2. A VISION FOR COMPREHENSIVE CHILD LEGISLATION FOR THE 21ST CENTURY

2.1 Introduction

Accessible, appropriate, consistent and empowering legislation for the children of South Africa is urgently required and will need to be in harmony with the intersecting framework of international law and the South African Constitution. In particular, the vision the committee proposes for a new children's statute is inspired by CRC, the OAU Charter on the Rights and Welfare of the Child,(4) and relevant clauses in the Bill of Rights in our Constitution. At the heart of our envisaged model is CRC, which permeates relations between child and family, child and state, child and child, and inter-state obligations towards children. Our framework is further influenced by the four principles which have become international currency in analysis of the articles of CRC: survival, development, protection, and participation of the child.

The interim policy recommendations of the IMC on the transformation of the child care and youth care system(5) commences with the following background statement:

'The notion that "it takes a whole village to raise a child" is based on Ubuntu - a spirit of humanity which encompasses a principle of people caring for each others' well-being with an attitude of mutual support ... . In pre-colonial and traditional societies South African children were raised in this spirit, and few if any children were homeless or abandoned.'

But, as the Report points out, colonisation, urbanisation and apartheid have left their mark. South Africa's child care legislation, children's residential care facilities, the supporting policy and practices, as well as constraints on the financial resources underpinning the country's aid to children in especially difficult circumstances, have all proved inadequate to meet the needs of children and their families in the 1990's.

Although the brief of this committee was initially to examine defects in the present Child Care Act 74 of 1983, it became clear from the outset that a range of intersecting and overlapping laws, principles and policies would require review: the Child Care Act cannot be isolated from other legislation affecting children, nor can it be divorced from the laws regulating the relationships between parents and children and between families and the state.

The challenge facing the committee is to develop a systematic and coherent approach to child law: an approach which is consistent with constitutional and international law obligations of equity, non-discrimination, concern for the best interests of the child, participation of children in decisions affecting their interests and protection of children in vulnerable circumstances. The committee is also considering how to maximise the State's commitment to the promotion of family and community life, so that removal of children to residential care facilities will be needed in fewer cases. The twin principles of enabling a child's growth and development within a family environment, and protecting children in vulnerable situations, therefore inform the committee's vision of the new children's law.

2.2 Child and family

In developing the model proposed for a children's code for South Africa, therefore, the committee has proceeded from the starting point of the concentric relationships that affect and protect children. First, their growth and development in a family environment, and the legal relations between child, parent(s) and other members of the extended family or community. The goal here is to respect the responsibilities of parents, families and communities as regards the rearing of the young, and to provide a legislative and policy environment in which the State is supportive of family life. In this endeavour, the committee is aware of the gendered division of labour in our society, resulting in an unequal burden with respect to child care and child rearing falling on women, and the consequent need to further substantive (rather than merely formal) equality.(6)

In addition, mindful of the global shift away from concepts of parental power towards parental responsibilities, and of the practical problems facing society-at-large when parents and care-givers fail (even where they are able) to fulfil their duties towards their children, the committee also conceives of a statute in which the reciprocal relationship of parent and child to each other is clearly spelt out.

Again, explicit recognition in law of the different family forms prevailing in our society, as well as social and biological constructs of parenthood and care-giving in relation to children, will assist to plan a legal system which is sensitive to local experiences in South Africa and which takes into account technological advances in the sphere of assisted reproduction and family formation. In this regard attention will have to be given to surrogate motherhood, issues around alternative modes of conception,(7) adoptions by same sex couples, and other models of alternative family life.

2.3 Child and State

Second, the relations between child and State warrant reflection in a precise legal framework which proceeds from a model of the State's obligation to protect children from 'maltreatment, abuse, neglect and degradation,(8) yet at the same time respects children's rights to alternative care of a quality which approximates a family environment. This model must support children's rights to procedures, processes and institutions in which they can participate in decisions affecting their lives and requires a system in which the requisite checks and balances over the exercise of administrative and judicial authority are adequately provided for. The essential framework for this model can be derived from CRC, and the comparative law section in Chapter 10 below gives examples in other legal systems showing how legislative flesh has been crafted on the bones of the principles outlined above.

2.4 Inter-state obligations towards children

Thirdly, the committee realises that it must bear in mind the relations between the South African State and other states regarding children, especially where international issues may arise: refugee or displaced non-citizen children in our country, international adoption, international abduction as well as jurisdictional and cross-border issues in private law. Here, the model envisages spelling out the State's duty to protect all children within its borders and to promote the interests of its child citizens and nationals in cross-border issues.

2.5 Children as between each other

Fourthly, the committee believes that it is necessary to ensure non-discrimination with regard to different groups of children, addressing especially the cross-cultural conflict of laws that may arise for children subject to one or another religious or customary legal system. The model proposed by the committee sees a future child law system in which core children's rights and concerns are equally respected and protected, independent of the system of personal law in which a child is raised, while at the same time ensuring that the State honours to the maximum extent the cultural and religious rights of children and families. Further, the committee is cognisant of the fact that children have a gender too,(9) and that girl children suffer particular discrimination and disadvantage on many levels.

2.6 Children in especially difficult circumstances

Fifth, specific mention will be made throughout the proposed model to children in especially difficult circumstances, such as children living on the street, refugee children, and children with disabilities.

2.7 The committee's vision

The vision of the committee as described above is represented diagrammatically in Figure 1 below.

The model which the committee has in mind must perhaps also address the meaning of childhood and introduce the idea of determining the end of childhood (age of majority) for all children at 18 years in accordance with the CRC and the Constitution.(10)

Finally, the committee wishes to provide a legislative framework which is both accessible and understandable to all who will be affected by it. This means avoiding legal jargon and outdated concepts, providing for simplicity and informality of procedure as far as possible, and ensuring the involvement of all stakeholders and society at large in the law reform process.

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