Child Protection Week 2017 is observed nationally from 28 May to 4 June under the theme: Let us all protect children to move South Africa forward.
Every child has the right to health and a life free from violence. Each year millions of children around the world are the victims and witnesses of physical, sexual and emotional violence. The Bill of Rights in the Constitution of the Republic of South Africa, (Act 108 of 1996) specifically states every child has the right to be protected from maltreatment, neglect, abuse or degradation.
Review spoke to Magdaleen de Klerk and Elmarie Vorstatz from DDKK Attorney’s Incorporated about the rights of children:
“A child is defined in the Children’s Act, Act No 38 of 2005 as a person under the age of 18 years,” explain de Klerk.
“When asked about children’s rights the point of departure is always the Constitution of the Republic of South Africa Act No. 108 of 1996, the reason being the Constitution reigns supreme. Simply put, Parliament which promulgates legislation, is subordinate to the supremacy of the Constitution. All legislation must therefore reflect the spirit of the Constitution.”
She says that a very important object of the Constitution is the protection of children’s rights.
“All children are entitled to the rights enshrined in the Bill of Rights.”
These rights include:
- family care or parental care or appropriate alternative care when removed from the family environment;
- social services;
- protection from maltreatment, neglect, abuse or degradation; and
- To have a legal practitioner assigned to the child by the state, and at state expense in civil proceedings affecting the child, if substantial injustice would otherwise result.
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“To give effect to and protect these rights the Legislature has created various offences, including offences relating to sexual violation of a child, child trafficking, unlawfully giving a child out in marriage, unlawful circumcision of boys and circumcising or mutilating the genitalia of a girl.”
Vorstatz explains that the best interests of the child shall be the primary consideration in all actions concerning the care and well-being of children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies.
“The best interest principle is a child-centered approach aimed at protecting the needs and entitlements of children.”
“If a child is found to be a child in need of care and protection the Court may refer the matter to a designated social worker for an investigation. Pending the outcome of these investigations the Court may also make an order that the child be placed in temporary safe care. A designated social worker or a police officer may also remove a child and place the child in temporary safe care without a court order if the child is in need of care and protection.”
When is a child in need of care and protection:
In terms of Section 150 of the Children’s Act, 38 of 2005 a child is in need of care and protection if the child:
- has been abandoned or orphaned and is without any visible means of support;
- displays behavior which cannot be controlled by the parent or caregiver;
- lives or works on the streets or begs for a living;
- is addicted to a dependence –producing substance and is without any support to obtain treatment for such dependency;
- lives in or is exposed to circumstances which may seriously harm that child’s physical, mental or social well-being;
- be at risk if returned to the custody of the parent, guardian or care-giver of the child as there is reason to believe that he or she will live in or be exposed to circumstances which may seriously harm the physical, mental or social well-being of the child;
- is in a state of physical or mental neglect; or
- is being maltreated, abused, deliberately neglected or degraded by a parent, care-giver, a person who has parental responsibilities and rights or a family member of the child or by a person under whose control the child is.
Who may approach the Children’s Court?
In terms of section 53 (2) of the Children’s Act 38 of 2005 the following persons may approach a court:
- A child who is affected by or involved in the matter to be adjudicated;
- anyone acting in the interest of a child;
- anyone acting on behalf of a child who cannot act in his or her own name;
- anyone acting as a member of, or in the interest of, a group or class of children; and
- anyone acting in the public interest.
“Where the court is of the opinion that it would be in the best interests of a child to have legal representation, the court must refer the matter to the Legal Aid Board who will represent the child during the proceedings. If the child is of such age, maturity and stage of development as to enable him to participate in court proceedings the views expressed by the child must be taken into consideration” explains Vorstatz.
The proceedings applicable to Children’s Court proceedings are not as formalistic as a criminal or civil court. The Presiding Officer dealing with an application which requires a decision in the best interest of a child should not be focused on any technical and/or jurisdictional formalism.
The High Court is the upper guardian of all minor children within its area of jurisdiction. Accordingly it has a very broad discretion to intervene between a parent and his or her child. However the Court will only intervene if the child’s welfare requires same. Typical cases are where the child’s life, health or morals are threatened by the exercise of parental responsibilities and rights.
If the provisions of these comprehensive legislation are adequately implemented it will provide children with the necessary protection. However an awareness and culture of the upholding and safeguarding of children’s rights have to be developed among others by actively propagating children’s rights.
Section 6 (4) of the Children’s Act also states that in any matter concerning the care and well-being of a child a delay in any action or decision should be avoided as far as possible.
