The suspension of inter-country adoption of children orphaned as a result of natural disaster

Abstract

Every child has the right to grow up in a family environment where they are to be known and cared for by their own family to the greatest extent possible. Unfortunately, when a child’s family is unavailable or unable to care for him/her, then alternative appropriate and stable family-based solutions should be sought to enable the child to grow up in a loving, caring and supportive environment. In this situation, inter-country adoption is often regarded as the best permanent solution. It is regarded as an act which provides a secure home to vulnerable children who face an uncertain future. Inter-country adoptions are furthermore appealed to as a solution for taking care of children who are orphaned as a result of a disaster or children who find themselves in an emergency situation where they are unaccompanied or separated from their family. In this situation, family tracing and reunification should be prioritised and inter-country adoptions should only be considered for the care of a child only once these tracing efforts have proven ineffective. The problem with this statement is that the circumstances after a natural disaster or an emergency situation are usually so atrocious that it is almost impossible to find any information on the unaccompanied or separated children. The need to provide basic care for these children is usually far greater than the need to comply with all the rules and regulations set out to protect these vulnerable children. Yet, inter-country adoptions, conducted without the necessary safeguards and competent state authorities to regulate the process, could result in these children being placed in a dangerous situation. This has resulted in the international practices surrounding inter-country adoption being inclined to the suspension thereof in post-disaster/emergency situations. This paper discusses the provisions in international instruments for conducting inter-country adoptions in safeguarding and protecting the rights of separated or unaccompanied children, specifically referring to the best interests of the child principle, the subsidiarity principle and the duties imposed on state parties to the international instruments. Also referring to the South African position and legislation on the matter. The purpose of this mini-dissertation is to critically analyse the suspension of the inter-country adoption of children orphaned as a result of a natural disaster in South Africa, and in doing so a brief comparison will be made with the recent suspension of inter-country adoption by the government of Liberia. During this comparison a possible lacuna in South African legislation will be considered. Ultimately, the comparison might be able to be used to resolve the possible lacuna in South African legislation on the matter and equip South Africa to be proactive should a similar emergency situation, as in Liberia, were to present itself in South Africa.