The thesis addresses the question: how can the rights of parents be adequately protected in intercountry adoption in an African context? Inter-country adoption is recognised as one of the alternative care options for children deprived of parental or family care. However, it is only considered as a ‘last resort' when the child cannot be cared for in his or her country of origin. Although children deprived of parental or family care have the right to alternative care, international human rights law also recognises that parents have rights that should be protected. These rights include, among others, the right to found a family and to enjoy their family life. This creates a potential of conflict between the rights and interests of parents and the rights and interests of the child. Drawing from theories of the parent-child relationship and parenthood, international human rights law and private international law, this thesis provides a framework for inter-country adoption that serves the rights and interests of parents. The thesis argues that the principles of consent, adoptability and post-adoption procedural rights, taken together with the recommendation for a broad conception of parenthood which protects all forms of family relationships are key to a robust system of inter-country adoption that respects the rights of parents in inter-country adoption in an African context. To ensure that the rights of parents are protected in inter-country adoption, the law must sufficiently incorporate these principles. The thesis identifies three components that a legal framework ought to incorporate to protect the rights of parents in inter-country adoption. It argues that first, there must be clear provisions establishing the grounds in which children could be considered in need of alternative care or adoption. The law should establish the conditions under which children are considered adoptable and provide a clear and detailed definition of children to be declared genuinely adoptable. In addition, questions on who should give consent, how should consent be given and counselling must be made very clear in the law. Second, the legal framework must provide the procedures by which such a determination can be made. Questions of who determines the adoptability of a child, family tracing and the criteria for children to be declared genuinely adoptable must be made clear in the law. Third, the legal framework ought to provide mechanisms in which the validity of an adoption can be challenged in case of disputes and grievances. Three countries: Ghana, South Africa and Uganda are used as examples to demonstrate African countries experiences. The thesis demonstrates that to a considerable extent the regulatory framework governing inter-country adoption in the countries under study supports the legal framework proposed in this study. However, inter-country adoption practices have been done in ways that do not adequately protect the rights of parents. These relate to pre-adoption counselling, the requirement for consent in child adoption procedures, the requirement to ensure that consent has been freely given, effective tracing of the child's family before a declaration of adoptability and ensuring that parents have access to justice. As such, this thesis contributes to the legal discourse on inter-country adoption in an African context in protecting the rights of parents.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uct/oai:localhost:11427/36721 |
| Date | 23 August 2022 |
| Creators | Rushwaya, Chipo Irene |
| Contributors | Chirwa, Danwood |
| Publisher | Faculty of Law, Department of Public Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Doctoral Thesis, Doctoral, PhD |
| Format | application/pdf |
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