The Grinch that stole Christmas for South Africa’s most vulnerable orphaned and fostered children
It’s Christmas time, a time of joy, celebration and family. But in a country with tens of thousands of forgotten children in institutional care, what do an 11-year-old, abandoned at his school in Grade one, a 7-year-old living in a child and youth care centre while the only parents he has ever known fight a desperate legal battle to adopt him, and an 18-year-old made homeless when she finished her final matric exam have to celebrate this Christmas?
James*, Sky* and Ezekiel*, three children from different provinces, of different ages, genders and races, whose stories show that even the best institutions can never replace family care.
The preamble of the Hague Convention to which South Africa has acceded prioritises permanent family solutions over any other form of care.
It states that “for the full and harmonious development of [their] personality”, every child “should grow up in a family environment, in an atmosphere of happiness, love and understanding”.
It further states that “national adoption or other permanent family care is generally preferable, but if there is a lack of suitable national adoptive families or carers, it is…not preferable to keep children waiting in institutions when the possibility exists of a suitable permanent family placement abroad. Institutionalisation as an option for permanent care, while appropriate in special circumstances, is not…in the best interests of the child.”
But despite our signature on the document, South Africa seems very far from prioritising permanent family care. Department of Social Development (DSD) practice guidelines have recently been declared unconstitutional in court and the department was sanctioned for elevating them over the Children’s Act, the Hague Convention and the best interests of the child, which in the case of adoption should be “paramount”.
CASE 1
James — the authority also forgot about the boy forgotten at school
Starting Grade 1 was exciting for little James. He loved the kind teachers, the school meals and the excitement of learning to read, write and do maths. He was clever and quick to grasp new concepts. But while other children looked forward to the weekends, he dreaded them. His mother was never home, and his granny, who had been forced into caring for James and his little sister Sarah*, was increasingly frustrated and angry.
Nothing prepared him for that rainy Friday in May during his second term at primary school though.
When the bell rang for the end of the day, James watched as his friends were collected. But there was no one there to fetch him. As the afternoon wore on and extra murals finished, still no one came. By the time the principal found him when he did his rounds of the school before heading home for the weekend, James was all alone in the rain, huddled in a corner clutching his school bag, eyes focused on the gate so he didn’t miss his lift when it came.
Alarmed, the principal called his family. When he finally got through, he was told that no one would be fetching James, his family no longer wanted him. They’d left the 7-year-old at school to “figure out his life”.
Shocked and heartbroken, the principal began trying to find a social worker, but no one was available on a late Friday afternoon. Eventually, he contacted Isiaiah 54 Children’s Sanctuary who offered to look after James until social workers could make a permanent plan for his care.
At a loss about what else to do, James’ principal raided the lost property storeroom for a clean uniform for the little boy to wear to school on Monday, then went to collect James’ meagre belongings before driving him to the sanctuary in the pouring rain.
Visibly moved, he delivered James, sodden and devastated, still clutching his school bag and an empty lunch box. Along with a black dustbin bag with old clothes and shoes, it was all this tiny boy had left of the first seven years of his life.
After his principal left, Youandi Gilain from the sanctuary said James came to her and said, “thank you auntie for keeping me, I don’t belong anywhere”.
James spent the weekend at Isiaiah 54 and then on Monday, social workers began looking for a permanent solution for him. His family was adamant that they didn’t want him back, but rather than finding a foster care placement for him, he was inexplicably placed in a Child and Youth Care Centre (CYCC). Despite its caring assistants, with 80 children and dormitory accommodation, the CYCC they chose for him could not have been further from a family environment.
Then it seems that those in authority also forgot about the boy who was abandonned at school.
That was in 2019.
Youandi didn’t forget James though. She says she thought about him often and wondered how he was doing. Then in 2022, while doing a series of talks to boys in institutional care about puberty and manhood, she recognised James. 10 at the time, James told her how lonely he was and that no one ever visited. Despite only having spent a week at the sanctuary, he told her that he missed them and his time there.
Heartbreakingly, he begged her to let him “come home” and “promised to be a good boy if he could just go home with her”. Explaining that she couldn’t take him was one of the hardest things that Youandi has ever had to do.
She didn’t see him again that year. Then in October 2023, his social worker contacted her to say that despite excelling at school, James was not doing well emotionally. Confirming how lonely he was, she said that when the other children in the CYCC went home for holidays and weekends, he was left on his own. He was desperate for her and Glynnis, the head of Isiaiah 54, to visit. The following month when they went to see him, taking along some treat sweets and cooldrink, he was overjoyed. They also invited him for Christmas. So have the family fostering his younger sister Sarah. They didn’t want James, but were happy for him to spend Christmas with Sarah. James’ social worker told him he has to choose.
This Christmas, the lonely little boy has the prospect of being with one of the few people who love him. But, four and a half years since that fateful Friday, and there is still no permanent plan for his life. Barring a family coming forward to look after him, he will languish in care for the remaining seven years of his childhood.
CASE 2
Sky – being punished for her ‘unlucky behaviour’
That was Sky’s fate. Like James, she entered a CYCC when she was in foundation phase at school. She turned 18 this year and was given notice that as soon as her matric exams were finished, she had to move out, to a shelter if necessary. There would be no exit strategy for her.
Now an adult, Sky’s story is her own to tell. But, CYCCs have a legislative and moral prerogative to develop an aftercare programme for all children exiting the home to avoid them becoming one of the horror statistics of previously institutionalised young adults left homeless, addicted, pregnant, living in poverty or making a living through prostitution after exiting a CYCC. So, the reason for the CYCC’s lack of aftercare is noteworthy.
It seems that Sky is being punished for her “unlucky behaviour”.
Veteran child protection activist Luke Lamprecht explains that children respond to trauma in different ways. Many children respond through sadness, tears, depression and by becoming more dependent on adult care and support. Lamprecht describes how adults tend to feel sympathetic and caring towards those children. But others respond to trauma with anger, substance abuse, self-harm, promiscuity and disrespect of authority. Not surprisingly, Lamprecht says that adults don’t feel quite as sympathetic towards children who spit in their faces, scream, throw rocks at their cars or flagrantly disobey rules.
Extensive research shows that these children have been overwhelmed by their circumstances beyond their ability to cope, and their nervous system takes over with one of the well-known “f” responses: “fight, flight, fawn, freeze or flop.” Psychologist Dr Stephen Porges says that when a child’s nervous system has been compromised through trauma, it “replaces patterns of connection with patterns of protection.”
Children with unlucky behaviours typically respond to perceived threats with a fight response. It’s no more conscious than freeze, fawn or flop, but adults, even those trained in childcare, often perceive it as deliberate defiance, rudeness, disrespect and self-destruction.
Those in authority at the CYCC seemed to have little appreciation of the genesis of Sky’s behaviour, despite “unlucky behaviours” being common for institutionalised children (especially those who have spent their teen years in care, and who have been let down by their families and those in authority). If, unlike other children from the same CYCC, there is no exit strategy for Sky, it will be life-defining.
Mercifully, caring adults from her local church have intervened so she won’t end up homeless or without options. But her road will be much harder than it could have been, and she may end up paying for her behaviour for years to come.
CASE 3
Ezekiel — a glimmer of hope that come Christmas 2024, he will finally have a family
Sky isn’t the only child paying for decisions made by adults on her behalf. Not far away from her, little Ezekiel is about to spend his 7th Christmas in institutional care.
Unlike Sky and James, Ezekiel is very happy in the busy CYCC that has been his home since he was two months old. He has lots of friends and loves the care workers. But, given that he was orphaned in 2020, and that there is a family desperate to adopt him, it seems inexplicable that he will be spending another Christmas in care.
Ezekiel’s story isn’t unusual. He was two months old when he was deemed in need of care, and removed from his mom whose mental illness and substance abuse led to her neglecting him. He was placed in a CYCC in December 2016, four days before Christmas. At the time, the home was short-staffed because of the Christmas holidays, so they asked one of their volunteers if she and her family could look after Ezekiel over that period.
The Thomas* family, foreign nationals from Europe who were resident in South Africa at the time, were happy to help. They fell in love with Ezekiel and since his biological father was unknown, none of his mother’s relatives stepped forward to assist while his mother was working on her health. The family hosted Ezekiel over weekends and holidays and helped with the costs of his schooling, clothes and medical needs. As foreign nationals without permanent residency, they were not permitted to foster him, but they were nonetheless screened and deemed a safe place for Ezekiel to spend extended periods of time.
They also helped Ezekiel’s mom visit her son. She was hopeful that she would be reunited with her Ezekiel, but was happy for him to spend time with the Thomases because she knew that they loved him.
Then in January 2020, the Thomas family’s work commitments ended, and they left South Africa. They visited again shortly thereafter and while in the country, they discussed if it would be best for Ezekiel to be adopted. His mother, still certain that she would be reunited with her son, denied the request.
But a month later, she contacted the Thomas family asking them if, when they returned to South Africa, they could “take” Ezekiel. She wanted him to be in their care.
Sadly, less than a month after the message, Ezekiel’s mother passed away.
Things weren’t so simple though. Despite Ezekiel’s mother’s wish for her three-year-old son to be raised by the couple and their desire to adopt him, they were blocked by authorities who told them that adopting him wasn’t possible.
In the interim, the Thomases proceeded with adoption screening in their home country, completing their requirements. Their local Central Authority then communicated with its South African counterpart which stated that Ezekiel was not adoptable and there was no working agreement with the country. They thus rejected all possible cooperation.
On a local level, the DSD also excluded the option of the Thomases adopting Ezekiel. It argued that according to DSD practice guidelines, the “subsidiarity principle” applied, and that an impermanent foster care placement in Ezekiel’s extended family or even placement with a stranger in his home country would always be preferable to permanent placement in another country.
In addition, frustratingly for the Thomases, their relationship with Ezekiel and the years of love and care with no intention of adopting Ezekiel precluded them from consideration. Authorities stated that their prior relationship with him amounted to “pre-identification” of a child, pre-selecting a child from a CYCC for the purpose of adoption, which is labelled “baby shopping”.
The matter dragged on for two years and finally in 2022, after the Thomases’ attorneys wrote to the various authorities, including the Children’s Court, authorities finally acted. Intent on placing Ezekiel in foster care with his mother’s aunt, he was taken to visit her several times.
However, the potential placement was opposed by two uncles of Ezekiel’s mother who had supported her when she was alive. Their view was that the aunt had rejected Ezekiel’s mother when she gave birth to him, and had absolutely no interest in the child. They believed that she wanted to foster Ezekiel because of the foster care grant.
Inexplicably, despite the extended family’s reservations, the DSD advised the social worker that she was to proceed with the placement, and that they would flag the matter with social workers in the aunt’s location in case things went wrong: “They suggested that we continue with the transfer and inform the new social worker about the allegations so that we can follow up on them.”
Litigation and legal proceedings
Concerned for Ezekiel, the Thomases took the matter to court to overcome the bureaucratic hurdles preventing them from even applying to adopt him.
In the judgement which was handed down on Ezekiel’s 7th birthday, the judge explained South Africa’s dilemma regarding intercountry adoptions.
The UN Convention on the Rights of the Child (UNCRC) and African Charter (AC) to which South Africa is a signatory prioritise national forms of care including foster care and institutionalisation over intercountry adoptions. These values are also reflected in the DSD practice guidelines for adoption.
As she pointed out, however, according to the Hague Convention, subsidiarity doesn’t mean that intercountry adoption is a “last resort”. Instead, while “due consideration” should be given to adoption in the state of origin, “national solutions for children such as remaining permanently in an institution, or having many temporary foster homes, cannot…be considered as preferred solutions ahead of intercountry adoption. Finding a home for a child in the country of origin is a positive step, but a temporary home in the country of origin in most cases is not preferable to a permanent home elsewhere.”
It further states that “permanent care by an extended family member may be preferable, but not if the carers are wrongly motivated, unsuitable, or unable to meet the needs (including the medical needs) of the particular child.”
Where there is variance between treaties, the Hague Convention takes precedence because, as the judge noted, the Children’s Act was enacted to give effect to the Hague Convention and section 256(2) of the Act states that “where there is conflict between the ordinary law of the Republic and the Convention, the Convention prevails”.
She concluded that the Convention accepts that “ensuring that a child grows up in a loving, permanent home is the ultimate form of care a country can bestow upon a child, even if that result is achieved through an intercountry adoption. It follows that children’s need for a permanent home and family can in certain circumstances be greater than their need to remain in the country of their birth.”
Citing a constitutional court ruling, she explained that in insisting on its interpretation of the subsidiarity principle, the DSD had: “failed to heed the constitutional imperative of the best interests of the child”, and “ignored the child-centred, case-by-case approach the Constitutional Court has prescribed should be adopted in considering international adoptions.”
For this reason, “the subsidiarity principle itself must be seen as subsidiary to the paramountcy principle. This means that each child must be looked at as an individual, not as an abstraction.”
The judge also stated that throughout the adoption provisions in the law, preference is given to those with a prior relationship with the child because it is clearly in the child’s best interests. The exception is intercountry adoption where DSD’s Guidelines state that “prospective adoptive parents who have ‘pre-identified’ a child will be precluded from adopting that child. These Guidelines are applied in all circumstances, irrespective of whether the prior relationship between the foreign prospective adoptive parents and the child makes them eminently best suited to adopt the child as it would be in the best interests of the child to be placed in their care.”
The judge said that “the DSD explained in its answering affidavit that these rules were designed to prevent child trafficking and ‘baby shopping’.” However, she stated, “they make absolutely no sense in the present context where there can be no question at all that the applicants will traffic [Ezekiel] and their prior relationship can never be regarded as their having pre-identified him as a suitable baby to adopt as it arose at a time when they had no intention at all of adopting [him]”.
Explaining that the Children’s Act gives preference to family members who want to adopt a child, but doesn’t specify that a child must always be placed with biological family, the judge stated that foster care would have made sense when Ezekiel’s mother was alive and reunification possible. But, after she died, adoption, which “offers permanent care and creates lifelong bonds between the adopted child and his adoptive family, carrying with it the duty of support and the benefit of possible succession… must in virtually all circumstances be preferable to foster care.”
Critically, the judge affirmed that there is nothing in Chapter 16, the intercountry adoption chapter of the Act, “that stipulates that where a local placement is available for a child, that child may not be declared ‘adoptable’ for the purpose of an intercountry adoption or would prohibit prospective adoptive parents who have had prior contact with an adoptable child from adopting that child.”
The DSD practice guidelines however specify that intercountry adoption is a last resort, and precluded if there is a prior non-biological relationship with the child. They also specify that for a child’s best interests, “priority must be given to adoption by the family of origin” or where this is not an option, to adoption within the child’s community or own culture before another culture or race can be considered. It further states that “adoption of a child outside his own family shall be considered only if no appropriate placement or adoption within the extended family is possible,” and that “as a priority, a child shall be adopted within his own community and State of origin”.
The National Guidelines further state that “language, culture, race and religion should always be respected and taken into consideration in the matching and placement of the child.” The judge expounded that the national adoption policy of the DSD, already ruled unconstitutional by Dippenaar J in the TT judgement, but still used in practice, reflects an aversion to cross-cultural adoptions, irrespective of the best interests of the child.
The judge ordered that bureaucratic hurdles be removed, allowing the Thomases to apply to the Children’s Court for Ezekiel’s adoption. This included the DSD appointing an intercountry adoption agency to work with the Thomases in their home country to consider the adoption. She further ordered that the Thomases appoint a local social worker to decide if Ezekiel is adoptable, and that neither pre-association nor local placement options should prevent his adoption. The Children’s Court must consider what is in Ezekiel’s best interests on an expedited basis, and in the interim, the Thomases can maintain contact and Ezekiel may not be removed from the CYCC without a court order.
Ezekiel will spend another Christmas in the CYCC which has been his home for seven years. Unlike James and Sky though, he has the promise of a visit from the Thomases and a glimmer of hope that next Christmas he will finally have a family.
But until the DSD sets its rigid, authoritarian stance on adoption aside, and regards the best interests of each child as paramount, those tasked with the well-being of SA’s most vulnerable children will continue to be the “grinch that stole Christmas”.
First published in the Daily Maverick 21.12.23
* names changed to protect their identities.
