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1. On 16 June 1995.
2. Julia Sloth-Nielsen and Belinda van Heerden 'Proposed Amendments to the Child Care Act and Regulations in the Context of Constitutional and International Law Developments in South Africa' (1996) 12 SAJHR 247.
3. Towards Redrafting the Child Care Act: Recommendations of a Conference of the Community Law Centre (UWC) and the Portfolio Committee on Welfare and Population DevelopmentCommunity Law Centre Publication (September 1996).
4. Signed by South Africa in September 1997, but not yet in force.
5. Inter-Ministerial Committee on Young People at Risk Interim Policy Recommendations for the Transformation of the Child and Youth Care System (November 1996) 7.
6. See Ms Beth Goldblatt 'The interface between children's rights and gender issues' (Briefing document to the S A Law Commission Project Committee on the Review of the Child Care Act, Pretoria, 5 March 1998) 4 - 5. See also President of the Republic of South Africa and Others v Hugo 1997 (4) SA 1 (CC).
7. Such as insemination by donor sperm, in vitro fertilisation, embryo transfer, and the like.
8. Section 28(1)(d) of the Constitution.
9. Ms Beth Goldblatt op cit 5.
10. This would, for example, empower children to conduct their own affairs upon reaching the age of 18 years.
14. Bob Franklin (ed) The Handbook of Children's Rights (1995) 14.
15. Thomas Hammarberg in Bob Franklin (ed) op cit, preface.
17. Articles 1 - 41 are the substantive articles of the Convention. Articles 42 to 54 deal with mechanisms for reporting and accountability of States Parties.
18. This coincides with the definition contained in the South African Constitution and that in the current Child Care Act.
20. These provisions are given further weight by the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-country Adoption (UN Resolution 41/85, 1996) and the Hague Convention on the Civil Aspects of International Child Abduction. (South Africa has acceded to the latter instrument which became operative in this country on 1 October 1997.)
28. 28 Winnie Kubayi in Ann Skelton (ed) Children and the Law in South Africa Lawyers for Human Rights, 1998 (forthcoming).
29. 29 To date only seven countries have ratified, whilst fifteen ratifications are required for the Charter to come into operation.
32. Article 30. Cf, in this regard, the recent decision of the Constitutional Court in President of the Republic of South Africa and Others v Hugo 1997 (4) SA 1 (CC).
35. In terms of the provisions of the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996, in operation from 1 October 1997. See also the Regulations issued under section 5 of Act 72 of 1996 (Government Notice R. 1282 in Government Gazette 18322 of 1 October 1997).
36. See further Chapter 5 below.
38. The Inter-Ministerial Committee on Young People at Risk used the JDLs as the basis of their investigation into places of safety, schools of industry and reform schools.
39. 39 Ann Skelton 'Developing a juvenile justice system for South Africa' in Raylene Keightley (ed) Children's Rights (1996) 180 at 191.
40. See the amended and or new Regulations 30, 30A, 31, 31A, 32, 33, 33A, 33B, 34, 34A and 35 under the Child Care Act, 1983 (published as Government Notice R. 416 in Government Gazette 18770 of 31 March 1998 and hereafter referred to as the 1998 Amendments).
42. Jeff Handmaker 'Displaced Children and Children in Exile' (Briefing document to the committee, Pretoria, 5 March 1998) 2 and 5.
(1) Every child has the right-
(a) to a name and a nationality from birth;
(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide services that -
(i) are inappropriate for a person of that child's age; or
(ii) place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time and has the right to be -
(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the child's age;
(h) 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; and
(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.
(2) A child's best interests are of paramount importance in every matter concerning the child.
(3) In this section "child" means a person under the age of 18 years.
44. See section 38 of the Constitution.
45. See Julia Sloth-Nielsen 'Chicken soup or chainsaws: some implications of the constitutionalisation of children's rights in South Africa' in Raylene Keightley (ed) op cit 6 at 7.
46. See sections 26 (housing) and 27 (health care, food, water and social security). All rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors: Section 36(1) of the Constitution.
47. De Vos 'The economic and social rights of children and South Africa's transitional Constitution' (1995) SAPL 233; idem 'Pious wishes or directly enforceable human rights? Social and economic rights in South Africa's 1996 Constitution' (1997) 13 SAJHR 67 at 87 - 88.
49. Julia Sloth-Nielsen 'Ratification of the United Nations Convention on the Rights of the Child: Some implications for South African law' (1995) 11 SAJHR 401 at 418.
50. See further Chapter 10 below.
51. Which came into effect on 1 April 1998.
52. Government of National Unity, South Africa, Initial Country Report on the Convention on the Rights of the Child (1997).
53. Ms Mary Newman 'Early Childhood Development in South Africa: Key Issues' (Briefing document to the committee, Pretoria, 6 March 1998) 4.
54. Ms Beth Goldblatt op cit 5.
55. Dr Berene Kramer 'Children in Education: the Role and Responsibilities of the Department of Education' (Briefing document to the Committee, Pretoria, 6 March 1998) 2 - 3.
56. Ms Washeila Sait 'Submission to the South Africa Law Commission on the Child Care Amendment Act 96 of 1996' (Briefing document to the committee, Pretoria, 6 March 1998).
57. See the definition of 'care-dependent child' in section 1 of the Social Assistance Act 59 of 1992, as substituted by section 3 of the Welfare Laws Amendment Act 106 of 1997 (operative from 1 April 1998).
58. Much of the information in this section has been supplied by Dr N McKerrow, Greys Hospital, Pietermaritzburg (Briefing to the committee, Pretoria, 6 March 1998), and by Ms Ann Strode and Ms Catherine Barrett 'Legal and Human Rights Issues Facing Children with HIV/AIDS' (Briefing document to the committee, Pretoria, 6 March 1998).
59. McKerrow and Verbeek Models of Care for Children in Distress (Edendale Hospital, 1995).
60. See the National Strategy on Child Abuse and Neglect for further discussion in this regard. It is important to note that, with effect from 1 April 1998, provision is made for a National Child Protection Register in which must be entered, inter alia, all notifications of possible ill-treatment of or deliberate injury to children in terms of section 42(1) of the Child Care Act: see new regulation 39B, as inserted in the Regulations under the Child Care Act by the 1998 Amendments.
61. Section 43(1) (operative from 21 March 1998). This prohibition is also contained in section 52A of the Child Care Act, but is subject to the possibility of wide-ranging Ministerial exemptions being granted to categories of employment, particular employers or categories of employers. So, for example, in 1994, the advertising industry was exempted by the Minister from the provisions of this section. The Basic Conditions of Employment Act 1997 provides (in section 50 - at the time of writing not yet in operation) for special Ministerial determinations allowing for the employment of children below the age of 15 years, subject to whatever conditions may be specified, only in the case of advertising, sports, artistic or cultural activities.
62. Section 43(2) (also operative from 21 March 1998). These sections echo to a large extent the child labour provisions contained in both the Constitution and CRC.
63. Prof Marion Jacobs 'Child Health Legislation: Summary of the Main Areas for Consideration' (Briefing document to the committee, Pretoria, 5 March 1998).
64. Prof Cheryl Loots 'Family Court Pilot Project' Concept document discussed at the briefing of the committee, Pretoria, 6 March 1998; Adv Barbara Hechter 'Memorandum on Amendment of Child Care Act' (Briefing document to the committee, Pretoria, 5 March 1998).
65. By Mr Jeff Handmaker in 'Displaced Children and Children In Exile' (Briefing document to the committee, Pretoria, 5 March 1998). Much of the information in this section is also derived from this document.
67. Many of the basic principles of residential child and youth care developed by the IMC have now been incorporated into the Regulations under the Child Care Act 1983 by the 1998 Amendments: see especially new Regulations 30A, 31A and substituted Regulation 32.
68. See the new definition of 'family reunification services' in Regulation 1 of the Regulations promulgated in terms of the Child Care Act 1983 (as inserted by the 1998 Amendments), as well as the provisions governing the rendering of family reunification services contained in Regulation 15.
69. See Welfare Laws Amendment Act 106 of 1997: the provisions of this Act relating to the phasing out of the SMG came into operation on 19 December 1997 while those relating to the administration of the CSG came into operation on 1 April 1998. See also the Regulations regarding the phasing out of maintenance grants in terms of the Social Assistance Act, 1992 (Government Notice R. 417 in Government Gazette 18771 of 31 March 1998) and the Regulations regarding grants and financial awards to welfare organisations and to persons in need of social relief of distress in terms of the Social Assistance Act, 1992 (Government Notice R. 418 in Government Gazette 18771 of 31 March 1998).
70. See the financial criteria for the CSG in Regulation 16 of the Regulations published by Government Notice R. 418 in Government Gazette 18771 of 31 March 1998, as also the provisions regarding eligibility for the CSG in, respectively, Regulations 3 and 20 of these Regulations.
71. These issues have also been extensively canvassed by the South African Law Commission Project Committee on Sexual Offences against Children (Project 108), Issue Paper 10. The issue paper draws heavily on the NSCAN document.
72. The intersection of the various South African Law Commission project committees affecting children's issues is discussed in Chapter 11 below.
73. Thus, for example, it is the stairs leading into a building that disable the wheelchair user rather than the wheelchair.
74. See further Chapter 4 above.
75. Reporting provisions also appear in section 42 of the Child Care Act 74 of 1983 (see further Chapter 7 below).
76. Draft Paper on the Transformation of Adoption Practice in South Africa.
77. Draft Paper on the Transformation of Foster Care Practice in South Africa.
78. Draft Policy and Strategic Guidelines on Street Children in South Africa.
79. In this regard, reference may be made to the new requirements for the report of a social worker which must be furnished to the children's court in the course of child removal and placement (including foster care placement) proceedings. Such a report must now include 'the proposed plan to facilitate the reunification of the child and his or her family and the ultimate restoration of the child to his or her community, where applicable': Regulation 2(4)(f) of the Regulations under the Child Care Act 1983, as inserted by the 1998 Amendments.
80. See Julia Sloth-Nielsen and Belinda van Heerden 'Putting Humpty Dumpty back together again: Towards restructuring families and children's lives in South Africa' (1998) 114 SALJ 156 at 169.
81. The Age of Majority Act 57 of 1972, the Marriage Act 25 of 1961, the Children's Status Act 82 of 1987, the Guardianship Act 192 of 1993, the Divorce Act 70 of 1979, the Mediation in Certain Divorce Matters Act 24 of 1987, the Maintenance Act 23 of 1963, the Prevention of Family Violence Act 133 of 1993, the Domicile Act 3 of 1992, the South African Schools Act 84 of 1996, the Births and Deaths Registration Act 51 of 1992 (amended in 1996 to give effect to the constitutional requirement that pro forma discrimination between the registration of the birth of children out of wedlock and of children born in wedlock be eliminated), the Mental Health Act 18 of 1973, the Wills Act 7 of 1953, the Choice on Termination of Pregnancy Act 92 of 1996, the Welfare Laws Amendment Act 106 of 1997. These are but examples, and this does not purport to be a complete list.
82. A number of European countries have abolished this right, and the continued existence of this right in South Africa is currently under debate.
83. See section 10 of the South African Schools Act 84 of 1996 (operative from 1 January 1997).
84. See new Regulations 30A(1)(d), 30A(2)(m), 31A(m) and 32(3)(d) of the Regulations under the Child Care Act, as inserted by the 1998 Amendments.
86. Operative from 5 September 1997.
87. For example, reported criminal cases where the defence of reasonable chastisement was explored. See, for instance, S v Lekgathe 1982 (3) SA 104 (BSC) cited in J A Robinson (ed) The Law of Children andYoung Persons in South Africa (1997) 53. See also Du Preez v Conradie1990 (4) SA 46 (BGD) on the parental common law right of reasonable chastisement.
88. See, in general, P Q R Boberg The Law of Persons and the Family (1977); A H Barnard, D S P Cronje and P J J Olivier The South African Law of Persons and Family Law 3 ed (1994); C J Davel and R A Jordaan Law of Persons Student's Textbook (1995); I D Schafer (ed) Family Law Service (1987, with looseleaf updates); J A Robinson (ed) The Law of Children and Young Persons in South Africa (1997); E Spiro Law of Parent and Child 4 ed (1985); J D van der Vyver and D J Joubert Persone- en Familiereg 3 ed (1991).
89. This categorisation is not necessarily based on any legal distinction between empowerment, protection and laws affecting children: rather, it is a convenient tool with which to order and describe the present situation, and through which comparisons with existing statute law can be made.
90. By, for example, a court order under the Age of Majority Act, 1972, or by the conclusion of a valid marriage.
91. Alfred Cockrell 'The Law of Persons and the Bill of Rights' in Butterworths Bill of Rights Compendium(1996) para 3 E 8.
92. Alfred Cockrell op cit para 3 E 22.
93. The South African Law Commission's Project Committee on Juvenile Justice (Project 106) has raised the question of criminal capacity of children in Issue Paper 9, including both the age limits that currently apply, as well as the suitability of the presumption.
94. See also the South African Law Commission's Issue Paper 10: Sexual Offences against Children (Project 107).
95. Alfred Cockrell op cit para 3 E 22 who nevertheless maintains that the present fixing of the age of majority at 21 years cannot be said to amount to an unconstitutional violation of the rights enshrined in Chapter 2 of the Constitution, 1996. For a contrary view, see J D van der Vyver in Robinson (ed) op cit 296.
96. Recent amendments to the Criminal Procedure Act 51 of 1977 have addressed the manner in which a child may testify in criminal cases. So, in terms of section 170A (inserted by section 3 of the Criminal Law Amendment Act 135 of 1991), a witness under the age of 18 years may give evidence through an intermediary, if necessary in a different room from the courtroom through, for example, audio-visual link-up. There is also the possibility for a child witness to testify by using signs or dolls to show what happened. However, special courts which are equipped for children to give evidence in these ways are not available in many areas, especially rural areas, and there is a strong lobby for more of these specially equipped courts to be set up. The cautionary rule that may affect the weight of the evidence, has, however, not been affected by the legislative amendments to the Criminal Procedure Act, 1977.
97. Who may also be single witnesses, and complainants in sexual offences cases, thus bringing into play two further cautionary rules. The Supreme Court of Appeal has very recently rejected the last mentioned cautionary rule, concluding that it 'is based on an irrational and outdated perception' and that it 'unjustly stereotypes complainants in sexual assault cases (overwhelming women) as particularly unreliable' : per Olivier JA in Jackson v S (Case no 35/97).
98. See P J Schwikkard 'The abused child: A few rules of evidence considered' in Raylene Keightley (ed) Children's Rights (1996) 148.
99. F J Bosman and G J van Zyl in J A Robinson (ed) op cit 52.
100. Although access is ordinarily regarded as an incident of parental power, it has been recommended by the South African Law Commission that legislation be passed to provided for access to a child by his or her grandparents or by any other person with whom the child has a special relationship, provided that this is in the best interests of the child: see Report on Access to Minor Children by Interested Persons (Project 100), June 1996. The envisaged Child Visitation Rights Bill (attached to the Report as Annexure A) is, however, still couched in the language of access rights to children, rather than emphasising the rights of the child to family contact. The recommendations of the Law Commission in this regard have not yet been incorporated in legislation.
101. Alfred Cockrell op cit para 3 E 12 and 3 E 21.
102. For example, when a minor wants to sell land or take out a mortgage bond, the Master's office is assigned this function where the value of the property is less than R 100 000: see section 80 of the Administration of Estates Act 66 of 1965.
103. In D van Wyk, B de Villiers, J Dugard and J Davies (eds) Rights and Constitutionalism: The New South African Legal Order (1994) 538.
104. Alfred Cockrell op cit para 3 E 21; Boberg op cit 458.
105. A recent amendment to the Births and Registration Act 51 of 1992 is an example in point of legislation eliminating formal discrimination against children born out of wedlock (notably children born of customary unions and marriages by religious rites) by allowing them to be registered at birth as legitimate. Similarly, the discriminatory rules concerning the capacity of the extra-marital child to inherit from its natural father and paternal relations were altered by the Intestate Succession Act 81 of 1987. Since the advent of this Act and of the 1992 amendments to the Wills Act 7 of 1953, it has been concluded that in regard to both testate and intestate succession, there is in principle no difference between intra- and extra-marital children.
106. Section 2(3) of the Domicile Act 3 of 1992.
107. Section 1(2) of the Intestate Succession Act 81 of 1987.
108. Section 2D(1)(b) of the Wills Act 7 of 1953.
109. Unless she herself is a minor, in which case her guardian assumes guardianship of her child until such time as she attains majority: section 3(1) of the Children's Status Act 82 of 1987.
110. Natural Fathers of Children Born out of Wedlock Act 86 of 1997.
111. Alfred Cockrell op cit para 3 E 24.
112. Julia Sloth-Nielsen 'Ratification of the United Nations Convention on the rights of the Child: Some implications for South African law' (1995) 11 SAJHR 401 at 417.
113. See also E Bonthuys 'Of Biological Bonds, New Fathers and the Best Interests of Children' (1997) 13 SAJHR 622.
114. A fact that is recognised in the increasing multi-disciplinary composition of relevant government committees, such as the NPA Steering Committee and the IMC.
115. As noted above, the law has been less concerned with the protection of the child against the consequences of his or her immaturity where delictual or criminal responsibility is at stake. The fact that a child of seven years can be arrested, charged and convicted of a criminal offence, but that a nineteen year old youth cannot conduct his or her own affairs without parental assistance is striking, and shows some bias in the common law towards a conception of the parents' role as encompassing powers over matters which affect the estate of the child.
116. Section 4 of the Wills Act 7 of 1953.
117. Section 1 of the Wills Act 7 of 1953.
118. Section 88(1) of the Mutual Banks Act 124 of 1993 and section 87(1) of the Banks Act 94 of 1990.
119. Section 3(1) of the Arms and Ammunition Act 75 of 1969.
120. See note 15 above and the corresponding text.
121. For example, should the age at which a minor can open a bank account be lowered to 15 years, which is the age set in the Schools Act for the end of compulsory schooling?
123. See further Chapter 10 below.
126. Section 5(1)(b) creates a rebuttable presumption that the consent of the parties has been obtained. See further J M Kruger and J A Robinson in J A Robinson (ed) op cit 41.
127. Julia Sloth-Nielsen and Belinda van Heerden op cit (1998) 115 SALJ 156 at 164 - 165.
128. Previously the child's domicile was arbitrarily determined by the father's domicile.
129. See sections 1(1) and (2) of Act 192 of 1993.
130. See section 1(2) of Act 192 of 1993 and further Belinda van Heerden and Brigitte Clark 'Parenthood in South African law - Equality and Independence? Recent developments in the law relating to Guardianship' (1995) 112 SALJ 140.
131. The Committee is indebted to Ms Shereen Motala for her thoughts on this (Briefing to the Committee, Pretoria, 5 March 1998).
132. See, generally, H M Bosman - Swanepoel and P J Wessels A Practical Guide to the Child Care Act(1995); I D Schäfer and L Schäfer 'Children, Young Persons, and the Child Care Act' in Robinson (ed) op cit 73- 95; F N Zaal 'Children's Courts: An Underrated Resource in a New Constitutional Era' in Robinson (ed) op cit 95-117; Erwin Spiro Law of Parent and Child 4 ed (1985) Chapter 5; Fiona McLachlan 'The New Child Care Act - In the Best Interest of Family, Parents or Child' Unpublished paper, University of Cape Town (1983).
133. Section 28(1)(b) of the Constitution.
134. See F N Zaal Do Children Need Lawyers in the Children's Courts? Publication of the Children's Rights Project, Community Law Centre, University of the Western Cape (1996); F N Zaal in Robinson (ed) op cit 102 - 103, Carmel Matthias and Noel Zaal ' Can We Build a Better Children's Court: Some Recommendations for Improving the Processing of Child Removal Cases' in Rayene Keightley (ed) op cit 51ff.
135. Cf. the new Regulations 4A(1)(g) and (h) inserted into the Regulations under the Child Care Act by the 1998 Amendments, which provides that, in children's court proceedings, where the child concerned 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, a legal representative who speaks both the relevant languages must be provided for the child or, where this is not possible, alternative arrangements (including the provision of an interpreter for the child) must be made. Regulation 4A was not, however, in operation at the time of writing and will only come into effect on the date of commencement of the new section 8A of the Child Care Act (as inserted by section 2 of Act 96 of 1996).
137. See Carmel Matthias 'New Directions for the Children's Court' in Law, Practice and Policy: South African Juvenile Justice Today Publication of the Community Law Centre, University of the Western Cape (1995) 33.
138. See F N Zaal op cit (1996) Chapters 4 - 8.
139. See further F N Zaal op cit (1996) 58 - 65.
140. Judith E Timms Children's Representation: A Practitioner's Guide (1995) 445.
141. Section 28 (1)(h) states that 'every child has the right...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...'.
142. It is important to note that section 8A is not yet in operation, although the rest of Act 96 of 1996 is in force from 1 April 1998.
144. For a critical discussion of the new section 8A, see Julia Sloth-Nielsen and Belinda van Heerden 'The Child Care Amendment Act 1996: Does It Improve Children's Rights in South Africa?' (1996) 12 SAJHR 649 - 651.
145. As inserted by the 1988 Amendments. As pointed out above, Regulation 4A will only come into operation on the date of commencement of the new section 8A.
146. Many of the provisions contained in the new Regulation 4A are based on suggestions made by F N Zaal 'When should Children be Legally Represented in Care Proceedings? An Application of Section 28(1)(h) of the 1996 Constitution' (1996) 114 SALJ 334 at 343.
147. See F N Zaal op cit (1996) Chapters 9 and 13.
148. See, on the status of extra-marital children generally, Chapter 6 above.
149. See also E Bonthuys 'Of Biological Bonds, New Fathers and the Best Interests of Children' 1997 (13) SAJHR 624 et seq.
151. Fraser v Childrens Court, Pretoria North and Others 1997 (2) BLCR 153 (CC).
152. This Act was, at the time of writing, not yet in operation.
153. Section 6(1) of Act 86 of 1997.
156. Section 10(2), read with section 40.
157. See Carmel Matthias Removal of Children and the Right to Family Life: South African Law and Practice Publication of the Children's Rights Project, Community Law Centre, University of the Western Cape (1997) 12 - 16.
158. See Carmel Matthias op cit (1997) 12-16, 23-26; F N Zaal in Robinson (ed) op cit 97 - 98.
159. Possibilities in this regard may include placement of the child with other relatives besides parents (kinship care), or in a community care centre (for example a private residence in the child's neighbourhood where specified people are designated to care for a group of local children), or in community cluster care. Referral of children to reform schools, currently a sentence under the Criminal Procedure Act 51 of 1977, may also be considered for inclusion in this range.
160. See further Chapter 5 above.
162. See now the new Regulation 15 of the Regulations promulgated under the Child Care Act, as substituted by the 1998 Amendments, which contains provisions designed to ameliorate problems currently caused by Ministerial renewals of children's court placement orders.
163. See F N Zaal in Robinson (ed) op cit 113-114. See too, in general, In Whose Best Interests?IMC Report on Places of Safety, Schools of Industry and Reform Schools (1996).
164. See Chapter 5.11 above concerning draft policy initiatives by the Department of Welfare and Population Development in this regard.
165. The consideration of subsidised adoptions has been recommended by the Department of Welfare and Population Development in its draft policy document on adoptions. See further Chapter 5 above.
166. Ms Lesley du Toit Briefing presentation to the committee, Pretoria, 6 March 1998.
167. Or if they are incapable of consenting (e.g. due to a disability), perhaps with the consent of the children's court.
168. On draft policy initiatives by the Department of Welfare and Population Development in the area of, inter alia, inter-country adoption, see Chapter 5 above.
170. See Ms Beth Goldblatt op cit as regards the tendency to stereotype the 'ideal mother', a relevant consideration where dispensing with parental consent to adoption is under discussion.
172. See D J Joubert 'Interracial Adoptions: Can We learn from the Americans?' (1993) 110 SALJ 726; Noel Zaal 'Avoiding the Best Interests of the Child. Race- Matching and the Child Care Act 74 of 1983' (1994) 10 SAJHR 372; Tshepo Motsikatsana 'Transracial Adoptions: Are We Learning the Right Lessons from the Americans and Canadians?- A Reply to Professors Joubert and Zaal' (1995) 112 SALJ 606; idem 'Examining Class and Racial Bias in the Adoption Process and the Viability of Transracial Adoptions as a Policy Preference: A Further Reply to Professors Joubert, Pakati and Zaal' (1997) 13 SAJHR 602.
173. See J S Small 'Transracial Placements: Conflicts and Contradictions' in S Morgan and P Righton (eds) Child Care: Concerns and Conflicts (1989) 52.
174. See Tshepo Motsikatsana ' Gay/Lesbian Adoptions and the Best Interests Standard: A Critical and Analytical Perspective' in Raylene Keightley (ed) op cit 114.
175. The ANC announced at its Mafikeng conference in December 1997 that such legislation should be investigated as a matter of some urgency.
176. See Tsepo Motsikatsana in Raylene Keightley (ed) op cit 114.
177. See Fiona McLachlan op cit 12 - 13; G E Barlow 'Child Care Bill - Best Interests of the Child?' 1982 De Rebus 341 at 342.
179. See Julia Sloth-Nielsen and Belinda van Heerden op cit (1996) 12 SAJHR 649 at 652 - 653. See also the new Regulation 34A (entitled 'Review and evaluation of children's homes, places of safety, places of care and shelters') of the Regulations under the Child Care Act, as inserted by the 1988 Amendments. Regulation 34A(3) provides that 'all children's homes, places of care, shelters and places of safety, including facilities maintained and controlled by the State, shall be subject to a quality assurance review every 24 months with respect to the minimum standards for residential care: Provided that such review will result in a report and developmental programme and shall be undertaken by the Director-General.'
181. See in this regard Regulation 14 of the Regulations under the Child Care Act, as substituted by the 1998 Amendments. In terms of this Regulation, no leave of absence may be granted to a child or foster child for a period exceeding 6 weeks at a time or for consecutive periods which, in total, exceed 6 months, unless approved by the Minister.
183. For a discussion of the consent requirements in the Choice on Termination of Pregnancy Act 92 of 1996, see Chapter 6 above; for a discussion of consent and HIV testing, see Chapter 4 above.
184. See in this regard the new Regulation 39A of the Regulations under the Child Care Act, as inserted by the 1998 Amendments.
187. Section 42(5), read with section 58.
189. Section 4.10, pages 40 - 42.
191. At the time of writing not yet in operation.
192. Section 50(2)(b) of the Basic Conditions of Employment Act 75 of 1997.
193. Section 48 of Act 75 of 1997.
194. See T W Bennett Human Rights and African Customary Law under the South African Constitution (1995) 97 -98; C R M Dhlamini 'Indigenous Law and the Bill of Rights' in Butterworths Bill of Rights Compendium (1996) para 6A11.
195. Many of the issues below were canvassed extensively by Prof T W Bennett, a member of the Harmonisation Committee, in his briefing presentation to the Child Care Act project committee on 5 March 1998.
196. See, for example, sections 15 (freedom of religion, belief and opinion), 30 (language and culture) and 31 (cultural, religious and linguistic communities) of the Constitution and article 30 of CRC.
197. Philip Alston 'The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights' (1994) 8 Int J of Law and the Family 1 at 19 -20. So, for example, it has been pointed out that the concept of 'family' or the meaning of the word 'parental' is not defined in CRC, thereby opening the way for a broader interpretation of these concepts to include members of the extended African family, rather than only the narrowly defined nuclear family unit: see Julia Sloth Nielsen 'Ratification of the United Nations Convention on the Rights of the Child: Some Implications for South Africa' (1995) 11 SAJHR 401 at 406; T W Bennett op cit (1995) 101; C R M Dhlamini op cit para 6A11.2.1. Cf Alice Armstong et al 'Towards a Cultural Understanding of the Interplay between Children's and Women's Rights: An Eastern and Southern African Perspective'(1995) Int J of Children's Rights 333 at 341 -343.
198. See, for example, Philip Alston op cit 2-5, 10 ff; and further, the various contributions on the best interests of the child principle in (1994) 8 Int J of Law and the Fam.
199. T W Bennett op cit (1995) 100.
200. Alice Armstrong et al op cit 363-365. But changes in societal structures in South Africa and other African countries have meant that the ideology of individualism has increasingly influenced the traditional African value system: see T W Bennett A Sourcebook of African Customary Law for Southern Africa (1991) 345 - 350.
201. T W Bennett op cit (1995) 101 -102; T W Bennett op cit (1991) 339 - 345; C R M Dhlamini op cit para 6A11.2; J C Bekker 'Children and young persons in indigenous law' in J A Robinson (ed) The Law of Children and Young Persons in South Africa (1997) 191 -192; Alice Armstong et al op cit 337 -341.
202. Linda Vilakazi-Tselane A Situational Analysis of the Girl Child: A Research Report for NIPILAR -South Africa (February 1998) 18, 23 -25.
203. T W Bennett op cit (1991) 336 is of the opinion that it is uncertain whether the Age of Majority Act 57 of 1972 currently applies to persons subject to customary law. For a contrary opinion, see J C Bekker op cit 190.
206. See the recent cases of Hlope v Mahlalela and another 1998 (1) SA 449 (T) and Sati v Kitsile [1998] 1 All SA 530 (E). Cf Alice Armstong et al op cit 348 - 350.
207. There is no true equivalent in customary law of the common law concept of adoption and the institution of an heir for an otherwise heirless house is a practice not conceived first and foremost to serve the interests of the child: T W Bennett op cit (1995) 107, idem (1991) 375 - 378.
208. See section 24 of the Child Care Act, 1983.
209. Section 18(1)(a) of the Child Care Act, 1983 provides that the 'adoption of a child shall be effected by an order of the children's court of the district in which the child concerned resides'. Furthermore, for purposes of the Act, 'marriage' is defined as including 'any marriage which is recognised in terms of South African law or customary law' - section 1, as amended by section 1(d) of the Child Care Amendment Act, 1996.
210. See, for e.g., section 211 of the Constitution.
211. Unfortunately, due to time constraints and the relative inaccessibility of relevant sources, the committee has not been able to investigate the position of children in Hindu law in sufficient depth. Input on issues arising in this context would be welcomed.
212. In the 1980 Census for South Africa, 62 per cent of the 820 000 people of Indian descent identified themselves as Hindu, 19 per cent as Muslim and 19 per cent as Christian.
213. James McNamara 'Illegitimacy and the family in Hindu society' in Sandra Burman and Eleanor Preston-Whyte (eds) Questionable Issue: Illegitimacy in South Africa (1992) 105 at 106. Much of what follows in this section has been drawn directly from this source.
214. Ms Pat Moodley Briefing document to the committee, Pretoria, 6 March 1998.
215. The following discussion of Muslim personal law is based on the presentation of Dr Najma Moosa of the Department of Comparative and Public International Law, University of the Western Cape, to the committee at the briefing on 5 March 1998. We are indebted to Dr Moosa for her thorough and extensive paper.
216. The Sunna (tradition) of Muhammad is the received customs associated with him and embodied after his death in book form called Hadith. The Sunna is therefore explanatory of and complementary to the Qur'anic text.
217. Hereinafter abbreviated to MPL.
218. In the eighth century the four major Islamic schools of law were established and named after its founders namely, Hanafi, Maliki, Shafi'i and Hanbali. These together comprise theSunni(traditionalist) schools.
219. Dr Najma Moosa An analysis of the human rights and gender consequences of the new South African Constitution and Bill of Rights with regard to the recognition and implementation of Muslim Personal Law (MPL), unpublished LL D dissertation, University of the Western Cape (1996) 18.
220. N Moosa op cit (1996) 137 - 141.
221. B B Pande 'The politics of children's rights in Asia: Rhetoric and reality' in E Verhellen (ed) Understanding Children's Rights 508.
222. Dr Najma Moosa 'Muslim personal laws affecting children: Diversity, practice and implications for a new children's code in South Africa' (Briefing document to committee, Pretoria, 5 March 1998) 7.
223. 'Abd al 'At The Family Structure in Islam (1977) 182, 203.
224. In an analysis of various Pakistani judgments from 1947-1992 which investigated the attitude of the superior courts towards women as parties in custody and guardianship cases, Sardar Ali and Azam (1993-35) concluded that these cases reflect '...a clearly discernible shift away from rules of traditional Islamic law. In deciding these cases, emphasis is laid on welfare of the child which is considered of prime importance at times even overriding express provisions of law...' (emphasis added). Judges have exercised independent reasoning, or ijtihad as a tool and source of Islamic law, in order to achieve this, especially where there was no Qur'anic guidance or where the schools of law had divergent views on the topic.
225. ll the schools of law are not unanimous that apostasy (of the mother) should necessarily be a ground for disqualifying her from her right to custody: J J Nasir The Status of Women under Islamic Law(1994) 115 - 137.
226. 'Abd al 'At op cit (1977) 184.
227. Q.6:137; Q.6:140; Q.6:151; Q.17:31; Q.16:58-9.
228. A A A Fyzee Outlines of Muhammadan Law (1974) 189; J J Nasir The Status of Women under Islamic Law (1994) 115; M T El Imairi 'Rights of Children' (1978) 7 Journal of Islamic and Comparative Law 1.
229. In terms of the Births and Deaths Registration Amendment Act 40 of 1996 'marriage' includes a 'marriage solemnised or concluded according to the tenets of any religion...'. For formal purposes, therefore, the birth of a child from a marriage by Muslim rites can be registered as a legitimate birth. Section 1(d) of the Child Care Amendment Act 96 of 1996 redefines 'marriage' for the purposes of that Act to include '... any marriage...which was concluded in accordance with a system of religious law subject to specified procedures, and any reference to a husband, wife, widower, widow, divorced person, married person or spouse shall be construed accordingly...' (emphasis added). These are but first steps towards the full recognition of a reformed MPL.
230. [1996] 4 All SA 557 (C), 1997 (2) SA 690 (C).
231. Van Bueren The International Law on the Rights of the Child (1994) 45 highlights that although Islamic states did not argue (during the drafting of the Children's Convention) that a distinction between children born in and out of wedlock is in the child's best interests, they maintain that such children are unequal on the basis of Islamic law.
233. See section 1(2) of the Intestate Succession Act 81 of 1987 and section 2D(1)(b) of the Wills Act 7 of 1953 (as inserted by section 4 of the Law of Succession Amendment Act 43 of 1992).
234. For an alternative Islamic perspective on the issue of children born out of wedlock see Ebrahim Moosa 'The child belongs to the bed': Illegitimacy and Islamic law' in Burman and Preston-Whyte (eds) Questionable Issue: Illegitimacy in South Africa (1992) 171-184. This view is more in line with the human rights culture now prevailing in South Africa and the true Islamic spirit of justice and equality.
236. According to Islamic law women, married or single, are allowed to own property or to dispose of it as they wish, to retain their separate estates, to remain owners of their dowries and inheritances, gifts, fruits of their own labour and investments: `Abd al `Aí op cit 165.
237. In Islamic law the heirs of the deceased are determined at the time of his death. Voluntary freedom of testation by will is limited in that the deceased may only dispose of one third of his net assets, normally in favour of a non intestate heir. The rest (two thirds) is automatically devolved in accordance with the fixed shares prescribed in terms of the compulsory Qur'anic rules of 'intestate' succession: N Moosa A Comparative Study of the South African and Islamic Law of Succession and Matrimonial Property with especial attention to the implications for the Muslim Woman, unpublished LL M thesis, University of the Western Cape (1991) 38-52,152-168.
239. Dower is an important ingredient of a Muslim marriage. It is a sum of money or other property which becomes payable by the husband to the wife as an effect of marriage. It becomes the exclusive property of the bride. Dowry consists mainly of property items such as clothing, money and jewellery. It is a well-established custom and an obligation of the husband's family in some (not all) Muslim societies. It does not have its origin in Islamic law and is therefore not obligatory. In terms of Islamic law gift is a disposition of property during one's lifetime. There is no limitation on the amount of property transferred by gift: N Moosa op cit (1991) 9, 29-30, 153-155, 159.
241. See Julia Sloth-Nielsen and Belinda van Heerden 'New Child Care and Protection Legislation for South Africa? Lessons from Africa' (1997) 8 Stell LR 261.
242. All three bills emanate from the prior (1995) Report by the Ghana National Commission on Children Reforming the Law for Children in Ghana: Proposals for a Children's Code (hereafter Report).
243. See the Uganda Country Report on the Implementation of the UN Convention on the Rights of the Child (May 1995) 3.
244. Julia Sloth-Nielsen and Belinda van Heerden op cit (1997) 266 - 7.
245. See Report 6. See too the consequent assumption in Sloth-Nielsen and Van Heerden op cit(1997) 275 and the South African Law Commission Issue Paper on Juvenile Justice (Project 106) 46.
246. There is a striking resemblance between the wording of this schedule and section 1 of the United Kingdom Children Act 1989, but the last two paragraphs are unique to the Ugandan statute.
249. For a discussion of the differing effects of the inclusion of underpinning principles, as opposed to a statement of objectives, see Sloth-Nielsen and Van Heerden op cit (1997) 271 - 2.
250. Novel is the inclusion of regulation concerning all day care centres, irrespective of the number of children attending such centres. At present in South Africa only 'places of care' (facilities providing for the temporary or partial care of more than 6 children apart from their parents) and 'shelters' are included in the ambit of national legislation (see Julia Sloth-Nielsen and Belinda van Heerden 'The Child Care Amendment Act 1996: Does it improve Children's Rights in South Africa?' (1996) 12 SAJHR 649 at 653.
251. Such as clause 38 dealing with the right of the child in proceedings before a Family Tribunal, which clause provides for the child's rights to privacy, to legal representation and to express his or her views in such proceedings.
252. Sloth-Nielsen and Van Heerden op cit (1997) 270 - 1 refer to the fact that some of the rights are of particular interest, such as the right to refuse to be betrothed or to be married, and the right not to be subjected to cultural practices which dehumanise the child or are injurious to its physical and mental well-being.
253. Clause 116; there was an equivalent provision in the 1960 Children's Act.
255. The duty to make these reports rests on every member of the community, rather than on designated professionals.
256. Excluding dissolution of marriage.
257. Many of these functions in South African are currently the domain of the High Court and the Master. A further example of powers granted by the Bill to the children's court that in South Africa are exercised by the High Court, is the power to grant interdicts restraining the removal of children from Kenya by any person, with the corresponding power to authorise such removal (clause 87).
258. An interesting concept is that of a 'family assistance order', the idea of which is to provide extra support for an adult caregiver, such as a parent, so that that person will not have to give up a child into alternative care. Under a family assistance order, a social worker will be ordered by the court to work closely with a particular family over a short period of time, focusing on the ability of the care giver/family to care for a particular child. The order can only be made with the consent of the adult care giver/s concerned.
259. Indigenous children, a minority group, are nevertheless over-represented in child care and protection proceedings and the juvenile justice system throughout Australia.
260. UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, 1986. Negotiations are under way regarding ratification of the Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption.
261. The Hague Convention on the Civil Aspects of International Child Abduction.
262. The UNESCO Convention against Discrimination in Education, 1960.
263. ILO Convention No 138 concerning Minimum Age for Admission to Employment, 1973.
264. ILO Conventions No 79 and No 90 on Night Work of Young Persons (Non-Industrial and Industrial Occupations), 1946 and 1948 respectively.
265. Henceforth, references to 'child' will include both concepts, unless otherwise indicated.
266. See also JA Robinson 'An Overview of Child Protection Measures in New Zealand with Specific Reference to the Family Group Conference' (1996) 7 SAJHR 313 and idem'Multi-kulturaliteit en die Familiereg: Enkele Gedagtes oor die Posisie in Nieu-Seeland' (1996) 7 Stell LR 210.
267. See further in this regard Chapter 6 above.
268. See Rebecca Bailey-Harris and John Dewar 'Variations on a theme - Child law reform in Australia' (1997) 9 Child and Family Law Quarterly 149.
269. This principle has not yet been extended to the Adoption Act of 1976.
270. The checklist applies to contact and residence orders, specific issue orders, prohibited steps orders and care and care and supervision orders, but not to emergency protection orders.
272. Much of this terminology derives directly from CRC.
273. Attorney-General's Department Australia's Report under the Convention on the Rights of the ChildCanberra: Attorney-General's Department 1996, xxiv - xxviii.
275. ALRC 84, para. 15.29 et seq.
276. For an interesting comparison with the 1989 English Act, see Bailey-Harris and Dewar op cit152 ff.
277. Mary Iwanek et al 'Adoption in the International Year of the Family' in Rights and Responsibilities (1994) 202.
278. This has been followed in Scotland, despite recommendations of the Scottish Law Commission to the contrary.
280. There is, however, a fear in Scotland that the children's panels may be subject to attack as not being 'judicial' enough to satisfy the due process requirements of the European Convention on Human Rights.
281. Where the child is aged under sixteen and pleads guilty or is found guilty.
282. This creates a role for children's hearings not envisaged for South African children's courts at this stage.
283. These further appeals are possible only on a point of law or in respect of any irregularity in the conduct of the case; a court of session is usually appealed to only on a particularly difficult or contentious point of law, or a significant matter of principle.
284. Despite transfer provisions in section 254 of the Criminal Procedure of 1977, the commission of an offence by a child is not explicitly a ground for opening a children court inquiry in South Africa.
285. E.g. inhaling glue fumes.
286. An innovation in the checklist is the reference to any family violence involving the child's family, irrespective of whether the child witnessed it, as a relevant factor in making decisions relating to children.
287. See Rebecca Bailey-Harris 'Family Law Reform - Changes Down Under' (1996) Fam Law 214.
288. After which such a plan operates as a court order.
289. In 1995 - 96, of the more than 25 000 children subjects of substantiated abuse and neglect allegations in Australia, 4 123 were placed on new care and protection orders: A Broadbent and R Bentley Child Abuse and Neglect Australia 1995 - 96 (Child Welfare Series 17) Canberra: Australian Institute of Health and Welfare (1997) 18.
290. ALRC 84, para 2. 66 and 2. 67.
291. For the history of the Family Court, see L Star Counsel of Perfection: The Family Court of AustraliaMelbourne: Oxford University Press 1996.
292. Particularly with the introduction of the Family Law Reform Act, 1995.
295. ALRC 84, para 13.22. In the United Kingdom, the Family Proceedings Rules allow a child to be independently represented if the court is satisfied that the child is mature enough to provide instructions.
296. The Family Court can appoint a child's representative wherever it appears to the court that the child ought to be separately represented.
297. See ALRC 84, para 13.33 ff for a detailed discussion of the role and function of best interest representatives in the Australian Family Court.
298. Gabrielle Maxwell et al Researching Care and Protection, Office for the Commissioner for Children and Social Policy Agency, Ropu Here Kaupapa (1995) 1.
299. See Melanie Roberts 'New Zealand's Family Court- Reflections for the Family Law Act of England and Wales' (1997) 11 Int J of Law, Policy and the Family 246.
300. Which are run by different directorates within the Department of Social Welfare.
301. An apparent lack of definition as to the roles and responsibilities of the panel hampered its work early on: see the Report of the Ministerial Review Team to the Minister of Social Welfare, Review of the Children, Young Persons and Their Families Act, Wellington (1992) 51.
302. See the Child Care Amendment Act 96 of 1996, in operation from 1 April 1998, which shifts the criteria for removal of children from proof that parents are unfit or unable to care for children, to proof that the child is in need of care; the legislation further provides various grounds which may indicate that a child is in need of care.
303. The other two relate to juvenile justice and to sexual offences against children. There are also other Law Commission investigations which have a bearing on children, such as the Review of the Maintenance System (Project 100), Domestic Violence (Project 100), the Harmonisation of the Common Law and the Indigenous Law (Project 90), Islamic Marriages and Related Matters (Project 59), Aspects of the Law relating to AIDS (Project 85), the Review of the Marriage Act (Project 110), and Alternative Dispute Resolution (Project 94). In addition, as mentioned in Chapter 4 above, there is a pilot project on the establishment of family courts for South Africa. Discussion between the Family Court Task team and the leaders of the various project committees (including this committee, the Juvenile Justice and Sexual Offences committee) have indicated the need for close liaison between the Task team and the existing Law Commission project committees, especially this committee.
305. The Constitution of the Western Cape Act 1 of 1988.
307. A similar proposal is contained in a draft bill currently before the KwaZulu/Natal legislature.
308. Act 96 of 1996, which came into operation only on 1 April 1998.
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