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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 1220/2004

In the matter between

LISA ADA SWART Applicant

And

J.W. VORSTER N.O. First Respondent

E. DU TOIT N.O. Second Respondent

NIKO WHITE Third Respondent

CHARMAINE WHITE Fourth Respondent

ELOISE LOOTS Fifth Respondent

MARGARETHA BEZUIDENHOUT Sixth Respondent

JUDY RUDD Seventh Respondent

SUZETTE MARAIS N.O. Eighth Respondent

JUDGMENT

PICKERING J:

On 28 May 2003 the applicant gave birth out of wedlock to a daughter, Angel.

On 11 February 2004 the first respondent, a commissioner of child welfare at the Port Elizabeth Children’s Court, granted an order in terms of s 18 of the Child Care Act 74 of 1983 (the “CCA”) whereby Angel was adopted by the third and fourth respondents, a married couple.

Applicant now seeks an order calling upon the respondents to show cause why:

“1. The adoption order granted by the first respondent at Port

Elizabeth on 11 February 2004 in respect of the applicant’s daughter, Angel Swart, should not be reviewed and set aside;

2. The administrative actions of the first to eighth respondents referred to in the applicant’s affidavits should not be judicially reviewed in terms of the Promotion of Administrative Justice Act no 3 of 2000;

3. The third and fourth respondents should not be directed to restore the custody of Angel Swart to the applicant;

4. If any of the respondents oppose the application they should not be directed to pay the costs of the application.”

First, second and eighth respondents are cited as respondents in their official capacities as commissioners of child welfare. Third and fourth respondents are cited by virtue of their being the adoptive parents of Angel. Fifth, sixth and seventh respondents are accredited social workers within the meaning of the CCA and are part of an adoption unit operating under the guidance of a consultant. Fifth and sixth respondents are employed by Procare, an association of social workers in private practice. Seventh respondent is employed by Procare as a part-time counsellor.

It is applicant’s case, in essence, that her consent to the adoption of Angel was never lawfully obtained in that the prescribed statutory procedures set out in the CCA were not complied with, alternatively, that her alleged consent was vitiated by the actions of fifth, sixth and seventh respondents.

The sequence of events leading up to the eventual granting of the adoption order on 11 February 2004 is largely common cause. What is not common cause are applicant’s reasons and motivations for her various actions during this period. In this regard applicant cast serious aspersions on the professional conduct of fifth, sixth and seventh respondents. She alleged, inter alia, that despite the fact that they were aware that she was not in a position “emotionally or spiritually” to make any rational decision concerning the adoption of Angel, they had misled, intimidated and pressurised her to such an extent that her resistance had crumbled and she had acted to her prejudice in performing certain actions which led to the adoption order being granted. These allegations were denied by the fifth, sixth and seventh respondents who each filed an affidavit in answer thereto in which they stated that they had acted in a professional manner throughout.

In the meantime, on 19 October 2006, an order was granted requesting the family advocate, Port Elizabeth, to investigate whether the relief sought by applicant in prayers 1 – 3 of the Notice of Motion was in the best interests of the minor child and appointing Ms. Crouse as curator ad litem to represent the minor child in the further conduct of the application. The family advocate duly filed extensive reports including a report from an educational psychologist and family counsellor, Mr. Gerhardt Goosen. Ms. Crouse has also furnished a thorough and helpful report and the Court is indebted to her for her assistance in that regard as also for her appearance and submissions made at the hearing of the matter. At the hearing Ms. Hartle, together with Ms. Laher, appeared pro bono for the applicant and Mr. Scott appeared for third and fourth respondents. The Court is indebted to them for their assistance in arguing what is obviously an emotionally traumatic matter for both applicant as well as the third and fourth respondents. There was no appearance for any of the other respondents.

In her affidavit applicant set out in considerable detail her physical circumstances and her state of mind at the time that she became pregnant with Angel. At the same time as she was involved with Angel’s natural father she was also involved in an intimate relationship with a married man, one Paul, upon whom she relied for financial support. She states that her pregnancy threw her life and her relationships into turmoil. Eventually, shortly before her confinement, she made contact with sixth and seventh respondents and moved, with her five year old daughter, into a home for pregnant and unmarried mothers, known as Sisters Incorporated in Cape Town. Whilst there applicant had certain discussions with seventh respondent concerning the possible adoption of her baby. According to applicant the issue of adoption arose more particularly because of pressure exerted upon her by Paul. At some stage prior to giving birth applicant left the home. It had been agreed, however, that she would contact seventh respondent when she went into labour and she duly did so. There is a heated dispute on the papers as to whether or not applicant had agreed immediately prior to the birth that the baby be put up for adoption upon her birth. Be that as it may, as soon as Angel was born she was separated from applicant. It is common cause, however, that after five days applicant advised sixth and seventh respondents that she definitely did not want Angel to be adopted and she was therefore reunited with her on 3 June 2003. Procare accordingly closed their file relating to Angel’s adoption.

During July 2003 applicant again came into contact with seventh respondent. According to her she was at that time in possession of a learner’s driver’s licence which was due to expire on 18 August 2003. It was, she said, imperative for her to obtain her driver’s licence so as to be more marketable as an employee. She could not get a booking for her driver’s licence test in Cape Town but was able to arrange one in Pietermaritzburg. She had to make arrangements for the care of Angel in the meantime and one means of doing this was to have Angel placed in the care of a so-called kangaroo mother during her absence. According to applicant seventh respondent was prepared to help but only on the basis that applicant sign an “open” consent in terms of s 18 (6) of the CCA for the adoption of Angel. These allegations are denied by sixth and seventh respondents who aver that applicant in fact advised them that she could not cope with Angel and had decided that it was in her best interests that she be adopted.

Be that as it may, it is common cause that on 25 July 2003 applicant appeared before eighth respondent at the Children’s Court, Bellville, where she signed a consent to adoption in the requisite form (Form 12 of the Regulations to the CCA published under GNR 26121 in GG 1054). In that form applicant states that she consents to the adoption of Angel by “a person or persons unknown to me.” The form further records that applicant was informed that “she may withdraw this consent in writing before any commissioner of child welfare at any time during a period of up to 60 days after having given this consent” and also that she was “not entitled to be present when the application for adoption is considered unless allowed to be present in the interests of the child at the discretion of the Court.”

According to applicant she knew that what she was doing was “wrong” but she stated that she did not use the facilities of Procare “in a deliberately deceitful way.” She was, however, desperate to have Angel placed in the care of the kangaroo mother whilst she went to Pietermaritzburg. At the time of signing the consent she “already had it in mind to withdraw it.”

After her return from Pietermaritzburg she told sixth respondent that she wanted Angel back and Angel was indeed restored to her custody on 25 August 2003. Sixth and seventh respondent confirmed that Angel was returned to applicant because she advised them that she did not wish to proceed with the adoption. Procare’s file was then again closed. The adoption application filed in the Children’s Court was, however, never formally withdrawn, it being the view of sixth and seventh respondents that should applicant yet again change her mind concerning the adoption, that application could, with applicant’s permission, be revived.

Matters, however, did not become any easier for applicant and eventually, during November 2003, she contacted seventh respondent and told her that she wanted to proceed with the adoption of Angel by a couple of whose profile she approved. In consequence Angel was taken from applicant’s custody and placed in the care of the same kangaroo mother with whom she had previously been.

On 12 December 2003 applicant attested to an affidavit at the Children’s Court, Bellville, in which she stated as follows:

“I am the biological mother of Angel Swart born 28 May 2003. I signed consent for her adoption on 25^th July 2003 she has not been placed yet but I want the adoption to be finalised now. I understand that the 60 days have expired and that I don’t have any rights to change my mind any more. I believe that adoption will be in Angel’s best interests.”

Angel was placed in the custody of third and fourth respondents the same day.

On or about 14 December 2003 applicant contacted fifth respondent and informed her that she wanted Angel back. Fifth respondent advised her that the affidavit signed by applicant had finalised the adoption process and that applicant could not change her mind in this regard. According to applicant she “suddenly realised the finality of the matter.” She spoke to the head consultant of Procare, one van den Bergh, and fifth respondent thereafter spoke to third and fourth respondents in order to ascertain whether they would not be prepared to return Angel, but to no avail.

Eventually applicant was referred to the Woman’s Legal Centre in Cape Town and a lengthy affidavit was prepared on applicant’s behalf in which she implored the Children’s Court to rescind the adoption order and to restore custody of Angel to her. Applicant herself concedes that this affidavit is “incoherent, rambling and emotional” but states that this was a reflection of her state of mind at the time.

Despite applicant’s efforts an order for the adoption of Angel by third and fourth respondents was granted by first respondent in the Children’s Court, Port Elizabeth on 11 February 2004. Applicant thereafter launched the present application during June 2004. Although there was some reference in the papers and during argument to a rescission application which had been filed on behalf of applicant during March 2004 the record of those proceedings was not before us and there was considerable confusion as to what had occurred at the hearing thereof. Counsel were agreed, however, that no decision had been taken on the merits in that application and that it was irrelevant for present purposes.

Although counsel referred in argument before us to the adoption procedure as set out in Chapter 15 of the Children’s Act 38 of 2005 the provisions of this Chapter, for whatever reason, have not yet been brought into operation and the provisions relating to adoption as contained in the CCA are still applicable.

As stated above it is in effect applicant’s case that her consent to the adoption was not obtained, alternatively that such consent was vitiated by reason of the duress exerted upon her by sixth and seventh respondents.

Ms. Hartle contended that in the event of these issues being determined in favour of applicant that was the end of the matter and applicant would thereupon be entitled to restoration to her of her full parental rights in respect of Angel, including her right of custody.

Both Mr. Scott and Ms. Crouse took issue with this latter proposition and submitted that even should it be found that applicant had not consented to the adoption of Angel the Court would not set the order aside unless it was satisfied that it was in the best interests of Angel to do so.

Section 18(4)(d) of the CCA provides that consent to the adoption of a child born out of wedlock must be given by both the mother and the father. It is common cause that consent to the adoption by Angel’s natural father was correctly dispensed with in terms of s 19(b)(x) of the CCA.

Section 18(5) provides that such consent must be given in writing and must be signed in the presence of a commissioner of child welfare who must attest the consent.

Regulation 19 of the Regulations to the Child Care Act provides as follows:

“1. Any consent to the adoption of a child by a parent of the child … shall be granted in the form of Form 12…

2. Before the commissioner attests the consent referred to in sub-regulation 1 in terms of section 18(5) of the Act he shall inform the person granting the consent -

(a) of the legal consequences of an adoption;

(b) in the case of consent by the parent that the parent concerned may withdraw the consent in writing in the form of Form 12A before any commissioner at any time during a period of up to 60 days after given such consent”

The written consent given by applicant on 25 July 2003 complies fully with these requirements.

Section 18(8) provides:

“Notwithstanding the provisions of any other law the parent of a child who has given consent to the adoption of his or her child shall have the right to withdraw such consent up to 60 days after such consent has been given.”

In his reasons for having granted the adoption order on 11 February 2004 first respondent states that in the exercise of his discretion in terms of Regulation 21(1) he considered the application for adoption without affording a hearing to any party. He was satisfied from a perusal of the documents in the file that, inter alia, the consent signed by the applicant on 25 July 2003 (Form 12) was valid and that she had not revoked such consent within the period of 60 days afforded to her by the provisions of s 18(8) of the CCA. With regard to the applicant’s affidavit of 12 December 2003 he stated that he did not consider this to be “a consent that replaced Form 12” but rather “a manifestation of applicant’s desire to have the adoption proceedings brought to finality.” The consent upon which he relied in granting the order remained that which was given in writing on 25 July 2003.

First respondent states further that one of the documents upon which he relied in coming to his aforesaid conclusion was a social worker’s report dated 28 January 2004 by Eloise Loots (the fifth respondent herein). The first respondent is presumably referring in this regard to the only social worker’s report which was contained in the file which, although stating that it was compiled by Mrs. Loots, is dated 6 January 2004 and signed by M. Bezuidenhout (the sixth respondent).

In that report the following is, inter alia, stated:

“Op 25 Julie 2003 teken Lisa toestemming tot aanneming. Sy voel aanneming is in Angel se belang en sy kan nie vir haar bied wat sy verdien nie. Weens Lisa se patroon van besluiteloosheid word Angel by ‘n veiligheidsouer geplaas en nie dadelik by aanneem ouers nie.

Lisa gaan hierna deur erge emosionele prosesse. Sy fokus op haar toekomsplanne, kry ‘n werk en is doelgerig om haar bestuurderslisensie te bekom, aangesien dit haar sal toerus vir ‘n beter betrekking.

Sy skakel en meld dat sy weer ‘n poging wil aanwend om Angel se versorging te behartig en versoek dat Angel by die veiligheidsouers bly tot sy die verkryging van haar bestuurderslisensie in Kwa-Zulu Natal afhandel. Lisa se versoek word geakkommodeer. Aangesien sy vervoer probleme het word Angel terug geneem op 25-08-2003. Sy dui aan dat sy beplan om by haar moeder te bly.

Weens Lisa se ambivalensie rondom Angel se permanensie word toestemming nie terug getrek nie.”

In my view the averments contained in these paragraphs should immediately have given first respondent pause for thought. It emerges clearly therefrom that within the 60 day period commencing on 25 July 2003 applicant had in fact changed her mind and had taken Angel back into her custody on 25 August 2003. It appears also from the report that applicant stated clearly on later occasions that she did not wish to proceed with the adoption. It is so that applicant did not withdraw her consent to the adoption in writing as prescribed by Regulation 19 and that she therefore did not formally comply with those requirements. Nevertheless it cannot be gainsaid that she did de facto withdraw her consent resulting in the return of Angel to her on 25 August 2003 whereafter she fully exercised her parental rights in respect of Angel. To close one’s eyes to an unequivocal verbal withdrawal of consent in circumstances such as the present would be to elevate form far beyond substance. It appears also from the affidavits filed by fifth and sixth respondents that there was no misunderstanding in this regard and that applicant had clearly conveyed to them the withdrawal of her consent. It was, indeed, for this reason that Procare closed its file at this stage. In these circumstances the social workers erred, in my view, in not making the requisite arrangements for the formal withdrawal of applicant’s consent. By not doing so and by in effect keeping applicant’s consent of 25 July 2003 open in case she again changed her mind they deprived applicant of the 60 day period afforded to a parent for the reconsideration of her consent to an adoption. A consent to adoption obviously has drastic consequences for all concerned. It may very often be given in circumstances where reason is clouded by emotion. It is no doubt because of this that a parent consenting to the adoption of his or her child is afforded a 60 day spatium deliberandi. Once such a parent has, within that 60 day period, unequivocally indicated his or her desire not to proceed with the adoption and has therefore had custody of the child restored to him or her then, in my view, that particular adoption process must of necessity terminate. Should the parent once again decide to put the child up for adoption then the statutory procedure for consent, including a further 60 day period within which to reconsider that decision must of necessity again be followed. Only in this way can the interests of the parent and child be adequately safeguarded.

In the present matter therefore, and on the assumption that the consent of 25 July 2003 had been validly given, I am satisfied that applicant had, within the 60 day period afforded to her, withdrawn that consent. Accordingly the adoption order of 11 February 2004 was wrongly granted.

This conclusion renders it unnecessary to deal with the alternative ground advanced by applicant, namely, that her ostensible consent had been obtained by means of intimidation and pressure on the part of fifth, sixth and seventh respondents. Because, however, of the serious nature of the allegations levelled against those respondents it is necessary in my view to say something in that regard. Nothing in the welter of papers filed in this application lends any support whatsoever to applicant’s averments. On the contrary, on applicant’s own averments it is clear that she was, throughout the relevant period, ambivalent and vacillatory concerning her intent. The objective facts, including the contents of Procare’s files, the reports of the social workers from time to time and applicant’s own actions as set out in her affidavits, speak loudly of social workers who were supportive of applicant and who accommodated her changes of mind and vacillations throughout, returning Angel to her whenever she requested it and closing their files on three different occasions when it appeared that applicant did not wish to proceed with the adoption. There is nothing to indicate that they acted other than professionally throughout. Their actions were entirely inconsistent with applicant’s averments of an unethical agenda to force the adoption through and applicant’s assertions that they tore her family apart are without foundation. Her averments in this regard were irresponsibly made and are consistent with the conclusions reached by Ms. Crouse who reported to the effect that applicant is emotionally immature and unable to take responsibility for her own actions.

I turn then to consider the effect of the finding that applicant’s consent to the adoption of Angel on 11 February 2004 had not been validly obtained.

As stated above it was Ms. Hartle’s contention that in the event of it being established that applicant’s consent to the adoption had not been validly obtained the applicant was entitled to the restoration to her of full parental rights in respect of Angel. She submitted that whilst the best interests of the child had to be taken into account “the standard of best interests surely requires that adoption orders not be obtained unlawfully or that children not be separated from their natural families.” She submitted further that it would be “a gross injustice and against the best interests standard if an adoption order, the consent for which was procured as it happens, with the respondent’s clear knowledge that the applicant wished to revoke same, should be ‘legitimised’ simply because the passage of time has given the third and fourth respondents the upper hand and rendered it traumatic to Angel for parental rights to be restored to the applicant” and that the respondents cannot seek to circumvent the provisions of the CCA “by having the Court legitimise an adoption order which was not valid in terms of the Child Care Act in the first place.”

In my view the answer to these submissions is to be found in the provisions of s 21 of the CCA itself. Section 21(1)(a) provides as follows:

“A parent of a child for whose adoption an order has been made under section 17 … may apply to the Children’s Court by which the order was made for the rescission thereof on one or more of the following grounds namely –

(a) if the applicant is the parent of the child, that he did not consent to the adoption and that the order of adoption should not have been made without his consent.”

Section 21(7) provides that the Court to which the rescission application is made shall rescind or confirm the order of adoption:

“Provided that it shall not rescind an order of adoption on the application of a parent of the adopted child if the Court is satisfied that the applicant is unfit to have the custody of the child and that it is in the interests of the child that the order of adoption be confirmed.”

Section 243(3) of the Children’s Act 38 of 2005, although not yet in operation, envisages much the same procedure and provides that an adoption order may be rescinded if:

“(a) rescission of the order is in the best interests of the child; and

(b) the applicant is a parent of the child whose consent was required for the adoption order to be made but whose consent was not obtained.”

It is clear from these provisions that the Legislature has recognised that even where an adoption order has been irregularly obtained in the absence of the requisite parental consent it should not be set aside unless it was in the best interests of the child to do so. There can therefore be no question of the respondents having attempted to circumvent the provisions of the CCA as submitted by Ms. Hartle. I agree with Joffe J who stated in Belo v Commissioner of Child Welfare, Johannesburg and Others: Belo v Chapelle and Another [2002] 3 All SA 286 (W), para 24 that there is precedent for a litigant being compelled to abide a judgment which is wrong, the jurisprudential basis being the principle that the proper administration of justice requires finality in litigation.

The provisions of the CCA are not the only relevant provisions. Section 28(2) of the Constitution provides:

“A child’s best interests are of paramount importance in every matter concerning the child.”

Section 6(2) of the Children’s Act 38 of 2005, which section is in operation, provides:

“All proceedings, actions or decisions in a matter concerning a

child must –

(a) respect, protect, promote and fulfil the child’s rights set out in the Bill of Rights, the best interests of the child standard set out in section 7 and the rights and principles set out in this Act, subject to any lawful limitation.”

Section 7 lists several factors which are to be taken into account in considering the best interests of the child. These include the nature of the relationship between the child and its parents; the attitude of the parents towards the child; the capacity of the parents to provide for the needs of the child; the likely effect on the child of any change in circumstances; the child’s physical and emotional security; and avoidance or minimizing of further legal proceedings in relation to the child.

Section 9 echoes the provisions of s 28(2) of the Constitution and provides:

“In all matters concerning the care, protection and well-being of a child the standard that the child’s best interests are of paramount importance must be applied.”

Mr. Scott referred to a number of cases from which it appears that the Courts have consistently applied the principle that the best interests of the child are paramount when dealing with the rescission of adoption orders made in the absence of parental consent.

In T v C and Another 2003 (2) SA 298 (W) the Court dismissed an appeal against a refusal by the Children’s Court to rescind an order of adoption, on the grounds that it would not have been in the child’s best interests to rescind the adoption. The adoption had been granted without the statutorily required notice being served on the child’s biological father. The Court found that the adoption process had been tainted and the proceedings were unfair. Cachalia J said at para [18]:

“The Constitution enjoins us to accord paramount importance to the child’s best interests in every matter concerning the child. Any decision relating to the rescission of an adoption order or an appeal against any such decision must therefore give primacy to this principle.”

Similarly in Belo v Commissioner of Child Welfare, Johannesburg and Others: Belo v Chapelle and Another, supra, where the father’s consent to the adoption had wrongly been dispensed with, the Court refused an application for condonation of the late noting of an appeal. Sufficient cause for condonation was found not to have been shown because the minor’s interests were so persuasive and weighed so heavily.

In Fraser v Naude and Others [1998] ZACC 13; 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357 (CC), an application by the father of an adoptive child for special leave to appeal against a decision of the Supreme Court of Appeal, the Constitutional Court held that even if it could be shown that applicant had reasonable prospects of success on appeal the interests of the child were paramount. Because of the lengthy delay which had occurred in the matter it would not be in the interests of justice that a further appeal should be heard which might have the consequence that the adoption proceedings would have to be re-opened and the dispute again dragged out through the Courts.

In the face of the above authorities Ms. Hartle sought to rely in particular on two cases namely Petersen en ‘n Ander v Kruger en ‘n Ander 1975 (4) SA 171 (C) and Re M (Child’s Upbringing)[1996] 2 F.C.R. 473.

In Petersen’s, case, supra, Mrs. Petersen and Mrs. Kruger each gave birth to a son on the same day. The babies were mistakenly swopped by the nursing staff and Mrs. Petersen and Mrs. Kruger each returned home with the other’s child. Mrs. Petersen’s doubts as to whether the child in her custody was indeed her own child were eventually proved correct by means of blood tests. The Krugers, however, refused to part with the child in their custody and the Petersens duly brought an application for an order restoring to them custody of their child. By then he was nearly two years old.

The order prayed for was granted by van Winsen AJP (as he then was).

Much was made by Ms. Hartle of the learned Judge’s statement at 174A, that a Court would feel itself called upon to interfere with the parental rights of control and custody where the exercise of such rights could endanger the life, health or morals of the child. She submitted in the light thereof that, where the life, health or morals of the child were not endangered, the natural parents’ rights to control and custody of the child must prevail. This statement must, however, be read in the context in which it was made. The English headnote at p 171G-H correctly conveys what was stated by the learned Judge at 173H-174C:

“It is the basis of our system of law that, subject to certain limitations, the natural parents have the right of control and custody of a child. The aforementioned limitations flow from the authority conferred on the Court as upper guardian of all children to limit the parental rights in respect of a child where the interests of the child require it. The circumstances whereunder a Court would feel called upon to interfere with the parental right of control and custody exist where the exercise of such rights could endanger the life, health or morals of the child. The authority of the Court to interfere with the rights of parents in respect of their child is not limited to the three named grounds; any ground which is related to the welfare of the child can serve as a reason for interference by the Court. To a Court the interests of the child are the most important, but the rights of the parents must not be left out of account.”

It is clear therefrom that the learned Judge did not intend to establish a numerus clausus of grounds absent which a natural parent was, with nothing more, entitled to control and custody of the child. He was at pains to stress that whilst the interests of the child were paramount, the rights of the parents must not be left out of account. After referring to certain cases where the Courts had ordered the return to a natural parent of the child despite there having been a lengthy separation between them, he stated as follows at 176C:

“Ek noem die gewysdes om die algemene rigsnoer aan te dui wat die Howe gevolg het in gevalle waar die voordele, stoflik sowel as geestelik, wat die kind by die pleegouers geniet het, min of meer gelyk opweeg teen diè wat die kind by sy natuurlike ouers sal kan geniet en waar hul gemeen het dat die oorplanting nie blywende sielkundige skade aan die kind sal veroorsaak nie.”

The circumstances of the present case are very different as I shall demonstrate hereunder.

In Re M, supra, the following was stated at 485:

“Of course, there will be cases where the welfare of the child requires that the child’s right to be with his natural parents has to give way in his own interest to other considerations. But I am satisfied that in this case, as in other cases, one starts with the strong supposition that it is in the interests of P that he should be brought up with his natural parents.”

It is clear therefore that the fact that applicant is Angel’s biological mother is a very important consideration to be taken into account but this fact cannot per se outweigh other factors which have to be considered and it cannot, in particular, outweigh the paramount consideration of the best interests of the child. Ms. Hartle’s submissions, in my view, in any event approach the matter from the wrong perspective by placing the interests of the natural mother above the best interests of the child.

Ms. Hartle sought further to distinguish the cases of T v C, supra, Belo v Commissioner of Child Welfare, Johannesburg and Others; Belo v Chapelle and Another supra and Fraser v Naude and Others supra on the basis that they dealt with the claims of natural fathers and not natural mothers. There is no merit in this submission. It is clear, in my view, that there can no longer be any discrimination in such cases based on the gender of the parent whose consent was not obtained.

I am satisfied therefore that despite the adoption order having been obtained without the valid consent of applicant such order cannot be set aside unless it is in the best interests of the minor child to do so.

In determining where the best interests of the minor child lie I have had regard, inter alia, to the reports of Ms. Crouse and of Mr. Goosen referred to above. The content of these reports is not disputed by applicant. In Mr. Goosen’s report he states, inter alia, as follows:

“Ms. Swart is 30 years old. There is a history of instability of interpersonal relationships, self-image and affects, and marked impulsivity.”

He continues that she appears to be unable to comprehend or sense the needs of children and that her focus appears to be entirely upon herself. She appears oblivious to the effects of the numerous separations on Angel during the first six months of her life and seems to have a simplistic view that the child’s best interests would be served “when the mother’s fantasy needs are met.” Mr. Goosen further questions applicant’s ability to bond with the child in view of her tendency to act impulsively and her nomadic life style. He states that her “instability of mood, ambivalence and vacillation seemed to be an enduring pattern and was serious cause for concern.” He continues as follows:

“Due to the repeated separations between Angel and Ms. Swart the child’s primary attachments were severely compromised. (The child is reported to have not recognised her mother while living with the kangaroo mother before her adoption.) She was also described as floppy and low-toned. These factors suggest the presence of a reactive attachment disorder, which is a serious and damaging psychological consequence of separating a child from its mother at a young age. There is no good reason to subject (the child) to the same abuse again.”

He states that it is his considered opinion that to separate the child from her adoptive parents “would cause significant, serious, pervasive and lasting psychological personality damage.”

He finds that there is no bond between the child and applicant and states that it would be “severely traumatising” to uproot her and place her in a strange environment without her attachment figures and psychological support. He states further that if to the scenario is added “the dubious nature of Ms. Swart’s psychological and personality functioning, financial constraints, inability to understand or meet the needs of a small child, and impulsive behaviour, then the situation becomes downright ominous.”

In contrast he describes third and fourth respondents as “stable, healthy and productive individuals” who have a happy and stable marriage. He finds that they are Angel’s psychological parents and that her future psychosocial development and functioning would be compromised should she be separated from her adoptive parents. In this regard he states that “no purpose would be served in returning the child to her biological mother, which would negate or counter-balance the definite serious, negative, destructive and long-term effects of separating the child from her adoptive parents.”

He concludes that at present the child “receives more than many other children in the sense of therapeutic intervention, stimulation and enrichment. She is a privileged child. She is happy, well and contented, and is developing at an above-average rate. She is loved by two people who are psychologically healthy and who do not lean on the child for emotional support. It is the writer’s opinion that the child could not have been placed with better parents.”

These views are shared by Ms. Crouse. In her report Ms. Crouse refers to an interview conducted by her with one Sally Wessels, a psychologist who had been dealing with the minor child since the time that she had been placed with third and fourth respondents. According to Ms. Wessels the effect of removing Angel from third and fourth respondents “would be worse than if her parents would have been killed and as if she had been put with strangers in a new city. The effect of such trauma would be the same as a physical abuse of this child and could lead to intense psychological scarring in her teenage years.”

Having interviewed the applicant, Ms. Crouse was of the view that she was emotionally immature and not able to take responsibility even for her own life. Applicant blamed the social workers for the adoption and took no responsibility whatsoever for any of the events which had occurred. She did not deal at all with the effect of her actions on Angel and did not appear to be concerned as to how Angel would be affected by being restored to her custody. Ms. Crouse was strongly of the view that it was in the best interests of Angel that she remain with her adoptive parents.

In my view, the evidence that Angel would be severely traumatised by being removed from the third and fourth respondents is overwhelming. It is clear that a return to applicant’s custody would not benefit her, and on the contrary, would cause her lasting harm. Applicant’s frequent changes of mind also raise significant doubt as to her ability to commit to Angel. A possibility of her changing her mind yet again should Angel be returned to her is, in my view, a real one especially given the lack of stability in her life. All these factors serve to distinguish the present case from cases such as Peterson, supra.

Ms. Hartle submitted that it was grossly unfair to applicant that she should in effect be penalised because of the lengthy delay from the time the adoption order was granted until the hearing of the application. Because of that delay Angel has now been in the custody of third and fourth respondents for four years.

In Fraser v Naude and Others supra the following was stated at paras 8 and 9:

“[8] It is now almost three years since the adoption order was made. Although Mr. Fraser is not to blame for any delay in the proceedings, nor the time that elapsed between the judgment of the High Court and the judgment of the Supreme Court of Appeal, we cannot ignore the passage of time.

[9] The matter concerns the status and well-being of the young adopted child. The interests of the child are paramount. We are conscious of the importance of such an issue and of the strong emotions to which it has given rise. All the parties to this litigation have suffered as result of the prolonged proceedings.”

The Court proceeded to point out that should the adoption order eventually be set aside it would not be the end of the matter because the proceedings would have to be reopened and the dispute would again drag itself out in court. Such continued uncertainty as to the child’s status and placing could not be in the interests of the child.

Similarly, in the present matter, it could, in my view, in the circumstances outlined above, never be in the interests of the child to set aside the adoption order and to restore her custody to applicant. I accept that applicant instituted these proceedings expeditiously. I should mention that she is not, however, entirely blameless with regard to the lengthy delay in the matter. The answering affidavits of the respondents were filed with considerable expedition by 25 November 2004. Applicant’s replying affidavit was thereafter only filed on 3 November 2005, over 11 months later. In this regard applicant filed an affidavit in support of an application for condonation of the late filing of that affidavit. She states therein that she had considerable difficulty in responding to the sixth respondent’s affidavit because it was deposed to in Afrikaans and she states further that her counsel had other demands on her time and was unable to deal properly with the matter over the telephone. Eventually applicant travelled from Cape Town to Port Elizabeth and consulted with counsel on 5 September 2005. The explanation afforded by her for her delay is extremely unsatisfactory and it is difficult to understand why in a matter of such importance to her she was unable to make other arrangements which would have enabled her to have finalised her affidavit timeously.

Be that as it may, I am satisfied in all the circumstances that it is not in the best interests of the minor child that the adoption order be set aside.

All counsel, including Ms. Crouse, were very properly agreed that in view of the particular circumstances of this matter each party should pay their own costs.

The application is dismissed with no order as to costs.

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J.D. PICKERING

JUDGE OF THE HIGH COURT

I agree,

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C. PLASKET

JUDGE OF THE HIGH COURT

Mrs. B. Hartle and Ms. Laher for applicant

Instructed by Nettleton Attorneys, Mr. Hart

No appearance for 1^st, 2^nd, 5^th, 6^th, 7^th and 8^th respondents

Adv. P. Scott for 3^rd and 4^th respondents.

Instructed by Wheeldon Rushmere and Cole, Mr. Brody

Mrs. E. Crouse as curator-ad-litem for the minor child.

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