Intercountry adoption and alternative care in South Africa: a model for determining placement in the best interests of the child

Abstract

The concept that the family forms the foundation of our society is well established in national and international law.1 The family unit provides a child with a sense of security and identity.2 Moreover, the family as a unit plays a pivotal role in the upbringing of children, enabling them to develop to their full potential.3 Children who have inadequate or no parental care are clearly at risk of being denied such a nurturing environment. The large number of orphaned children following the devastating effects of World War II highlighted the serious need for countries to consider appropriate alternative placement for such children.5 Recognising the importance of the family unit, the Universal Declaration of Human Rights (UDHR) expressly acknowledges the family as the “natural and fundamental group unit of society”.6 Article 16 of the UDHR further states that the family unit is entitled to protection by the state and society.7 However, the vulnerability of parents, families and children has been intensified by recent global, regional and national developments, including the global economic crisis, devastating consequences of the HIV/AIDS pandemic, widespread poverty,8 unwanted pregnancies,9 child abandonment,10 rapid urbanisation, and the increased migration of adults and children into and within South Africa in search of economic and political refuge.11 In particular, the impact of the HIV pandemic on children in South Africa cannot be understated. South Africa has the largest percentage of HIV/AIDS-infected persons in the world, resulting in many children in South Africa being deprived of a family environment. The importance of family and the role it must play in caring for a child cannot be doubted, and both the national law of South Africa and international law bear testimony to this. Accordingly, it is understandable that the biological family remains the primary favoured unit of care for a child. Where, for whatever reason, the natural family fails or is unavailable to care for the child concerned, national and international law make provision for the care of an orphaned and/or abandoned child (OAC). Family forms are changing around the world, and South Africa is typical in several respects. Diverse family arrangements and household forms are recognised as providing a family-type environment for a South African child. In understanding the meaning of “family” in South Africa it must be noted that the family may extend beyond the biological parents of a child to a multi-generational network of people who are linked by blood, including grandparents, aunts, uncles and cousins. Relationship can also include non-blood relationships as in the instance of relationship through the ties of marriage or ties of co-residence. Whilst not exclusive to South Africa, it must also be noted in South Africa under apartheid regime, policies and practices were designed specifically to protect the nuclear family. The Department of Social Development (DSD) drafted the White Paper on Families and this was approved in 2013. The White Paper made conscious strides in granting recognition to a diversity of family forms in South Africa. It departed from the assumptions held of Western or nuclear families only as a norm. It is in light of this diversity that the concept “family” must be read in this research. Consideration of placing a child in appropriate alternative care must be contemplated in light of the context of the human rights movement and the development and recognition of the rights of a child in his or her own right