3. THE FRAMEWORK: INTERNATIONAL INSTRUMENTS AND THE SOUTH AFRICAN CONSTITUTION

3.1 Why international instruments are useful in developing a framework for laws about children

Ratification of or accession to international instruments creates obligations on States Parties to take action to bring domestic policy, law and practice into line with the relevant international instrument. But even those instruments which are not yet officially recognised can be very useful in developing a framework for children's legislation. International instruments on children's issues, by their very nature, represent a common pool of wisdom, and a culmination of efforts to ensure recognition of children's rights.

3.2 The UN Convention on the Rights of the Child, 1989

Article 4 of CRC requires States Parties to 'undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the ... Convention'. Ratification also requires South Africa to report to the United Nations Committee on the Rights of the Child on an ongoing basis. The initial report has already been submitted(11) and a report will be expected every five years hereafter.

The Committee on the Rights of the Child has selected four 'general principles' which they see as constituting the basic values of the CRC. The first is that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.(12)Although easy to state in legislation, this is a principle which is very difficult to define decisively, as a person or group of people always has to decide what is in the child's best interests in a particular case and application of the principle may therefore vary from case to case, country to country, or culture to culture. Discretion therefore becomes a key factor and attempts can be made to structure discretion in such a way as to ensure a more evenly applied standard of the child's best interests.

In deciding what is in a child's best interests, the child's own views must be considered where the child is able to express these. Thus the second general principle requires States Parties to 'assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child'.(13) This principle tends to be viewed somewhat simplistically,(14)and it will be important for any new legislation pertaining to children in South Africa to ensure that ample opportunity is given for children to participate meaningfully in decisions affecting them.

The third general principle is that of the survival and development of the child. 'Survival' is an amplification of the right to life. The term 'development' relates to the individual child and should be interpreted in a broad sense. It adds a qualitative aspect to the right to life and implies that law, policy and administrative action must look beyond the physical survival of the child to issues of cognitive, emotional, social and cultural development.(15)

Non-discrimination is the fourth general principle(16) and the new child law will need to ensure equal access for all South African children to the protections and rights offered by the legislation.

Although CRC is a detailed instrument and should be read in its entirety in order to understand its impact fully, a summary(17) (excluding those articles already mentioned) is provided here. The first article of CRC defines a child as 'every human being below the age of eighteen years(18)unless, under the law applicable to the child, majority is attained earlier.' Article 5 provides that States should respect the responsibilities, rights and duties of parents, extended families and communities to provide, in a manner consistent with the evolving capacity of the child, appropriate direction and guidance to children in the exercise of their rights. This important provision not only emphasises the role of parents, families and communities in children's lives, but requires states to protect this role - a clear message that professionals and service providers should not take over the role of parents, but that service delivery should focus on support to families. This theme is continued in Article 18 which recognises the principle that both parents (or legal guardians) have common responsibilities for the upbringing and development of the child. The State's responsibility is once again identified as being to render appropriate assistance to parents (or legal guardians).

Article 9 centres on the right of the child not to be separated from his or her parents against their will, except where this is considered to be in the best interests of the child. The Article stresses the right of all interested parties to participate in decision-making processes in this regard. Articles 20 and 21 ensure alternative care for children who have to be removed from their families, including foster care, adoption and residential care in a facility. Periodic review of placement is an important protection linked to those forms of placement which do not involve a permanent transfer of guardianship.(19)

The fact that some children may have to be removed from the custody of their parents if it is in their best interests links to the need to protect children. Articles 19, 34 and 37 set out the rights of children to be free from abuse, neglect, sexual exploitation and cruel, inhuman or degrading treatment or punishment.

Article 10 promotes the rights of children and their parents to leave or enter any country in order to be re-united as a family, whilst Article 11 requires measures to combat the illicit transfer and non-return of children abroad.(20)

The responsibility of the State to provide child care, health, education and welfare services is dealt with under Articles 18, 19, 23, 24, 28 and 39. Categories of children needing special protection are also highlighted by the Convention, namely refugee children,(21) disabled children,(22)children of minorities or indigenous peoples,(23) children alleged as, accused of, or recognised as having committed an offence,(24) children engaging in work that constitutes a threat to their health, education or development,(25) children at risk of or involved with drug abuse,(26) and children in armed conflict.(27)

It is notable that CRC is a comprehensive document dealing with all aspects of children's rights, protection, survival and development.

3.3 The African Charter on the Rights and Welfare of the Child, 1990

This instrument was written by member states of the Organisation of African Unity. It draws strongly on CRC but is considered to be a better reflection of African cultural concerns,(28) as it is more collective than individualistic and focusses on responsibilities of children as well as their rights. South Africa became a signatory in October 1997, but is not yet under any obligations in terms of the Charter, as it has not yet come into operation.(29) The Charter is nevertheless useful for determining the framework of South African children's legislation.

The Charter specifically mentions harmful social and cultural practices, particularly those that are prejudicial to the health or life of the child, and those which are discriminatory on the grounds of sex or other status.(30) States Parties are required to take all appropriate measures to eliminate these practices. Child marriage and the betrothal of girls and boys are prohibited, and the Charter sets the minimum age of marriage at eighteen years. All marriages should be registered in an official registry.(31) The Charter also provides special protection for the children of imprisoned mothers.(32)

The responsibilities of the child towards his or her family, community and society are stressed. The Charter also refers to the child's duties to his or her country and to African unity.(33)

The Charter's provisions on education(34) are similar to those in CRC, but with an interesting addition that children who become pregnant before completing their education shall have an opportunity to continue with their education.

3.4 The Hague Convention on the Civil Aspects of International Child Abduction, 1980

This Convention has been acceded to by South Africa, and it is now operable in this country.(35) It seeks to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures for their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. The Convention requires the establishment of a Central Authority in each of the States Parties (in South Africa the Office of the Family Advocate), which is largely responsible for the implementation of the Convention.

3.5 The Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993

This Convention has not yet been acceded to by South Africa, although legislation to provide for such accession is under discussion.(36) It does not aim to create new rights for children, but reinforces the protection of children's rights relating to inter-country adoption, and encourages co-operation between countries in this regard.

3.6 The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (The JDL's), 1990

Although normally considered to be part of the group of instruments which deal with children involved in the administration of juvenile justice, the application of this instrument is in fact much broader. The instrument defines deprivation of liberty as any form of detention or imprisonment or the placement of a child in a public or private custodial setting from which this child is not permitted to leave at will.(37) Therefore, the rules will obviously also apply to any residential care facility from which a child may not leave at will - such as places of safety and secure care facilities.(38)

The JDL's are exceptionally comprehensive. The over-riding message is that young people under the age of 18 should not be deprived of their liberty except as a measure of last resort, and that where this does occur, each child should be dealt with as an individual, having his or her needs met as far as is possible.(39)

In addition to a statement of principles, much of the body of the rules is given over to the management of residential facilities, including their administration, the physical environment and services offered, appropriate disciplinary measures and independent inspection. These details are perhaps more appropriately to be included in regulations(40) rather than legislation, but the overriding principles and the aims are also important guiding factors for aspects of children's legislation dealing with residential care.

3.7 Other notable international documents

South Africa has ratified(41) the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which is of relevance not only to the position of the girl-child, but also may affect substantive issues arising during the course of this investigation (such as equality in marriage and family law, education, access to child care and so on).

South Africa has also ratified the 1951 UN Convention and the 1967 UN Protocol Relating to the Status of Refugees, and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.(42) Moreover, with respect to child labour, ratification of the ILO Minimum Age Convention, 1973 (No 138) and Recommendation (No 146), and the ILO Equal Remuneration Convention, 1951 (No 100) are reportedly under discussion. South Africa is also participating fully in the development of the forthcoming ILO Convention on the Most Intolerable Forms of Child Labour.

3.8 The Constitution of the Republic of South Africa Act, 1996

Chapter 2 of the Constitution of the Republic of South Africa Act 108 of 1996 contains a bill of rights which guarantees certain fundamental rights and freedoms such as, for example, rights to life, equality, human dignity, and education, to all South Africans. Each section applies to children and adults alike. However, the Constitution goes further in that it demarcates special children's rights which are set out in section 28,(43) which rights are in essence a restatement of some of the articles of the CRC. As part of the Constitution, of course, they become enforceable,(44) even in the absence of enabling legislation; further, any future legislation pertaining to children will have to be interpreted in a manner which is consistent with the Constitution.

A striking feature is the fact that several clauses in the children's rights section incorporate second generation, or socio-economic rights.(45) While generally the State is bound to realise socio-economic rights progressively within its available resources,(46) with respect to the socio-economic rights in the children's rights clause, the State is committed to core obligations (such as basic nutrition, basic health care, etc).(47) The right to education is set out in a separate section of the Constitution.(48)

Section 28(2) provides for the best interests of the child standard, here described as 'paramount'. This wording is stronger than that of CRC.(49) The best interests of the child is not a new concept in South Africa, but its application has previously been limited to private law matters of custody, guardianship, access and placement. Its application via the Constitution to every matter concerning the child is therefore significant.

3.9 Principles

International instruments and the Constitution embody principles which should guide policy and law making as well as administrative action. There is a growing international trend to include these principles within the body of legislation. With regard to law relating to children there are numerous examples: the New Zealand Children, Young Persons and Their Families Act, 1989; the Australian Family Law Reform Act, 1995; the Ugandan Children Statute, 1996 and the Ghanaian Children's Bill.

Setting out principles in the body of the Act (even when they are already stated in the Constitution or an international instrument which has been ratified) has the advantage of making them permeate the legislation itself, giving the Act the appropriate "spirit". The principles provide not only the framework for interpretation by the judiciary, but also set standards to be used in the operation of the Act by practitioners.

Whilst there seems to be growing agreement both internationally and in South Africa that principles should be included in the Act, there are different opinions on how this should be structured. One option is that there should be a statement of principles at the beginning of the Act. This provides the standard for interpretation of all other sections of the Act.

An enhancement of this approach is to have a statement of broad principles at the outset, but to supplement this by also stating more specific principles at the relevant section. An example of this approach is the New Zealand Children, Young People and Their Families Act, which has an initial statement of objectives and principles, and then states more detailed principles at the beginning of the chapter on Care and Protection, and the chapter on Youth Justice.

Another option is to use the wording found within international instruments and the constitution as part of the wording of specific clauses. These different options need not be seen as opposing alternatives, as a combination of approaches is quite workable.(50)

Question 1: How best can the principles relating to children embodied in the various international instruments and the Constitution be incorporated in a comprehensive children's code?

Question 2: Should the 'best interests of the child' principle be defined in proposed legislation? If so, how ?

Question 3: How can new legislation assure to children the right to participate meaningfully in all matters affecting them?

Question 4: Are there other international instruments (besides those mentioned above) which could be of relevance concerning this investigation?

SAFLII: | | Terms of Use | Feedback
URL: http://www.saflii.org/za/other/zalc/ip/13/13-3_.html