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The Child Care Act 74 of 1983 contains numerous civil law provisions and some criminal law provisions designed to protect children from ill-treatment or neglect.(132) In particular, much of the Child Care Act (hereafter the Act) is concerned with assisting children who may be in need of substitute parental care or alternatives to this, either in the short term or in the longer term. Alternative care at present may take the form of temporary foster care, referral to the residential care system, or adoption. The children's courts have the task of deciding whether any particular child requires such alternative care, and are therefore directly tasked with implementing the Constitutional right of every child 'to family care or parental care, or to appropriate alternative care when removed from the family environment'.(133)
This chapter contains a discussion of aspects of the Act which have proved to be problematic in practice or which appear to be outdated in the light of modern international developments. Due to space constraints and the need to focus upon problematic aspects which have been brought to the attention of the committee, not all sections of the Act are discussed. Generally, the sequence of sections in the Act is followed except where a grouping together of sections clarifies the discussion of a particular problem.
Under section 5(1) of the Act, every magistrate's court is automatically a children's court for its district. This provides the advantage of complete territorial coverage at no extra cost because the existing magisterial structure is being used. But, except in a few major urban districts where full-time children's courts exist, children's courts are not really as specialised as their name suggests.(134)
Question 42: Do we need truly specialised courts in every magisterial district to hold inquiries where children may be in need of alternative care? Or should we have a smaller network of children's courts, each serving several magisterial districts?
Question 43: Do we need courts that specialise only in matters relating to alternative care, or should the court undertake a wider range of functions, such as hearing less serious criminal cases involving accused children, applications for maintenance from private or state sources, domestic violence inquiries where children are affected, and deciding upon the allocation of guardianship, custody, and access in divorce matters?
Question 44: How should the childrens court interface with the proposed family courts?
Every magistrate is automatically a commissioner of child welfare when he or she adjudicates at a children's court inquiry. At present, magistrates receive no specialised training for children's court work, which leads to numerous problems in practice. In the worst cases, there are many districts (particularly in the former TBVC states) where children's courts do not function at all because sufficient expertise is not available. Generally, many commissioners deal with only a few cases a year and are concerned that they do not have sufficient knowledge and experience. For example, their lack of understanding of social work methodologies sometimes leads to insufficient grasp of the role of investigative social workers in child care cases.
Question 45: Should all magistrates continue to be commissioners of child welfare by virtue of their office?
Question 46: Should commissioners receive specialised training, and if so, in what fields should commissioners be trained, and to what level - e.g. are university qualifications required?
Question 47: Should judicial officers adjudicating childcare matters be only legally qualified, or are other qualifications (such as child psychology and social work) either equally appropriate or required in addition to legal qualifications?
Question 48: What rank should the commissioner/adjudicating officer hold - equivalent to a High Court judge, a magistrate, or between these two?
Question 49: How best can the community be involved in child care and protection inquiries? Should lay persons sit with adjudicating officers as assessors?
An additional or alternative consideration is the experience that should be required of those who adjudicate child-care matters. Issues that arise include whether experience should be a requirement and if so, what type of experience should be required. A further possibility is that persons who have served as lay assessors for a certain number of cases could eventually become eligible to be appointed as commissioners / adjudicators with lower qualification requirements. Furthermore, consideration should perhaps be given to the creation of a testing methodology in order to assess whether prospective adjudicators are sufficiently child-oriented and capable in interpersonal skills. An important consideration is the language-proficiency of adjudicators and, possibly, of assessors. Where the child's and adjudicator's first-language differ, it may not be sufficient to utilise an interpreter or lay assessor with a similar language proficiency and cultural background to that of the child.(135) Even if a general policy is established in regard to the official languages to be used in civil and criminal court cases involving adults, there may be scope for the development of different rules in regard to child care inquiries.
Neither section 8 of the Act (entitled 'Procedure in Children's Courts') nor section 14 ('Holding of Inquiries') specify that children who are capable have a right to give evidence during a children's court hearing. Clearly, the child is the central party who often has most at stake. On the other hand, it is important to avoid children being put under pressure to express views - for example, it would surely be wrong for a child to be asked to give evidence showing a favouring of one parent against the other, thus forcing the child to make a choice of loyalties where the child is not comfortable to do so.
Question 50: Should the proposed Act specify that the child, if capable, has the right to give evidence and express views? Should it provide that the person presiding at the hearing must take into account and give due weight to such evidence or views? How can a balance be struck between encouraging but not pressuring children to give evidence and express their views?
In the field of child care law, the child is obviously the most important party. Often, the child will have a great deal at stake. For example, at an inquiry, a decision may have to be made about whether the child must be removed from his or her parents and placed in the residential care system. An adjudicator at such an inquiry thus needs as much information about the child's situation as possible, but children are often not in a position to present enough information (the child may be too young, disabled or afflicted to be able to speak). In addition the child may feel intimidated and thus not dare to speak out fully.
These problems were recognised in the Act through the creation(136) of an officer called the 'children's court assistant'. The various duties of this officer were to include eliciting evidence from the child (where this was possible) at inquiries held by the children's courts. However, children's court assistants were only appointed to a few children's courts, and most of those that were appointed were withdrawn in 1992.(137) Because of the real and pressing need to have someone represent the child in more problematic cases, at some children's court inquiries the court clerk is now used to undertake the duties of the assistant. Other alternatives in practice have included using prosecutors from the criminal courts or even using the investigative social worker who has prepared a report on the case. A fourth alternative is to use private lawyers - attorneys or advocates - to represent children.
The basic question which thus emerges is who should ideally represent children in child care cases. Options would appear to include utilising social workers (but not the same social worker who prepares the investigation report for the case), especially as this might be conducive to a less adversarial environment at the inquiry; utilising other available court staff - clerks and or prosecutors; utilising private lawyers - attorneys or advocates - thus assuring maximum independence of representation; returning full-time assistants to the children's courts, which would promote specialisation and allow for a range of other supportive services to assist the courts to function better. Other options include expansion of the duties of the existing network of Family Advocates who already appear on behalf of children in certain divorce matters, although it should be noted that their current work in divorce matters is very different to that which would be required in children's court cases, inter alia in that the child himself or herself would often be present.(138)
Question 51: Who should represent children in child care matters?
As with adjudicators in childrens court inquiries, so too with persons who represent children the question of suitable training, qualifications, experience and orientation arises. A child-care inquiry requires a child - and family - friendly atmosphere. However, the decision reached must be both in the child's best interests and fairly based on all relevant evidence, with observance of the fundamental rules of a fair inquiry, such as ensuring that it is possible to test disputed evidence through cross-examination. Field research in South Africa has shown that persons with a purely social work background sometimes encounter difficulty if required to advocate for a child in children's courts. On the other hand, prosecutors and private lawyers also (with a few exceptions) lack the specialised knowledge and approach required to represent children in these courts.
Aside from a need to be child-oriented, it would appear that, in order to be effective, child representatives require a mixture of training and experience. There is, however, a danger of making requirements so difficult that no one qualifies.
Question 52: Should legal qualifications be required for child representatives? If so, what should these qualifications be? Should some formal social work training be required and, if so, what should the form and content of this training be?
Question 53: Should full-time or part-time representatives be used?
It is possible that child representatives could be drawn from the ranks of both social workers and lawyers, but with a requirement that the person has spent a certain number of hours observing at a full-time children's court. An alternative would be to use social workers in undisputed cases and lawyers in disputed matters where cross-examination may be required.(139)
Writing from an English law perspective, Judith Timms states that '[f]or the many thousands of children who are disadvantaged, dispossessed, alone, unhappy and ill-treated, rights are their only hope and effective representation the only way of making their voice heard'.(140)
The need for children to have representation in at least some situations has also been recognised in our Constitution.(141) To predict beforehand whether 'substantial injustice' would result from the lack of legal representation for the child in a particular children's court case is often very difficult. Hence, the Child Care Amendment Act 96 of 1996 introduces a new section 8A into the Child Care Act. Under the new section 8A,(142) a child who is subject to a children's court hearing has the right to request representation by a lawyer if 'capable of understanding' this right.(143) Also, the commissioner is given the power to order that legal representation be provided for the child at state expense if she or she decides that this 'is in the best interest of the child'.(144) One basic question which arises is whether the 'best interest' criterion for appointment of a representative is a sufficient guide? It is certainly broad and encompassing, but it is arguable that more specific grounds should be added or substituted.
In terms of the new Regulation 4A of the Regulations under the Child Care Act,(145) legal representation at the expense of the State must be provided for a child who is involved in any proceedings under the Act in the following circumstances:
(a) where it is requested by the child who is capable of understanding;
(b) where it is recommended in a report by a social worker or an accredited social worker;
(c) where any other party besides the child will be legally represented in the proceedings;
(d) where it appears or is alleged that the child has been physically, emotionally or sexually assaulted, ill-treated or abused;
(e) where the child, a parent or guardian, a person in whose custody the child was immediately before the commencement of the proceedings, a foster parent or proposed foster parent, an adoptive or proposed adoptive parent contests the placement recommendation of a social worker or of an accredited social worker who has furnished a report to the court in terms of the Act;
(f) where two or more persons are each contesting in separate applications for the placement of the child in their custody;
(g) where the child is capable of understanding the nature and content of the proceedings, but differences in languages used by the court and the child prevent direct communication between the court and the child; in such a case a representative who speaks both the relevant languages must, subject to paragraph (h), be provided;
(h) where a legal representative contemplated in paragraph (g) can not be provided, an alternative arrangement should be made, including the provision of an interpreter for the child;
(i) where there is reason to believe that any party to the proceedings or any witness intends to give false evidence or to withhold the truth from the court;
(j) in any other situation where it appears that the child will benefit substantially from representation either as regards the proceedings themselves or as regards achieving in the proceedings the best possible outcome for the child.(146)
Question 54: Do these new provision adequately cover the circumstances in which legal representation should be provided at State expense to a child in children's court proceedings? Should these grounds, or any others, be incorporated in a new children's statute?
Along with proposals in regard to increased provision for representation of children (see above) and with further proposals that child-removal grounds become child- rather than parent-centered (see discussion of section 14 below), a question which arises is whether adult parties may not be prejudiced unless specific provision is made in the Act for them also to be represented.(147)
Question 55: Should adult parties, or parents in particular, have the right to legal representation in the children's courts at state expense if they cannot afford it themselves?And should specific grounds for entitlement by a parent or other adult party to a legal aid representative be spelt out?
7.2.5 Fathers of extramarital children(148)
Generally, the position of unmarried fathers poses some difficult questions concerning what the law should be in regard to their parenting role, and it has been asked whether the fact that the father of a child is not married to the mother should be used in our law to limit the parental responsibilities and rights of such a father.(149) A specific point of concern is the rights of the unmarried father where the mother proposes to give the child up for adoption. In the case of a legitimate child, both parents must consent to the adoption of that child. But if the child concerned is an extramarital child, then only the consent of the child's mother (and not that of the father) is required for the child's adoption.(150) This provision was recently declared to be unconstitutional,(151) as it discriminates unfairly against the fathers of certain children on the basis of gender and marital status.
Subsequent to the judgment of the Constitutional Court in the Fraser case, the Natural Fathers of Children Born Out of Wedlock Act 86 of 1997 was promulgated.(152) Section 6 of this Act provides that a children's court considering an application for the adoption of an extra-marital child shall not grant that application 'unless it is satisfied that the father of the child concerned has been given reasonable written notice of the intended adoption'.(153) This notice may, however, be dispensed with by the children's court if it is satisfied that the father cannot be identified or cannot be found, despite reasonable efforts to do so, or that the child was born of an incestuous relationship or as a result of rape, or that 'it is in the best interests of the child that the requirement of notification be dispensed with'.(154) The purpose of supplying such notice would be to allow the father to use his other power under the 1997 Act, namely, to apply to the High Court for guardianship or custody of or access to the child. It is also important to note that in the case of Fraser v Children's Court, Pretoria North and Others,(155) Preiss J held, in the context of an adoption hearing, that the father of an extramarital child is a parent within the meaning of Regulation 4(1), and, as such, can be a party to proceedings in the children's court. Thus an unmarried father who is informed of an adoption application presumably has the power to oppose it in the children's court as an alternative to going to the High Court. This would generally be much less expensive than conducting proceedings in the High Court.
Question 56: Is a children's court or other forum more appropriate than the High Court for the consideration of applications by unmarried fathers for guardianship, custody or access?
Question 57: Is the fundamental assumption underlying the 1997 Act correct, namely, that unmarried fathers must go to court in order to be authorised to exercise any parental rights and responsibilities other than the duty to pay maintenance?
In terms of section 10 of the Act (as amended by section 3 of Act 96 of 1996 and by section 1 of the Welfare Laws Amendment Act 106 of 1997), no person other than the managers of certain specified institutions or certain specified relatives may receive any child under the age of 7 years or any child 'for the purpose of adopting him or her or causing him or her to be adopted and care for such child apart from his or her parents or custodian for longer than 14 days unless such person has applied for the adoption of the child concerned or, in the case of the first-mentioned category of child, has obtained the consent in writing of the commissioner of child welfare of the district in which the child was residing immediately before he or she was received. In considering an application for such consent, the commissioner must have regard to the religious and cultural background of the child concerned as against that of the applicant.(156) In practice, children under 7 years are often privately placed - for example, with a grandparent while the parents are away - for more than 14 days, without the consent of the commissioner of child welfare being obtained. As will be discussed further in Chapter 8 below, this is particularly so in an African context today, where informal fostering is prevalent. It has been held, however, that as section 10 does not provide for a penalty for the contravention of the provisions thereof, such contravention does not constitute an offence, but it remains a ground for removal of a child in terms of section 14.
Question 58: Does the fundamental underlying protective purpose of section 10 justify its continued existence or should it be replaced? If section 10 is to be retained, should it be limited to situations where the child is placed for adoption purposes? And is it appropriate to include sanctions, other than providing that care of a child in contravention of this provision is a ground for removal?
In terms of the Child Care Amendment Act 96 of 1996, the primary ground for removing a child is now that the child is 'in need of care,' rather than the previous ground which required that the parents be found 'unfit' or 'unable' to care for the child. With the amendment of section 14, the legislature has moved care proceedings from a predominantly fault or parent-based approach to a predominantly child-centred approach. This dramatic shift may be defended as being in line with section 28(2) of the Constitution, in terms of which, a 'child's best interest is of paramount importance in every matter concerning the child'.
It has, however, been questioned whether children's best interests might not most efficiently be served by a more balanced set of removal grounds.(157) The fear has been expressed that, by shifting attention almost entirely away from the parents, the new section 14 of the Act may become a licence for parental irresponsibility and that there are cases in which the best results are achieved by requiring parents to confront and deal with their own responsibility for harm or neglect which they have inflicted on the child.(158)
Question 59: Should both child and parent-centred approaches be allowed for in the formulation of the grounds for removing a child? If so, how should this best be done?
Once the children's court has found that a child is indeed in need of alternative care, there are various options open to it: to designate a parent or guardian who will have custody, subject to conditions imposed by the court; to place the child in foster care; to place the child in the residential care system, e.g. in a children's home, or in a school of industries.
Question 60: Is this range of options too limited? If so, what other options can be considered?(159)
Question 61: In the case of intra-familial child abuse, should children's courts be given the power to order the removal of the abusing adult, rather than of the child-victim, from the family home?
Question 62: To what extent should the children's court have the power to make anti-harassment orders prohibiting a named individual from interfering in specified ways with a particular child?
Although poverty of parents is not a ground for removal of their child, it is often a background factor. There is already legislation to award a 'child support grant' to persons who care for needy children,(160) and it might be appropriate to provide that the children's court has the power to allocate such grants or similar grants where these could help ensure that a child will not have to be removed from his or her family.
Question 63: In addition to the existing possibility of foster child grants, should children's courts be given powers to award grants to assist parents or other care-givers to provide for the needs of children in their care?
Under the Act,(161) the maximum period for which a children's court order for can remain in effect is two years. In practice, most children's court orders get renewed for further two-year periods. This may have a negative impact on permanency planning for the child and on family reunification services.(162) The power to renew placement orders is currently vested in the Minister, and may be delegated, but it has been argued that all renewals should be heard in the children's court, as the system of renewals falling under Ministerial control has not been working properly in the best interests of the children concerned.(163) It has also been suggested that greater flexibility is required in order to allow a child's situation to be reviewed and, if necessary, changed whenever this is in the best interests of the child.
Question 64: To what extent must children's court be given greater powers to monitor, review and amend their own placement orders?
Question 65: Should the Minister's powers to renew and amend children's court orders be altered, and if so, in what way?
Question 66: Should a maximum period be set for the duration of children's court orders, or should a court, in appropriate cases, be able to issue an order that will last, for example, until the child is 18 years old or until the order is amended?
Question 67: Should a child who has been placed have the right to request a children's court hearing during the currency of the placement, and if so, what should be the grounds for such a request?
Although social workers are expected to implement permanency plans for children, children's courts often do not recognise either these plans or the service contracts drawn up with biological parents for their implementation. In many foreign systems, permanency planning for the child implies either adoption, subsidised adoption or long-term foster care. At present, foster parents who are financially needy can receive a state foster child grant, but adoptive parents who have the same financial problems are not eligible. This may prevent foster parents from applying to adopt the child in their care and thus impact also negatively on permanency planning for the child.(164)
Question 68: Should subsidised adoption (i.e. state grants payable to impoverished adoptive parents) become an option in South Africa?(165)
In regard to foster parents, it should be noted that, at present, a lack of legal provisions limits their decision-making capabilities and exposes them to interference from the parents of the child.
Question 69: What should the responsibilities and legal rights of a foster parent be as compared to those of a parent?
Both the Constitution and the Act define a child as a person under 18 years of age. It is therefore arguable that all types of placement order should cease at this age.(166) By contrast, a protective and supportive capability to allow placements of certain young persons to continue until they are 21 years old with their consent,(167) might be desirable for practical and educational purposes. In terms of section 33(3) of the Act, it is possible for the Minister to approve that a child remain in the custody of a foster parent, children's home, school of industries or reform school after reaching the age of 18 years, or after the lapse of the relevant children's court placement order, in order to complete his or her education. However, the consent of both the child and, if they can be traced, of his or her parents, is required. But, where the child is in foster care or a children's home, this does not involve the extension of the relevant court order as can be carried out in terms of section 16(3) for a young person in a school of industries or a reform school. Social workers have argued that this makes some young people vulnerable to being prevented by their parents from completing their schooling. In addition, in the absence of an extended court order, the continuation of the grant needed for the support of the young person by foster parents or a children's home is subject to the discretion of officials and withdrawal of the grant can lead to the collapse of the placement. Mental health workers have made the point that, in cases of mental disability in either the child or the parent, there are specific problems with the section 33(3) consent requirements. Where a person is mentally affected, it may not be possible to obtain legally valid consent from him or her.
Question 70: Should a provision along the lines of section 33(3) be retained in a new children's statute? If so, should it be changed so that only the consent of the child him or herself is required? Should the children's court have the power to supply consent where the child is unable to do so, or should this power be exercised by the child's guardian or another body? Are there exceptional situations in which the consent of the child should not be required. If so, please give examples? Should a provision along the lines of section 16(3) (which allows for the period of protection of a young person by a children's court order to be extended beyond the age of eighteen years) be retained in a new children's statute? If so, in what circumstances should it apply?
Section 18(4)(f) of the Act severely restricts the possibilities for adoptions of South African children if the proposed adoptive parent does not qualify to be a South African citizen. Cases have occurred where children have bonded with foreign adults (as substitute parent figures) and then have had to be placed in institutions when the adults had to return to their countries of origin, purely because it was not possible for such adults to adopt the children concerned.
Question 71: Should the requirements for adoptions by non-citizens be made the same as by a citizen? Aside from the question of adoptions taking place within South African territory, should South African law be amended to permit taking children to another country in order to be adopted there in situations (such as close-relative adoptions), where this would be in the best interests of the child?(168)
The normal right of parents to consent before their child can be adopted has been discussed in the section above on the rights of unmarried fathers. Under section 19 a children's court is provided with a list of grounds that allow it to dispense with the parental consent. One of the grounds for dispensing with consent is that a parent 'is withholding his consent unreasonably'.(169) In the view of some social workers, children's court commissioners tend to be reluctant to use this ground, especially where the parent who is withholding consent is represented by a lawyer. Such reluctance can be most unfortunate for the child where the parent is clearly unfit(170) to rear the child. In such a situation, from the point of view of a secure future for the child, the child may need to be 'freed' for adoption.
Question 72: Should section 19(b)(vi) of the Act be amended to identify situations in which refusal of parental consent may be regarded as 'unreasonable,' or should the ground be changed to allow for dispensing with parental consent when this is 'in the best interests of the child'?
The decision about whether to place a child in the care of foster parents or to approve an adoption application may sometimes be particularly difficult for the children's court in two situations. First, where the child is of a different racial appearance from the proposed foster or adoptive parent or couple, and second, where a prospective foster or adoptive parent or couple is homosexual.
Currently, section 40(171) requires the children's court, in making foster placements or in considering applications for adoption, to have regard to 'the religious and cultural background of the child concerned and of his parents as against that of the person in or to whose custody he is to be placed or transferred.' The matching up approach promoted by this provision has been the subject of heated debate.(172) One view is that this approach is an unfortunate perpetuation of apartheid thinking, another is that it is a correct approach to transcultural and transracial placements. The phrase 'have regard to' is rather vague, and it may be that there should be more specific information in the Act on when the court should treat a difference in cultural, religious, racial, or linguistic backgrounds as a sufficiently significant factor to justify refusing the adoption application.
Another criticism is that, by encouraging racial and cultural matching of children and prospective adoptive or foster parents, section 40 shows insufficient appreciation of the harm to children, in the form of separation anxiety, which results when residential care is preferred as a placement destination to familial groups who are different from the child in cultural or religious background or physical appearance. On the other hand, it has been submitted that section 40 is an entirely appropriate form of protection of a child's right to be raised within his or her own culture.
A major problem in South Africa is that, because of economic discrimination in the recent past, it would appear that there are relatively few black families which can afford to adopt children. This results in what Small, writing from a British perspective (where the same problem exists) aptly describes as 'a one-way traffic of black children into white families.'(173) The concern in such situations is whether a child growing up in an adoptive family of persons who are different from him or her in cultural background and/or physical appearance will still be able to develop a positive self identity, for example, as a black or white person?
Question 73: Should there not be more guidance in the law concerning in what situations trans-racial or transcultural placements should be encouraged, and when they should generally be avoided?
Although it is theoretically possible for a homosexual person (but not a homosexual couple) to adopt a child, such adoptions are not very frequently allowed in this country.(174) It would also appear to be the case that fostering of children by homosexual persons and couples has in the past occurred relatively infrequently. If new legislation validating homosexual marriages is passed in South Africa,(175) then the present legal obstacle to adoption of children by homosexual couples will be removed. There are, however, a range of social prejudices and misconceptions surrounding adoption and fostering of children by homosexual persons or couples which will still need to be addressed.(176)
Question 74: Should there be more specific guidance in the law on the adoption or fostering of children by homosexual persons and couples?
Question 75: Is the current approach of providing no legal guidance and leaving the matter entirely to the discretion of the children's court commissioner sensible, or is it an avoidance of a governmental responsibility to provide legislation?
No appeal lies against a children's court finding that a child is in need of care or against any placement order made by a children's court. An aggrieved party or the commissioner himself or herself may, however, bring the matter before the High Court on review. In a situation of review, the High Court will not interfere with the commissioner's decision upon the merits, but may set it aside if there was such irregularity in the proceedings that the applicant or the child may possibly be prejudiced thereby. In practice, it is not usually easy for a party to prove that a children's court has perpetrated an irregularity of this kind, and so the remedy of a review has not been of help to many parties.
Whereas a review is based on a challenge to correctness of procedure followed, the legal remedy of an appeal takes the form of a direct challenge to the correctness of the court order itself. Under section 22, it is possible to appeal to the High Court against an adoption order, an order rescinding (cancelling) an adoption order, or a court's refusal to rescind an existing adoption order. Furthermore, section 48 provides for appeals in the context of contribution orders made by a children's court. No grounds for any such appeals are, however, listed in the Act. It has been submitted that it is inappropriate that appeals lie in the above-mentioned instances, but not against other types of children's court orders.(177)
Question 76: Should provision be made for appeals against all orders made by a children's court? Should appeals be facilitated by a broad ground that the order appealed against was not in the best interest of the child concerned? To which court should any appeal lie?
Under section 31, a person authorised by the Director-General of Welfare can inspect certain residential child care facilities. The person so authorised will require a certificate signed by the Director-General.(178) The inspection may extend to any books of the facility concerned and may include an assessment of any child in the facility. In terms of the 1996 amendments to the Act, state-run children's homes and places of care (previously excluded from the inspection provisions of the Act and limited to private children's homes and places of care), together with all children's shelters and places of safety, also become subject to such inspections.(179)
Question 77: Do these extensions to inspection powers go far enough? Will child-care facilities be sufficiently subjected to inspections to protect the children in such facilities and advance their best interests? Should commissioners of child welfare or children's courts have a role to play in this regard - for example, through visits or monitoring hearings?
Once a child has been removed after a children's court inquiry and then placed, it may sometimes be appropriate to vary the placement for a short period in order to test out the viability of another type of placement, for example, to move a child from a residential care facility to prospective foster parents, or even back to his or her biological parents if the situation at home has improved. The Act does not cater efficiently for such temporary, trial placement variations. The only relevant section is that dealing with transfers of children from one custody or residential care placement to another, which section appears to have been drafted with longer-term variations in mind and thus involves a cumbersome procedure requiring Ministerial consent. Because of the difficulties in using this section for short-term placement variations, the section dealing with 'leave of absence'(180) has ended up as being the standard way of testing the viability of a move of a child from residential care into foster care, or back into the care of the parents, before recommending an order of transfer. This latter section was, however, actually intended to cover not variation of placement, but rather short periods of 'leave' (for example, a holiday of the child spent with biological parents) from where a child has been placed by a court order or Ministerial extension.(181)
In the repealed 1960 Children's Act, the equivalent need for temporary variations of placements was served by the issuing of a special 'licence'. The licence could also immediately be used, particularly in the case of a trial foster-care placement, to apply for a temporary state grant for the trial foster parents. Leave of absence as it now stands is an arrangement which does not qualify for state aid. Only when a section 34 transfer order comes through can the foster parent apply for a foster child grant, which takes months to obtain.
Question 78: Should the issuing of a 'licence' to permit payment of state grants in trial placements be reintroduced, and if so, for what length of time? Since Ministerial- controlled processes have proved to be slow and administratively cumbersome, should the children's court be given the power to issue a 'licence' and, if necessary, an accompanying grant?
An additional problem with the current practice of using the leave of absence provision is that under section 35(1)(b), a foster parent must agree to any period of leave of absence for a child under the care of that parent. The foster parent can thus deny the child the opportunity of spending a holiday with the biological parents.
Question 79: Should the leave of absence provisions in the Act be amended, and if so, in what way?
Amongst the extensive Ministerial powers created by the Act is a capacity(182) for the Minister, 'if he considers it desirable in the interest of any pupil or foster child', to 'discharge' (terminate) any order made by a children's court under the Act. The same power is conferred for an order made by a criminal court under which a child was sent to a reform school. Where the child has been placed in a school of industries or reform school, it is the Minister of Education who has the power to terminate the placement. Where the court has placed the child with foster parents or in a children's home, it is the Minister of Welfare who has this power.
Question 80: Should any Minister have the power to terminate the effects of a court order? If there appear to be grounds for such a termination, will the child not be better protected if there is a proper hearing before the same court that issued the order? Is a Ministerial power to overrule a court order not also bad in principle, given the role of courts in a democratic society?
In terms of section 39(4) of the Child Care Act (as substituted by section 14 of Act 86 of 1991), a child who has reached the age of 18 years is competent to consent, without the assistance of his or her parent or guardian, to the performance of any operation upon him- or herself, while a child over the age of 14 years is competent to consent, without such assistance, to the performance of any medical treatment of him- or herself or of his or her child. The concepts 'operation' and 'medical treatment' are not, however, defined in the Act.
Question 81: Do the concepts 'operation' and 'medical treatment' need to be defined? In particular, should the dispensing of different forms of contraception (including the insertion of inter-uterine devices) be regarded as medical treatment? Should the definitions be such that there is no overlap in meaning between the two concepts? Are there medically-related interventions that are neither 'operations' nor any form of 'medical treatment' and which need to be catered for? Are the arbitrary age limits set in this regard appropriate?(183)
This provision was an innovation of the Child Care Act. Although the duty to report initially rested only on medical and dental personnel (i.e. dentists, medical practitioners and nurses), the legislature subsequently decided to add social workers, teachers and any persons employed by or managing children's homes, places of care or shelters to the list of obligated reporters. Section 42(1) imposes a duty on any such person who examines, attends or deals with a child in circumstances giving rise to the suspicion that the child has been ill-treated or deliberately injured or suffers from a nutritional deficiency disease, immediately to notify the Director-General or any officer designated by him or her for this purpose, of those circumstances.(184) The Director-General or the designated officer may then order the removal of the child concerned to a hospital or a place of safety,(185) and must thereafter arrange that the child and his or her parents receive such treatment as may be determined by the Director-General or the said officer.(186)Although failure to comply with these reporting obligations constitutes an offence (punishable upon conviction by a fine not exceeding R4 000,00 or imprisonment for a period not exceeding one year or both),(187) the classes of obligated reporters are exempt from all liability (both civil and criminal) in respect of any notification given in good faith in accordance with section 42.(188)
The National Committee on Child Abuse and Neglect (NCCAN)(189) makes the point that legal compulsion to report child abuse is a controversial approach, not universally favoured by child protection workers elsewhere in the world. It argues that reporting serves no useful purpose in its own right, and in the absence of prompt and skilfully managed protective services it may even increase the vulnerability of the child. The NCCAN, while calling for the establishment of a centralised child protection register and data base, also recommends a thorough investigation of the experience of mandatory reporting internationally, an examination of the debates about the effectiveness of this and other approaches, an examination of the ethical issues involved for the relevant professions, an examination of the issues surrounding access to information contained in the child protection register, and the question of which structure should operate such a register. The NCCAN also raises the controversial issue of a subregister of perpetrators as a matter requiring further debate.
Question 82: What, if any, are the difficulties with the present provisions for the reporting of child abuse?(190) What kind of system should be in place to deal with reports of child abuse? What particular issues should be taken into account in future legislation in this regard?
Child labour is a serious problem in South Africa. South African children have rights under both the Constitution and CRC to be protected against harmful or inappropriate labour. In terms of both section 52A of the Child Care Act (as inserted by section 19 of Act 86 of 1991) and section 43 of the Basic Conditions of Employment Act 75 of 1997, it is a criminal offence to employ a child under the age of 15 years. Section 43 of the latter Act also makes it a criminal offence to employ a child in employment '(a) that is inappropriate for a person of that age; (b) that places at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development'. However, in terms of section 50(191) of the Basic Conditions of Employment Act, the Minister of Labour may make determinations allowing for the employment of children below the age of 15 years in respect of categories of employees or of employers or particular employers or employees. Such determinations are, however, only possible in respect of 'the employment of children in the performance of advertising, sports, artistic or cultural activities'.(192) Subject to the South African Constitution, all forced labour is prohibited and a person who, for his or her own benefit or for the benefit of someone else, causes, demands or imposes forced labour commits an offence.(193) As far as the Child Care Act is concerned, the Minister of Welfare may, on conditions determined by him or her, by notice in the Gazette exclude any employment or any work from the provisions of section 52A(1). Exemption from the provisions of s52A(1) may also be granted by the Minister to 'any particular person, or persons generally'.
Questions in relation to child labour are posed in Chapter 4 above.
Field research has shown that there are great disparities in the time periods between different phases of children's court hearings. Generally, lengthy delays tend to occur in many jurisdictions and these may have a more negative impact on children than they would on adults. Such delays may thus be characterised as a form of secondary abuse of the children concerned.
Question 83: Should the Act therefore be amended to include more and shorter deadlineperiods? Which provisions require time-limits, and what should the time limits be? Should there be sanctions for failing to meet a deadline and if so, what should the sanctions be? Are there more problematic areas of work where there should perhaps not be a statutory deadline, but the person adjudicating a children's court inquiry should have a discretion to impose a time limit? What are the implications of shorter deadline periods as regards the provision of resources and infrastructure?
The problematic aspects discussed above are those which have been brought to the attention of members of the Commission. There may be other aspects of the Act which have given rise to difficulties experienced in practice, and the Commission would welcome comment on these also.
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