Intercountry adoption and the South African child's right to culture

Abstract

For a long time, South African children have been preferred for inter-country adoption over in-country adoption or local alternative child-welfare systems. The child's cultural right has often been interpreted to be subsidiary to the best interest of the child in inter-country adoption. South Africa has ratified The Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and yet all these international instruments have different views on when inter-country adoption may be applied. The South African courts have tilted more towards having children leaving the country as opposed to them staying within the country. The courts have gravitated towards adhering to The Hague Convention's interpretation of the child's best interest as opposed to the ACRWC. This paper states that a child's right to culture has not been adequately addressed by South African courts when it comes to inter-country adoption. From colonial to present times, the African traditional value system has been side-lined to the margins of justice. Therefore, there is a need for a new socio-legal discourse that takes a child’s cultural rights seriously and this would be to interpret the child's best interest from the ACRWC 's point of view. This is mainly because inter-country adoption and the best interest of the child has for a long time been applied from an international perspective that encompasses a western perspective that is reflective of western liberalism which does not prioritise children's cultural rights. Therefore, there is a need for African values and standards to receive universal recognition as well.