Chose adoption? Social workers can't override your choice, SCA rules

A mother who lawfully consents to her baby's adoption cannot have that choice overridden by government social workers who would rather see the child placed with relatives. That is the effect of a Supreme Court of Appeal (SCA) judgment handed down on 20 October 2026, which dismissed an appeal by the Minister of Social Development, the Gauteng social development MEC and the head of the Gauteng department (SCA media summary).

The court agreed with the Johannesburg High Court that the department's National Adoption Practice Guidelines are unconstitutional because they add requirements for adoption that the Children's Act does not contain (SCA media summary).

What happened in the two cases?

Two single mothers, identified only by their initials, consented to their babies' adoption before a Children's Court magistrate. Social workers believed the children, known as B and L, should go to their biological grandparents to keep their culture (SCA media summary).

In B's case, officials told the grandparents about the birth despite the mother's repeated objections, and got an order to remove the baby from hospital as a child in need of care and protection. The matter went back to the Children's Court 15 times between 2018 and 2020 (TimesLIVE). The department then issued a letter refusing to recommend the adoption, ignoring Children's Court orders that found it was in B's best interests (SCA media summary).

L's mother feared her family would learn of the pregnancy and got a High Court order stopping officials from telling them (TimesLIVE).

Both adoptions were finalised in 2023, B's on 26 May and L's on 8 August, yet the government parties still argued on appeal that the processes should start again (TimesLIVE).

What did the SCA decide?

• Adoption is not a care case. The department had mixed up Chapter 9 of the Children's Act, which deals with children in need of care and protection, with Chapter 15, which deals with adoption. The court said these are two separate processes (SCA media summary).
• Social workers have a limited role once consent is given. Their job is to gather information, counsel, assess and prepare the report and letter of recommendation under section 239 (SCA media summary).
• Family and culture are not automatically first. The relationship with the biological family "is not paramount in adoptions". The best interests of the child is the overarching test, and the Act sets no ranking of factors (SCA media summary).
• The mothers' rights were violated. The court called the social workers' conduct "brazen and unauthorised" and said it was an affront to the mothers' independence, dignity and privacy (SCA media summary).

The court also upheld the High Court's order referring the social workers' conduct to the South African Council for Social Service Professions, which must give them a chance to respond before any sanction (TimesLIVE). The appeal was dismissed with costs, including the costs of three counsel.

The Department of Social Development had not responded to TimesLIVE's request for comment at the time of its report (TimesLIVE).

What does this mean if you are thinking of adoption?

The ruling does not remove adoption safeguards. Consent rules still apply, adoptive parents must still meet the legal requirements, and the adoption must still serve the child's best interests (TimesLIVE).

Under the Children's Act and the Department of Justice's guidance:

• Who must consent: each parent, married or not, any other guardian, and the child if they are 10 or older. Section 236 lists cases where a parent's consent is not needed (Children's Act, section 233).
• Counselling first: the adoption social worker must counsel the parents before consent is given (Children's Act, section 233).
• Where to sign: consent is given in writing on Form 61 and signed in front of a presiding officer of the Children's Court (Department of Justice).
• Changing your mind: a parent can withdraw consent in writing on Form 64 before any presiding officer within 60 days of signing. After that, consent is final, and a Children's Court cannot finalise an adoption before the 60 days are up (Department of Justice).

Can a mother keep her pregnancy private from her family?

The 2022 High Court ruling recognised a right not to disclose a pregnancy where there is no legal duty to do so, while noting that constitutional rights are not absolute. It found the mothers' rights to dignity, bodily and psychological integrity and privacy had been violated, and the SCA upheld those findings (TimesLIVE).

The Women's Legal Centre, which represented the mothers, said the judgment makes clear that officials "cannot use administrative practices to undermine lawful adoption processes" (The Citizen). Its attorney Khuliso Managa said the centre will keep pushing for birth mothers' right to choose adoption privately and confidentially (TimesLIVE).