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Chapter 8 - Family Law and Violence against Women

Care and protection of children

Laws that apply to child care and protection

There are a number of laws and international conventions that impact on the lives of children. The following are some of the main laws that apply:

• Age of majority Act (No 57of 1972)
• Child Care Act (No 74 of 1983)
• Children’s Status Act (No 82 of 1987)
• Guardianship Act (No 192 of 1993)

However, over the past years, it has become clear that these laws are not able to protect and support children enough. As a result of a long process of consultation, the Children’s Act (No 38 of 2005) and the Children’s Amendment Act were passed.

The Children’s Act and the Children’s Amendment Act

On 1 April 2010 the Children's Act 38 of 2005 (as amended by the Children’s Amendment Act 41 of 2007) came into full force. Regulations to the Act also came into effect on the same day.  The purpose of this act is as follows:

• To give effect to certain rights of children as contained in the Constitution;
• To set out principles relating to the care and protection of children;
• To define parental responsibilities and rights; to make further provision regarding children’s courts;
• To provide for partial care of children; to provide for early childhood development;
• To provide for the issuing of contribution orders;
• To provide for prevention and early intervention;
• To provide for children in alternative care;
• To provide for foster care; to provide for child and youth care centres and drop-in centres;
• To make new provision for the adoption of children; to provide for inter-country adoption;
• To give effect to the Hague Convention on Inter-country Adoption;
• To prohibit child abduction and to give effect to the Hague Convention on International Child Abduction;
• To provide for surrogate motherhood; and
• To create certain new offences relating to children; and to provide for matters connected therewith.

In summary the Act makes inter alia, provision for the following:

• The Act sets out principles relating to the care and protection of children, defines parental responsibilities and rights. The best interests of the child is a key consideration in determining disputes with regard to parental responsibilities and rights.
• The Act also contains new provisions on the parental responsibilities and rights of unmarried fathers relating to access to the custody of their children. The Act aims to give unmarried fathers the same rights to parental responsibility that biological mothers have. For example: unmarried fathers who are living with the mother of their child at the time of the birth of the baby have the same rights as the biological mother. Additionally, if the father is not residing with the mother at the time of the baby’s birth, he can apply for his rights by giving consent to be identified as the child’s father.
•  The Act makes provision for children's courts, adoption, child abduction and surrogate motherhood.
•  The Act determines that a child becomes a major on reaching the age of 18 and allows children over the age of 12 access to HIV testing and contraceptives.
• The Act now allows for what is known as open adoption so, the adoptive family and the biological family can enter into an agreement which caters for the rights of the child and the biological family to know each other. 
• The Act also deals with child trafficking, virginity testing and circumcision.
• The Act enables children to approach the court independently of a parent or guardian.

The Act makes provision for the development of a National Child Protection Register. This register lists the names of people who are unsuitable to work with children as well as all reports of abuse or deliberate neglect of a child made to the Director-General in terms of this Act and all convictions of all persons on charges involving the abuse or deliberate neglect of a child.

Summary of the chapters in the Children’s Act and Children’s Amendment Act

The following is a summary of the chapters in the Children’s Act.

• Chapter 1: Interpretation, objects, application and implementation of the Act.
• Chapter 2: General principles underlying the Bill and the best interest of the child; it provides for children’s rights and deals with the issues such as child participation, harmful social, cultural and religious practices, access to children’s courts and the age of majority.
• Chapter 3 Parental responsibilities and rights and court orders linked to parental responsibilities and rights; this chapter also provides for the rights of fathers, presumption of paternity, parenting plans and the rights of children conceived by artificial fertilisation.
• Chapter 4: The functioning, powers and jurisdiction of children’s courts and, proceedings before the children’s courts.
• Chapters 5, 6, 11, 13 and 14: Partial care, the definition of early childhood development and early childhood development services, children in alternative care, child and youth care centres and shelters and drop-in centres.
• Chapters 7, 9 and 10: Protection of children, the National Child Protection Register and the identification of children in need of care and protection and contribution orders.
• Chapter 8: Provides for prevention and early intervention as a first layer of services provided to children and families in need of assistance.
• Chapter 12 deals with foster care and care by family members.
• Chapters 15 and 16: Adoption and adoption between countries.
• Chapter 17: Give effect to the Hague Convention on the Civil Aspects of International Child Abduction.
• Chapter 18: Gives effect to the UN Protocol to Prevent Trafficking in Persons.
• Chapter 19: Surrogate motherhood.
• Chapter 20: Enforcement of the Bill through powers of inspection and the creation of offences.
• Chapters 21 and 22 of the Bill deal with general administrative issues and other matters.

The following is a summary of the chapters in the Children’s Amendment Act:

The Amendment Act adds to welfare service delivery and further protection of families and children. The following chapters in the amendment Act will become part of the Children’s Act.

• Chapter 8: Provides for prevention and early intervention as a first layer of services provided to children and families in need of assistance.
• Chapters 5, 6, 11, 13 and 14: Partial care, the definition of early childhood development and early childhood development services, children in alternative care, child and youth care centres and shelters and drop-in centres.
• Chapter 12 deals with foster care and care by family members.

Brief summary of certain sections of the Act

All spheres of government and their departments must work together to deliver services

The Act requires all spheres of government and their departments to work together in an integrated and co-ordinated way to deliver services to children. This means there is a duty for national, provincial and local governments to work together to ensure that services are provided to children.

The Act brings together all laws relating to children in South Africa and does away with the need for each province to pass its own legislation on children’s issues. It should therefore streamline provincial governance. This Act does not however have any direct implications on local government.

Rights of children with disability or chronic illness

Special care must be taken of a child with a disability or chronic illness by:

• providing the child with parental care, family care or special care;
• making it possible for the child to participate in social, cultural, religious and educational activities, recognising the special needs that the child may have (for a disabled child);
• providing the child with conditions that ensure dignity, promote self-reliance and facilitate active participation in the community; and
• providing the child and the child’s care-giver with the necessary support services.

Best interests of the child

The principle of the best interests of the child must always be considered when making decisions about children. Some of the factors that should be taken into account include:

• the nature of the personal relationship between the child and the parents or care-giver;
• the attitude of the parents towards the child;
• the capacity of the parents or care-giver to provide for the needs of the child, including emotional and intellectual needs;
• the possible effect on the child of any change in the child’s circumstances, including being separated from both or either of the parents, any brother or sister or other child, or any other care-giver or person, where the child has been living with the person;
• the practical difficulty and expense of a child having contact with the parents on a regular basis;
• the need for the child to remain in the care of his or her parent, family and extended family; and to keep a connection with the family, extended family, culture or tradition;
• the child’s age, maturity, stage of development, gender and background;
• the child’s physical and emotional security;
• any disability that a child may have;
• any chronic illness that a child suffers from;
• the need for a child to be brought up in a stable family environment and, where this is not possible, in an environment that is as close as possible to a caring family environment;
• the need to protect the child from any physical or psychological harm that may be caused by exposing the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour;
• any family violence involving the child or a family member of the child.

Right of participation
All children have a right to participate in decisions that affect them.

Age of majority
The age of majority changes from 21 to 18 years.

Parental responsibilities and rights
Parental responsibilities and rights.

Protective measures relating to the health of children
Children over the age of 12 years can consent to HIV testing without involving their parents (in the past the age was 14 years).

Children over the age of 12 years can ask for contraceptives without the consent of their parents or care-giver (in the past the age was 14 years).