“Divorcing” one’s adoptive child

The Johannesburg High Court dealt with a rare request by a litigant, in the case of Grant versus Carmelita and Others.

The biological parents of the two children concerned in the case, divorced in 2005. The children’s mother remarried the following year. Her new husband, the applicant in this case, legally adopted the two children, with their biological father’s consent, in 2007. The second marriage did not succeed, however, and the biological mother and adoptive father divorced a year after the children were legally adopted.

Despite having given up his legal rights as a father, the biological father continued a relationship with his biological son, and paid maintenance towards his needs. The daughter was born after the mother had separated from the biological father and begun co-habiting with the applicant, and she did not have any relationship with her biological father.

The applicant complained that, during his marriage to the mother, she had denied him any decision-making power with regard to his adoptive children. He further complained that, after his separation from the mother, his relationship with his adopted children deteriorated. He had sporadic contact with the children until 2012, at which point all contact between him and the children ceased.

Rather than seeking to enforce his rights to contact with the children, their adoptive father then sought an order from the court rescinding the order which made him the children’s adoptive father – effectively “divorcing” his adopted children.

The Children’s Act permits rescission applications in the case of adoptions, but within a reasonable time and in any event not exceeding two years from the date of the adoption. This is usually on application by the adopted child or a biological parent in a case where an adoption order was wrongly granted. It might be that the biological parent’s consent was not given, or the adoptive parent did not qualify to adopt. The applicant in this case was the adoptive parent, however, and he made his application six years after the adoption. On this basis, and in light of their interpretation of the best interests of the child, the Registrar of Adoptions opposed the application. The Registrar further suspected that the applicant was seeking to evade maintenance obligations towards the adopted children.

The Family Advocate and a counsellor and social worker supported the rescission of the adoption order as being in the best interests of the children. They argued that this would align the legal position with the factual position, whereby the applicant had terminated his emotional relationship with the children and had no desire to restore such relationship. Their biological father was now playing a fatherly role in their lives.

The court noted the limitations placed upon rescission applications by the Children’s Act. However it also noted its powers and duties as the “upper guardian” of all children. The best interests of children were always paramount. It found that, in the current case, there was a conflict between the statute and its constitutional obligations to the children in the case, and that the latter had to take precedence.

The court reasoned that the applicant’s adoption of the children was a legal fiction, as he had never exercised parental rights in relation to the children, despite forming emotional bonds with them.

The rescission, the court concluded, would have no negative effect on the children as the relationship with the adoptive father had already broken down, and the biological parents were financially and emotionally able to care for the children.

The court accordingly granted the order setting aside the applicant’s adoption of the children, thus restoring parental rights to the biological father.