Adoptive mum wins in adoption fracas
Lebogang Mosikare | Friday June 15, 2018 13:15
The appeal arose out of a dispute over parental rights between the Social Welfare Department of the Francistown City Council (FCC) and the birth mother of an infant, which had been given up for adoption shortly after its birth.
Giving a genesis of the civil application recently, Judge President of the Court of Appeal (CoA) Ian Kirby and acting judges of the CoA, Isaac Lesetedi and Monametsi Gaongalelwe, said the girl child and the birth mother, known only as Ms X , and the adoptive mother only known as Ms Y, will not be identified for ethical reasons.
The judges added that the identification of the parties could lead to the child suffering social stigma later in life.
Olatotse Solomon Attorneys represented the appellant, FCC, while the respondent, Ms X, was represented by Legal Aid Botswana.
According to the judges, Ms X is a single mother of four young children from three different fathers, of whom two now attend school while others are five and three years respectively.
“…Ms X is a person of modest means. She lives with her four young children in a one-bedroomed bachelor flat in Francistown.”
Her mother and other relatives live in Letlhakane, 253 kilometres away, stated the judges.
When returning alone from the shops on the night of March 9, 2016, the judges said, Ms X was raped by an unknown assailant and fell pregnant.
“The rape was not initially reported, and when, in July 2016, she discovered that she was pregnant, Ms X attended a local clinic seeking to terminate her pregnancy.
She was referred to the Social Welfare Officers, who advised her that it was too late to do that lawfully.”
She received counselling during the remainder of her pregnancy, which counselling was the subject of future controversy as shall appear, said the jurists.
Suffice to say that since she harboured negative thoughts about rape, the judges noted, she feared that she might harm the child and then opted to give the baby up for adoption upon its birth.
“She gave her formal consent and on October 28, 2016 with the assistance of the Social Welfare Department, she moved an ex-parte application (temporary application) before the Francistown Magistrate Court seeking orders that she be permitted to relinquish parental rights of her unborn child to the FCC, who will eventually appoint an adoptive parent.
Ms X, according to the judges, also wanted the magistrate to order that the baby be placed under foster care of an identified parent from the council foster bank and the foster care process shall be carried out as soon as the relinquishing order is granted.
“The application was supported by affidavits from Ms X, the social worker and a full social welfare report detailing the counselling process.”
The magistrate was satisfied and issued an order that the application is granted in terms of the draft order after being satisfied that the applicant was by then thoroughly counselled and she is ready to relinquish her parental rights upon the birth of her baby, said the judges.
The jurists further said the magistrate granted an order that fostering for the unborn baby be facilitated immediately thereafter and that the relinquishing of parental rights be effective from November 1, 2016.
The coram continued: “Ms X gave birth to a baby daughter on November 6, 2016 and the child was removed immediately from her into the care of social welfare office to prevent her from bonding with her birth mother. The adoption process was commenced immediately thereafter and on November 18, 2016, an adoption order was made by the senior magistrate at the suit of Ms Y. Ms Y is a senior government official and is a divorcee living alone in a three-bedroomed home in Gaborone.
The trio added that Ms Y has her own personal support system nearby and also employs a maid to take care of the baby while she is at work.
“She can afford to house, clothe and educate the child in the best possible way. The magistrate was satisfied by evidence before her and ordered that … the child shall bear the names and surname of the adoptive parent immediately after adoption is granted.”
Meanwhile, the judges said, on or about November 16, 2016 Ms X’s parents (mother, sister and uncle) arrived from Letlhakane to see the new child.
“It appears that apart from the respondent’s sister other family members were not aware of both the rape incident and Ms X’s decision to give the child up for adoption. They sought an explanation from the senior social welfare officers and there is a dispute as to what happened thereafter.”
The parents and Ms X say that when they demanded the return of the child, they were told that the adoption process was now irreversible, said the judges.
Seven months elapsed with the baby being nurtured by Ms Y, the judges stated, before Ms X with the assistance of Legal Aid Botswana on July 17, 2017, filed an urgent application against the FCC seeking a rule nisi (a court order that does not have any force unless a particular condition is met) calling the council to show cause why the following orders cannot be made: that an order granted by the Francistown Magistrate Court on October 28, 2016 be set aside, among other reliefs.
The judges agreed that failure by the respondent to join Ms Y, as an interested party to the proceedings was fatal to the effectiveness of the order finally made, adding therefore that the appellant’s second ground of appeal had merit.
“We agree with the appellant that the judge a quo (High Court judge) heavily relied on the expert opinion and turned his attention more on the rights of the birth mother.”
The judges continued that in comparing the situations of the birth mother and the adoptive mother, the judge failed to mention a number of relevant features such as the mother’s lack of means to take care of another child in addition to her existing four; the fact that she (Ms X) could not afford a maid and was already a subject of a child neglect inquiry having left her children unattended while she went to work.
The judges were also of the view that the judge a quo was heavily influenced by his finding that Ms X did not give informed consent to the adoption and that the consent was withdrawn before the adoption order was made.
“There may well have been deficiencies in the manner and haste with which the adoption proceedings were conducted, but those were not, as we have already found, matters which were properly before him…”
It is now too late for the adoption order to be reversed, said the judges.
It is clear, and is accepted by all parties, that this appeal, the judges said, must succeed so that the child will remain with Ms Y.
“In terms of the law, Ms Y is now her mother in every legal sense and she has all the rights and obligations of parenthood. It is her alone who will decide on the child’s upbringing, education and general welfare.”