Briefing by South African Law Commission: Review Of The Child Care Act

Social Development

25 May 1998
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25 May 1998

South African Law Commission Issue Paper 13 Project 110: The Review of the Child Care Act

A review of the Child Care Act was given and there was a discussion on how it could be improved.

A briefing was held on the review of the Child Care Act using an issue paper prepared by the Project Committee on the Review Of the Child Care Act of 1996 and the research staff of the South African Law Commission. The purpose of the issue paper is to disseminate information, both for educational purposes and to elicit comments and suggestions, which will serve as a basis for the Commission’s further deliberations.

Workshops are an integral part of the working methods of the Commission and therefore it is intended to workshop this issue paper extensively.

The project leader responsible for this project is Associate Professor Belinda van Heerden and the researcher, who may be contacted for further information, is Mr Gordon Hollamby.

The aim of the commission is to develop recommendations for new, appropriate and far-reaching child legislation. Legislation which will take into account not only the present realities but also the future social, political and economic constraints of the society which it aims to serve.

Main Points for Discussion
1. A vision for comprehensive child legislation for the 21st century.
Accessible, appropriate, consistent and empowering legislation for the children of South Africa is urgently required and will need to be in harmony with the intersection framework of international law and the South African Constitution. In particular, the vision the committee proposes for a new children’s statute is inspired by the United Nations Convention on the Rights of the Child (CRC), the Organisation for African Unity (OAU) Charter on the Rights and Welfare Of the Child, and the relevant clauses in The Bill of Rights in our Constitution. At the heart of the envisaged model is the articles of CRC: survival, development, protection, and participation of the child which permeated relations between child and family, child and state, child and child, and inter-state obligations.

2. The framework: international instruments and the South African constitution.
International instruments are useful in developing a framework for laws about children because ratification of or accession to international instruments creates obligations on State Parties to take action to bring domestic policy, law and practice into line with the relevant international instrument. International instruments on children's issues, by their very nature represent a common pool of wisdom and a culmination of efforts to ensure recognition of children’s rights.

3. Problem statement and situation analysis
3.1 Problem statement
A criticism of the present child Care Act has been that it is narrowly focused, with a heavy emphasis on formal legal interventions in individual situations This does not meet the basic needs of the broad mass of South African children. The Child Care Amendment Act of 1996 includes some provisions designed to address this problem, but the need remains for legislation to take into account the broad spectrum of needs and rights of children.

3.2 Situation analysis
Various aspects play a role in the ill-treatment and misfortune of children such as:
Birth rate, infant mortality and nutrition, family life, early childhood development, children in out-of-home care, children with disabilities, children affected by chronic diseases and HIV/AIDS, child abuse and neglect, child labour, street children, child health and substance abuse, children of divorcing parents and displaced children.

4. Overview of existing policy statements
A number of recent South African policy initiatives and documents are surveyed, with particular reference to their impact on children, such as: the White Paper on Social Welfare, National Programme of Action for Children, Lund Committee Report and related policy issues, Report on Special Needs in Education, etc.

5. Broad overview of current South African common and statutory law relating to children. Both the laws and the institutions affecting children are in a process of transition.

6. The Child Care Act [74 of 1983] deficiencies in formulation and problems which have emerged in practice. Much of the Child Care 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. There are 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. For example, at present magistrates receive no specialised training for children's court work, which leads to numerous problems in practice.

7. Customary law affecting children
The South African Law Commission Project Committee on the Harmonisation of the Common Law and the Indigenous Law (Project 90) has already explored the position of children in customary law in South Africa with the aim of highlighting matters for discussion concerning the need for legal reform in this sphere. The Harmonisation Committee was aware of the necessity of considering customary law affecting children in the context of the shift from a small-scale, largely rural and communal society to an urban, industrialised and individual society. This shift in the social order has been accompanied by the dislocation of the extended family and corresponding shrinkage of the network of kin available for the care and protection of a child to the biological parents or, in a large number of cases, to the mother alone.

In view of the holistic nature of the investigation by the Committee on the Review of the Child Care Act, there is now a possibility that the Harmonisation Committee will leave the question of the extent to which customary law affecting children should be reformed and/or incorporated in a comprehensive children's statute to be explored by the Child Care Act project committee

8. Religious laws affecting children
A variety religious laws and practices affect children in South Africa, for example Hindu law and Muslim law

9. Comparative review
This draws on recent law reform initiatives in child care and protection in both developed and developing countries. Selection has been determined by accessibility of material, the probable relevance of the particular country to aspects of the South African context and the fact that all of the examples of laws reform given, post-date the UN Convention on the Rights of the Child. Common themes are: the shift from parental rights, the principle on minimum intervention and delay being prejudicial to the interests of the child as well as the critierion of significant harm as a ground for the removal of children into state care.

10. The way forward.
The committee sees its brief, not simply as redrafting the present Child Care Act, but to answer the question: What should child protection legislation in fact encompass. The committee's intention is to consult widely with all stakeholders and to promote a multi-disciplinary and inter-sectoral approach.


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