Age cap unconstitutional: How the ConCourt parental leave ruling affects adoptive parents

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One of the most significant aspects of the judgment was the Court’s treatment of the age cap for adopted children. Under the previous law, adoptive parents were only entitled to parental or adoption leave if the child was under the age of two. The Commission for Gender Equality challenged this provision, arguing that older adopted children also require time to bond and adjust to their new families.

While the High Court did not find the age capping unconstitutional, the Constitutional Court agreed with the Commission, finding that the age cap amounted to unfair discrimination based on age, a prohibited ground under section 9(3) of the Constitution.

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It noted that older children may, in fact, need more support and time with their new parents, and that the lack of leave for parents adopting older children could discourage such adoptions.

The Court accepted that, in principle, an age cap may be justified, but it was not convinced that two years was an appropriate cap and declared the current cap to be unconstitutional. It was not, however, clear to the Court what a reasonable cap should be and this was left for the Legislature to determine. No measures were put in place by the Court in this regard and until the Legislature has resolved the constitutional defect, the old position remains.