AD and DD v DW, CW, Roodepoort Child and Family Welfare Society and Others

Baby R was found abandoned in Roodepoort in November 2004 and placed in foster care with DW and CW (US nationals resident in South Africa who ran a child sanctuary). The applicants (AD and DD), also US citizens and friends of the foster parents, visited South Africa, bonded with Baby R, and sought to adopt her. Legal advice indicated that South African policy would effectively bar them from adopting Baby R in South Africa as US nationals. They applied to the High Court for sole custody and guardianship to enable them to take Baby R to the US for adoption there. The High Court, concerned about the best interests of the child, requested the Centre for Child Law to act as amicus curiae. The Centre opposed the application, arguing it would bypass proper Children's Court adoption procedures. The High Court dismissed the application, holding that the Children's Court should determine what was in Baby R's best interests. The Supreme Court of Appeal dismissed the appeal by a 3-2 majority, holding that granting the order would sanction bypassing the Children's Court system and that the principle of subsidiarity (favouring local placement) precluded the adoption. By the time the matter reached the Constitutional Court, Baby R was over two years old and deeply bonded with her foster family and the applicants.

• Whether the High Court has jurisdiction to grant a sole custody and sole guardianship order to foreigners with a view to facilitating adoption in a foreign country
• How section 28(2) of the Constitution (paramountcy of the best interests of the child) should be interpreted in the context of inter-country adoption
• The role and application of the principle of subsidiarity in inter-country adoption
• Whether the Children's Court has exclusive jurisdiction over inter-country adoption matters
• The interaction between domestic adoption law (Child Care Act) and international obligations (Hague Convention, CRC, African Charter)

Leave to appeal granted. Appeal upheld. The order of the Supreme Court of Appeal set aside and replaced with a consent order declaring Baby R abandoned and directing the Children's Court for Johannesburg to hear the adoption application on an expedited basis within 30 days, with parties agreeing that in the exceptional circumstances it was in Baby R's best interests to be adopted by the applicants and that subsidiarity was not a bar. The Department undertook to facilitate the adoption. The curatrix's appointment was extended to represent Baby R in the Children's Court proceedings. No costs order made.

The ratio decidendi is: (1) Section 28(2) of the Constitution requires that the best interests of the child are paramount in all matters concerning the child, including inter-country adoption; (2) The principle of subsidiarity in inter-country adoption (that local placement should be preferred) is itself subsidiary to the paramountcy of the best interests of the child and must be applied flexibly through individualized, contextual assessment of each child's circumstances rather than as a rigid jurisdictional bar; (3) While the High Court retains jurisdiction as upper guardian to grant sole custody and guardianship orders even where foreign adoption is intended, the Children's Court ordinarily provides the appropriate procedural safeguards and expertise for adoption matters and should not be bypassed absent exceptional circumstances; (4) International law principles, particularly those in the CRC, African Charter, and Hague Convention, must be considered when interpreting children's rights under the Bill of Rights in terms of section 39(1)(b) of the Constitution; (5) Determining the best interests of a child cannot be circumscribed by mechanical legal formulae but requires close, individualized examination of the particular child's real-life situation.

Sachs J made several important obiter observations: (1) That the Department should have intervened in the High Court proceedings to clarify its policy on inter-country adoption, rather than leaving this to the amicus curiae; (2) That a curator ad litem should have been appointed in the High Court to represent Baby R's specific interests (not just general principles); (3) That while settlement is increasingly recognized as a privileged objective in civil justice, courts cannot simply defer to parties' agreements in matters with strong public dimensions like inter-country adoption, and must ensure such agreements serve children's best interests and are compatible with international obligations; (4) Commentary on the history and evolution of inter-country adoption from post-WWII humanitarian measure to child-centered practice focused on providing families for children rather than children for families; (5) Observations on the transition from viewing inter-country adoption as "exporting" children to recognizing it as a legitimate option when in a particular child's best interests; (6) That successful implementation of subsidiarity depends heavily on the capacity of placement agencies to investigate adequately the viability of local placement; (7) That the Hague Convention seeks to regulate, not facilitate, inter-country adoption.

This landmark judgment provides the first comprehensive Constitutional Court analysis of inter-country adoption in South Africa and the principle of subsidiarity. It establishes that: (1) the best interests of the child (section 28(2)) remain paramount and the subsidiarity principle is subsidiary to this overriding principle; (2) inter-country adoption requires individualized, contextual assessment rather than rigid formulae; (3) while the High Court retains inherent jurisdiction as upper guardian, the Children's Court is ordinarily the appropriate forum for adoption matters due to specialized procedures and safeguards; (4) the Hague Convention framework, though not yet fully implemented domestically, informs the interpretation of children's rights; (5) courts must engage proactively to prevent children being left in legal limbo through formalistic approaches. The judgment provides crucial guidance on balancing local placement preferences with individual children's needs in the globalized context of inter-country adoption, and emphasizes the importance of proper regulatory mechanisms and departmental clarity in adoption policy.