Hi there and thank you for your question,
I will try to assist you with your legal question but please feel free to ask as many follow up questions as you like until you are 100% satisfied.
Adoption is the legal act of permanently placing a child with a parent or parents other than the child’s birth mother or father. A legal adoption order ends the parental rights of the birth mother and father and hands over the parental rights and responsibilities to the adoptive parents.
In South Africa, the only way in which you can legally adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker, functioning within the statutory accredited adoption system. When working through an adoption agency, the process usually starts with the prospective adoptive parents submitting an application to the agency. Each agency has its own set of requirements – it’s a good idea to phone the particular agency to get their set of criteria before you actually apply in writing.
Accredited and designated child protection organisations
- ACVV (Afrikaanse Christelike Vroue Vereniging)
- Cape Town Child Welfare
- Child Welfare South Africa
- AFM Abba Adoptions
Note: Some of the above organisations may charge a fee relating to adoption.
If you want to go the Guardianship route, then you'll need to approach the High Court and get a Court Order in terms whereof you are appointed as the child's guardian. It might be a quicker route to go, unless the child's parents oppose your application - then it could become expensive and drawn out!
Section 24 of the Children's Act state that guardianship may be assigned to another person other than the child's natural guardian. It reads as follows:
24. Assignment of guardianship by order of court.—(1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.
(2) When considering an application contemplated in subsection (1), the court must take into account—
(a)the best interests of the child;
(b)the relationship between the applicant and the child, and any other relevant person and the child; and
(c)any other fact that should, in the opinion of the court, be taken into account.
(3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.
In other words, the only way in which you and your wife will be appointed as guardians of the child, would be if you bring such an application to the High Court that has jurisdiction over the child.
I would advise you to obtain the services of an attorney to assist you with this, as the application could be a very complicated one and must follow the rules of the High Court.
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Good luck and best regards,