[21]In their current form the impugned provisions exclude from their ambit potential joint adoptive parents who are unmarried, but who are partners in permanent same-sex life partnerships and who would otherwise meet the criteria set out in section 18 of the Child Care Act.[1] Their exclusion surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection and support important to a child’s development, which can be offered by suitably qualified persons.[2]
[22] Excluding partners in same sex life partnerships from adopting children jointly where they would otherwise be suitable to do so is in conflict with the principle enshrined in section 28(2) of the Constitution. It is clear from the evidence in this case that even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they
- ↑ Section 18(4) of the Child Care Act provides that:
“A children’s court to which application for an order of adoption is made in terms of subsection (2), shall not grant the application unless it is satisfied―
(a) that the applicant is or that both applicants are qualified to adopt the child in terms of section 17 and possessed of adequate means to maintain and educate the child; and (b) that the applicant is or that both applicants are of good repute and a person or persons fit and proper to be entrusted with the custody of the child; and (c) that the proposed adoption will serve the interests and conduce to the welfare of the child; and (d) that consent to the adoption has been given by both parents of the child, or, if the child is born out of wedlock, by both the mother and the natural father of the child, whether or not such mother or natural father is a minor or married person and whether or not he or she is assisted by his or her parent, guardian or in the case of a married person, spouse, as the case may be: Provided that such natural father has acknowledged himself in writing to be the father of the child and has made his identity and whereabouts known as contemplated in section 19A; and (e) that the child, if over the age of ten years, consents to the adoption and understands the nature and import of such consent”. See also section 40 of the Act (as read with section 18(3)) which provides that: “… regard shall be had to the religious and cultural background of the child concerned and of his parents as against that of the person in or to whose custody he is to be placed or transferred.”
- ↑ These values are also reflected in the Preamble to the United Nations Convention on the Rights of the Child which states that, “… the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding”.
