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Chapter 9 - HIV and AIDS AND THE LAW

Children & youth and HIV/AIDS

HIV and Aids can affect children in the following ways:

• where they are infected from birth or from sexual abuse from a very young age
• where their parents have HIV or AIDS and they have to live with the illness and loss
• where they have to live with the illness and loss of friends, teachers, and other family members.

Children who have HIV or whose parents are ill because of HIV or AIDS are often shunned and discriminated against by people in the community. Many suffer from neglect or are abandoned as babies. There are many examples of children being refused access to crèches, schools and bursaries. Orphans of parents who have died from AIDS are particularly vulnerable and many survive in child-headed households. Many of them turn to crime, drugs, or to the streets in order to survive.

How are children protected by the law?

Children are protected by various international, regional and local human rights documents and these are some of their major rights.

See Section 28: Children’s Rights.

Dealing with HIV/AIDS in schools

All children have the right to basic education. If a child is stopped from going to school because of his or her HIV status, this is unlawful and can be challenged in court. Learners with HIV should also not be denied the opportunity to reach their full potential so they should not be treated differently to other learners. It is important to remember that HIV is never passed on through casual contact. It is very difficult for children of any age to get HIV from contact at school. Therefore the risks of infection of other children cannot be used as a reason to exclude children with HIV from a school.

Parents do not have to tell the school authorities if their child has HIV, even if the school asks them to fill this in on the application form. Schools are also not allowed to test learners for HIV before they are admitted to the school or while they are at school. A learner cannot be tested for HIV without his or her consent (if over 14 years and/or parents or guardians consent if younger than 14 years.)

With the increasing numbers of learners and teachers becoming infected with HIV and Aids, it is important for all schools to have an HIV/AIDS policy so that:

• the rights of all learners and teachers are respected
• learners and teachers with HIV are managed in an appropriate way
• further HIV infection is prevented
• a non-discriminatory and caring learning environment is created

The Department of Education has drafted a national policy on the management of HIV/AIDS in schools. School governing bodies should develop and adopt their own policies but these must be in line with the principles in the national policy. They should do this in consultation with the wider school community. A schools AIDS policy should include guidelines to the following:

• Non-discrimination on grounds of a person’s HIV status
• Admission policy
• HIV testing
• Prevention of HIV transmission
• Management of HIV/AIDS
• HIV/AIDS education programme which should be integrated into the Life Orientation programme of the school
• Refusal to study, teach or work with a person with HIV

Children's health and medical rights & HIV and AIDS

Rules regarding testing and confidentiality for children include:

• Children who are 14 or older can consent to medical treatment on their own, including having an HIV test, but until they are 18 they need the consent of their parents or guardian for an operation (except for an abortion).
• If the child is younger than 14, the child cannot consent to an HIV test without the consent of the parent or guardian. The test results must be given to the parents or guardian.
• If a child consents to an HIV test, they have the right for the information to be kept confidential, even from the child’s parents.
• A school does not have to be told about a child's HIV status.
• A children's home or place of safety can be told of a child's HIV status if the child is under 14 and it is in the child's best interests for this information to be passed on. The information must be kept confidential by the staff of the home, and the child must not suffer any kind of discrimination because of it.

See Confidentiality.

Adoption and fostering and HIV/AIDS

The Child Welfare will not allow someone to adopt a child before they have gone through a medical examination which includes an HIV test. The following people must have an HIV test before adoption can happen:

• the parents who want to adopt
• the child
• the natural parents, if it is possible to find them

See Adoption of children.
See Problem 3: Adopting a child.

Fostering is usually for a short period so children are not tested for HIV before they are fostered.

See Foster care.

Remember the following points when dealing with cases of adoption or fostering :

• Child Welfare will not allow a person who has HIV to adopt a child. But, this is not something that the law demands and it can be considered an invasion of a person's privacy.
• Child Welfare will tell parents who want to adopt whether the child they are adopting has got HIV. But, this is not what the law demands so not all adoption agencies do this.
• If a child is under 14 and his or her HIV status is known, this can be told to the foster parents.