The link between adoptions and child trafficking is a pervasive and emotive one, and reportedly the reason why Ethiopia suspended intercountry adoptions as recently as May 2017. But in South Africa, it has never been proven (despite the department’s best efforts). So, when the Department of Social Development Head Office issued the directive on 20 May 2016 to halt all adoptions in KZN because of “the scourge of child trafficking and misappropriation in the adoption cases”, it was a bolt from the blue: there was no evidence, no remedy, and no time frames for uncovering and ending the “abuses”.

Adoption approvals (the department’s issuing of the Section 239 (1)(d) letters, mandatory for adoption orders to be granted) came to an abrupt stop. But perplexingly, this was the only part of the process that was suspended. At no point were social workers instructed to stop screening potential adoptive parents or matching children to those parents. On paper, that may seem like a small administrative issue but in fact the impact was enormous. Whether by intent or another one of the department’s infamous “unintended consequences”, the directive resulted in a backlog of cases where hundreds of vulnerable children were left languishing in care indefinitely, or placed temporarily without any legal confirmation of their relationship.

For one local family, the directive came as no surprise. In an unlikely “coincidence”, on the same date as the directive was issued, 20 May, provincial authorities also issued a press statement confirming that police were pressing charges for “child trafficking” against the Taylors*, parents to six adopted children, foster parents to two, and extensively involved in child protection in their community. Had the allegation been substantiated, it would have provided important evidence linking trafficking and adoption, so it is understandable that the department (which initiated the charges) pursued them with such vigour. However, there were several significant problems with the case against the Taylors. First, the department was acting on a tip-off from a disgruntled former tenant of the family, whose credibility and motives were already in question. In addition, by the time the press statement was released, the department had been investigating the Taylors for over a month, and both social workers and the police’s Child Protection Unit had seen and talked to the children, all of whom had valid adoption or foster care orders. It was already abundantly clear that they had not been trafficked.

Given what was at stake, it is shocking but not surprising that the department persisted. And by this stage, its relationship with the Taylors had turned ugly. The family, who had initially co-operated with the investigation, resisted when seven social workers, accompanied by the police, arrived at their home unexpectedly, and insisted on questioning the children (at the time, aged between three and 12) without their parents or their social worker or legal counsel present. The Taylors refused, which the department interpreted as evidence that they had “something to hide”. It responded by obtaining an ex-parte order (without notice to the other side) to have the children removed from their parents’ care.

It was at this point that the High Court intervened, stayed the orders against the Taylors, and appointed an advocate to act on behalf of the eight children. Questioning how the department could have seen the removal order as being in the children’s best interests, their advocate confirmed that the children (many of whom had experienced trauma prior to their placement with the Taylors), were terrified of the department social workers, and even more terrified of being taken away from their parents. Disturbingly, in recordings of the family’s interactions with the department, the children can be heard crying quietly in the background.

It should have all ended at this point, since the judge’s ruling also stopped the department from investigating the matter any further. But although the Taylors have now been cleared by the Hawks and the SAPS of all trafficking charges, the department has persisted. One of its social workers illegally entered the children’s school to question staff about the children, and despite them having valid adoption orders, the department used the Sheriff of the Court to find the children’s birth mothers, and approached them to ask if they were aware that their children had been “sold”. The department also allegedly accused one of the birth mothers of dumping her child, and told her that she should fetch her because she was being mistreated by the Taylors – something she knew to be untrue since the child’s open adoption allows her regular contact.

It is easy to speculate that the department’s desire to prove the trafficking and adoption link, and justify the moratorium on adoptions was so great that it was willing to employ any strategy necessary. And perhaps if the Taylors’ trafficking charges had been proven, many would have been sympathetic to the resulting delays, and new more stringent requirements for the process. But instead, these baseless allegations provoked a crisis in child protection in the province, and changed the balance of power in the adoption process. Social workers, understanding the extreme risk to children of unconfirmed adoptions, were desperate to do whatever was necessary to obtain departmental sign-off. This allowed the department in turn to add more conditions to obtaining approvals, some of which are neither legally required nor ethically responsible.

Even when the department finally resumed panel meetings in November 2016 and gave the semblance of continuing to process adoptions, it was clear that it was intent on preventing them wherever possible. Its strategies ranged from the mundane: delays, last-minute scheduling of meetings and changing the administrative requirements for submissions; to the troubling: pursuing family reunification, even in violation of the rights of the child or birth mother, and advocating cluster foster care or care in Child and Youth Care Centres over adoption, despite evidence showing the negative impact on child development.

The department’s methods proved shocking, even for those sympathetic towards family reunification. The Children’s Act allows birth mothers to choose adoption if they are not able or willing to raise their child. The only conditions are that the mother be given 60 days to change her mind and that the birth father consents (or relinquishes his parental rights). If the birth mother is over 18, the law does not require permission from extended family for the adoption. But the department in KZN seemed willing to override the Act, ordering social workers to track down extended family, even when the birth mother had consented. If the social worker proved reluctant, the department used the Sheriff of the Court to find these family members and approached them directly.

In the most concerning cases, social workers were instructed to contact birth mothers after their 60-day consent period had expired to ask if they were “still certain” about their decision, or told to ask extended family if they wanted the child (or produce proof that they didn’t want the child) despite the birth mother having consented. And shockingly, the department even contacted the parents of an adult birth mother who had placed her child for adoption, to ask if they wanted their grandchild, this after the birth mother had expressly stated that she didn’t want her parents informed about the pregnancy or the child. Social workers in the region have voiced concern that the department is both reawakening trauma in birth mothers, and violating their right to confidentiality and self-determination.

As the process now stretches on indefinitely, many children are spending far too long in care. Places of Safety in the province are over-full awaiting the finalisation of adoptions. And troublingly, although it is an open secret that the department favours cluster foster care and Child and Youth Care Centres over adoption, research is increasingly revealing the negative affect of long-term care on children’s development.

According to Marietjie Strydom from the Attachment Foundation, studies confirm that prolonged time in care affects children’s ability to attach emotionally. Neuroscience has also shown a vast alteration in the brains of institutionalised children. It is what Luke Lamprecht, from the Shaken, Abused and Abandoned Baby Initiative, refers to as “neural pruning”, the process by which these children’s brain volumes decrease over time as a result of a lack of individual care. Extended periods in institutions (even nurturing ones) could therefore have a long-term impact on children’s ability to complete their schooling and become economically and socially productive.

For Thabo* a 26-month-old boy, departmental delays in KZN have resulted in him spending an extra year in care instead of living with his new family. Thabo was just 15 months old when he was matched to foreign adoptive parents, and the adoption was approved by both the South African Central Authority and the Central Authority from his new country. The only outstanding requirement was departmental approval. But, because of the directive, his case was indefinitely postponed. His desperate adoptive parents eventually took legal action to force the department to approve his adoption, and the resulting court order makes him one of the fortunate ones. But, when he is finally united with his new family, he will tragically have spent every single one of his critical first 1,000 days of development in institutional care.

Thabo’s case epitomises the type of adoption that the department is most averse to; his parents are foreign and of a different race to him. But another alarming adoption story seems to indicate that the issue in KZN is not just antipathy towards intercountry or transracial adoptions, but opposition to adoption per se, including black, same-race ones. Nothando and Siya’s* story illustrates the point.

In a country where black, same-race adoptions are infrequent and usually exclusive to middle-class, tertiary educated families, Nothando and Siya could be the poster children for adoption. She, a domestic worker, and he, a gardener, came to adoption through years of painful infertility. But, unlike many other couples for whom adoption is not an option, they were excited about the idea of giving an unrelated child a family. Initially, things went well. Realising that they could not pay private adoption worker fees, they were directed to the Department of Social Development where social workers agreed to screen and match them to a child free of charge. They had no way of knowing that department social workers were not accredited to do adoptions at the time (they were only legally permitted to process adoptions in January 2017). Perhaps for this reason, the screening process was lengthy. Then they waited for over a year for news of their child.

So, they were delighted when they finally received what adoptive parents refer to as “the call”, notification from the social worker that she had a child for them. But their happiness was short-lived. Instead of presenting them with a tiny baby girl as they requested, they were told that the social worker had selected a pre-schooler for them. They were understandably bemused, but the response to their questions was (effectively), this is your only option, take it or leave it.

They chose to proceed, and met Nandi*, their little girl, not long thereafter. But the news from the social worker kept getting worse. Astonishingly, after their first meeting, they were told that the child was in a creche far from their home and would have to complete her schooling there before she could join their family. They didn’t see Nandi again for more than three months, and when she was finally brought for a visit, the social worker disclosed that she had been removed from her abusive, alcoholic mother after one of Nandi’s siblings had died in her care. Nothando was deeply troubled by the child’s history of abuse and neglect, how quiet and subdued she seemed, and the fact that she did not respond to any physical contact. But the social worker did not mention concerns about attachment, or how this could be exacerbated by her extended time in care. Nandi ended up spending more than a year living apart from Nothando and Siya after they had agreed to adopt her. On her infrequent visits, she cried every time she had to leave. And, as if that wasn’t disturbing enough, when the couple finally obtained custody in December 2016, they discovered that Nandi’s abusive birth mother lives in the same tiny village as they do, and that they will not receive an adoption order confirming their parental rights until they have fostered her for two years.

In testament to Nothando and Siya’s love and commitment, Nandi is settling down into being a happy and well-adjusted little girl who is doing well at school and making friends. But seasoned adoption social workers are appalled by her story. They confirm that the couple should have been presented with a baby as they requested (given the high rate of crisis pregnancies in the province, placing a baby should not have been difficult); and that while a period of visitation is common for older children, more than a year of separation is bewildering, especially given concerns about attachment disorder (something the social worker should have disclosed and addressed).  Furthermore, given the department’s unwillingness to rescind parental rights, and the lengthy period of fostering, they questioned whether Nandi is adoptable; and if not, the ethics of placing an unadoptable child, and of returning that child to close proximity of her abusive birth mother – the risk to Nandi and her new parents could not have escaped their attention. All things considered, this looks less like incompetence and more like sabotage.

The question is “why”? If there is no actual proof of trafficking, why would the government go to such lengths to impair adoption in KZN, especially when it is tasked with ensuring the best interests of the child? The department isn’t saying, but quite possibly it believes that adoption isn’t in a child’s best interests. It is an ideological position that has some sympathisers (albeit on a spectrum: few outside the department are opposed to adoptions as a whole). But even those supportive of the department’s stances should be concerned about its likely effect. As long as adoption is legal in South Africa, the department is legally bound to make it achievable. Its efforts to limit adoptions will undoubtedly result in more court action (something the department can ill-afford given its almost R30-million bill for legal costs since 2013). It may also result in punitive actions against its social workers for unethical behaviour. But it is the most defenceless who will be most affected: families that can’t afford to take legal action, and crucially, innocent children, subjected to heartache and long-term damage. Will anyone intervene? Distressingly, the answer may be no. DM

* Names changed to protect identities