AD and Another v DW and Others

A newly born child, Baby R, was found abandoned in Roodepoort in November 2004 and placed in foster care with US nationals resident in South Africa. The applicants, also US citizens, formed a relationship with Baby R and sought to adopt her. They were advised that South African adoption policy would bar them from adopting her through the Children’s Court. They therefore applied to the High Court for an order granting them sole custody and sole guardianship, enabling them to take Baby R to the United States for adoption there. The High Court dismissed the application, holding that adoption matters fell within the Children’s Court’s jurisdiction. The Supreme Court of Appeal, by majority, upheld this decision. The applicants then sought leave to appeal to the Constitutional Court. During proceedings in the Constitutional Court, the parties reached a consent agreement directing that the adoption be expedited in the Children’s Court.

Leave to appeal was granted. By consent of the parties, the Court declared Baby R abandoned, directed the Children’s Court to hear the adoption application on an expedited basis, recorded that adoption by the applicants was in the child’s best interests, and ordered the Department of Social Development to facilitate and register the adoption.

The case clarifies the respective roles of the High Court and Children’s Court in inter-country adoption matters and affirms that adoption must proceed through the statutory framework of the Children’s Court. It provides authoritative guidance on the application of section 28(2) of the Constitution and the subsidiarity principle in inter-country adoptions, and cautions against using custody and guardianship orders to bypass adoption safeguards.