Page:Du Toit v Minister of Welfare.djvu/8

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Skweyiya AJ

[10]Section 17(c) of the Child Care Act caters for so-called second-parent adoptions which envisage adoption by the spouse of the biological or adoptive parent of a child. The effect of such an adoption order is to confer equal parenting rights in respect of the child on the “second parent”, giving both spouses the same legal relationship to the child as would have existed if the child had been born to the couple in marriage. Similarly, it vests in the child the same legal rights within the family as a child born to a married couple.

[11]While the above provisions require prospective adoptive parents to be married in order to adopt children jointly, the fact that same-sex life partners are excluded from this regime does not mean that they cannot adopt children at all. Section 17(b) of the Child Care Act permits adoption by a single applicant. Thus, a person living with a same-sex life partner may apply to adopt children in his or her own right, intending to raise the child with his or her partner, but the partner will have no legally recognised right in relation to the children.

[12]Under section 1(2) of the Guardianship Act, the parents of a child born in wedlock have joint guardianship of the child, allowing them to exercise their rights and powers and carry out their duties arising from guardianship independently of each other.[1] This joint guardianship is

  1. Section 1(2) of the Guardianship Act reads―

    “Whenever both a father and mother have guardianship of a minor child of their marriage, each one of them is competent, subject to any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or power or to carry out any duty arising from such guardianship: Provided that, unless a competent court orders otherwise, the consent of both parents shall be necessary in respect of―

    (a) the contracting of a marriage by the minor child;
    (b) the adoption of the child;
    (c) the removal of the child from the Republic by one of the parents or by a person