SCA Clarifies the Law on Adoption and the Rights of Biological Mothers

The Supreme Court of Appeal (SCA) has reaffirmed the importance of protecting the rights of biological mothers in adoption proceedings, ruling that government departments and social workers cannot impose additional requirements or interfere with adoption processes beyond what is authorized by law.

In Minister of Social Development and Others v TT and Others [2026] ZASCA 142, handed down on 20 October 2026, the SCA dismissed an appeal by the Minister of Social Development, the Gauteng MEC for Social Development and the Head of the Gauteng Department of Social Development. The appeal concerned two adoption proceedings in which government social workers had intervened despite the biological mothers having consented to their children's adoption.

Background to the Case

The matter arose from two separate adoption proceedings involving unmarried mothers who had independently decided to place their children for adoption. Both women had provided the necessary consent to the adoption process.

However, government social workers became involved and sought to prioritise placement of the children with their biological families. In doing so, they questioned the adoption arrangements, attempted to involve members of the mothers' families without their consent and introduced additional procedures that caused delays and uncertainty.

The Department relied on its Practice Guidelines on National Adoption, which placed considerable emphasis on maintaining children's connections with their biological families, communities and cultural backgrounds. he mothers challenged the Department's approach, arguing that the interference infringed their constitutional rights and was inconsistent with the Children's Act 38 of 2005.

The Gauteng Division of the High Court found that the conduct of the social workers was unlawful and unconstitutional and that the Department's guidelines were inconsistent with the applicable legal framework. The government subsequently appealed this decision to the SCA.

The SCA's Findings

The central issue before the SCA was whether the Department and its social workers had acted within the powers granted to them by the Children's Act. In dismissing the appeal, the Court emphasised that adoption proceedings and care and protection proceedings are two distinct legal processes. Although both are concerned with the best interests of children, they serve different purposes and are governed by separate provisions of the Children's Act.

The Court found that the Department had incorrectly treated adoption as a process that necessarily had to be preceded by a determination that a child was in need of care and protection. This approach effectively introduced additional requirements that were not prescribed by the legislation.

The SCA further held that the Department's Practice Guidelines on National Adoption could not override or add to the requirements contained in the Children's Act. The guidelines were therefore unlawful to the extent that they imposed requirements inconsistent with the statutory adoption framework.

Importantly, the Court rejected the notion that maintaining a child's connection with their biological family, culture or community must automatically take priority in every adoption decision. While these considerations are relevant when determining a child's best interests, they cannot be treated as an inflexible hierarchy of considerations. Instead, each adoption must be assessed according to the individual circumstances of the child and the applicable legal requirements.

Protecting the Rights of Biological Mothers

The judgment also highlights the constitutional rights of biological mothers involved in adoption proceedings, particularly their rights to dignity, privacy and autonomy. The Court was critical of the conduct of the government social workers, including their unauthorised disclosure of confidential information to family members and their attempts to interfere with adoption arrangements without an adequate legal basis.

It emphasized that social workers have an important role in adoption proceedings, including providing counselling, gathering relevant information and ensuring that decisions are properly informed. However, their responsibilities do not entitle them to disregard a mother's lawful decision or impose their own preferences on the adoption process. The judgment reinforces that protecting children's best interests and respecting the constitutional rights of their mothers are not mutually exclusive obligations.

What Does This Mean for Adoption Proceedings in South Africa?

The decision provides important guidance on the role and responsibilities of government departments and social workers in adoption proceedings. It confirms that adoption processes must be conducted in accordance with the Children's Act and that administrative guidelines cannot be used to create additional legal requirements or undermine the statutory framework.

It also reinforces the importance of an individualized assessment of each child's circumstances. Factors such as biological family connections, culture and community remain relevant, but they must be considered alongside the other circumstances of the child rather than automatically taking precedence. Ultimately, Minister of Social Development and Others v TT and Others is an important reminder that the best interests of a child must be determined within the framework of the law, with due regard to the constitutional rights and dignity of everyone involved.

The judgment strengthens the principle that adoption proceedings should be guided by the law, informed decision-making and the individual circumstances of each case, rather than administrative practices that interfere with the rights of biological parents.

If you require legal advice or assistance relating to adoption proceedings, parental rights or any other family-law matter, Rudolf Buys & Associates Attorneys can assist. Contact our offices to discuss your circumstances and obtain guidance on your legal rights and available options.