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Child Care Act, 1983 (Act No. 74 of 1983)

Chapter 4 : Adoptions

21. Rescission of order of adoption

 

1) A parent of a child for whose adoption an order has been made under section 18, or the person who was at the time of the making of the order the guardian of the child or the adoptive parent or parents of the child, or, with the consent of the Minister, the children's court assistant of the court by which the order was made, may apply to the children’s court by which the order was made for the rescission thereof on one or more of the following grounds, namely –
a) if the applicant is the parent of the child, that he did not consent to the adoption and that the order of adoption should not have been made without his consent; or
b) if the applicant is an adoptive parent, that his adoption of the child was induced by fraud, misrepresentation or justus error, or that the child is mentally ill, and that the mental illness existed at the time of the making of the order of adoption, or that the child suffered from a congenital disorder or injury of a serious nature at the time of the making of the order of adoption; or
c) that for reasons set out in the application the adoption is to the detriment of the child; or
d) that at the time of the making of the order of adoption the adoptive parent or parents did not qualify in terms of section 17 for obtaining the order of adoption.

 

2) If the application is made -
a) on the grounds mentioned in subsection (1)(a), it shall be made within a period of six months as from the date upon which the applicant became aware of the fact that an order for the adoption of his child had been made, but not later than two years as from the date upon which that order was made;
b) on any ground mentioned in subsection (1)(b), it shall be made within six months as from the date upon which the applicant became aware of that ground; or
c) on the ground mentioned in subsection (1)(c) or (d), it shall be made within a period of two years as from the date upon which the order of adoption was made.

 

3)
a) An application on the ground that the child is mentally ill may only be made if the applicant was, or if husband and wife jointly adopted the child concerned, they both were, at the time of the making of the order of adoption, ignorant of the mental illness of the child and this ignorance was not due to failure of the adoptive parent or parents to exercise reasonable care in examining the child or causing it to be examined.
b) An application on the ground that the child suffered from a congenital disorder or injury of a serious nature may only be made if the applicant was or, if husband and wife jointly adopted the child concerned, they both were, at the time of the making of the order of adoption, ignorant of that genetic disorder or injury, and this ignorance was not due to failure of the adoptive parent or parents to exercise reasonable care in examining the child or causing it to be examined.

 

4) If the application is made by a parent of the child, he shall give due notice of the application to the adoptive parent or parents.

 

5) If the application is made by an adoptive parent, he shall give due notice to the children’s court assistant concerned and to the parent or parents or the person who was prior to the adoption the guardian of the adopted child, if he or they can be found.

 

6) If the application is made by the children’s court assistant, he shall give due notice to the parent or parents, to the adoptive parent or parents and to the said guardian, if he or they can be found.

 

7) The court to which the application is made shall, after having satisfied itself that the applicant has complied with subsection (4), (5) or (6), and after having afforded any person interested in the application an opportunity to be heard and after having considered any relevant evidence, whether oral or in the form of an affidavit, which was tendered in support of or in opposition to the application, rescind or confirm the order of adoption: Provided that it shall not rescind an order of adoption on the application of a parent of the adopted child if the court is satisfied that the applicant is unfit to have the custody of the child and that it is in the interest of the child that the order of adoption be confirmed.

 

8) On the rescission of an order of adoption in terms of subsection (7), the child concerned shall for all purposes be restored to the position in which it would have been if no order of adoption had been made: Provided that the rescission of the order shall not effect anything lawfully done while the order of adoption was in force.