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Chapter 8 - Family Law and Violence against Women

Child abuse and neglect

The Constitution guarantees that everyone has the right to be free from all forms of violence in the home. The government and the police have a duty to protect children and implement measures that will prevent abuse of children in the home. For example, the police have established Family Violence, Child Protection and Sexual Offences Units (FCS)which investigate physical and sexual abuse of children and child neglect. They are specially trained to deal sensitively with children.

Laws protecting abused and neglected children

There are laws that provide specific protection for children who are abused.

The most important Acts that deal with the protection of children who are or have been abused or neglected are the Children’s Act and the Children’s Amendment Act. There are wide ranging provisions that include the provision of child protection services and keeping a National Child Protection Register. The Acts also make provision for children who are in need of care and protection.

Summaries of the Children’s Act and Children’s Amendment Act.

• The main laws that aim to protect abused and neglected children are as follows: The Children’s Act says that it is a criminal offence:
•  if a parent, guardian, other person who has parental responsibilities and rights in respect of a child, care-giver or person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, is guilty of an offence if that parent or care-giver or other person abuses or deliberately neglects the child; or abandons the child
• If a person who is supposed to maintain a child doesn’t provde the child with clothes, lodging and medical care.
• The Domestic Violence Act defines the different forms of domestic violence against adults and children and says how a child (or other people on behalf of the child) can get a Protection Order against the abuser.

See The Domestic Violence Act.

• The Criminal law (Sexual Offences and related matters) Amendment Act (No 32 of 1996) gives a new definition of rape and includes a sexual offences register
• The Films and Publications Act (1996) protects children from exploitation in child pornography and by being shown pornographic material.
• Criminal law allows a child who was abused to lay a charge against the abuser, for example, of assault, rape and assault with intent to do grievous bodily harm.

See Criminal Charges.

• The Basic Conditions of Employment Act, which makes it illegal to employ a child under the age of 18 years.

Reporting child abuse

Many children don't report abuse they are experiencing. There are many different reasons for this. But the law says when people must report child abuse and it is a criminal offence not to report in these circumstances. This law is in terms of the Children’s Act:

The Children’s Act says any doctor, nurse, teacher or person managing a children's home or place of care, must report any suspicion of child abuse in the prescribed form to a designated child protection organisation, the provincial department of social development or a police official.

Stopping child abuse using the Domestic Violence Act

The Domestic Violence Act covers domestic violence, sexual abuse, economic abuse and emotional and psychological abuse in the home. The Children’s Act says any correctional official, dentist, homeopath, immigration official, labour inspector, legal practitioner, medical practitioner, midwife, minister of religion, nurse, occupational therapist, physiotherapist, psychologist, religious leader, social service professional, social worker, speech therapist, teacher, traditional health practitioner, traditional leader or member of staff or volunteer worker at a partial care facility, drop-in centre or child and youth care must report child abuse immediately to the police or a designated child protection organisation.

See The Domestic Violence Act.

The following people can apply for a Protection Order under the Domestic Violence Act to stop someone abusing a child:

• family members
• parents of a child or people responsible for a child
• a child under the age of 21, without the help of a parent or guardian
• any person, including a health service provider, police officer, social worker, teacher, neighbour, friend, relative, minister, who has a material interest (not just being a busybody) in a child's wellbeing

The Domestic Violence Act says if a person that has a material interest in the wellbeing of a child and believes that the child (under 21 years) is being abused they don't have to wait for the child to give consent to apply for a Protection Order they can bring the application for the Protection Order themselves. It is enough if the person believes that the child is being abused.

Getting a Protection Order.

Problem 8: Getting a Protection Order.

Child sexual abuse

If a child has been raped or otherwise sexually assaulted, the criminal law can be used to lay a charge against the person who assaulted the child. During the criminal trial it is sometimes difficult to prove 'beyond a reasonable doubt' that a child was sexually abused in order to convict the accused. If it is clear that the child needs protection, the case goes to a Children's Court enquiry to decide the best way of protecting the child. But the Children's Court may not try or convict a person in respect of a criminal charge and thus cannot prosecute the child abuser.

See Rape, incest and indecent assault.
See Problem 6: Reporting rape or assault and going to court.

If the person who sexually abused the child, lives or recently lived with the child,  is a member of the child's family by blood or adoption, or is or was a partner/spouse of the child's parent, you can use the Domestic Violence Act to protect the child.

See Problem 8: Getting a Protection Order.

The Sexual Offences Act

The Criminal law (Sexual Offences and related Matters) Amendment Act (No 32 of 2007) – also referred to as Sexual Offences Act - defines a number of sexual offences in relation to children. Some of the most important provisions are as follows:

• Acts of consensual sexual penetration with certain children (between the ages of 12 and 16 years) (statutory rape): If a person commits an act of sexual penetration with a child, even if the child consents to this, then the person is guilty of an offence. Acts of consensual sexual violation with certain children (between the ages of 12 and 16) (statutory sexual assault): If a person commits an act of sexual violation with a child, even if the child consents to this, then the person is guilty of an offence. This provision deals with the commission of intimate, sexual or sexually motivated acts committed between children or between an adult and a child. This provision is often referred to as the “kissing law” as one of the types of sexual violation as defined in the act include direct or indirect contact of the mouth of one person to the mouth of another person. A valid defence to this offence is if both the parties that committed the sexual violation are children and there is not more than a two year age difference between the children at the time of the alleged commission of the offense. Sexual exploitation of children (under the age of 18 years)
• The Act says that the following actions are offences in terms of sexual exploitation:
  • If a person uses a child to engage in sexual activities for money, even if the child consents to this;
  • If a person offers the sexual services of a child to another person, with or without the consent of the child, for money or any kind of reward;
  • If a person (who is a primary care-giver) allows another person to commit a sexual act with a child, even if the child consents;
  • If a person allows another person to commit a sexual act with a child, with or without the child’s consent and is paid for this;
• Displaying child pornography
  • If a person displays child pornographyor pornography to a child, with or without the consent of the child they are guilty of the offence of exposing or displaying or causing the exposure or display of child pornography or pornography to a child.
• Using children for child pornography
  • If a person uses a child, with or without the child’s consent, for the purposes of creating, making or producing any image, publication, depiction or description of child pornography or assists in any manner in this regard is guilty of an offence of using a child for child pornography..

Incest

The law says that people who may not get married to each other because they have a blood relationship or an adoptive relationship with one another also may not engage in acts of sexual penetration with each other. If they do, then they are guilty of the crime of incest. The rules about incest are mostly the same as for rape. But the people involved are usually an adult and a child in the same family where the adult forces the child to have sex. Like rape, there must be sexual penetration as defined in the Sexual Offences Act. In order to prove that sex took place, it is important for the child to immediately see a doctor.

See Rape, incest and indecent assault.

Removing children from abuse or neglect

The Children’s Act is designed to look after the interests of children and protect them if their parents abuse or neglect them. The Act says police or a designated social worker can take abused or neglected children away from their homes, to a 'place of safety' without a court order in certain circumstances. The Children's Court will hold an enquiry to decide whether the parents or guardian are fit to have custody of the child. The court says they are unfit if they:

• are so mentally ill that they cannot provide for the child
• assaulted or ill-treated the child or allowed someone else to assault or ill-treat the child
• let the child commit crimes, or be seduced, kidnapped, or used as a prostitute
• do not support the child by providing maintenance
• neglect the child or let someone else neglect the child
• cannot control the child, for example to make sure he or she goes to school regularly
• abandoned the child
• do not seem to have any means of support

If the court finds that the child has no parent or guardian, or an unfit parent or guardian, then the court can say the child must go to a foster home or a children's home. Or the court can say the child must go back to his or her parents and the parents must follow any conditions the court gives them, or they will lose the child.

Children’s Courts.

Foster care

The Children’s Act deals with foster care.

In terms of the Children’s Act a child is placed in foster care when the Children’s Court makes an order that it is in the child’s best interests of the child to be placed in foster care or when the provincial head of social development in the relevant province by order in writing transfers a child to foster care.

The foster parents rights and responsibilities with regard to the child are set out in the Court Order made by the Children’s Court or in a foster care plan made between the parents/guardian of the child and the foster parents. . But the natural parents can visit their child at reasonable times, unless the court says they may not.

Foster parents have a duty to give the child food, clothing and education and generally promote the child’s wellbeing. Foster parents have the right to discipline the child. But they cannot deal with the child's property, consent to the child's marriage, consent to adoption, consent to the removal of the child from the country or consent to the application for a passport of the child  unless they are entitled to act as guardian of the child and in such a case they must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

Foster parents can apply to the Department of Social Development for a state Foster Care Grant.

See Foster Care Grant.