SCA rules against social workers in cases of secret student adoptions

What happened in the two cases

The dispute concerned two young women who consented to the adoptions of their sons but did not want their families informed. The SCA judgment summarised the factual paths of both matters and the departments intervention.

Child B

According to the judgment, the mother of child B was a 23-year-old university student when she fell pregnant. She did not tell her parents or extended family because she feared being disowned and losing the ability to continue her studies. The child’s biological father, also a student, expressed that he did not want to be involved and suggested termination; after that suggestion was rejected he ended contact. The mother consented to adoption in July 2018.

Rather than following the adoption process under the Children’s Act, the departments social workers pursued tracing of the biological father and telling grandparents to consider caregiving. In August 2018 the department obtained a court order to move the baby from the hospital where he was born to another hospital on the basis that he needed care and protection; the mother was not informed of the move. The child was kept in a temporary care facility for four months before being placed with the adoptive parents.

The adoption process for child B was repeatedly delayed: the proceedings were postponed 15 times between 2018 and 2020. In August 2020 the Childrens Court found adoption by the family with whom B had been placed was in his best interests and ordered the department to issue a recommendation letter supporting the adoption. The department instead issued a letter recommending against the adoption. Bs adoption was eventually finalised on 26 May 2023.

Child L

The mother of child L was also a university student. She already had another child and, when her parents learned of the first pregnancy, they expelled her from their home and only allowed her to return after five months. Ls father abandoned his mother and she consented to Ls adoption before a magistrate in the Childrens Court. L was placed in the temporary safe care of the adoptive parents.

This mother also did not want her family told. When a social worker indicated the parents would be informed, she obtained a High Court order preventing disclosure. The department issued a recommendation in October 2020, but the Minister and the head of the department launched review proceedings seeking to have that recommendation set aside. Ls adoption was finalised on 8 August 2023.

What the SCA found

The SCA upheld findings that the conduct of the social workers was unlawful and unconstitutional. The court concluded officials had confused adoption procedures with child protection proceedings and had interfered with the statutory adoption process.

The court rejected the governments allegations that private adoption social workers had improperly influenced the mothers’ decisions, finding no cogent evidence of an organised unlawful adoption ring. It emphasised that the Children’s Act distinguishes between children in need of care and protection and adoptions, which are governed by separate statutory procedures.

The SCA concluded that once the mothers had consented and the fathers lack of interest was clear, the departments role was to follow the prescribed adoption process: gathering required information, counselling the mothers, assessing children and prospective adoptive parents, preparing a social workers report and obtaining the provincial heads recommendation. The court found no evidence either mother had withdrawn consent and that no exception to the ordinary process had been established.

On the department’s adoption guidelines

The court also held the Department of Social Developments Guidelines on National Adoptions to be unconstitutional. The SCA found the guidelines imposed requirements not set out in the Children’s Act or its regulations and that there was no statutory provision authorising the department to impose such rules.

While the court recognised that a child’s cultural background and family connections are relevant, it rejected a rigid hierarchy that would automatically prioritise biological family ties or cultural considerations over all other factors. Instead, the best interests of the child must remain the overarching consideration, assessed in the circumstances of each case.

Findings on rights and suitability

The SCA expressed concern about specific social worker conduct it found problematic: disclosure of the mothers pregnancies and adoption plans to their parents, the launching of inadequately justified investigations, and the removal of child B into temporary care. The court held that these actions interfered with the mothers rights to dignity, privacy and independence, and undermined the rights and interests of the children.

The court said the referral of the social workers conduct to the South African Council for Social Service Professions was appropriate. It also found no evidence that the adoptive parents were unsuitable to care for either child and noted that both children had spent their lives with their current adoptive families and were the only families they had known. The SCA concluded the childrens best interests lay in remaining with their adoptive parents.

Outcome

The appeal by the Minister of Social Development, the Gauteng MEC for Social Development and the head of the Gauteng Department of Social Development was dismissed with costs.

Why the ruling matters

Beyond these two matters, the judgment clarifies the legal boundary between child protection proceedings and private adoptions and limits the extent to which departmental guidance can introduce extra-statutory hurdles to adoption. It underscores that adoption authorities must follow the statutory scheme set out in the Children’s Act and that officials may not override the consenting parents decisions by treating every private adoption as a care-and-protection enquiry.

For parents and social workers alike, the decision highlights tensions between protecting a child’s welfare and respecting the rights and privacy of consenting birth parents within the statutory adoption framework.