Plan B with Rebecca Davis

So, this case, well, the appeal, had been brought by the Department of Social Development, and it was about adoptions.

So the situation involved two university students in Gauteng who gave birth to babies in 2018 and 2019, completely separate cases.

But in both cases, the biological fathers wanted nothing to do with the kids, and both mothers did not want their families, specifically their own parents, to know about the birth.

They wanted their babies to be adopted by unrelated families, presumably for reasons of stigma and judgment and the rest of it.

And in the first case, government social workers insisted that the mother's parents have to be informed in case they wanted to raise the baby.

And they did inform the mother's parents without her consent.

And in the second case, government social workers threatened to inform the mother's parents, but the mother got a court order preventing them.

And in both cases, there were unrelated families who wanted to adopt these babies, and the mothers wanted them to adopt these babies too, but both were only legally able to do so eventually five years later due to all this meddling by the department, the legal issues, et cetera.

And the first case was particularly awful because the initial adoptive parents withdrew because of all the uncertainty, and the baby went into temporary care, group home situation for months effectively unnecessarily and what was happening here was that social workers were ostensibly following the Department of Social Development's adoption guidelines which prioritized placement with biological relatives followed by people from the child's own community or culture with adoption by parents external parents of another race or culture supposed to be considered only if suitable same culture parents can't be found And what the Supreme Court of Appeal has now ruled is that the social worker's conduct in these cases was unlawful and unconstitutional.

And I should say there were other aspects of their behavior that were clearly wrong, including the fact that they ignored court orders from magistrates, etc.

But the basic principle here is that biological family, the court has found, does not automatically take priority when considering who should adopt a baby.

The Children's Act requires an individual assessment of the child's best interests.

And culture and family ties are relevant, but there is no fixed hierarchy.

And the judgment says that the National Adoption Guidelines should be struck down, which is in tune with the High Court's original ruling that they were unconstitutional, that race and culture cannot automatically determine adoption placements, that biological mothers' rights can't just be disregarded and that unnecessary bureaucratic obstacles to adoption should be reduced.

So the fundamental principle that the court has upheld here is that the best interest of the child must take precedence over any general preferences for a child being taken in by biological family or through cultural matching.

This is interesting to me, John, because as someone who has been through the adoption process, my son is adopted, I can confirm that what you will hear from social workers over and over again is that for a baby to be taken in by someone from their biological family is first prize.

And, you know, obviously it's understandable why they feel this way, but they will tell you, for instance, With great satisfaction that, you know, after three months, a distant relative came forward from the Eastern Cape and agreed to take in this baby.

And that is considered sort of a triumph for the department.

And in many cases, hopefully, that is genuinely a happy story.

But obviously there are cases where it is likely that that is not really reflective of what's going on here, that this relative may be taking the baby in out of some kind of grudging pressure or circumstances that don't perhaps lead to a terribly happy outcome for the baby.

So it is refreshing for me to hear that it is not an ironclad rule.

In fact, it cannot be in law.

that simply being biologically related to a baby means that that is the best place for a baby to be placed for life.

And look, these things are complex, John.

I have no problem agreeing with the basic premise that it is likely much preferable for a baby in South Africa to be placed with a family of the same culture, for instance, although this is often difficult.