Within two months of the commencement of the screening and counselling process, the applicants were accepted as adoptive parents by the Cotlands authorities. A sister and brother, born on 10 November 1988 and 20 April 1992 respectively, were chosen for possible adoption by the applicants. On 3 December 1994, the siblings were placed temporarily in the care of the applicants by the Cotlands authorities. Since then, the siblings have remained with the applicants and they consider the applicants to be their parents.
In 1995, the applicants applied to the children’s court in Pretoria to adopt the siblings jointly. The children’s court, constrained by current adoption legislation, awarded custody and guardianship to the second applicant alone despite both applicants having been recommended as suitable parents. The applicants now challenge the constitutionality of the impugned provisions in the Pretoria High Court.
Current adoption and guardianship legislation
Under current law there is no provision for couples, other than married couples, jointly to adopt a child. Section 17 of the Child Care Act provides that a child can be adopted:
“(a) by a widower or widow or unmarried or divorced person; (b) by a husband and his wife jointly; (c) by a married person whose spouse is the parent of the child;
- In terms of section 18(1)(a) of the Child Care Act, the children’s court of the district in which the adopted child resides shall effect an adoption order.