The first respondent (the mother of the minor children) and the second respondent (the father of the minor children) divorced in 2005.
The first respondent was awarded primary residence over ET and IT (collectively referred to as “the minor children”). A year later the first respondent married the applicant (the adoptive father of the minor children).
In 2007, with the consent of both the first and second respondent, the applicant legally adopted the minor children.
In 2008 the marriage relationship between the applicant and first respondent had irretrievably broken down and as a result they obtained a divorce. At this point, the first respondent terminated all contact between the applicant and the minor children and further, excluded the applicant from all decision making regarding the minor children.
Due to manipulation and interference by the first respondent, the parent-child relationship between the applicant and the minor children eventually deteriorated to such an extent that it too had broken down.
Notwithstanding the fact that the second respondent gave away his parental rights, obligations and responsibilities in respect of the minor children when he consented to their adoption, as provided for in section 242(2) of the Children’s Act No. 38 of 2005, he had continued to exercise contact and maintained a good relationship with the minor children.
In light of the above, the applicant accordingly applied to the Johannesburg High Court (hereinafter referred to as the “High Court”) for a rescission of the adoption orders, so that the first and second respondents could have their full parental rights, obligations and responsibilities over the minor children reinstated. (Presumably so that he could be relieved of the duty to pay maintenance towards the minor children).
Mokgoatlheng J held that as the upper guardian of all children, the High Court needs to take into account the minor children’s best interests, and as such the High Court was obliged to consider the effect that rescission of the adoption orders would have on the minor children.
Mokgoatlheng J held that in the present case, it was clear that adoption of the minor children was in essence a legal fiction because the first respondent did not recognise nor accept the legal effect and consequences of the adoption.
Mokgoatlheng J held further that as the relationship between the minor children and the applicant had irretrievably broken down, and that the applicant having stated in no uncertain terms that he was not interested in rebuilding the parent-child bond with the minor children and further that the parent-child relationship between the minor children and the second respondent was still intact, the formality of setting aside the adoption orders would afford the respondents and the minor children an opportunity to strengthen their already existing parent-child relationship and in essence restore the de facto family unit, which restoration could only be in the best interests of the minor children.
In light of the above, the court ordered that the rescission order be granted with no order as to costs.
Adoption orders may be rescinded if the court finds that it is in the best interests of the minor children to do so.