Julia Sloth-Nielsen and Benyam Mezmur provide a detailed discussion of the decision of the Supreme Court of Appeal (SCA) in De Gree v Webb [2007] SCA 87 (RSA), in which they examine the fundamental principles applicable to the international transfer of children via the adoption process.

The article dissects the role of the Court in giving effect to the treaty obligations arising from South Africa’s ratification of the Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption (1993) (hereafter “the Hague Convention”) and considers the suitability of a guardianship application to the High Court as the first step in an international adoption. The authors argue that the minority judgments misconceive the nature of the Hague principles and that even the majority judgments do not fully explain why the alleged conflict with international law provisions renders a guardianship procedure in this context fatally flawed. They contend that the principle of subsidiarity, whilst remaining at the heart of the international law framework, was overemphasised in the minority judgments at the expense of other overarching principles relevant to inter-country adoption. The article concludes that conferring parental status on a prospective adoptive parent via a guardianship order violates fundamental constitutional principles and policy considerations, and that sanctioning this avenue even temporarily is unwarranted.

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