Globally, family members take care of each, other especially during difficult times, for example, when a loved one falls sick or passes away, and no one is there to look after the remaining members of the household who were dependant on such a family member.

This is known as the "common law duty to support". In many cases, the remaining family members are often children who cannot afford to take care or protect themselves and, Section 28(1) of the Constitution of the Republic of South Africa, Act 108 of 1996, as amended, states that every child has the right to family care or parental care or to appropriate alternative care when removed from the family environment.

Adoption vs Foster Care

Adoption is one of the ways in which a child can receive parental and appropriate care when removed from their family home. This process has permanent results on the child and the parent/s wishing to adopt the child. Some families opt for adoption. However, there are family politics in some situations, and members do not want the permanent responsibility of taking care of a family member and rather opt for foster care instead. It is essential for family members to know the difference so that they fulfil their obligations in respect of providing the appropriate care for the child/ children.

In contrast to adoption, foster care is an alternative form of care for children set out in Chapter 12 of the Children's Act 38 of 2005, hereafter the "Act". Foster care refers to temporarily placing a child in need of care and protection with someone who is neither the parent nor guardian of the child. However, if the child requires care as defined by Section 150 of the Act, the child may be placed in foster care. Foster care ranges from short term to long term, and a foster parent can care for up to six foster children through a court order.

The purpose of foster care, defined in Section 181(a)-(c) of the Act, is to protect and nurture children by providing them with a safe, healthy environment and promoting goals of family reunification.

It is also important to note that to qualify as a foster child, the child must be below the age of eighteen years, and/or be abandoned or orphaned, must be displaying behaviour uncontrollable by the parents or caregiver, begging or living on the street, displaying signs of substance abuse, exploited or exposed to exploitation, be at risk of being returned to the custody of the parent or caregiver, and/or be in a state of neglect, maltreatment and abuse by a parent, caregiver or someone with parental responsibility over the child.

In order to be a foster parent, one need only be eighteen years or older, fit and proper and be willing and able to look after the child in a favourable environment for the child's growth and development.

Foster Care Grant

One of the factors which are essential in raising a child is financial care. Fortunately, Section 7 of the Social Assistance Act 13 of 2004 allows foster parents to apply for a foster care grant. Once an order for foster care has been granted, an application may be made for a foster care grant by applying at the nearest South African Security Agency. Currently, the foster care grant lies at R1050 (One Thousand and Fifty Rand) per child and is paid to the foster parent. Foster Children may also be exempt from paying at any public school or public healthcare institutions.

Adoption Through Foster Care.

What is crucial to note is that adoption may also occur through foster care. This will occur where a child is placed in a foster home with the prospects that the child will be legally adopted by the foster parents. Often, this is the better option for a foster child as the child has already adapted to the family dynamics in the foster home.

Conclusion

Caregivers must be reminded of the options available to them to afford care, support and assistance to children in such unfortunate situations. Attention needs to further be drawn to the differences in obligations of care regarding both adoption and foster care.

This will allow for smoother processing of applications in respect of the above and less distress for both the caregivers and the children involved.

Written by Dimpho Nkoe, Candidate Attorney, Schoeman Law