Implications of the Proposed removal of adoption fees in Children’s Act Amendment

The new proposed amendments of the Children’s Act on Adoption will, if implemented, have an adverse effect on private adoption social workers (including PROCARE), as well as NGOs who are dependent on adoption fees to render adoption services. As a result, this sector will sadly not be able to render adoption services in the future.

We wish to provide you with the following information and opinions regarding the proposed amendments:

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The Department of Social Development’s position

There has been much interest in the public domain about the removal of the Adoption Fee Clause as proposed in the Children’s Act Amendment. It is important to first note that the Department of Social Department began its consultation on the proposal of the amendments to the Children’s Act in 2016 and continued in 2017 and 2018 at the National Child Care and Protection Forum (NCCPF).
Provincial consultations were conducted during the months of August and September 2018. The consolidated inputs into the bill were gazetted from 29 October until 29 November 2018. The gazetted bill was further discussed and consulted on during the NCCPF which was held from 20 – 22 November 2018 where the removal of adoption fees was discussed at length.

There are 23 Civil Society Organisations that form part of the NCCPF - including the National Adoption Coalition of South Africa. The Adoption Fee Clause amendment provides that adoption is one of the designated child protection services as stipulated in Section 105 (5) of the Act. Like all other designated child protection services, fees should not be charged for adoption because it is not a business but a child protection measure.
The state is already taking financial responsibility of all designated child protection services which must include adoption services. There is no reason why adoption services should be isolated and receive special focus.
Adoption service should not be commodified but be viewed as a means of protecting the best interests of children by placing them with permanent and suitable families. This is supported by Section 229 of the Act, which provides the purposes of adoption as being, to protect and nurture children by providing a safe, healthy environment with positive support; and to promote the goals of permanency planning by connecting children to other safe and nurturing family relationships intended to last a lifetime.

The issue of fees for adoption created challenges where the best interests of children were compromised because not enough effort was made to consider other alternative care options catered for in the Act which include to retain children within their families of origin, such as family reunification, parental and family care, foster care and adoption by family member, guardianship, parental responsibilities and rights, before adoption of a child by a person outside the child’s family can be considered.

Fees are also limiting other parents who are interested in caring and nurturing children but cannot afford adoption fees.

The removal of adoption fees does not mean that the Department is prohibiting social workers, lawyers, psychologist and other professional to render relevant services in relation to the adoption of children. They may continue to render services the same way as in all other areas in the Children’s Act where their services are required. This relates to Section 22 of the Constitution of the country which allows for the regulation of how one can exercise his or her profession.

The designated Child Protection Organisations rendering adoption services may apply for funding for designated child protection services from the Provincial Department of Social Development in terms of Section 105 (1). The allocation of funding will be based on availability of funds from the provincial offices.
The Children’s Second Amendment Act 18 of 2016, made an inclusion of Social Workers in the employ of the Department of Social Development to provide adoption services in order to make services accessible and free to all communities.

The Department has trained 889 Social workers in provinces to render adoption services. This training is ongoing and it will empower and skill them to render effective and efficient services.

The National Adoption Coalition of South Africa on the proposed amendment

Opinion by Katinka Pieterse, Chairperson National Adoption Coalition of SA (NACSA)

The Department of Social Development (DSD) has drafted last minute changes to the proposed draft amendments that are aimed at excluding all private professionals from the adoption process in South Africa. The proposals include making it illegal for anyone working in the adoption sector to charge a fee for their services. 

These specific amendments dealing with professional fees and adoptions were made by the DSD and hastily pushed through after the initial consultation processes with the NGO sector had already been completed in July and August 2018. 

These changes were not part of the drafts that were consulted with the adoption sector and role players before, and in which NACSA participated in at both national and provincial levels.     

The timing of the proposed amendments to section 249 & section 259 is hugely problematic – these were only included in the gazetted third amendment of 29 October 2018 – and the first dialogue around these changes took place during the National Child Protection Forum from 21-22 November 2018, providing the sector with just one week to make written submissions - very little time for a coordinated response from the adoption sector.  One can only conclude that it is DSD’s hope that these amendments can be pushed through without a coordinated challenge.   

Despite the radical change of direction that the proposed fees amendment introduces, DSD did not consult or make an effort to meaningfully engage with the broader adoption community as to what the massive implications would be of such changes and the impact on adoptions and adoptable children as a whole.

Adoption Amendments Deny Opportunity to Most Vulnerable Children

By Albert Fritz, Western Cape Minister of Social Development, 14 January 2019

Families are the bedrock of any society and are the most important social unit in providing a nurturing and supportive environment for children to thrive and grow. In a country with an estimated 3.7 million orphaned and vulnerable children, legislation should facilitate the seamless adoptions. However, as is all too often the case, proposed national legislation will make it more difficult for would-be parents to adopt. Such a policy denies the most vulnerable children in our society of an opportunity to enjoy a better life.

The proposed amendments to the Children’s Act were gazetted in October 2018, giving the public 30 days to comment. In essence, the amendments will prohibit all payments to social workers, lawyers and other professionals in NGOs or private practice for performing adoptions, even if it is only to recover basic costs. Adoptions would effectively become the sole responsibility of the state’s social workers. The proposed amendment allegedly aims to make adoptions “more accessible”, but the real outcome will be a total shut down of all adoptions in South Africa.

South African social workers have exceedingly high caseloads, over 100 on average, despite South African norms and standards recommending a maximum of 60. Social workers in developed countries like the UK and US have far less, at around 20 to 30 children per social worker. The consequences are clearly visible in South Africa, as all provinces, excluding the Western Cape, are sitting with thousands of backlogs in foster care cases which need to go to court.

The situation has become so dysfunctional that the North Gauteng High Court has had to repeatedly issue orders extending all foster care cases in the country to prevent orphaned and vulnerable children from being left in a legal limbo, and to ensure that they can receive SASSA grants. The High Court has now lost its patience with the national Department of Social Development (DSD) and has ordered that steps be taken to finally eradicate the foster care backlog by no later than November 2019.

In this context, the proposed amendments will ensure that DSD’s social workers continue struggling to attend to their existing caseloads and to meet the requirements of the High Court ruling. Additionally, social workers will have to make more time for adoptions. In practice, adoptions will be placed on the backburner, and will cease to occur almost entirely.

NGOs and the private sector take tremendous strain away from the DSD as they efficiently and safely process adoptions for those who those who prefer to use private services. The Departmental social workers can also process adoptions where appropriate, but this does not need to be done to the exclusion of NGOs or the private sector.

What’s more, by making government-employed social workers responsible for processing adoptions, we risk the closure of many private institutions and NGOs which provide adoptive services. In the Western Cape, there are currently 7 organisations which provide adoptive services on behalf of the WC DSD. In total, 86 social workers are employed by these organisations, who would otherwise be made unemployed. This number does not account for the many migration specialists, psychologists and medical practitioners who will also be excluded as a result of the amendments.

The Sunday Times recently explained that a further rationale behind the amendments is reportedly to reduce the number of adoptions so as to maintain children’s “spiritual cultural” ties. However, in most cases of adoption, relatives and parents of the child cannot be found, despite expensive advertising exercises to locate them.  Amending the adoption process in this way risks leaving children in a perpetual foster-care placement and creates an additional burden on the child, family and social worker who will have to appear in court every two years for an extension.

Consequently, the amendments will deny capable, loving, and financially stable would-be parents the opportunity to have a family while also offering children the kind of nurturing environment they need and deserve. Adoptive homes such as these give children access to opportunities such as university that the adopted child would otherwise not enjoy.

Under my leadership, the WC DSD remains committed to ensuring the wellbeing of all children in the province. As such, I find the proposal that the state be made the sole custodian of the adoption process extremely problematic and cannot support it. The state should not limit opportunities afforded to the most vulnerable young people in our society.