Children are among the most vulnerable members of society. Their upkeep and security are a matter of concern for everybody especially if they are to lose both parents. The Covid-19 pandemic has indeed left some households with no source of income and sustenance creating even more insecurity and vulnerability for the child. The recent high death tolls seen in Zimbabwe due to this pandemic are a representation of the many children who are becoming orphaned almost over night. When children are found in this position, there are cultural and other means to ensure that they remain protected and taken care of. In the Zimbabwean culture, which is by no means homogenous, upon the death of the child’s parents, a surrogate parent / sarapavana is appointed to undertake the parental duties and obligations over the orphaned child. While this is widely accepted, problems arise when there are legal issues as there is seldom any formal and legally recognized documentation of this ‘surrogate parenthood.’ The law has created two channels that may be taken when dealing with children in this position and these are guardianship and adoption. In this paper I will be focusing on adoption.
What is adoption?
The Cambridge dictionary defines adoption as the legal act of taking a child to be taken care of as your own. This is not only a physical process of moving a child from one household to another, but also a social, emotional, and legal process.
When is adoption necessary?
- When the parents of the child are unknown and there are no extended family member to take care of them,
- Where the parents of the child cannot meet the needs of the child and therefore give the role to another relative.
- Abandonment due to various reasons such as economic hardship,
- While this is not a necessity, spouses may choose to adopt the other spouse’s biological child. They will share the parental roles and duties over the child as if the child was born to both of them.
Who can adopt?
- Individuals over the age of 25,
- Individuals more than 21 years older than the child to be adopted,
- A relative living outside the country can adopt a child living in Zimbabwe,
- A child living outside Zimbabwe can be adopted by a relative living in Zimbabwe,
- Spouses can adopt each other’s biological children born from a previous relationship,
- An adult woman in the case that the child to be adopted is a girl. Men cannot individually adopt girls except in certain proven circumstances and with permission from Social Welfare.
- A foreigner, provided that they have been given such permission by the Minister if Public Service Labour and Social Welfare.
- The High Court may endorse foreign adoptions.
How is the adoption procedure done?
- An application is made to the Children’s Court by the prospective adoptive parent(s). The Children’s Court can be found at your local Magistrates Court.
- The Children’s Court refers the application to the District/Provincial Social Welfare Offices.
- Social Welfare will appoint a probation officer called the “guardian ad litem” whose role is to represent the interests of the child throughout the adoption process. This probation officer must be present in all court hearings unless their absence is not prejudicial to the interests of the child.
- The guardian ad litem will make an assessment of the prospective adoptive parent’s home to ascertain the sustainability of appointing them as the child’s parents.
- The prospective adoptive parent(s) need to obtain a police clearance by undergoing a vetting process at a police station.
- The guardian ad litem will compile a narrative report to be presented before the court.
- The adoptive parents are place on the Adoption Waiting List Register which is compiled, verified, and amended by the Director of Social Welfare.
Hearing of an adoption matter
- No adoption can be done without the consent of every person involved including the biological parent of the child or the Children’s home where the child is currently residing.
- Spouses cannot adopt a child without the consent of the other,
- A medical examination of the child must be done, and the medical report shall be given to the court and its contents shown to the prospective adoptive parent.
- The adoption hearing is done in private except those especially selected by the Court to attend. No-one is allowed to publish the name, address, school, or any other information likely to reveal the identity of the child or any person concerned in that matter. This can only be done with permission from the Magistrate on the basis of public interest.
- The Children’s Court is not bound by the strict legal rules of civil and criminal procedure. The hearing is done in a manner that the Magistrates finds befitting. The central focus is the protection of the child’s rights.
Special requirements regarding the biological parent’s consent
- They fill in the prescribe court form,
- This should be signed in front of a Magistrate,
- The form should explicitly show that the parent is giving consent for the adoption of the child,
- The full names and addresses of the people applying for the adoption must be made known to the biological parent,
- There should be a certificate endorsed by the Magistrate showing that the parent understands the effect of adoption including being permanently deprived of parental rights over the child,
- That the adoptive parent is not expecting to receive any money or reward for the adoption.
Who is allowed inside the court for the adoption procedure?
- Magistrate designated to preside over a Children’s Court,
- A maximum of two assessors who are experts in relevant fields. Their role is to advise the Magistrate who will remain with the final decision,
- Guardian ad litem responsible for protecting the interests of the child,
- Court assistants,
- Relatives of the child/children’s home/biological parents of the child,
- Expert witnesses called in to give evidence. The Court may call in a doctor to explain the implications and meaning of the child’s medical report for example.
Effects of an adoption order?
- The child shall bear the surname of the adoptive parent,
- The child can inherit from the estate of the adoptive parent in the event of death in the same manner as biological children,
- The adoptive parent becomes the legal guardian of the child,
- The adoptive parent’s relatives become the child’s relatives,
- Biological parents lose all the rights unless the child adopted was born to one of the spouses. The biological parent will maintain parental rights to the child,
- If the child is adopted by a couple which ends up in divorce, the court can make an order for custody, access, and maintenance of the child in the same manner as biological children,
- No person is allowed to marry their adoptive child,
- The court can revoke the adoption order from a person in the event of fraud, misrepresentation, and other illegalities.
- Upon completing the adoption process and being granted an adoption order by the court the Registrar General of Births and Deaths shall record the child in the ‘Adopted Children Register’. Change of name shall be done through this same office.
Ultimately, the choice to adopt is extended to those who are doing so in the best interests of the child. When one adopts a child, that child is theirs in every single way. They have the duty to take care of this child as if they were their own.
Source: Danai Chirawu
*Danai Chirawu is a human rights lawyer