ADOPTION AND CULTURE IN SA POLICY PERSPECTIVE

WHAT IS ADOPTION Adoption is a legal process whereby parental powers, rights & responsibilities of the biological parent/s over a child are revoked or terminated; & vested in another person/s, namely the adoptive parent/s. In other words, adoption means taking someone else’s child into one’s family for the child to be legally yours forever; & to take on the full responsibilities and rights in law of a parent. Main purpose of adoption: to protect & nurture children by providing a safe, healthy environment with positive support; & to promote the goals of permanency planning by connecting children to other safe & nurturing family relationships intended to last a lifetime. Adoption is similar to a biological family in that it assures children of a continuous relationship with their adoptive family members long after their 18 th birthday. It is, therefore, preferred over other forms of care because of the permanency & protection it brings to the relationship between the child & the adoptive family.

WHAT IS CULTURE Culture is a complex concept, & no single definition of it has achieved consensus in literature. Out of the many possible definitions examined, the following definition will be used for the purpose of this paper: “Culture” refers to the language, beliefs, values, norms, customs, what they eat, how they dress, & all the other things that people learn that make up the ‘way of life’ of any society. Culture is passed on from one generation to the next through the process of socialization. Culture determines the identity of a person, which is about how individuals or groups see & define themselves, how others see & define them. Identity is formed through the socialization process & the influence of social institutions such as the family, church, etc. Identity therefore ‘fits’ individuals into the society in which they live. The identity that an individual wants to assert & which they may wish others to see them having, may not be the one that others accept or recognize. E.g. a pensioner who sees himself as ‘young at heart’ may still be regarded as an old person by others, or an adopted child who sees himself as part of the adoptive family, may still be regarded as an outsider by others, especially if the child is from a different culture or race of the adoptive parent/s.

BACKGROUND Social historians recognise adoption as an ancient practice that plays a major part in the traditional law of many Eurasian societies. Adoption was initially designed to provide an heir. Adoption was regarded as a European practice and was never recognised in the African culture. The caring of children in the African society was a shared responsibility of the community, the child belongs to the community - “ngwana ke wa setshaba”. If the child’s parent/s passed on, the extended family or a community member would volunteer to stay with the child and take care of him/her. These informal family arrangements still exist, especially in rural communities where orphaned children are permanently taken care of by relatives without following the adoption process or any other legal placement.

BACKGROUND Adoption did not originally form part of South African common law. Its legislation in SA was introduced for the first time when the Children’s Act 25 of 1923 came into operation on January 1 st With the advent of the new government & the Constitution in 1994, SA made new provisions for the adoption of children. As a result, there are a number of national, regional & global instruments that define the current legal & policy framework for the adoption of children in the country. Over the last decade, SA has made continued efforts to develop policies & regulations that align the rights & protections afforded to its children with internationally accepted standards. The Children’s Act 38 of 2005 came with new developments & mechanisms to change adoption practice & expands the possibilities for adoption in SA.

GUIDING PRINCIPLES Best interests of the child -its a paramount factor to guide all decisions regarding the care & adoption of any child. It outweighs any other consideration & includes the child’s need for affection, right to security, continuing care and long-term stability. A child’s rights approach & the child-centred approach are central principles which must be adopted in all matters concerning the adoption of a child. We must at all times strive to find a family for a child and not to find a child for a family. The need of a child to have a home must be prioritised. Every child has the right to grow in a permanent & stable family and we must ensure that all avenues to maintain the child within his or her family are explored before adoption is considered. In respecting the subsidiarity principle in light of the child’s best interests, priority must be given to the adoption of the child by extended family member/s. Where this is not an option, preference should be given to adoption within the same community or at least within the child’s own culture, before considering adoption by person/s from other cultural or race. Intercountry adoption must be considered as the last option if there are no pros. adopt. families available within the country who can adopt the child.

ADOPTION AND CULTURE Adoption is one of the statutory services rendered to children who are in need of care & protection. However, due to different circumstances in their lives, there are no prospects of reuniting them with their families of origin, therefore placing them in permanent alternative families should be considered the best option. In essence, a large & well-established body of research has shown that families, in their many forms, are the most natural environment for the growth, protection, support & socialisation of children. Although not all families take good care of their children, no other social group or institution can replace functional families in promoting children’s well-being & providing security & a sense of identity for children. Children with inadequate, or no, parental or family care are, therefore, at risk of being denied such a nurturing environment.

ADOPTION AND CULTURE According to the UN Convention on the Rights of the Child (CRC) & the Children’s Act, it is imperative that where a child’s own family is unable, even with appropriate support, to provide adequate care for the child, or abandons or relinquishes the child, the State should ensure appropriate alternative care, which includes adoption. Culture & cultural identity is highly valued in the majority of the people, more especially in African societies, including SA. Therefore, it is important to protect & respect the identity rights & culture of children. However, it should be noted that culture cannot & should not, be used to deny children their right to grow up in a family environment, when that family can only be found from pros. adopt parent/s of a different culture.

POLICY PERSPECTIVE The Children’s Act recognises the role of culture in adoption in terms of the following provisions of the Act: According to the National Norms & Standards, adoption services must take account of & address the changing social, physical, cognitive & cultural needs of the child & his or her family throughout the intervention process before & after adoption. Sect. 7(1)(f) & (h) stipulates that whenever a provision of this Act requires the best interests of the child’s standard to be applied, as it is applicable in adoption; factors such as the child’s cultural development, including the child’s need to maintain a connection with his/ her culture & tradition must be taken into consideration. Sect. 230(1)(a) provides that when assessing the pros. Adopt. parent/s, an adoption social worker may take the cultural & community diversity of the adoptable child & pros. adopt. parent/s into consideration.

POLICY PERSPECTIVE Sect. 240(1)(a) also provides that the court must take into account the religious & cultural background of the adoptable child, the biological parent/s & pros. adopt. parent/s when considering an application for the adoption of a child. Culture also plays an important role in the matching of adoptable children and prospective adoptive parents registered on RACAP. In terms of the RACAP Implementation Guidelines, when an adoptable child is placed on RACAP, the adoption social worker must use the register to search for pros. adopt. parent/s sharing the same culture with the child. If such parent/s cannot be found within a period of 30 days after registering the child on RACAP, the pros. adopt. parent/s of different culture from the child may be considered. The same principle applies to inter-racial adoptions when person/s from a different race want to adopt children of another race.

POLICY PERSPECTIVE However, it is fair to note that cultural considerations may not be applicable in all situations, like in cases of abandoned babies where the child’s cultural background is unknown & the child is still a baby & has not yet introduced & socialised in any culture, the race of the child should then be given priority. In case a cross-cultural adoption is considered, it is important that the adoption social worker keeps records of the efforts made to find the pros. adopt parent/s of the same culture or race as that of the child. This information is required when submitting the adoption applications to the provincial head of social development/ delegated officials for a letter of recommendation.

CROSS-CULTURAL ADOPTION Culture becomes a reality when adopting a child from a different culture or race. Adoption social workers must therefore not discriminate against any person/s from a different culture/race who wishes to adopt a child from another culture or race. Applicant/s should be given the opportunity to adopt any child once it is established that there are no parents available & willing to adopt the child from the same culture or race as that of the child. Cross cultural adoption should therefore be considered as a second option, priority must be given to same culture adoption as it resembles a natural family that adoption is intended to create for the child. It is important that the adoption social worker provides thorough counselling & preparation to the child, where applicable; & to the pros. adopt. parent/s when considering a cross cultural adoption. This is to ensure that the particular needs of the child concerned are matched with the special strengths of the pros. adopt. parent/s.

CONCLUSION Adoption is being viewed as a western concept that does not easily fit with the traditions & culture of most Black South Africans. There is a tendency of living & caring for children in an informal manner & without legalising the arrangement. This is basically rooted in the African culture & the notion of Ubuntu, where no child could be left without a family. This practice results in people not seeing the benefit of formalising the placement of the children they are caring for. Cultural beliefs & practices are also some of the blockages that make people not to come forward to adopt children. It is therefore our responsibility as adoption service providers to unblock the cultural obstacles that impact negatively to the adoption of children by raising awareness and popularising adoption services through dialogues with our communities, faith-based organisations; traditional healers and leaders as custodians of culture.

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