Access to adoptions will decline if Children’s Act amendments are passed

by | Adoption, Child Protection Legislation & Child Rights

As 2018 drew to a close, the war of attrition over South African adoption took an ugly turn. In an unambiguous act of aggression, the government added a last-minute amendment to the Children’s Act making any payment for national or intercountry adoptions illegal. This includes professional fees for social workers, psychologists and attorneys, donations and even the recouping of expenses. The amendment’s stated goal is to make adoptions more accessible. But will it, or will it make adoption the sole domain of overburdened, inexperienced Department of Social Development social workers, and result in an end to adoptions in South Africa?

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Traditionally, making and amending laws is a painstakingly slow and careful process, so it isn’t a good sign when lawmakers add a last-minute amendment to an act, especially not after five months of intensive consultation with interested parties. It smacks of an ambush, more so when it involves something as critical as the fees that can be charged for adoptions, and who can participate in the process.

The three amendments were added without consultation just prior to the publishing of the amendments in the Government Gazette in late October, and the adoption community was not told about the additions until the National Child Protection Forum meeting in late November 2018, just a week before the end of the public consultation process.

Although they seem innocuous on paper, if passed, the amendments would make it illegal for anyone to “give or receive, or agree to give or receive, any consideration, in cash or in kind, for the adoption of a child”. This includes social workers, psychologists, attorneys, therapists, organs of the state and the child protection organisations involved with national or intercountry adoptions. The only exception would be biological mothers, who would still be able to receive compensation for necessary expenses. It would also “prohibit the rendering of professional services in connection with the adoption of a child by a lawyer, psychologist or a member of any other profession”.

The stated motivation for these amendments is to make adoptions “more accessible”. It is a very sympathetic argument which is compelling for many people. But the question is, will making the payment for adoptions illegal make adoptions more accessible? And even more pertinent, is increased accessibility even necessary?

The answer is complex. While it is true that adoptions aren’t currently accessible to all, it is not for the reasons stated by the Department of Social Development. The department has long contended that adoptions are elite and exorbitantly expensive. But extensive studies have shown no evidence to support these claims.

Adoptions fees are carefully regulated by social development itself, and while the average cost of adoption, between R12,000 and R15,000, is too high for the poor, social workers adjust their fees to the means of the individual. In particular, child protection organisations that receive subsidies for the Department of Social Development are known to provide very inexpensive adoptions, with some parents noting that their adoption cost as little as a few thousand rand. Others were free.

The assertion that cost is the main issue preventing accessibility is therefore inaccurate. Instead, adoptions are currently inaccessible to the poor for two main reasons.

The first relates to the social workers currently practising adoption. Adoptions are complex, technical and highly regulated. This is essential to protect children but has limited the number of practitioners in the industry.

At present, there are 59 adoption social workers in private practice and 93 designated and accredited child protection organisations (DCPOs) mandated to provide professional adoption services nationally. But the number is seen as insufficient to provide adoption services across the country.

In addition, while many of the organisations involved with adoption have posts that are subsidised by the government, it has been well documented that the department is notoriously bad at paying subsidies sufficiently and on time. Surviving in the adoption industry is already challenging. Moreover, accessibility has been compromised by an omission in the Children’s Act of 2005. For an inexplicable reason, the original act prohibited Department of Social Development social workers from performing adoptions.

This is the chief reason for limited accessibility. Crucially, however, this concern has already been addressed. Once passed, another proposed amendment to the Children’s Act, this one a thoroughly negotiated change, will allow appropriately skilled Department of Social Development social workers to perform adoptions.

The industry has welcomed this move and has been mentoring and training department social workers in preparation for the amendment being ratified. According to the National Adoption Coalition, if properly managed, the inclusion of department social workers in the practice of adoption could make adoptions more accessible.

But if fees become illegal, it will have the opposite effect. Given the inadequacy and irregularity of subsidies, child protection organisations are reliant on fees to survive, as are private social workers for whom it is a sole source of income. If fees become illegal, most, if not all current social workers will have to stop practicing.

In their absence, only the department social workers will be able to complete adoptions (using taxpayer’s money). Department social workers are, however, understandably inexperienced at adoptions. Plus, it is common knowledge that the department is under-resourced and over-worked. It cannot cope with its current load. The likely outcome will be fewer opportunities for adoption, not greater accessibility.

And it isn’t just social workers that will be affected. Adoption screening will become impossible for many, because psychologists and medical professionals will no longer be able to charge for providing psychological and medical assessments during screening. In addition, medical professionals and therapists would not be able to assess children prior to declaring them adoptable. Many of these services are already provided free to adoptable children. But the organisations providing these services exist on donations which, if associated with adoption, would also be illegal.

Disturbingly, another implication of the amendments is that intercountry adoptions would probably cease. There are no government subsidies for intercountry adoptions and services are currently provided by 10 designated and accredited child protection organisations. They have working agreements that are supported and approved by the South African Central Authority (SACA). The working agreements and the Gazetted Regulations provide for the receipt of professional fees that are highly regulated and were capped by SACA in 2012. This makes the proposed amendment to clause 259 the least explicable and justifiable of the amendments.

To quote the National Adoption Coalition:

“Why should the state carry the financial responsibility for these services when most receiving countries have adequate financial support systems in place to pay for these services?”

In addition, intercountry adoptions are extremely technical and labour intensive because of the complexity of changing a child’s identity across international borders, and the need to prevent inducement, exploitation, sale and trafficking of children as well as improper financial gain through adoptions.

For this reason, it is unlikely that inexperienced department social workers will be able (or willing) to perform them. For some, this may not seem like a loss, but given that the majority of the children placed in intercountry adoptions have special needs, or are older and therefore not likely to be adopted locally, an end to inter-country adoptions would be tragic.

Another troubling aspect of the proposed amendments is the removal of subsection 3 of clause 250 from the Children’s Act. The effect would be to prohibit the involvement of any professionals other than social workers in the adoption process.

The impact will be that lawyers, psychologists and other professionals including medical practitioners, trauma counsellors, therapists, migration consultants, researchers and social justice advocates who render vital professional services to children, will no longer be allowed to contribute their expertise to any adoptable or adopted children, their biological or adoptive families.

The adoption community is particularly concerned about how the best interests of children will be served if attorneys cannot assist with adoption cases, especially contested ones, and psychologists, therapists, trauma counsellors and medical practitioners cannot assist with assessments and preparing children for adoption.

So, if the probable result of the change is a slowing down or even an end to adoptions, why would the government include these amendments?

According to child protection activist Dee Blackie, it is final proof of the Department of Social Development’s “constructive prevention of adoption” which has up to this point been evidenced by the sharp decline in adoption numbers (down 50% from five years ago to 1,186 in the 2017/2018 financial year), and in the endless bureaucratic problems experienced by adoptive parents, children and social workers during the adoption process.

But interestingly, although the amendments are allegedly being promoted from high up within Social Development, not everyone in the department agrees with the proposed changes. At the infamous National Child Protection Forum meeting, there was some high-profile opposition to prohibiting professionals from charging fees. In addition, as recently as 9 November 2018, World Adoption Day, new Minister of Social Development Susan Shabangu partnered with the whole adoption community in advocating for adoption as an essential part of the country’s child protection strategy.

As 2019 begins, the most important question is, what happens next? The adoption community had only a week to respond to the amendments after the meeting at which they were disclosed, a meeting which was originally scheduled for as late as the 27 November 2018, just two days before public comments closed. But, after the initial shock, it inundated the department with critiques.

On the final day for responses, one of the designated email addresses was rejecting content because it was too full. The community also put together a petition protesting against the small amount of time given to respond to these last-minute amendments, and requesting an extension to send comments.

To date, the petition, initiated by Debbie Wybrow, children’s rights attorney and founder of Wandisa (a child protection organisation designated and accredited for adoptions), has had more than 9,300 signatures. Wybrow created the petition to ensure that other interested parties, including adoptive parents and children, and friends of adoption, had an opportunity to protest.

Interim results of the petition and objections to these clauses were then sent to the Minister of Social Development, the chair of the portfolio committee for Social Development, the national Department of Social Development and the President of South Africa. But, shortly after the closing date for applications, Cabinet, Parliament and the chair of the portfolio committee for Social Development all went on leave. So, the community has had an agonisingly long wait to see if its protests and petition were successful.

Regardless, it is a battle the adoption community can’t afford to lose. It is almost inevitable that if the amendments are passed, access to adoptions will decline, not improve.

The Department of Social Development will create a monopoly on adoptions which it can use to slow the pace of the adoption process even further, and increasingly diminish adoption numbers. It will cherrypick cases and probably bring an end to intercountry adoptions, and possibly national adoptions too.

The result is that children will languish in the system instead of being in families, and temporary care facilities and child and youth care centres will end up full, providing no care options for children entering the system.

How this can be in the best interests of our vulnerable children, many of whose only option for permanency is adoption, is inconceivable. For those children, the future looks bleak. DM

First published in the Daily Maverick: 07.01.2019

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