TT & BM vs MINISTER OF SOCIAL DEVELOPMENT & OTHERS – CASE NO 43969/2020 – VICTORY for women and children: UNLAWFUL AND UNCONSTITUTIONAL STATE INTERFERENCE IN THE RIGHT TO PLACE A CHILD(REN) FOR ADOPTION
The Women’s Legal Centre (WLC) welcomes the judgment handed down by the Johannesburg High Court on the 19th of November 2022. The court declared the interference by the Department of Social Development in the legal adoption of two children to be unlawful and that the interference violated the rights of the biological mothers including their rights to dignity and privacy. The Court also found that the Department of Social Developments Practice Guidelines on Adoption were unlawful and unconstitutional.
On the 20th and the 21st of July 2022, the Johannesburg High Court heard an application brought by the Women’s Legal Centre on behalf of its clients TT and BM, in which they challenged the unlawful interference by the Department of Social Development (Department) with TT and BM’s decisions to place their biological children up for adoption.
Despite both TT and BM having given their informed consent for their children to be adopted, and despite the adoptions having been found to be in the children’s best interests the Department through its social workers delayed and frustrated the finalisation of the adoptions. These delays and the violation of TT and BM’s rights to privacy frustrated the adoption of the children for over three years.
In December 2020 the WLC Trust launched an application in the Johannesburg High Court for an order –
- declaring the Department’s conduct unconstitutional and in breach of TT and BM’s rights to dignity, privacy and bodily and psychological integrity, as well as the minor children’s rights to have their best interests held paramount;
- reviewing and setting aside the Department’s decision not to recommend the adoption of TT’s minor child, BT, by the child’s prospective adoption parents and despite the adoption being in BT’s best interests;
- reviewing and setting aside the Department’s Practice Guidelines on National Adoption, on which the Department relies in justification of its unlawful and unconstitutional conduct; and
- declaring constitutionally invalid sections 7(1)(f), 231(3) and 231(8) of the Children’s Act 38 of 2005, to the extent that these provisions are interpreted in a manner that gives credence to the Department’s conduct.
On 19 November 2022 the Gauteng High Court vindicated the rights of the biological mothers as well as the children by confirming the relief sought by the WLC on their behalf. The Court found that:
- Our clients, the minor children as well as their prospective adoptive parents are entitled to their rights to privacy as enshrined in the Constitution and that the Department’s position to make their personal details public was a violation of their rights;
- The Department has been directed not to remove the minor children from the care of their prospective adoptive parents;
- The Department of Social Development’s Practice Guidelines on National Adoption are declared to be inconsistent with the Constitution of the Republic of South Africa, 1996 and the Children’s Act 38 of 2005 and therefore invalid and set aside;
- The conduct of the Department and its relevant social workers in respect of our clients is declared to be in breach of their rights to dignity, bodily and psychological integrity, which includes the right to make decisions concerning reproduction and their right to privacy.
- The Department and its relevant social workers violated the rights of the minor children in that it did not act in the best interest of the children when interfering with and delaying their adoption unlawfully;
- That the conduct of the individual social workers cited in the case be brought to the attention of and referred to the South African Council for Social Services Professionals;
- A copy of the judgement is also to be provided to the presiding Magistrates in the Children’s Court dealing with both minor children’s adoption applications to ensure that they are aware that the conduct of the Department and its social workers are unlawful;
The judgment emphasises the importance of upholding women’s rights to bodily autonomy and their right to make decisions about their own reproductive health. It recognises the important role that adoption plays within our society and that women have the right to elect not to be mothers. The state has a positive obligation to ensure that there are no barriers to adoption and that in the adoption process there is no form of discrimination and prejudice against women who opt to make use of the adoption system. In an age where women’s reproductive health rights are under threat, the judgment provides much needed clarity to the state on its obligations in respect of ensuring that these rights are respected, protected and promoted.
We express deep gratitude to our clients who in the face of prejudice were required to have resilience. This judgment hopefully closes the door on what has been an unnecessary emotionally traumatic experience. We further express our gratitude to our counsel Advocates Melanie Feinstein, Nyoko Muvangua and Nikki Stein who have worked tirelessly to advance the rights of women.
The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights to equality through litigation, advocacy, education, advice, research and training.
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