Fraser v. Children’s Court

This case involves a dispute between an unmarried couple regarding the adoption of their biological child. Between 1994-1995, the couple lived together in a commune in Johannesburg, during which time the woman (“Respondent 2”) became pregnant with their child. Shortly after learning of the pregnancy, Respondent 2 decided that it was in the child’s best interests to put him up for adoption. The man (“Respondent 1”) adamantly opposed the adoption, and filed a claim to prevent her from putting his biological son up for adoption. The lower court vacated his initial claim, but the Minister of Justice issued an immediate stay on adoption proceedings until the matter was resolved. Respondent 2 gave birth to a boy on December 12, 1995.

Considerable litigation ensued on the parental rights of the biological (but unmarried) father and the issue of the father’s consent to adoption in Children’s Court. Respondent 2 continually sought to stay the adoption proceedings pending the submission of an application to the Constitutional Court challenging the constitutionality of Section 18(4)(d) of the Child Care Act 74 (1983) (“Act”), which does not require paternal consent of the adoption of an illegitimate child. In May 1996, the court in Pretoria set aside the adoption order submitted by Respondent 1.