Althea La Don De Gree and Another v David William Webb and Others

Mr and Mrs De Gree (the appellants), American citizens, instituted proceedings in the Johannesburg High Court for sole custody and guardianship of a minor child, Ruth Joy Webb, with a view to removing her to the United States for adoption. Ruth was found abandoned as a newborn in November 2004 and placed in foster care with Mr and Mrs Webb (American citizens resident in South Africa who run 'Baby Haven', a home for abandoned babies). The Webbs were appointed Ruth's foster parents in January 2005. The appellants visited South Africa in 2005, met Ruth, and became fond of her. They sought an order for sole custody and guardianship, for Ruth to be declared abandoned, for the foster care order to be discharged, and for authorization to remove Ruth from South Africa. Goldblatt J dismissed the application on the basis that it was for the children's court, not the high court, to determine Ruth's best interests in accordance with the Child Care Act 74 of 1983. The appellants appealed with leave of the High Court. All three respondents supported the appellants' application. An amicus curiae (Centre for Child Law) was appointed to assist on South Africa's obligations under the Hague Convention on Inter-country Adoption 1993 and developments regarding inter-country adoption.

• Whether the High Court, in its capacity as upper guardian of minors, has jurisdiction to grant an order for sole custody and guardianship where the effect would be to facilitate an inter-country adoption
• Whether the application circumvented the exclusive jurisdiction of the children's court in adoption matters under the Child Care Act 74 of 1983
• Whether the principle of subsidiarity (that inter-country adoption should only be considered when domestic placement options have been exhausted) was satisfied
• Whether the procedure adopted was compatible with South Africa's international treaty obligations under the UN Convention on the Rights of the Child (UNCRC) and the Hague Convention on Inter-country Adoption
• Whether the best interests of the child (s 28(2) of the Constitution) were served by granting the application or by requiring the appellants to approach the children's court

The appeal was dismissed by a 3-2 majority. The order of the High Court dismissing the application was confirmed. The appellants remained free to approach the children's court for an adoption order.

The binding legal principles established by the majority are: 1. The High Court's inherent jurisdiction as upper guardian does not permit it to make orders that effectively authorize inter-country adoptions in a manner that circumvents the exclusive jurisdiction of the children's court under the Child Care Act to grant adoption orders. 2. The principle of subsidiarity, derived from South Africa's ratified international treaty obligations (UNCRC Article 21(b), African Charter Article 24(b)), requires that before an inter-country adoption is approved, it must be established that reasonable efforts have been made to place the child domestically and that no suitable domestic placement is available. This principle must inform the application of the best interests standard in s 28(2) of the Constitution. 3. Where an application effectively seeks authorization for inter-country adoption, the applicant bears the onus of satisfying the court that: (a) the principle of subsidiarity has been complied with; (b) the procedural and substantive safeguards equivalent to those in the Child Care Act have been met; and (c) the standards required by international instruments ratified by South Africa (UNCRC, African Charter) have been satisfied. 4. In determining the best interests of a child under s 28(2), a court must consider not only the interests of the individual child but also the interests of children generally, particularly the systemic protections designed to prevent trafficking, exploitation, and other abuses in inter-country adoption. 5. Applications for inter-country adoption should ordinarily be brought in the children's court, which has the expertise, procedures, and safeguards designed for such matters. Where departmental policy or practice appears to obstruct a legitimate application, the proper remedy is to pursue the application in the children's court and, if necessary, challenge any adverse decision by way of review or appeal, rather than seeking an alternative route through the High Court.

Obiter observations by the majority include: 1. Theron AJA noted that a custody and guardianship order does not confer the same legal protections and certainty as an adoption order, particularly in the context of inter-country placement. The status of a child entering the US under a guardianship order is more precarious than under an adoption order (which confers automatic citizenship). 2. The majority observed that the Children's Act 38 of 2005, though not yet in force, represents a clear statement of government policy on inter-country adoption and should inform the court's approach. Section 25 of that Act will expressly provide that guardianship applications by non-citizens must be treated as inter-country adoptions. 3. Theron AJA expressed concern that allowing the high court route could permit prospective adoptive parents to 'jump the queue' and bypass the register of children available for adoption and prospective parents that the Children's Act will establish. 4. The majority noted that the third respondent (Roodepoort Child and Family Welfare Society) failed in its duty to represent Ruth's interests by aligning itself with the appellants from the outset rather than independently investigating domestic placement options. 5. Ponnan JA observed that the absence of a curator ad litem to represent Ruth was a 'telling deficiency' that denied the child a voice in the proceedings. Obiter observations by the minority include: 1. Heher JA observed that the formalities and structures contemplated by the Hague Convention should not be rigidly applied where they are not yet in place and where the substance of the Convention's objectives has been achieved. 2. Heher JA noted that the Department's policy appeared to preclude or severely restrict adoptions to the United States despite evidence that some such adoptions had occurred, and criticized this as inconsistent with the evidence presented. 3. Hancke AJA strongly criticized what he characterized as the majority's elevation of 'legal niceties' over the child's concrete welfare, stating that the legal process had been 'fiddling for more than 18 months while the child's prospects are consumed by the delay.' 4. Heher JA observed that South Africans seeking custody and guardianship face no similar restrictions and may remove children from the country without disclosure of intention to adopt abroad, questioning why foreigners should face stricter scrutiny. 5. The minority expressed the view that requiring the appellants to start afresh in the children's court was futile given their depleted resources, disillusionment with the process, and the apparent reluctance of the Department and children's court to facilitate US adoptions.

This case is significant in South African family law and child law for establishing important principles regarding inter-country adoption and the scope of the High Court's jurisdiction as upper guardian: 1. It clarifies that applications by foreign nationals for custody and guardianship with a view to removing a child for inter-country adoption must be carefully scrutinized and cannot be used to circumvent the exclusive jurisdiction of the children's court in adoption matters. 2. It affirms the principle of subsidiarity in inter-country adoption, requiring that reasonable efforts be made to place a child domestically before inter-country adoption is considered, in line with South Africa's obligations under the UNCRC, the African Charter, and the Hague Convention. 3. It recognizes that while the Hague Convention had not yet been incorporated into domestic law at the time, its principles (drawn from the UNCRC which SA had ratified) must inform the application of the constitutional best interests standard. 4. It foreshadows the provisions of the Children's Act 38 of 2005 (not yet in force), which would expressly treat guardianship applications by non-citizens as inter-country adoptions subject to the Hague Convention framework (s 25). 5. It illustrates the tension between the best interests of an individual child and systemic protections for children generally, and the need to balance immediate welfare concerns against procedural safeguards designed to protect vulnerable children from exploitation and trafficking. 6. It highlights the importance of independent investigation and representation (e.g., by a curator ad litem) in matters affecting children's fundamental rights. 7. The sharp division in the Court (3-2) reflects the genuine difficulty in balancing competing considerations where a child's immediate welfare appears to point in one direction but systemic and procedural concerns point in another. The case has been influential in shaping the approach to inter-country adoption in South Africa and emphasizes that such adoptions must comply with both the letter and spirit of international instruments designed to protect children.