Adoptive mother gets respite at CoA
Mpho Mokwape | Wednesday March 12, 2014 16:31
Court of Appeal (CoA) Judge President Ian Kirby granted Deborah Jan Kirsten-Mey reprieve after giving her a chance at reversing a High Court decision that barred her from having access to her adoptive child.
Kirsten-Mey lost the care of her adoptive child Aobakwe Angel Kirsten (also known as Kristy) in 2012 following an order by the Lobatse High Court Judge Tebogo Tau. The CoA decision came to the aid of Kirsten-Mey when it granted her leave to appeal the ruling and also allowed her to appeal out of time. Both parties are to bear their own costs of the application.
Delivering the ruling recently, Kirby said it was clear that the Adoption of Children Act provides in Section 4 (d). He said that one of the requirements for an adoption order is that consent of adoption is given by both parents of the child or by the mother, if the child is illegitimate.
He added that the parental rights and duties of the biological parents have been terminated by an order of court stating that according to Section 6 (3) of the Act provides: “An order of the adoption shall terminate all the rights and legal responsibilities existing between the child and his/her natural parents and their relatives, except the right of the child to inherit from them.”
He also granted Kirsten-Mey leave to appeal on the basis that Tau had taken the case from a magistrate court, but without the benefit of any evidence, and without the record of proceedings. Kirby stated that the orders declaring the child in need of care and interdicting her removal were made to operate not pending the return day before the Judge, but indefinitely. He said that the child be supervised by a social welfare representative with no justification provided.
According to the case records, Kirsten-Mey legally adopted Aobakwe Angel in 2009 when she was only three-months-old following an agreement with the biological mother, Anna Kopo, who had difficulty raising the child. However, the relationship between the two women reportedly soured despite them having agreed to co-parent Kirsty. When the biological father came into the picture, four years later, he claimed ignorance of the adoption. He later obtained a court order to prohibit Kirsten-Mey from taking Kirsty out of the country with her at a time when she and her family were about to move to South Africa.
Kopo as the biological parent was not happy with the adoption and tried unsuccessfully in 2010 to rescind the adoption order. In 2011 she also moved an unsuccessful application in the High Court for leave to appeal out of time against the order. The father who was initially married when the child was born also made an unsuccessful ex parte application in 2012 to the Jwaneng magistrate with the help of Kopo as a matter of urgency after hearing the adoptive parent was leaving the country.
It was reported that among other things, he was seeking to have Kirsty declared a child in need of care, and to interdict her removal from Botswana pending an application he intended to bring to set aside her adoption order. In refusing the relief at the time, the magistrate pointed out that the child had been adopted four years before. Furthermore, he said there was no suggestion of abuse or disadvantage experienced by the child to warrant declaring her in need of care or to be taken from her adoptive parents.
The case took a novel turn in December 2012 when the biological father, a certain Joshua July, filed an application at the Lobatse High Court of what he referred to as a notice of appeal, which challenged the magistrate’s decision.
On the other hand Kirsten-Mey in her defence said the adoption went through very smoothly, but Kopo insisted she did not want to finalise the adoption in Orapa. She instead said that she wanted to do it in Gaborone. Kirsten-Mey said that she later found out that Kopo had told her family that she was looking after her baby for her. She had not told anyone that the baby had been adopted despite agreeing to the adoption before a magistrate.