It's been almost six months since Home Affairs
decided it couldn’t decide if adoption terminates all cultural nexus, possibly rendering
many children "non-South African" says Debbie Wybrow, a
specialist children's rights lawyer at Wybrow-Oliver Attorneys.
For South African children who’ve been adopted by non-South Africans, this is potentially disastrous. Specifically, for five American parents who have been here in South Africa for months waiting to take their adopted children home, it's a cause of much suffering.
At one point, the Department of Home Affairs labelled their adopted children as foreigners, who did not qualify for South African passports.
Without passports, they have not been able to leave South Africa.
Wybrow explains that Home Affairs appears to have changed its processes, insisting that every child’s Noting and Change of Name processes be finalised first before they leave South Africa, documentation which Wybrow has seen take up to four years. "There was then confusion on the part of Home Affairs as to whether these children were or were not entitled to a South African passport and upon what documentation they were to leave South Africa," she says.
"Children adopted by US citizens acquire the right to American citizenship immediately upon the granting of the order of adoption," she says, "However, their US citizenship is only conferred on them when they officially enter the USA."
This means that until the High Court order obtained by Wybrow-Oliver and the US families last week, five American families have been essentially stranded in limbo while they waited for Home Affairs to make a decision. The order that has been made compels the issuing out of these children’s documentation and South African passports.
The situation is so dire, in fact, that the US Department of State issued a statement recommending that adoptive parents currently in South Africa "keep their travel plans flexible while they wait for new birth certificates and passports."
Wybrow is championing their cause with a petition on Change.org, where she calls for stakeholders to join her in making their objections known.
In 2018, Wybrow received the Human Rights Award for her legal services to vulnerable children at Imagine Awards Africa, and she is also the founder and director of Wandisa Child Protection and Specialist Adoption Agency NPC.
Waiting in limbo
She told us about how these families are barred from leaving the country, and that the parents face losing their jobs after months of waiting in limbo in South Africa, unable to leave with their adopted children. Several of these children have special needs, and local families have not come forward to adopt them.
"Try explaining to a cognitively compromised 3 year old - or in American Sign Language to anyone of any age," she shares on Change.org, "that (1) no one in SA came forward to adopt you; (2) you are now being separated from your new family who did choose to care for you; (3) you have a court order for a SA passport, but you aren’t getting one, so you can’t leave, either."
No one is listening
Wybrow adds that "we protested with you outside Provincial DHA after going to Parliament, and have "begged our President, Ministers of Home Affairs, Social Development and International Relations to intervene" but, she says, "No one is listening". They've also reached out to the US Consulate and Washington DC.
Dad Tom Jordi says he thinks that situations like this "show very clearly that government is not seriously engaging with the Constitutional obligations to put the best interests of the child, first and foremost, in any situation that seeks to answer the question 'How best can we serve this child?'."
Jordi, Robyn Wolfson Vorster and Wybrow are behind the petition to stop the proposed Children's Act Amendment Bill from being passed. The proposed amendments will result in specialist social workers no longer being able to charge or even raise funds for facilitating the adoption process, resulting in what he calls the end of private adoption in South Africa.
A stop to intercountry adoptions?
Wybrow anticipates that other countries may follow America's lead and that intercountry adoption programmes could be halted until such times as the issue of post-adoption documentation is resolved by the South African authorities and/or Court.
“The biggest losses will be the children themselves, who could have been raised in families”, she said.
“The High Court Order we obtained last week will ensure that Home Affairs issues these five children with the documentation they are entitled to within tight timeframes, so that they can travel to their new homes. The Judge, however, made it clear that this Order does not apply to any other children and/or their families”.
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