High Court dismisses application to change adoptio...

High Court dismisses application to change adoption birth certificate

Nyashadzashe Ndoro

Chief Reporter

The High Court has dismissed an application by two sets of adoptive parents to compel the Registrar-General to issue long birth certificates for their adopted children, including their surnames as adoptive parents.

The applicants, names withheld to protect the identity of the children, argued that the current practice of issuing abridged birth certificates with the word "unknown" for adoptive parents was discriminatory and unconstitutional.

"The applicants submitted that the effect of the adoption order is to render them the legal parents of the children and that they have an entitlement to have the children carry their surnames with an endorsement to that effect on their birth certificates. They challenged the use of different laws to issue birth certificates to children who are born to their natural parents and those who are adopted," Justice Mpokisengi Dube noted.

"Ms Musimwa who appeared on behalf of the applicants took issue with the fact that all other children’s births are registered under the existing law and submitted that the issuance of short abridged birth certificates by the Registrar to the applicants’ adopted children under the repealed Births and Deaths Registration Act 1986 , is unlawful and unconstitutional for the reason that the certificates do not disclose the details of the adoptive parents."

The judge, however, ruled that the applicants had not exhausted all domestic remedies available to them and had prematurely approached the court for constitutional relief.

The court found that the dispute could be resolved through interpretation of existing laws, specifically section 64 of the Children's Act, which governs registration of adopted children.

The court held that the applicants should have sought judicial review of the administrative action under the Administrative Justice Act before bringing a constitutional application. As a result, the application was dismissed, and no order was made for costs.

"An adoptive parent who is aggrieved by any decision of the Registrar taken in terms of the Births and Deaths Registration Act is required to exhaust all domestic remedies available to him before he can bring a constitutional application.

"The conduct the legality of which is impugned being covered by the s64 of the Children’s Act which provision the applicants do not challenge, no constitutional question arises. The question regarding the legality of the conduct complained of ought to be determined on the basis of an interpretation and application of s64 thereby avoiding constitutional concerns.

"The applicants failed to pursue the options available to them and consequently the constitutional issues were not properly raised and pleaded. The applicants have prematurely approached the court for constitutional relief. Consequently, the application is improperly before the court," the judge noted.