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IN THE HIGH COURT OF LESOTHO
HELD IN MASERU CIV/ADP/0015/2024
In the matter between:
PUSETSO MOLEKO APPLICANT
AND
MINISTRY OF SOCIAL DEVELOPMENT 1ST RESPONDENT
ATTORNEY GENERAL 2ND RESPONDENT
Neutral Citation: Moleko v. Ministry of Social Development and Another [2025] LSHC 34 Civ (18 March 2025)
CORAM: S. P. SAKOANE CJ
HEARD: 10 FEBRUARY 2025
DELIVERED: 18 MARCH 2025
Summary
Adoption proceedings ⦁ Application brought by prospective adoptive parent ⦁ Allegation that parents of child unable or unwilling to take care of child ⦁ Court summoning parents to come and explain their inability or unwillingness to take care of the child ⦁ Parents disclosing that child is born out of wedlock ⦁ Mother gainfully employed but not willing to maintain child for reason that she works far away ⦁ Father not maintaining child because he maintains children in marriage, as well as mother and aunt ⦁ Whether these are good and sufficient reasons to put up child for adoption ⦁ Application dismissed for reason that it is the Department of Social Welfare and not the prospective adoptive parent that has locus standi to bring the application as well as unacceptability of reasons to give up child for adoption Children’s Protection and Welfare Act, 2011 sections 6, 10, 20, 54, 60, 65 and 212.
ANNOTATIONS
CASE CITED
LESOTHO
Mokhothu v Manyaapelo LAC (1970-79) 200
STATUTES
Children’s Protection and Welfare Act No.7 of 2011
JUDGMENT
I. INTRODUCTION
[1] This is an application to adopt a child born out of wedlock brought in terms of the Children’s Protection and Welfare Act No.7 of 2011. The prayers sought are these:
“1. The adoption of ‘TDT’[1] by the Applicant be confirmed and made an order of this Honourable Court.
2. The names of ‘TDT’ be changed to ‘TDM’.
3. Cost of suit in the event of opposing this application.
4. Applicants (sic) be granted further and / or alternative relief.”
[2] When the application was moved on 9 December, 2024, counsel was asked to clarify certain issues on the participation of the biological parents in the processes initiating the adoption application. Counsel was unable to provide the court with clear answers. What worried the Court more was information that the reason for the mother giving up the child for adoption was financial benefit and the parents’ joint agreement indicating that their consent for adoption is based on the fact that the mother is working far away and the father has other maintenance obligations to his mother, aunt and children born in wedlock.
[3] The Court then invoked its powers under sections 59(1) (e) and 65(1) of the Act and ordered the parents to appear in Court on 10 February this year (2025). They duly appeared and certain questions were put to them to explain their role in the adoption process and clarify their inability or unwillingness to take care of the child. Much more about their evidence later.
II MERITS
[4] The application is brought by the prospective adoptive parent and is not opposed. In her affidavit, she avers that:
4.1 She is a female Mosotho adult whose desire to adopt the child “stems from the fact that his parents are unable or unwilling to take good care of him.”
4.2 The child belongs to her niece. She supports the child financially and pays for his school fees.
4.3 Her wish is to adopt the child and provide him with a loving home “where he can enjoy having a mother and a sense of belonging in a stable family.”
4.4 She approached the Ministry of Social Development which “has already issued a report and recommendation in support of this adoption.”
The Ministry’s report
[5] An assessment report of the prospective adoptive parent and conditions surrounding the child was filed by a Social Development Officer in support of an application for the Minister’s approval in terms of section 52. The report highlights the following:
AD Applicant
5.1 The applicant is a Mosotho female aged 42 and unmarried. She works as a Finance Assistant.
5.2 She has a police clearance certificate issued on 17 November 2023.
AD Child
5.3 The child was born out of wedlock on 10 April 2013 to Selemeng Jearnett Tṧosane and Thabang Vincent Ntja.
5.4 He attends school and is in grade 6.
5.5 He received counselling on adoption and what it entails. He is happy to be adopted by the applicant.
AD Parents
5.6 The mother of the child was born on 10 August 1996. She gave birth to him at the age of 17 years. She is unmarried.
5.7 The father was born on 30 March 1985. He is married to another woman and have two children. He is a high school teacher by profession.
5.8 In 2022 the applicant and both parents came to the Social Worker’s office to be assisted with adoption processes.
5.9 The father stated that he came to relinquish the child to be adopted mentioning that he is not able to take care of the child since he is married and has never been part of his life.
5.10 He further said that “the mother of the child has neglected or disserted (sic) him as she was even threatening to sell the child.”
5.11 In her interview, the mother mentioned that “she does not like the child due to the unpleasant history between her and Mr Ntja.” She presently resides in South Africa.
5.12 Both parents reached a consensus to relinquish the child to the applicant for adoption. They wrote a relinquishment letter giving up ‘TDT’ for adoption.
5.13 The relinquishment letter is co-signed and reads:
“Our main reason for consenting to the adoption is that I, Selemeng Ts’osane work (sic) far away from the child and I, Thabang Ntja have (sic) a wife and we are doing this for the benefit of the child.”
The parents’ evidence in court
[6] Having read the applicant’s affidavit and the Social Worker’s report, the Court was none the wiser about the so-called “inability or unwillingness” of the parents to take care of their child. In order to get better wisdom, the Court invoked its section 59(1) (e) and section 65(1)(e) powers and ordered that the parents appear before Court to provide more clarity.
Mother’s evidence
[7] The mother gave oral evidence. She testified that she is 29 years old. She gave birth to the child at a young age and could not raise him. She is not gainfully employed and cannot maintain the child.
[8] She once threatened the father that she would give away the child and sell him because he does not maintain the child. However, she did not carry out the threat.
[9] She knew about the adoption from her aunt but did not tell the father. She has given consent for adoption.
Father’s evidence
[10] He is married with two children. He is a high school teacher with a regular income. He has a bond with the child born out of wedlock. He takes care of him when able to do so.
[11] Upon being informed about the desire of the applicant to adopt the child, he thought it important because she has been raising the child. This came as a relief because since getting married, he has issues with his wife about the child, despite having disclosed the existence of the child to her.
[12] He is unable to maintain the child because of the following commitments:
(a) he raises two children in the marriage;
(b) he has a wife to support;
(c) he takes care of his mother who suffers from thrombosis;
(d) he supports an aunt who is unemployed; and
(e) services a loan.
III ANALYSIS
The Law
[13] Section 54(2) provides that:
“Duties of the Department of Social Welfare
- ….
- In the case of adoption, after the assessment referred to in sub-section (1), the Department of Social Welfare shall make an application in respect of a child to the High Court.”
[14] Section 59(1)(e) reads as follows:
Conditions for adoption order
“59(1) Before the High Court makes an adoption order, the High Court shall be satisfied that:
- the consent required under this Part for adoption order has been obtained and that a parent or guardian of a child understands that the effect of the adoption order means permanent deprivation of parental rights;
- it is in the best interests of a child and that the wishes of the child have been considered if the child is capable of forming an opinion;
- an opinion of a child has been sought and considered;
- if a child is at least ten years of age, the child’s consent to the adoption has been obtained unless it is impossible for the child to grant such consent; and
- the applicant has not received or agreed to receive any payment and that no person has made or agreed to make any payment or given or agreed to give any reward to the applicant for the adoption except where the High Court has ordered otherwise.”
[15] Section 65(1) provides that:
“Procedure in adoption proceedings
65(1) Where the High Court hears an adoption application, it shall –
- proceed in camera unless open proceedings will be in the best interests of a child;
- admit documentary evidence relating to the consent required for the order;
- require the Department of Social Welfare to represent the interests of a child in the proceedings relating to an adoption order or an interim order;
- require the Department of Social Welfare to prepare a social inquiry report to assist the court to determine whether the adoption order is in the best interests of the child or not; or
- request any other information that the High Court may need.”
[16] Applications for adoption are made to the Minister of Health and Social Welfare. In considering the applications, the Minister is guided by standards and guidelines set by the Department of Social Welfare[2]. If approved by the Minister, the Department can apply for a court order to adopt.
[17] This Court should be satisfied about the following before it grants an order for adoption[3]:
(a) consent of the parent or guardian and the understanding that the effect of the order means permanent deprivation of parental rights;
(b) it is in the best interests of the child and the child’s wishes have been considered;
(c) the opinion of the child has been sought and considered;
(d) the child’s consent has been obtained unless it is impossible for the child to consent;
(e) no person has made or agreed to make a payment or give reward to the applicant for the adoption and the applicant has not received or agreed to receive payment; and
(f) the father of a child born out of wedlock has been consulted.
[18] Section 6 of the Act provides for the principle of non-discrimination as follows:
“A child shall not be discriminated against on the grounds of gender, race, age, religion, disability, health status, language, custom, ethnic origin, moral or urban background, birth, socio-economic status, refugee status or other status.” [emphasis supplied]
[19] Section 20 provides that a parent, whether married or not, shall not deprive the child of its welfare. Further, a parent has the responsibility to provide good guidance, care, assistance and maintenance for the child.
[20] Section 212 obligates a parent to maintain or contribute towards the maintenance of a child. Failure to maintain is a criminal offence.
[21] Section 216 empowers the Children’s Court to award maintenance to a child whether the parents are married or not.
[22] Reading the aforementioned sections together, the emerging scheme of the Act is that the adoption process is initiated by an application to the Minister by the prospective adoptive parent. After ministerial approval, the Department should approach this Court for adoption order. A father of a child born out of wedlock has a responsibility to maintain[4] irrespective of whether he has other persons to maintain also. Criminal sanctions are available for failure to maintain.
The facts
[23] The facts disclosed by the father on his “inability or unwillingness” to maintain the child are not canvassed in both the applicant’s affidavit and the Social Worker’s report. Nothing is said about his income.
[24] He could not explain to the Court why he preferred taking care of his mother and aunt over his biological child, let alone the discriminating between the child born out of wedlock and the two born in wedlock. I got a distinct impression that he cared less about the child and more about caring for his relatives and saving his marriage.
[25] According to the father, the applicant’s desire to adopt the child is a welcome relief to him. It is minus one problem. Hence his readiness to give up the child for adoption.
[26] In casu, both parents are in gainful employment but do not maintain the child and would rather the child be given up for adoption for reasons that the mother works far away and the father is married and supports his mother and aunt over and above his maintenance obligations to his wife and their two children. The fact of the matter is not that the parents are unable to maintain but that they are unwilling. Their reasons are neither weighty nor sufficient. In my opinion, it is a subversion of the purpose of adoption for parents to give up a child for adoption in order to escape from their statutory responsibility to maintain. They are liable to be prosecuted for failing to discharge their responsibilities to take care of their children.
[27] The father told the Court that he has a bond with the child and takes care when he is able to do so. He does not say when he is able and when he is not able to take care of the child. What emerged from his evidence is that he is more concerned about keeping his marriage and taking care of his mother and aunt.
[28] In these circumstances where the child is 12 years and just about to be a teenager, the effect that the adoption will break the bond between the child and the parents and, therefore, should have been counselled that on being adopted, he stands to lose both parents and forgoes their legal responsibility to maintain him. This information is absolutely necessary for acquiring the child’s informed consent. No such information is pointedly disclosed in the papers.
IV DISPOSITION
[29] The applicant is the wrong person to apply for an order for adoption. She has no locus standi to institute adoption proceedings. The Department of Social Welfare should be the one championing the application instead of playing a chaperone.
[30] The reasons of the parents to consent to the child being adopted are not weighty enough and are based purely on their unwillingness to maintain. They are unjustifiable and unacceptable. They undermine the right of the child to live with the parents and grow up in a loving environment as provided for under section 10 of the Act. Their attitude constitutes a dereliction of their responsibilities towards the child provided for in section 20 of the Act.
Order
[31] In the result, the following order is made:
1. The application is dismissed.
2. There is no order as to costs.
[32] The Registrar should bring the judgment to the attention of the Commissioner of Police and the Director of Public Prosecutions to investigate possible contravention of section 212 of the Act and prosecution of the parents.
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S. P. SAKOANE
CHIEF JUSTICE
For the Applicant: M. J. Maleke