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Chapter 8 - Family Law and Violence against Women

Child abuse and neglect

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 Child Protection Units 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. The relevant sections in the Act have however not yet come into force. When the Acts and regulations come into force current Acts such as the Child Care Act will be completely repealed. This means that the provisions of the Child Care Act and all other laws relating to child abuse and neglect still apply.

See 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 Child Care Act says it is a criminal offence -
  - if a person who is supposed to maintain a child doesn't provide the child with clothes, lodging and medical care;
  - for a parent or person who has custody of a child to ill-treat the child, allow the child to be ill-treated, or to abandon the child.
  
• 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 there are laws that say when other people must report child abuse and it is a criminal offence not to report in these circumstances. These laws are:

• Child Care Amendment Act
  
• The Child Care Amendment Act says any doctor, nurse, teacher or person managing a children's home or place of care, must report any suspicion of child abuse to the Department of Social Development.
  
• The Prevention of Family Violence Act says a person who examines, treats or cares for a child has an obligation to report any suspicion of abuse to the police or a social worker. (Section 4 of this Act will be repealed and replaced by the Children’s Act)

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 Child Care Act says any health-care worker, social worker, teacher or person dealing with children must report child abuse immediately to the police.

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 believes that a child (under 21 years) is being abused they don't have to wait for the child to give permission to get a Protection Order. It is enough if the person believes that the child is being abused.

See Getting a Protection Order.

See Problem 8: Getting a Protection Order.

Child sexual abuse

If a child has been raped or otherwise sexually assaulted, you can use the criminal law to make a case against the person who assaulted the child. Sometimes it is difficult to prove 'beyond a reasonable doubt' that a child was sexually abused, so a court case will not work. 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 cannot prosecute the child abuser, so he or she gets away with the crime.

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 with the child or is a member of the child's family or is a partner 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.

- Sexual exploitation of children (under the age of 18 years)

The Act says that the following actions are offences:

- 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 who displays pornography to a child, with or without the consent of the child.

Using children for child pornography
- If a person uses a child, with or without the child’s consent, in any pornographic activity.

Incest

The law says that people who may not get married to each other because they are in the same family also can't have sex with each other. If they do, then one or both of them (if it was two consenting adults) might be charged with 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 intercourse 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 Child Care 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 Child Welfare officials can take abused or neglected children away from their homes, to a 'place of safety'. 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.

See Children’s Courts.

Foster care

Note: The Children’s Act deals with foster care. The sections in the Act on foster care have however not yet come into force. This means that the provisions of the Child Care Act and all other laws relating to foster care still apply.

Welfare organisations place children under the age of 18 years in foster homes when their natural parents cannot or do not want to look after them. If the Children's Court finds that the parent/s is unfit, then the court can say the child must go to a foster home.

The natural parents lose their rights of control and custody. These rights go to 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. Foster parents have the right to discipline the child. But they cannot deal with the child's property, or consent to the child's marriage, medical operations, or employment contracts.

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

See Foster Care Grant.