FOR IMMEDIATE RELEASE
CAPE TOWN: 19 July 2022
TT & BM vs MINISTER OF SOCIAL DEVELOPMENT & OTHERS – CASE NO 43969/2020
On 20 and 21 July 2022 the Johannesburg High Court will hear an application brought by the Women’s Legal Centre Trust (WLC Trust), on behalf of its clients TT and BM, in which they challenge 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 placed up for adoption, and despite the adoptions having been found to be in the children’s best interests, the Department has continued to undermine TT and BM’s rights to make decisions about their reproductive health and rights associated therewith. The Department’s actions appear to be based on a purported attempt to keep the children with their biological families. The children do not know their biological families. They have spent over three years in the care of their prospective adoptive parents, with the adoptions having not yet been finalised due to the obstructive conduct of the Department.
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.
TT and BM are both women who gave their informed consent to place their children up for adoption. They were both majors at the time of exercising their rights. They took these decisions, as they are entitled to, without informing their own parents of their pregnancies or their intention to place their children up for adoption. Both were the sole present biological parents of their minor children. TT and BM had procured an adoption social worker, received counselling, and formally consented to the adoption of the respective children before a court as required in terms of s233(6) of the Children’s Act. Significantly both minor children have been in the uninterrupted care of their prospective adoptive parents for more than three years, and have been thriving. In both cases, the Children’s Court has found both children to be adoptable and the adoptions of the minor children by their prospective adoptive parents to be in their best interests.
The social workers employed by the Department have never met the minor children. They have focused their efforts in attempting to persuade TT and BM’s biological families to adopt them, despite the requirements for adoption by the prospective adoptive parents having already been met. They have harassed TT and BM. They have kept the minor children in legal limbo. They have made spurious allegations of impropriety and misconduct against the adoption social worker who assisted TT and BM in their decisions, all in an attempt to scupper the finalisation of the adoptions.
The Department’s conduct frustrates the best interests of the minor children as well as the rights of TT and BM to take their own decisions to place their children up for adoption. Through this application, TT and BM seek to vindicate their own rights and give effect to their decisions to place their biological children in the care of loving families who are able to support them.
The application will be heard virtually on 20 and 21 July 2022. The heads of argument filed by the parties will be circulated on request.
The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.
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