between foster care and adoption in South Africa?

Foster care and adoption are different methods by which a child can receive parental and proper care when removed from their family home. These processes perpetually affect the child and the people (parents) wishing to adopt or foster the child. Many people prefer adoption. However, due to the emotional nature of the processes and the direct impact of family politics in some circumstances, people are sometimes hesitant to take on the permanent responsibility of taking care of a family member and choose the foster care route. It is paramount to note the difference in enabling family members to accomplish their obligations to provide the appropriate care for the child.

What is foster care in South Africa?

Foster care is an alternative form of child care depicted in Chapter 12 of the Children’s Act 38 of 2005. Foster care refers to the provisional placement of a child in need of care and protection with someone who is neither the parent nor the guardian of the child. Section 150 of the Children’s Act states that a child who requires care can be placed in foster care.

How does foster care work in South Africa?

Foster care ranges from short-term to long-term, usually not exceeding a period of two (2) years. The objective of foster care, as defined in Section 181(a) to Section 181(c) of the Children’s Act, is to protect and support children by placing them in a healthy environment until the end goal of family reunification can be achieved. Foster care must be extended when the two (2) years lapse and the biological parents can request that the child be reunited.

What is adoption in South Africa?

In contrast to foster care, adoption is a legal process that generates a permanent, legally recognised relationship between a child and their adoptive parents. Adoption is a multifaceted process that involves many legal and emotional considerations. particularly for birth parents who need to consider all aspects relating to their rights and responsibilities towards their children. The requirements for adoption is regulated by the Children’s Act 38 of 2005.

What Rights and Responsibilities Do Prospective Parents Have During the Adoption Process?

As soon as the birth parents decide to place their child for adoption, they transfer their parental rights and responsibilities to the adoptive parents during the adoption process. The adoptive parents also acquire certain rights, including the right to:

  • Utilise and obtain counselling and support before and during the adoption.
  • Obtain all information necessary and pertaining to the birth parents and the child.
  • Obtain a legal decree of adoption. This decree institutes the child’s legal relationship with the adoptive parents.
  • Obtain and receive a birth certificate for the child that depicts the adoptive parents as the legal parents.

How Does the Adoption Process Work in South Africa?

The adoption process in South Africa is governed by the Children’s Act 38 of 2005. It starts with a screening process where an accredited adoption social worker or agency assesses prospective adoptive parents. This assessment includes background checks, home visits, and ensuring the prospective parents meet eligibility criteria. Once the social worker approves the adoption, they file an application at the Children’s Court.

The Children’s Court then evaluates whether the adoption serves the child’s best interests, ensuring that necessary consents from the biological parents or legal guardians are obtained. In cases where the biological parents cannot be located, the court may waive consent.

Once the court grants the adoption order, the child is legally recognised as the child of the adoptive parents, with all rights, including inheritance rights. A new birth certificate is issued, listing the adoptive parents as the legal parents.

What Are The Parental Rights And Responsibilities Of Adoptive Parents?

In all aspects, adoptive parents become the legal parents of the child and are responsible for providing care, support, and protection for the child. The legal affiliation concluded by the adoption decree is permanent, and adoptive parents have the same rights and responsibilities as birth parents, including but not limited to the right to make decisions about the child’s education, health care, and religious upbringing.

The impact of adoption further is that once the court has granted the adoption, the child becomes the legal child of the adoptive parent(s) and has the same rights as a biological child. The above includes the right to inherit from the adoptive parents and the right to take their surname.

Need Legal Help in Foster Care and Adoption Matters? Contact Our Experienced Attorneys Today For A Consultation

The Children’s Act 38 of 2005 creates a legal framework that ensures the best interests of the child are prioritised in both foster care and adoption. Whether a child is placed in temporary foster care or adopted permanently, the welfare of the child remains paramount. The Act guarantees that adoptive parents are equipped with the same rights and responsibilities as biological parents, providing children with the legal, emotional, and social protection they need. By understanding the distinctions between foster care and adoption, prospective parents can make informed decisions that ultimately secure a nurturing and stable environment for the child’s future.

Contact one of Burger Huyser Attorneys’ expert adoption attorneys for assistance with navigating the legal complexities of adoption to ensure that both the adoptive parents and the child’s rights are fully protected in line with South African law.

Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358 Pretoria call 064 548 4838;

Centurion call 061 516 7117; Alberton call 061 515 4699Bedfordview call 061 536 3223

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE