Children's Act, 2005 (Act No. 38 of 2005)Chapter 15 : Adoption236. When consent not required |
| (1) | The consent of a parent or guardian of the child to the adoption of the child, is not necessary if that parent or guardian— |
| (a) | Is incompetent to give consent due to mental illness; |
| (b) | Has abandoned the child, or if the whereabouts of that parent of guardian cannot be established, or if the identity of that parent or guardian is unknown; |
| (c) | Has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected; |
| (d) | Has consistently failed to fulfil his or her parental responsibilities towards the child ruing the last 12 months; |
| (e) | Has been divested by an order of court of the right to consent to the adoption of the child; or |
| (f) | Has failed to respond to a notice of the proposed adoption referred to in section 238 within 30 days of service of the notice. |
| (2) | Consent to the adoption of a child is not required if— |
| (a) | The child is an orphan and has no guardian or caregiver who is willing and able to adopt the child; and |
| (b) | The court is provided with certified copies of the child’s parent’s or guardian’s death certificate or such other documentation as may be required by the court. |
| (3) | If the parent referred to in subsection (1) is the biological father of the child, the consent of that parent to the adoption is not necessary if— |
| (a) | that biological father is not married to the child’s mother or was not married to her at the time of conception or at any time thereafter, and has not acknowledged in a manner set out in subsection (4) that he is the biological father of the child; |
| (b) | the child was conceived from an incestuous relationship between that biological father and the mother; or |
| (c) | the court, following an allegation by the mother of the child, finds on a balance of probabilities that the child was conceived as a result of the rape of the mother: Provided that such a finding shall not constitute a conviction for the crime of rape. |
| (4) | A person referred to in subsection (3)(a) can for the purposes of that subsection acknowledge that he is the biological father of a child— |
| (a) | by giving a written acknowledgment that he is the biological father of the child either to the mother or the clerk of the children's court before the child reaches the age of six months; |
| (b) | by voluntarily paying maintenance in respect of the child; |
| (c) | by paying damages in terms of customary law; or |
| (d) | by causing particulars of himself to be entered in the registration of birth of the child in terms of section 10(1)(b) or section 11(4) of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992). |
| (5) | A children’s court may on a balance of probabilities make a finding as to the existence of a ground on which a parent or person is excluded in terms of this section from giving consent to the adoption of a child. |