Children

Children are the future

(Enough Said)

The Constitution entrenches several rights of children, and the Children’s Act 2005 gives effect to them by its various provisions. The purpose of the Act is manifold – generally, to promote the protection, development, and well-being of children. Unless otherwise stipulated, a ‘child’ is someone under the age of 18 years.

The Act also deals with a variety of children-related issues which are of everyday relevance: parental responsibilities; special children’s courts; the National Child Protection Register; intervention; foster care; care centres; adoption; abduction; and even surrogate motherhood.

Please note: trafficking of children is a serious offence. It is not dealt with in this Act. See the Prevention and Combating of Trafficking of Persons Act 7 of 2013.

There’s a lot to take care of to ensure this future of ours.

A. Parental and caregiver obligations

1. It is a criminal offence for any parent, guardian, or caregiver to abuse a child. Abuse means:¹
   • assault or injury;
   • labour exploitation;
   • sexual abuse;
   • psychologically harmful behaviour;
   • bullying;
   • emotionally harmful behaviour.

2. It is a crime to fail to provide for a child’s basic physical, intellectual, emotional or social needs (that is, to ‘neglect’ a child).²

3. It is also a crime to desert a child; or, for no apparent reason, to have no contact with the child for at least three months (that is, to ‘abandon’ the child).³

4. If you are legally liable to maintain a child – that is, you are the parent, guardian, or, caregiver – it is a criminal offence to fail to provide the child with adequate food, clothing, lodging and medical assistance if you are able to do so.⁴

5. Sometimes, a household can be officially recognised⁵ as a child-headed household. Then, it must function under the general supervision of an adult designated by the court, or by an organ of state, or an NGO. That adult may collect social grants and other assistance to which the household is entitled, but he commits an offence if he misappropriates any of it.⁶

B. Rights of access

1. If there is a court order concerning rights of access, or a ‘parental responsibilities and rights agreement’ that has taken effect, any person having care or custody of the particular child who:
   • refuses to allow the other person access;
   • refuses another person to exercise his responsibilities and rights; or
   • prevents (in some other way) any person from exercising his right of access or his responsibilities in terms of the agreement,

   commits a criminal offence.⁷

2. Where there is a child who is in the care or custody of someone, and there is a court order concerning rights of access in favour of another, or there is such a parental responsibilities and rights agreement in effect, the person who has custody or control must notify the other(s) of any change in his residential address. It is a crime not to do so.⁸

C. Social, cultural and religious practices

1. It is a criminal offence to do any of the following:
   • give out for marriage, or engagement, any boy under 18 years or any girl under 15 years;⁹
   • give out for marriage, or engagement, any boy 18 years (and over) or any girl 15 years (and over) without their consent.¹⁰

2. The genital mutilation or circumcision of any female child is prohibited.¹¹

3. It is unlawful to:
   • test the virginity of a child under the age of 16;¹²
   • test the virginity of a child older than 16 except:
     • if the child has given informed consent;¹³
     • after proper counselling of the child; and¹⁴
     • in the manner prescribed by regulation.¹⁵
   • disclose the results of a virginity test without the consent of the child; and¹⁶
   • mark the body of a child who has undergone virginity testing.¹⁷
4. The circumcision of males under the age of 16 is unlawful, except:
   • if performed for religious purposes, in accordance with the practices of the religion concerned, and in the manner prescribed by regulation; or¹⁸
   • if performed for medical reasons on the recommendation of a doctor.¹⁹
5. Circumcision of males 16 years and older may be performed, but only:
   • if the child has given informed consent;²⁰
   • after proper counselling of the child; and²¹
   • in the manner prescribed by regulation.²²

D. Adoption

Adoption is where a child is placed in the permanent care of a person following an order of the High Court.

For all intents and purposes, an adopted child is regarded as the child of the adoptive parent; and the adoptive parent is regarded as the parent of the adopted child. Each has the rights, duties and responsibilities as with a biological child/parent relationship.

1. It is against the law to:
   • give, or receive, or agree to give or receive any payment (of whatsoever sort) for the adoption of a child;^23 24
   • persuade a person to give up a child for adoption.²⁵
2. It is a criminal offence to provide any adoption service unless you are:
   • a child protection organisation accredited by the Director-General;^26 27
   • an adoption social worker;²⁸
   • the Director-General in the case of inter-country adoptions;²⁹ or
   • a child protection organisation accredited by the Director-General to provide inter-country adoption services.³⁰

3. It is also against the law to publish (or cause to be published) any form of advertisement dealing with the adoption of a specific child.^31 32

4. The Director-General keeps a register of adoptable children, and (prospective) fit and proper adoptive parents. It is known as RACAP. Only the Director-General and officials in his department designated by him may have access – or, as he may permit and then under such conditions as he determines. It is a crime to contravene this provision.³³

5. The adoption of, or by, foreigners has to be processed according to what is known as the Hague Convention on Inter-country Adoption. It is a crime to process or facilitate an inter-country adoption in any other way.³⁴

6. For that matter, it is an offence to process or facilitate an inter-country adoption otherwise than in respect of Chapter 16 of the Act.³⁵

E. Children’s Court

Whilst the High Court is the upper legal guardian of all children, many legal issues arising from the Children’s Act are determined by the Children’s Court, which is in effect the magistrate’s court of the particular area.

Before it makes a decision, the Court can order an investigation into circumstances concerning the child in question. That investigator has wide powers – to enter premises, question people, remove a child, etc.

1. It is a criminal offence to:
   • fail to comply with any request of an investigator in the performance of these duties;³⁶
   • furnish false or misleading information in response to such a request;³⁷
   • falsely pretend to be an investigator;³⁸
   • hinder or interfere with a person in the execution of these duties.³⁹

2. Any person requested by the clerk of the Children’s Court to attend its proceedings must do so. It is an offence to fail to comply with the request.⁴⁰

3. Except if the clerk of the Children’s Court (or the High Court) directs otherwise, a child involved in the matter must attend the proceedings. The person who has physical control of the child commits an offence if he does not ensure the child’s attendance.⁴¹

4. No person may, without the permission of a court, publish any information relating to the proceedings of a Children’s Court which:⁴²
   • might reveal the identity of a child who is a party in the proceedings;
   • might reveal the identity of a child who is a witness in the proceedings.

F. Intervention

1. Any person in a professional or leadership position – from immigration officials to teachers, from nurses to ministers of religion – who has reasonable grounds to conclude that a child has been physically or sexually abused, or deliberately neglected, must report it to either a specific organisation, or the police. It is a criminal offence to ignore this obligation.⁴³

2. When such a report has been made, the police official may issue a written notice which calls upon the alleged offender to leave the home or place where the child resides, and to refrain from having contact with the child until a court hearing. If any person disobeys such a notice, it is a criminal offence.⁴⁴

3. At the hearing, the Children’s Court has wide powers to make a range of orders. These include:

   • forbidding the alleged offender from entering the home or place where the child resides;⁴⁵ or
   • from having any contact with the child;⁴⁶ or
   • permitting such entry or contact, but then upon certain conditions;⁴⁷
   • referring the matter to a social worker for investigation;⁴⁸
   • ordering the payment of maintenance;⁴⁹
   • any order which the court deems fit.⁵⁰

   It is a criminal offence to disobey any part of, or any condition contained in such an order.⁵¹

G. Care facilities and early childhood development

There are different kinds of care facilities established for the benefit of children in need. They have different standards and different legal obligations.

1. A partial care facility is where children are cared for during specific hours only, by agreement with the parents (or full-time caregiver). It must be registered with the provincial government, managed and maintained in accordance with any conditions of registration; and, it must comply with norms and standards as may be prescribed by regulation. These deal with:⁵²
   • a safe environment;
   • sick and health care;
   • space and ventilation;
   • drinking water;
   • hygiene;
   • toilet facilities;
   • storage safety;
   • refuse disposal;
   • food preparation;
   • emergency action plans; and
   • separate facilities for different age groups.

   It is an offence to operate a partial care facility which does not comply with any of these requirements.⁵³

2. Any person providing learning or support services intended to promote any aspect of the development of children, from birth to a school-going age, must:
   • register with their provincial Head of Social Development;⁵⁴
   • comply with any conditions of registration; and⁵⁵
   • comply with the norms and standards as may be prescribed by regulation. These deal with:⁵⁶
     • appropriate development opportunities;
     • helping children realise their full potential;
     • caring, providing support and security;
     • positive social behaviour;
     • nurturing the culture, dignity individuality and language of each child;
     • meeting the development needs of children.

   It is an offence not to comply with any of these conditions.⁵⁷

3. It might happen that the provincial Head of Social Development Services issues a notice to a specific care facility either to provide an early childhood development programme, or to upscale its existing programme in order to comply with national norms and standards, or to stop it altogether.⁵⁸ It is an offence not to comply with a notice to stop a particular programme.⁵⁹

4. It is also a crime to continue operating a partial care facility if given notice by the provincial Head of Social Development to stop.^60 61

H. Foster care

It frequently happens that a child is in the care of a person who is not his biological or adoptive parent. That person has several obligations in respect of the child.⁶²

1. However, it is unlawful for that person to hold himself out as (i.e. pretend to be) the biological or adoptive parent of the child.⁶³

2. It is also a criminal offence to deceive the child into believing that that person is the biological or adoptive parent of the child.⁶⁴

3. For that matter, it is an offence to deceive anyone into believing that that person is the biological or adoptive parent of the child.⁶⁵

I. Custodial and temporary safe care

1. It is against the law to:
   • remove a child from his lawful caregiver;⁶⁶ or
   • keep a child from the care of his lawful caregiver,⁶⁷

   without lawful authority; or, at least, without reasonable grounds.

2. If evidence is presented to the Children’s Court that a child is in need of care and protection, that Court can order that the child be placed in temporary safe care pending an investigation by a social worker. That investigator has powers to enter premises, investigate circumstances, etc. It is an offence to obstruct any police official or designated social worker acting under a warrant to perform these functions.⁶⁸

3. The investigating social worker (or any accompanying police official) may also remove a child to a place of temporary safe care, if there are reasonable grounds for believing that the child needs immediate emergency protection and that the removal from his home environment is the best way to secure his safety and well-being.⁶⁹ If this happens, it is unlawful to obstruct, or try and prevent the child from being removed.⁷⁰

4. It is an offence to keep a child in temporary safe care for longer than six months without a court order.⁷¹

5. A child may be granted leave of absence from his place of care, but only by certain people in authority. It is an offence to influence, persuade or assist any child not to return, after the leave has expired, or has been cancelled.⁷²

J. Alternative care

1. If a child is in foster care, or temporary safe care, or at a centre following an order of court, it is an offence to remove him from the country without the written approval of the provincial Head of Social Development.⁷³

2. If a child (in this care) is seriously injured or abused, the management of the centre or organisation, or the person in whose care the child has been placed must immediately report the matter to the provincial Head of Social Development. It is a crime to fail to do this.⁷⁴

3. If a child dies whilst in such care, the death must immediately be reported to the parent or guardian (if he or she can be traced), to a police official, as well as to the provincial Head of Social Development, and to the social worker dealing with the matter. The management of the centre or organisation in question, or the person in whose care the child was placed commits an offence if this is not done.⁷⁵

4. It is also an offence if you know that a child has absconded from such care, and you influence or assist that child not to return – or prevent him from doing so.⁷⁶

K. Drop-in centres

1. A drop-in centre is a facility aimed at meeting basic needs of vulnerable children. It must offer at least the provision of food, or school attendance support, or assistance with personal hygiene, or laundry services.⁷⁷ Any person or organisation may establish or operate a drop-in centre, but it is an offence if:
   • it is not registered with the relevant provincial Head of Social Development;⁷⁸
   • it is not managed and maintained in accordance with any conditions of registration;⁷⁹
   • it does not provide, at least:⁸⁰
     • a safe environment;
     • safe drinking water;
     • adequate hygienic toilets;
     • refuse disposal;
     • a hygienic area for food preparation.

2. If a child at a drop-in centre is seriously injured or abused, the management of the centre or organisation, or the person in whose care the child has been placed must immediately report the matter to the provincial Head of Social Development. It is a crime to fail to do this.⁸¹

3. If a child dies whilst at a drop-in centre, the death must immediately be reported to the parent or guardian (if he or she can be traced), to a police official, to the provincial Head of Social Development, and to the social worker dealing with the matter. The management of the centre or organisation in question, or the person in whose care the child was placed commits an offence if this is not done.⁸²

L. Child and youth care centres

A child and youth care centre is a different kind of facility. It is for the provision of residential care to more than six children, outside each child’s family environment, in accordance with a residential care programme suited for the children.⁸³

It must offer, essentially, a therapeutic programme designed for the residential care of children, but it must also comply with national norms and standards relating to:⁸⁴

• development programmes;⁸⁵
• permanency plans for the children;⁸⁶
• individual development plans;⁸⁷
• temporary safe care;⁸⁸
• protection from abuse and neglect;⁸⁹
• assessment of children;⁹⁰
• family reunification and reintegration;⁹¹
• aftercare;⁹²
• access to and provision of adequate health care;⁹³
• access to schooling, education and early childhood development;⁹⁴
• security measures for child and youth care centres;⁹⁵
• separation of children if in different care programmes.⁹⁶

1. No criminal offences are specified in the Children’s Act concerning these child and youth care centres, save as follows:
   • it must be registered with the provincial Department of Social Development;⁹⁷
   • it must be managed and maintained according to the Act and any conditions of registration;⁹⁸
   • it must comply with the prescribed national norms and standards;⁹⁹ and
   • it must comply with structural, safety, health and other municipal requirements.¹⁰⁰
2. The provincial Head of Social Development may issue a notice to the person or organisation operating any child and youth care centre to stop operating an unregistered centre, or to comply with conditions of registration or the provisions of the Children’s Act if the centre is registered.¹⁰¹ It is a criminal offence not to adhere to such a notice.¹⁰²

M. HIV issues

1. No person may disclose the fact that a child is HIV-positive without consent given by him (if he is 12 years or older) or by his appropriate caregiver, except:
   • if it is within the scope of that person’s powers and duties in terms of the law;¹⁰³
   • when necessary to carry out the provisions of the Act;¹⁰⁴
   • for the purpose of legal proceedings;¹⁰⁵ or
   • in terms of an order of a court.¹⁰⁶
2. No person may refuse to sell condoms to a child over the age of 12. It is also an offence to refuse his request for condoms, if they are free of charge.¹⁰⁷

N. Child labour

1. The following are all criminal offences:
   • to use a child for work which is exploitative, hazardous or otherwise inappropriate for a person of that age, and places at risk his well-being, education, health or development. This is ‘child labour’ as defined in the Children’s Act;¹⁰⁸
   • to procure, offer or employ a child for child labour;¹⁰⁹
   • to use, or procure a child for slavery or practices similar to slavery;¹¹⁰
   • to use a child for purposes of commercial sexual exploitation;¹¹¹
   • to use, procure or offer a child (or attempt to do so) for the commission of any offence.¹¹²

O. National Child Protection Register

Part A of the Register is a record of abused or neglected children, and Part B is a record of persons who are unsuitable to work with children.

1. It is against the law to disclose any information in Part A of the Register, except:
   • to protect a specific child, or to protect the interest, safety or well-being of a specific child;¹¹³
   • to facilitate an investigation by the police following a criminal charge involving abuse or deliberate neglect of a specific child;¹¹⁴
   • to a person inquiring whether his name is on the Register;¹¹⁵
   • when ordered by a court to do so;¹¹⁶ or
   • when such disclosure falls within the scope of a person’s powers and duties in respect of legislation.¹¹⁷
2. It is against the law to disclose the fact that the name of a particular person appears in Part B of the Register, except:
   • if doing so is within the scope of this person’s powers and duties in terms of the law;¹¹⁸
   • to comply with a request from specific institutions;^119 120
   • when ordered by a court to do so.¹²¹
3. If your name appears in Part B of the Register you may not:
   • manage or operate, or participate or assist in managing or operating, any institution providing services to children at all;
   • work with, or have access to, children at such an institution;¹²²
   • become the foster parent or adoptive parent of a child;¹²³
   • work in any child protection unit of the police;¹²⁴ and
   • be employed in the public service, or municipality, with access to children.¹²⁵

4. It is also a criminal offence for any person at an institution providing services to children, or a child protection organisation, to allow a person whose name appears in Part B of the Register, to work with or have access to children at all.¹²⁶

5. A person who works with, or has access to, children must disclose to his employer that his name has been entered in Part B of the Register and it is an offence if he fails to do so.¹²⁷

6. Before a person is allowed to work with or have access to children, the relevant manager, or head of department of the child protection organisation, or of the municipal council, and even the SAPS (in the case of a unit tasked with child protection) must establish whether or not that person’s name appears in Part B of the Register and commits a crime by not doing so.^128 129

P. Surrogate mothers

A surrogate mother is an adult woman who enters into an agreement with another person, to be artificially fertilised for the purposes of having a baby which will be handed over at birth, and become the legitimate child of that other person.¹³⁰

1. It is illegal to give or promise to any person a reward or payment (of any sort) in connection with a surrogate motherhood agreement.^131 132

2. It is also illegal to receive a reward or payment of any sort.¹³³

3. It is illegal to publish the identity of the parties to court proceedings with regard to a surrogate motherhood agreement, without their written consent.¹³⁴

4. It is illegal to publish any facts that reveal the identity of a person born as a result of a surrogate motherhood agreement.¹³⁵

5. It is also illegal, with a view to being paid, to advertise in any way that a person is (or might be) willing to be a surrogate mother.¹³⁶

6. It is a criminal offence to artificially fertilise a woman (for surrogate motherhood) or assist in such artificial fertilisation, unless it is authorised by the High Court.¹³⁷

Q. Duty to report abuse or death

1. If a child is seriously injured or abused while at a centre, or in care¹³⁸ the person operating the facility, or any employee, must immediately report it to the provincial Head of Social Development. It is an offence not to do this.¹³⁹

2. The provincial Head of Social Development must cause an investigation to be conducted and he also commits an offence if he fails to do so.¹⁴⁰

3. If a child dies while at a centre, or in care, the person operating the facility, or any employee, must immediately report it to:

   • the parent, guardian or caregiver of the child;¹⁴¹
   • a police official;¹⁴² and
   • the provincial Head of Social Development.¹⁴³

R. General

1. A person authorised by the Director-General (or by a provincial Head of Social Development, or by any municipality) may enter any child care centre facility, or shelter, or any place which on reasonable suspicion is being used in order to carry out inspections, observation, interviews or assessments.¹⁴⁴ It is a crime to:
   • obstruct or interfere with such a person in carrying out those duties;¹⁴⁵
   • fail to comply with a request from that person;¹⁴⁶
   • give false information;¹⁴⁷
   • falsely claim to be such an authorised person or his assistant.¹⁴⁸
2. A person unfit to work with children is guilty of an offence if that person:
   • operates, or assists in any way in operating a partial care facility, child and youth care centre, shelter or drop-in centre;¹⁴⁹
   • assumes the foster care or temporary safe care of a child;¹⁵⁰ or
   • applies for the foster care, temporary safe care or adoption of a child.¹⁵¹
3. A person who is the owner, lessor, manager, tenant or occupier of any premises on which the commercial sexual exploitation of a child has occurred is guilty of an offence if he fails to report it to the SAPS as soon as he becomes aware.¹⁵²