REPUBLIC OF SOUTH AFRICA

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CHILDREN’S BILL

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(As introduced in the National Assembly as a section 756-Bill; explanatory summary of Bill published in Government Gazette No. of 2003) (The English text is the official text of the Bill)

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(MINISTER OF SOCIAL DEVELOPMENT)

[B -2003]

030803se

GENERAL EXPLANATORY NOTE:

***** Areas marked with five asterisks indicate omitted provisions, which will be inserted by way of an Amendment Bill. That Bill will be dealt with in terms of the procedure prescribed by section 76 of the Constitution – as explained in paragraph 1 of the Memorandum on the Objects of the Bill.

1. Interpretation

2. Objects of Act

3. Conflicts with other legislation

4. Implementation of Act

5. General principles

6. Best interest of child standard

7. Application

8. Provisions of Chapter take precedence over other law

9. Best interest of child paramount

10. Child participation

11. Rights of children

12. Harmful social and cultural practices

13. Information on health care

14. Access to courts

15. Enforcement of rights

16. Responsibilities of children

17. Age of majority

18. Parental responsibilities and rights

19. Parental responsibilities and rights of mothers

20. Parental responsibilities and rights of married fathers

21. Parental responsibilities and rights of unmarried fathers

22. Parental responsibilities and rights agreements

23. Assignment of parental responsibilities and rights by order of court

24. Certain applications regarded as inter-country adoptions

25. Persons claiming paternity

26. Assignment of parental responsibilities and rights to parent-substitutes

29. Court proceedings

30. Co-holders of parental responsibilities and rights

31. Major decisions involving child

32. Care of child by persons not holding parental responsibilities and rights

33. Contents of parenting plans

34. Formalities

35. Amendment or termination of registered parenting plans

36. Presumption of paternity in respect of child born out of wedlock

37. Refusal to submit to taking of blood samples

38. Effect of subsequent marriage of parents on children

39. Rights of children born of voidable marriages

40. Rights of children conceived by artificial fertilisation

41. Access to biographical and medical information concerning genetic parents

42. Children's courts and presiding officers

43. Status

44. Jurisdiction of children's courts

45. Matters children's courts may adjudicate

46. Orders children’s courts may make

47. Referral of children to children’s court by other courts

48. Additional powers

49. Lay-forum hearings

50. Investigations

51. Appeals

52. Rules and court proceedings

53. Who may approach court

54. Legal representation

55. Legal representation of children

56. Attendance at proceedings

57. Compulsory attendance of persons involved in proceedings

59. Witnesses

60. Conduct of proceedings

61. Participation of children

62. Professional reports ordered by court

63. Evidence

64. Adjournments

65. Monitoring of court orders

66. Protection of court case records

67. Appointment or designation of clerks of children's courts

68. Referral of matters to children’s court by clerk of children’s court

69. Pre-hearing conferences

70. Family group conferences

71. Other lay-forums

72. Settling of matters out of court

73. Other functions

74. Publication of information relating to proceedings

75. Regulations

76. Partial care

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77. Provision of partial care

78. Partial care facilities to be registered

79. Existing places of care

80. Notices of enforcement

81. Application for registration and renewal of registration

82. Consideration of applications

83. Minimum norms and standards for partial care

84. Conditional registration

85. Cancellation of registration

86. Appeals

87. Record and inspection of and provision for partial care facilities

88. Assignment of functions to municipalities

89. Death of children in partial care facilities

90. Regulations "*****"

91. Early childhood development

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92. Strategies concerning early childhood development

93. Provision of early childhood development services

94. Minimum standards for early childhood development services

95. Early Childhood Development programmes to be registered

96. Consideration of applications

97. Conditional registration

98. Cancellation of registration

99. Notices of enforcement

100. Assistance

101. Assessment of early childhood development services

102. Assignment of functions to municipality

103. Regulations

104. Strategies concerning child protection

105. Reporting of children in need of care and protection

106. Provision of designated child protection services

107. Designation of child protection organisations

108. Existing child welfare organisations

109. Delegation of powers and duties to designated child protection organisations

110. Withdrawal of designations

111. Keeping of National Child Protection Register

112. Confidentiality of Register

113. Purpose of Part A of Register

114. Contents of Part A of Register

115. Access to Part A of Register

116. Disclosure of information in Part A of Register

117. Inquiries on information in Part A of Register

118. Purpose of Part B of Register

119. Contents of Part B of Register

120. Finding persons unsuitable to work with children

121. Disputes concerning findings

122. Findings to be reported to Director-General

123. Consequences of entry of name in Part B of Register

124. Disclosure of entry of name in Part B of Register

125. Access to Part B of Register

126. Establishment of information in Part B of Register

127. Disclosure of names in Part B of Register prohibited

128. Removal of name from Register ?

129. Consent to medical treatment and surgical operations

130. HIV-testing

131. HIV-testing for foster care or adoption purposes

132. Counselling before and after HIV-testing

133. Confidentiality of information on HIV/AIDS status of children

134. Access to contraceptives

135. Applications to terminate or suspend parental responsibilities and rights

136. Child-headed households

137. Unlawful removal or detention of children

138. Unlawful taking or sending of children out of Republic

139. Corporal punishment

140. Child safety at places of entertainment

141. Worst forms of child labour prohibited

142. Regulations

143. Prevention and early intervention services

144. Purposes of prevention and early intervention services or programmes

145. Provision of prevention and early intervention services

146. Strategies for securing provision of prevention and early intervention services

147. Assignment of functions to municipalities

148. Court may order early intervention services

149. Reports to include summary of prevention and early intervention services

150. Child in need of care and protection

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151. Removal of children to temporary safe care by court order

152. Removal of children to temporary safe care without court order

153. Written notice to alleged offender

154. Siblings in need of care and protection

155. Decision of question whether child is in need of care and protection

156. Orders when child is found to be in need of care and protection

157. Court orders to be aimed at securing stability in child’s life

158. Placement of children in child and youth care centres

159. Duration and extension of orders

160. Regulations

161. Issue of contribution orders

162. Jurisdiction

163. Effect of contribution orders

164. Payments to be made to person determined by court

165. Attachment of wages of respondents

166. Change of residence or work by respondent

167. Alternative care

*****

168. Leave of absence

169. Children in alternative care prohibited from leaving Republic

170. Children absconding from alternative care

171. Transfer of children in alternative care

172. Change in residential care programmes

173. Removal of children who are already in alternative care

174. Provisional transfer from alternative care

175. Permanent discharges from alternative care

176. Discharges from alternative care after reaching age of 18 years

177. Appeals against and reviews of certain decisions

178. Death of children in alternative care

179. Regulations ?

180. Foster care

181. Purposes of foster care and court-ordered kinship care

182. Initial proceedings

183. Prospective foster parents or kinship care-givers

184. Determination of placement of children in foster care

185. Number of children to be placed in foster or kinship care per household

186. Duration of kinship care orders and stable foster care placements

187. Reunification of child with biological parents

188. Responsibilities and rights of foster parents and kinship care-givers

189. Termination of foster care and court-ordered kinship care

190. Regulations

191. Child and youth care centre

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192. Strategies to ensure sufficient provision of child and youth care centres

193. Establishment of child and youth care centres

194. Establishment of child and youth care centres by organs of state

196. Establishment of child and youth care centres by accredited organisations

197. Existing registered children’s homes

198. Notices of enforcement

199. Application for registration or renewal of registration

200. Consideration of applications

201. Conditional registration

202. Amendment of registration

203. Cancellation of registration

204. Voluntary closure of child and youth care centres

205. Children in child and youth care centres to be closed

206. Appeals against and reviews of certain decisions

207. Management boards

208. Managers and staff of child and youth care centres

209. Minimum norms and standards for child and youth care centres

210. Management system

211. Quality assurance process

212. Regulations

213. Shelters and drop-in centres

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214. Establishment of shelters and drop-in centres

215. Shelters and drop-in centres to be registered

216. Existing shelters

217. Notices of enforcement

218. Application for registration and renewal of registration

219. Consideration of applications

220. Minimum norms and standards for shelters and drop-in centres

221. Conditional registration

222. Cancellation of registration

223. Appeals against and review of certain decisions

224. Record and inspection of and provision for shelters and drop-in centres

225. Assignment of functions to municipality

226. Death of children in shelters or drop-in centres

227. Regulations

228. Adoption

229. Purposes of adoption

230. Children who may be adopted

231. Persons who may adopt child

232. Consent to adoption

233. Freeing orders

234. When consent not required

235. Gathering of information for proposed adoptions

236. Notice to be given of proposed adoptions

237. Application for adoption orders

238. Consideration of adoption applications

239. Unreasonable withholding of consent

240. Effects of adoption orders

241. Rescission of adoption orders

242. Grounds for rescission of adoption orders

243. Notice of application for rescission

244. Effects of rescission

245. Recording of adoption in births register

246. Registration of birth and recording of adoption of child born outside Republic

247. Adoption register

248. Access to adoption register

249. No consideration in respect of adoptions

250. Only certain persons allowed to provide adoption services

251. Accreditation to perform adoption work

252. Advertising

253. Regulations

254. Purposes of Chapter

255. Hague Convention on Inter-country Adoption to have force of law

256. Central Authority

257. Delegation of functions

258. Accreditation of child protection organisations for inter-country adoption

259. Entering into adoption working agreements

260. Adoption of children from Republic by persons in convention countries

261. Adoption of children from Republic by persons in non-convention countries

262. Issue of adoption compliance certificate

263. Adoption of children from convention countries by persons in Republic

264. Adoption of children from non-convention countries by persons in Republic

265. Recognition of inter-country adoption of children from convention countries

266. Evidential value of adoption compliance certificate of convention country

267. Recognition of inter-country adoption of children from non-convention countries

268. Effect of recognition of inter-country adoption

269. Refusal to recognise inter-country adoption or Article 27 decisions

270. Application to Children's Court for inter-country adoption of children

271. Access to information

272. Processing or facilitating inter-country adoption

273. Purposes of Chapter

274. Hague Convention on International Child Abduction to have force of law

275. Central Authority

276. Delegation of powers and duties

277. Powers of court

278. Legal representation

279. Regulations

280. Purposes of Chapter

281. UN Protocol to Prevent Trafficking in Persons to have force of law

282. Assistance to children who are victims of trafficking

283. Trafficking in children prohibited

284. Victims of child trafficking found in Republic

286. Consent of husband, wife or partner

287. Genetic origin of child

288. Confirmation by court

289. Artificial fertilisation of surrogate mother

290. Effect of surrogate motherhood agreement on status of child

291. Termination of surrogate motherhood agreement

292. Effect of termination of surrogate motherhood agreement

293. Abortion

294. Payments in respect of surrogacy prohibited

295. Identity of parties

296. Prohibition of certain acts

298. Offences

299. Regulations

300. Delegation of powers and duties by Minister

301. Assignment of powers and duties by Minister

302. Delegation of powers and duties by MECs for social development

303. Delegation of powers and duties by Director-General

304. Delegation of powers and duties by provincial heads of social development

305. Outsourcing of services

306. Repeal of Laws

307. Transitional matters

308. Short title and commencement

1. (1) In this Act, unless the context indicates otherwise —

"abandoned", in relation to a child, means a child who—

(a) has obviously been deserted by the parent, guardian or care-giver; or

"abuse", in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes—

(a) assaulting a child or inflicting any other form of deliberate injury on a child;

(b) sexually abusing a child or allowing a child to be sexually abused;

(c) bullying by another child;

(d) committing an exploitative labour practice in relation to a child; or

"adopted child" means a child adopted by a person in terms of this Act or any law regulating the adoption of children before this Act took effect;

"adoption compliance certificate"—

"adoption registrar" means the person designated by the Director-General in terms of section 247(1);

"adoption social worker" means—

(a) a social worker in private practice —

"adoption working agreement", for the purpose of chapter 17, means a written agreement entered into by an accredited child protection organisation in the Republic with an equivalent organisation in another country to facilitate inter-country adoptions between the Republic and the country concerned;

"adoptive parent" means a person who has adopted a child in terms of this Act or any law regulating the adoption of children before this Act took effect;

" alternative care" means care of a child in accordance with section 167;

"area", in relation to—

"artificial fertilisation" means the introduction by other than natural means of a male gamete or gametes into the internal reproductive organs of a female person for the purpose of human reproduction, including—

"authorised officer", in relation to any specific act, means a person who has no direct or indirect financial interest in the performance of that act and who is authorised in writing by the presiding officer of the children’s court to perform that act;

"Bill of Rights" means the Bill of Rights contained in Chapter 2 of the Constitution;

"care", in relation to a child, includes—

(a) within available means, providing the child with—

(b) safeguarding and promoting the well-being of the child;

(g) guiding the behaviour of the child in a humane manner;

(h) maintaining a sound relationship with the child; and

"care-giver" means any person other than the biological or adoptive parent who factually cares for a child, whether or not that person has parental responsibilities or rights in respect of the child, and includes—

(a) a foster parent;

(b) a kinship care-giver;

(d) a person who cares for a child whilst the child is in temporary safe care;

(e) a primary care-giver who is not the biological or adoptive parent of the child; or

"child" means a person under the age of 18 years;

"child and youth care centre" means a facility described in section 191(1);

"Child Care Act" means the Child Care Act, 1983 (Act No. 74 of 1983);

*****

"child-headed household" means a household recognised as such in terms of section 136;

"child labour" means the provision of labour by a child in exchange for payment and includes—

"clerk of the children’s court" means the person appointed by the Director-General: Justice and Constitutional Development as the clerk of the children’s court of the relevant Magistrate’s Court;

*****

"cluster foster care scheme" means a scheme providing for the reception of children in foster care in accordance with a foster care programme operated by—

(a) a social, religious or other non-governmental organisation; or

"commercial sexual exploitation", in relation to a child, means—

"commissioning parent" means a person who enters into a surrogate motherhood agreement with a surrogate mother;

"contact", in relation to a child, means—

(a) maintaining a personal relationship with the child; and

(b) if the child lives with someone else—

"contribution order" means an order referred to in section 161, and includes a provisional contribution order referred to in section 162(2);

*****

"convention country" means, in accordance with the wording of with Article 45 of the Hague Convention on Inter-country Adoption, any country in which the Convention has entered into force, except for a country against whose accession the Republic has raised an objection under Article 44 of the Convention;

"court" means—

(a) a children’s court as provided for in section 42; and

(b) for the purpose of Chapter 20, the High Court.

"court-ordered kinship care" means care of a child as described in section 180(3);

"delegation", in relation to a duty, includes an instruction to perform the duty;

"Department" means the national department responsible for the provision of social development services;

"designated child protection organisation" means an organisation designated in terms of section 107 to perform designated child protection services;

"designated child protection service" means a child protection service referred to in section 106;

"designated social worker" means a social worker in the service of—

(a) the Department or a provincial department of social development; or

(b) a designated child protection organisation;

"Divorce Act" means the Divorce Act, 1979 (Act No. 70 of 1979);

"divorce court" means the divorce court established in terms of section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929);

"drop-in centre" means a facility referred to in section 213(2);

"early childhood development programmes" means programmes referred to in section 91(3);

"early childhood development services" means services referred to in section 91(2);

"early intervention services" means services referred to in section 143(1);

"exploitation", in relation to a child, includes—

(a) all forms of slavery or practices similar to slavery;

(b) commercial sexual exploitation;

(c) servitude;

(d) forced labour or services;

(e) the worst forms of child labour prohibited in terms of section 141; and

(f) the removal of body parts;

"family advocate" means a family advocate appointed in terms of the Mediation in Certain Divorce Matters Act;

"family member", in relation to a child, means—

(a) a parent of the child;

(c) a primary care-giver of the child;

(d) a grandparent, brother, sister, uncle, or aunt or cousin of the child;

"foster care" means care of a child as described in section 180(1);

"foster parent" means a person who has foster care of a child by order of the children’s court, and includes an active member of an organisation operating a cluster foster care scheme and who has been assigned responsibility for the foster care of a child, but excludes a kinship care-giver;

"gamete" means either of the two generative cells essential for human reproduction;

"guardian" means a parent or other person who has guardianship of a child;

"guardianship", in relation to a child, means—

(a) administering and safeguarding the child’s property and property interests;

(c) giving or refusing any consent required by law in respect of the child, including –

"Hague Convention on Inter-country Adoption" means the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption signed at the Hague on 29 May 1993, a copy of the English text of which is set out in Schedule 1 to this Act;

"Hague Convention on International Child Abduction" means the Hague Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980, a copy of the English text of which is set out in Schedule 2 to this Act;

"High Court" means the High Court as contemplated in section 166 of the Constitution;

"in need of care and protection", in relation to a child, means a child who is in a situation contemplated in section 150;

"kinship care-giver" means a family member of a child who has court-ordered kinship care of a child;

"labour inspector" means a labour inspector appointed under section 63 of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);

"Maintenance Act" means the Maintenance Act, 1998 (Act No. 99 of 1998);

"marriage" means a marriage—

(a) recognised in terms of South African law or customary law; or

and any reference to a husband, wife, widower, widow, divorced person, married person or spouse must be construed accordingly;

"MEC for social development" means the member of the Executive Council of a province who is responsible for social development in the province;

"Mediation in Certain Divorce Matters Act" means the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987);

"medical practitioner" means a person registered or deemed to be registered as a medical practitioner under the Health Professions Act, 1974 (Act No. 56 of 1974) and includes a dentist so registered or deemed to be registered;

"mental illness" means mental illness as defined in the Mental Health Act, 1973 (Act No. 18 of 1973);

"Minister" means the Cabinet member responsible for social development, or where the context indicates another Minister, that Minister;

"municipality" means a metropolitan, district or local municipality established in terms of section 12 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), but to the extent that a municipality may or must implement a provision of this Act in or in relation to an area which falls within the area of both a district municipality and a local municipality, "municipality" in such a provision means the relevant local municipality;

"National Child Protection Register" means the register referred to in section 111;

"neglect", in relation to a child, means a failure in the exercise of parental responsibilities to provide for the child’s basic physical, intellectual, emotional or social needs;

"organ of state" means an organ of state as defined in paragraphs (a) and (b) of section 239 of the Constitution -;

*****

"orphan" means a child who has no surviving parent caring for him or her;

"parent", in relation to a child, includes the adoptive parent of a child, but excludes—

(a) the biological father of a child conceived through the rape of the child’s mother;

"parental responsibilities and rights", in relation to a child means the responsibility and the right—

(a) to care for the child;

(b) to have and maintain contact with the child; and

(c) to act as the guardian of the child;

"parent-substitute" means a person appointed in terms of section 26;

"partial care" means taking care of a child in accordance with section 76;

"partial care facility" means any premises or other place used partly or exclusively for the partial care of six or more children, which place may include—

(a) a private home;

(b) other privately owned or managed premises; or

"party", in relation to a matter before a children’s court, means—

(a) a child involved in the matter;

(b) a parent;

(c) a person who has parental responsibilities and rights in respect of the child;

(d) a primary care-giver of the child;

(e) a prospective adoptive or foster parent or kinship care-giver of the child;

(g) any other person admitted or recognised by the court as a party;

"permanency plan" means a documented plan referred to in section 157(1)(a)(iii);

" person unsuitable to work with children" means a person listed in Part B of the National Child Protection Register;

"police official" means any member of the South African Police Service or a municipal police service appointed in terms of the South African Police Service Act, 1995 (Act No. 68 of 1995);

"prescribed" means prescribed by regulation as contemplated in section 75, 90, 103, 142, 160, 179, 190, 212, 227, 253, 279 and 299;

"presiding officer" means a presiding officer of a children’s court designated in terms of section 42(1 2 );

"prevention services" means services referred to in section 145(2);

"primary care-giver", in relation to a child, means—

"provincial department of social development" means the department within a provincial administration responsible for social development in the province;

"provincial head of social development" means the head of the provincial department of social development;

"psychologist" means a psychologist registered or deemed to be registered as such in terms of the Health Professions Act, 1974 (Act No. 56 of 1974);

"Public Finance Management Act" means the Public Finance Management Act, 1999 (Act No. 1 of 1999);

"quality assurance process" means a developmental quality assurance process in terms of which—

"regulation" means a regulation made in terms of this Act;

"residential care programme" means a programme described in section 191(2) which is or must be offered at a child and youth care centre;

"respondent" means any person legally liable to maintain or to contribute towards the maintenance of a child for whose maintenance, treatment or special needs a contribution order is sought or was made in terms of Chapter 11;

"school" means—

"secure care" means the physical containment of children in a safe and healthy environment conducive to addressing behavioural or emotional difficulties;

"serve", in relation to any notice, document or other process in terms of this Act, means to serve such notice, document or other process in accordance with the procedure provided for the serving of process in terms of the Magistrates’ Courts Act, 1944 (Act No 32 of 1944), and the rules applying to the proceedings of magistrates’ courts;

"sexual abuse", in relation to a child, means—

"shelter" means a facility referred to in section 213(1);

"social service professionals", includes probation officers, development workers, child and youth care workers, youth workers and social security workers who are registered in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978) once a professional board has been established for a particular professional group;

"social worker" means a person who is registered or deemed to be registered as a social worker in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978);

"street child" means a child who—

"surrogate mother" means an adult woman who enters into a surrogate motherhood agreement with the commissioning parent or parents;

"surrogate motherhood agreement" means an agreement between a surrogate mother and a commissioning parent or parents in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent or parents and in which the surrogate mother undertakes to hand over such a child to the commissioning parent or parents upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent or parents;

"temporary safe care", in relation to a child, means care of a child in a child and youth care centre, shelter or private home or any other place of a kind that may be prescribed by regulation, where the child can safely be accommodated pending a decision or court order concerning the placement of the child, but excludes care of a child in a prison or police cell;

"traditional authority" means any authority which in terms of indigenous law or any other law administers the affairs of any tribe or group of indigenous people or any other persons resident within an area under the control of a traditional leader;

"this Act" includes—

(a) any regulation made in terms of this Act;

"traffic", in relation to a child, means the recruitment, transportation, transfer, harbouring or receipt of children by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation;

"undocumented migrant child" means a child who is unlawfully in the Republic after an illicit entry into the Republic by the child or the child’s parents;

"UN Protocol to Prevent Trafficking in Persons" means the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention against Transnational Organised Crime, 2000, a copy of the English text of which is set out in Schedule 3.

(2) In this Act, a word or expression derived from a word or expression defined in subsection (1) has a corresponding meaning unless the context indicates that another meaning is intended.

2. The objects of this Act are –

(f) generally, to promote the protection, development and well-being of children.

3. (1) In the event of a conflict between a section of this Act and –

(2) In the event of a conflict between a regulation made in terms of this Act and –

(a) an Act of Parliament, the Act of Parliament prevails;

(3) For the proper application of subsection (2) (b) the Minister must in terms of section 146(6) of the Constitution submit all regulations made in terms of this Act and which affect a province, to the National Council of Provinces for approval.

(4) In this section "regulation" means –

(a) a regulation made in terms of this Act; and

(b) a rule regulating the proceedings of children’s courts in terms of section 52(1).

4. (1) This Act must be implemented by organs of state in the national, provincial and, where applicable, local spheres of government subject to any specific section of this Act and regulations allocating roles and responsibilities, in an integrated, co-ordinated and uniform manner.

(2) Recognising that competing social and economic needs exist, the state must, in the implementation of this Act, take reasonable measures within its available resources to achieve the progressive realisation of the objects of this Act.

5. (1) The general principles set out in this section guide –

(b) the implementation of all legislation applicable to children, including this Act; and

(2) All proceedings, actions or decisions in a matter concerning a child must –

(b) respect the child’s inherent dignity;

(c) treat the child fairly and equitably; and

(3) If a matter concerning a child involves a selection between one parent and the other, or between one care-giver or person and another, there should be no preference in favour of any parent, care-giver or person solely on the basis of that parent, care-giver or person’s gender.

(5) In any matter concerning a child –

(b) a delay in any action or decision to be taken must be avoided as far as possible.

(6) A person who has parental responsibilities and rights in respect of a child, and having regard to the age, maturity and stage of development of the child, the child as well where this is appropriate, must be informed of any action or decision taken in a matter concerning the child which significantly affects the child.

6. (1) Whenever a provision of this Act requires the best interest of the child standard to be applied, the following factors must be taken into consideration where relevant –

(a) the nature of the personal relationship between –

(b) the attitude of the parents, or any specific parent, towards –

(f) the need for the child –

(g) the child’s –

(k) any family violence involving the child or a family member of the child; and

(2) In this section "parent" includes any person who has parental responsibilities and rights in respect of a child.

7. (1) The rights which a child has in terms of this Chapter supplement the rights which a child has in terms of the Bill of Rights.

(2) All organs of state in any sphere of government and all officials, employees and representatives of an organ of state must respect, protect and promote the rights of children contained in this Chapter.

(3) A provision of this Chapter binds a natural or a juristic person, if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

8. In the event of a conflict between a provision of this Chapter and any other legislation, the provision of this Chapter prevails except –

(b) as otherwise provided in section 3.

9. In all matters concerning a child the standard referred to in section 28 (2) of the Constitution and section 6 of this Act that the child’s best interest is of paramount importance, must be applied.

10. Every child capable of participating meaningfully in any matter concerning that child has the right to participate in an appropriate way in those proceedings and views expressed by the child must be given due consideration.

11. Every child has the right –

(a) to a name and a nationality from birth;

(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 –

(2) A child’s best interests are of paramount importance in every matter concerning the child.

12. (1) Every child has the right not to be subjected to harmful social and cultural practices which affect the well-being, health or dignity of the child.

(2) Every child –

(3) Female genital mutilation or the circumcision of female children as a cultural practice is prohibited.

(4) Taking into consideration the child's age, maturity and stage of development, every male child has the right –

(a) to refuse circumcision; and

(b) not to be subjected to unhygienic circumcision.

(5) Every child has the right –

(b) not to be subjected to unhygienic virginity testing.

13. Every child has the right to –

14. Every child has the right to bring, and to be assisted in bringing, a matter to a court, provided that matter falls within the jurisdiction of that court.

15. (1) Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights or this Chapter has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.

(2) The persons who may approach a court, are:

(a) Anyone acting in their own interest;

(b) anyone acting on behalf of another person who cannot act in their own name;

(c) anyone acting as a member of, or in the interest of, a group or class of persons;

(d) anyone acting in the public interest; and

(e) an association acting in the interest of its members.

16. Every child has responsibilities appropriate to the child’s age and ability towards his or her family, community and the state.

17. A child, whether male or female, becomes a major upon reaching the age of 18 years.

18. A person may have either full or specific parental responsibilities and rights in respect of a child.

19. (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.

(2) If the biological mother of the child is an unmarried child and the child’s father does not have full parental responsibilities and rights or has no parental responsibilities and rights in respect of the child, the guardian of that mother has those parental responsibilities and rights in respect of the child which that guardian has in respect of that mother.

(3) This section does not apply in respect of a child who is the subject of a surrogacy agreement.

20. The biological father of a child has full parental responsibilities and rights in respect of the child –

(a) if he is married to the child’s mother; or

(b) if he was married to her at –

21. (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child –

(a) if at any time after the child’s birth he has lived with the child’s mother –

(2) This section does not affect the duty of a father of a child to contribute towards the maintenance of the child.

22. (1) Subject to subsection (2), the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 may enter into an agreement with the mother or other person who has parental responsibilities and rights in respect of the child, providing for the acquisition by the father of such parental responsibilities and rights in respect of the child as are set out in the agreement.

(2) The mother or other person who has parental responsibilities and rights in respect of the child may only confer by agreement upon the biological father of the child those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such agreement.

(3) Only the High Court may confirm a parental responsibilities and rights agreement that relates to the guardianship of a child.

(4) A parental responsibilities and rights agreement must be in the format and contain the particulars prescribed by regulation.

(5) Subject to subsection (3), a parental responsibilities and rights agreement –

(a) takes effect only if –

Assignment of parental responsibilities and rights by order of court

23. (1) Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce cases or the children’s court for an order assigning to the applicant full or any specific parental responsibilities and rights in respect of the child.

(2) Only the High Court may issue an order that relates to the guardianship of a child.

(3) When considering an application the court must take into account –

(b) the degree of commitment that the applicant has shown towards the child;

(d) the best interest of the child; and

(e) any other fact that should, in the opinion of the court, be taken into account.

(4) If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court –

(b) may suspend the first-mentioned application on any conditions it may determine.

(5) The assignment of parental responsibilities and rights to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.

24. When application is made in terms of section 23(1) by a non-South African citizen for the assignment of full parental responsibilities and rights in respect of a child or to act as guardian of a child, the application must be regarded as an inter-country adoption for the purposes of the Hague Convention on Inter-country Adoption and Chapter 17 of this Act.

25. (1) A person who is not married to the mother of a child and who is or claims to be the biological father of the child may –

(b) apply to a court for an order confirming his paternity of the child, if the mother –

(2) This section does not apply to –

26. (1) A parent who is the sole natural guardian and who has parental responsibilities and rights in respect of a child may appoint a suitable person as a parent-substitute and assign to that person his or her parental responsibilities and rights in respect of the child in the event of his or her death.

(2) An appointment in terms of subsection (1) –

(a) must be in writing and signed by the parent;

(b) may form part of the will of the parent;

(3) A parent-substitute appointed in terms of subsection (1) acquires parental responsibilities and rights in respect of a child –

(a) after the death of the parent; and

(b) upon the parent-substitute’s express or implied acceptance of the appointment.

(4) If two or more persons are appointed as parent-substitutes, any one or more or all of them may accept the appointment except if the appointment provides otherwise.

(5) A parent-substitute acquires only those parental responsibilities and rights –

(a) which the parent had at his or her death; or

(6) The assignment of parental responsibilities and rights to a parent-substitute does not affect the parental responsibilities and rights which another person has in respect of the child.

(7) In this section "parent" includes a person who has acquired parental responsibilities and rights in respect of a child.

27. (1) A person referred to in section 28 may apply to the High Court, a divorce court in a divorce matter or a children’s court for an order –

(2) An application in terms of subsection (1) may be combined with an application in terms of section 23 for the assignment of responsibilities and rights in respect of the child to the applicant in terms of that section.

28. (1) An application for an order referred to in section 27 may be brought―

(a) by a co-holder of parental responsibilities and rights in respect of the child;

(c) by the child, acting with leave of the court;

(d) in the child’s interest by any other person, acting with leave of the court; or

(e) by a family advocate or the representative of any interested organ of state.

(2) When considering an application referred to in section 27 the court must take into account –

(b) the degree of commitment that the person has shown towards the child;

(c) the best interests of the child; and

(d) any other fact that should, in the opinion of the court, be taken into account.

29. (1) An application in terms of section 22(5)(a)(ii) or (b), 23(1), 25(1)(b) or 27(1) may be brought before the High Court, a divorce court in a divorce matter or a children’s court within whose area of jurisdiction the child concerned is ordinarily resident.

(2) An application in terms of section 23(1) for the assignment of full parental rights and responsibilities or to act as guardian of a child must contain reasons as to why the applicant is not applying for the adoption of the child.

(3) The court hearing an application contemplated in subsection (1) may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.

(4) When considering an application contemplated in subsection (1) the court must be guided by the principles set out in Chapters 2 and 3 to the extent that those principles are applicable to the matter before it.

(5) The court may for the purposes of the hearing order that –

(6) The court may –

(a) appoint a legal practitioner to represent the child at the court proceedings; and

(7) If it appears to a court in the course of any proceedings before it that a child involved in or affected by those proceedings is in need of care and protection, the court must order that the question whether the child is in need of care and protection be referred to a children’s court for decision.

30. (1) More than one person may hold parental responsibilities and rights in respect of the same child.

(2) When more than one person holds the same parental responsibilities and rights in respect of a child, each of the co-holders may act without the consent of the other co-holder or holders when exercising those responsibilities and rights, except where this Act or an order of court provides otherwise.

(3) A co-holder of parental responsibilities and rights may not surrender or transfer those responsibilities and rights to another co-holder or any other person, but may by agreement with that other co-holder or person allow the other co-holder or person to exercise any or all of those responsibilities and rights on his or her behalf.

(4) An agreement in terms of subsection (3) does not divest a co-holder of his or her parental responsibilities and rights and that co-holder remains competent and liable to exercise those responsibilities and rights.

(5) Except where this Act or an order of court provides otherwise, the following acts may not be concluded without the consent of all persons holding parental responsibilities and rights in respect of those acts:

(a) The contracting of a marriage by the child;

(b) the adoption of the child;

(c) the departure or removal of the child from the Republic;

(d) the application for a passport by or on behalf of the child; or

31. (1) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in subsection (2) involving the child, that person must give due consideration to any views and wishes expressed –

(b) by any co-holder of parental responsibilities and rights in respect of the child.

(2) A decision referred to in subsection (1) is, for purposes of–

(a) subsection (1)(a), any decision –

32. (1) A person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, including a care-giver who otherwise has no parental responsibilities and rights in respect of a child, must, whilst the child is in that person’s care –

(a) safeguard the child’s health, well-being and development; and

(2) A person referred to in subsection (1) may exercise any parental responsibilities and rights reasonably necessary to comply with subsection (1), including the right to consent to any medical examination or treatment of the child if such consent cannot reasonably be obtained from the parent or primary care-giver of the child.

(3) A court may limit or restrict the parental responsibilities and rights which a person may exercise in terms of subsection (2).

(4) A person referred to in subsection (1) may not –

(a) hold himself or herself out as the biological or adoptive parent of the child; or

33. (1) If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.

(2) A parenting plan may determine any matter in connection with parental responsibilities and rights, including –

(a) where and with whom the child is to live;

(b) the maintenance of the child;

(c) contact between the child and –

(d) the schooling and religious upbringing of the child.

(3) A parenting plan must comply with the best interest of the child standard as set out in section 6.

(4) In preparing a parenting plan the parties must seek –

(a) the assistance of a family advocate, social worker or psychologist; or

(b) mediation through a social worker or other appropriate person.

34. (1) A parenting plan –

(a) must be in writing and signed by the parties to the agreement; and

(2) An application for registration of a parenting plan must –

(a) be in the format and contain the particulars prescribed by regulation; and

(b) be accompanied by –

35. (1) A registered parenting plan may be amended or terminated only by an order of court on application –

(a) by the co-holders of the parental responsibilities and rights;

(b) by the child, acting with leave of the court; or

(c) in the child’s interest, by any other person acting with leave of the court.

(2) Section 29 applies to an application in terms of subsection (1).

36. If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.

37. If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.

38. (1) A child born of parents who marry each other after the birth of the child must for all purposes be regarded as a child born of parents married at the time of his or her birth.

(2) Subsection (1) applies despite the fact that the parents could not have legally married each other at the time of conception or birth of the child.

39. (1) The rights of a child conceived or born of a voidable marriage shall not be affected by the annulment of that marriage.

(2) No voidable marriage may be annulled until the relevant court has inquired into and considered the safeguarding of the rights and interests of a child of that marriage.

(3) Section 6 of the Divorce Act and section 4 of the Mediation in Certain Divorce Matters Act apply with the necessary changes required by the context in respect of such a child as if the proceedings in question were proceedings in a divorce action and the annulment of the marriage were the granting of a decree of divorce.

(4) Section 8(1) and (2) of the Divorce Act, with the necessary changes as the context may require, apply to the rescission or variation of a maintenance order, or an order relating to the care or guardianship of, or access to, a child, or the suspension of a maintenance order or an order relating to access to a child, made by virtue of subsection (3) of this section.

(5) A reference in any legislation –

(6) For purposes of this Act, the father of a child conceived in a voidable marriage where such marriage has been annulled is regarded to be in the same position as the father of a child who has divorced the mother of that child.

40. (1) (a) Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses were used for such artificial fertilisation.

(b) For the purpose of paragraph (a) it must be presumed, until the contrary is proved, that both spouses have granted the relevant consent.

(2) Subject to section 290, whenever the gamete or gametes of any person have been used for the artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman.

(3) No right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete or gametes have been used for such artificial fertilisation and the blood relations of that person, except when –

(a) that person is the woman who gave birth to that child; or

41. (1) A child born as a result of artificial fertilisation or surrogacy is entitled to have access to―

(a) any medical information concerning that child’s genetic parents;

(2) Information disclosed in terms of subsection (1) may not reveal the identity of the person whose gamete or gametes have been used for such artificial fertilisation or the identity of the surrogate mother.

(3) The Director-General for Health or any other person specified by regulation may require a person to receive counselling before any information in terms of subsection (1) is disclosed.

42. (1) For the purposes of this Act, every magistrate's court, as defined in the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), shall be a children’s court and shall have jurisdiction on any matter arising from the application of this Act for the area of its jurisdiction.

(2) Every magistrate shall be a presiding officer of a children’s court and every additional magistrate shall be an assistant presiding officer of a children’s court for the district of which he is magistrate, additional magistrate or assistant magistrate.

(3) The presiding officer of the children’s court shall be subject to the administrative control of the head of an administrative region, defined in section 1 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944).

(4) The presiding officer of the children’s court must perform such functions as may be assigned to him or her under this Act or any other law.

(5) For purposes of giving full effect to this Act, magistrates or additional magistrates may be designated as presiding officers for one or more children's courts.

(6) The Minister of Justice and Constitutional Development may, after consultation with the head of an administrative region as mentioned in subsection (3), by notice in the Gazette define the area of jurisdiction of each children’s court and increase or reduce the area of jurisdiction of each children’s court.

(7) The Children’s Courts hearings must, as far as is practicable, be held in a room which –

(a) is furnished and designed in a manner aimed at putting children at ease;

(c) is not ordinarily used for the adjudication of criminal trials.

(8) A children’s court sits at a place within the district or province designated by the Minister of Justice and Constitutional Development as a magistrate’s court.

(9) The publication of a notice referred to in subsection (6) does not affect proceedings which have been instituted but not yet completed at the time of such publication.

43. A children's court is a court of record and has a similar status to that of a magistrate's court at district level.

44. (1) A children’s court has jurisdiction in respect of –

(b) all matters in which application is made for an order mentioned in section 46.

(2) The children’s court that has jurisdiction in a particular matter is –

(3) Where it is unclear which court has jurisdiction in a particular matter, the children’s court before which the child is brought has jurisdiction in that matter.

45. (1) For purposes of this Act, a children’s court may adjudicate any matter involving –

(a) the protection and well-being of a child;

(b) the care of, or contact with, a child;

(c) paternity of a child;

(d) support of a child;

(e) the provision of –

(g) the temporary safe care of a child;

(h) alternative care of a child;

(i) the adoption of a child, including an inter-country adoption;

(2) A children’s court –

(3) Pending the establishment of family courts by an Act of Parliament, the High Courts and Divorce Courts have exclusive jurisdiction over the following matters contemplated in this Act:

(a) The guardianship of a child;

(c) artificial fertilisation of a child;

(d) the appointment of a parent-substitute;

(e) the departure, removal or abduction of a child from the Republic;

(f) applications requiring the return of a child to the Republic from abroad;

(g) the age of majority or the contractual or legal capacity of a child; and

(h) the safeguarding of a child’s interest in property.

(4) Nothing in this Act shall be construed as limiting the inherent jurisdiction of the High Courts as upper guardians of all children.

46. (1) A children’s court may make the following orders:

(a) An alternative care order, which includes an order placing a child –

(c) an adoption order, which includes an inter-country adoption order;

(h) a child protection order, which includes an order –

(i) a contribution order in terms of this Act;

(j) an order instructing a person to carry out an investigation in terms of section 50;

(2) A children’s court may withdraw, suspend or amend an order made in terms of subsection (1), or replace such an order with a new order.

47. (1) If it appears to any court in the course of proceedings that a child involved in or affected by those proceedings is in need of care and protection as is contemplated in section 150, the court must order that the question whether the child is in need of care and protection be referred to a children’s court for decision.

(2) If it appears to a court in the course of any proceedings in terms of the Matrimonial Affairs Act, 1953 (Act No. 37 of 1953), the Divorce Act, the Maintenance Act or the Domestic Violence Act, 1998 (Act No. 116 of 1998) that allegations of abuse or neglect made in respect of a child of any of the parties to the proceedings are well-founded, the court –

(3) A court issuing an order in terms of subsection (1) or (2) may also order that the child be placed in temporary safe care if it appears to the court that this is necessary for the safety and well-being of the child.

48. (1) A children’s court may –

(a) grant interdicts and auxiliary relief;

(b) extend, withdraw, suspend, vary or monitor any of its orders;

(c) impose or vary time deadlines with respect to any of its orders;

(d) make appropriate orders as to costs in matters before the court;

(2) A children’s court may for the purposes of this Act estimate the age of a person who appears to be a child in the prescribed manner.

49. (1) A children’s court may, before it decides a matter or an issue in a matter, order a lay forum hearing in an attempt to settle the matter or issue out of court, which may include –

(b) a family group conference contemplated in section 70; or

(c) mediation contemplated in section71.

(2) Before ordering a lay forum hearing, the court must take into account all relevant factors, including –

(a) the vulnerability of the child;

(b) the ability of the child to participate in the proceedings;

(c) the power relationships within the family; and

(d) the nature of any allegations made by parties in the matter.

50. (1) A children’s court may, subject to section 155(6), before it decides a matter, order any person –

(b) to furnish the court with a report and recommendation thereon.

(2) An investigation or further investigation must be carried out –

(a) in accordance with any procedures prescribed by regulation; and

(b) subject to any directions and conditions determined in the court order.

(3) The court order may authorise a designated social worker or any other person authorised by the court to conduct the investigation or further investigation to enter any premises mentioned in the court order, either alone or in the presence of a police official, and on those premises –

(a) remove a child in terms of sections 47 and 151;

(b) investigate the circumstances of the child;

(c) record any information; and

(d) carry out any specific instruction of the court.

(4) In addition to the powers a police official has in terms of the South African Police Service Act, 1995 (Act No. 68 of 1995), the police official accompanying the designated social worker or other person authorised to conduct the investigation or further investigation may –

(a) enter the premises mentioned in the court order and conduct any search;

(b) question any person;

(d) record any information; and

(e) carry out any specific instruction of the court.

(5) A police official referred to in subsection (4) may use such force as may be reasonably necessary to overcome any resistance against the entry or search of the premises contemplated in subsection (4)(a), including the breaking of any door or window of such premises: Provided that such police official must first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter such premises.

51. (1) Any party involved in a matter before a children’s court may appeal against any order made or any refusal to make an order, or against the variation, suspension or rescission of such order of the court to the High Court having jurisdiction.

(2) An appeal in terms of subsection (1) must be noted and prosecuted as if it were an appeal against a civil judgment of a magistrate’s court, subject to section 45(2)(c).

52. (1) Except as is otherwise provided in this Act, the provisions of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), and of the rules made in terms thereof as well as the rules made under the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), apply, with the necessary changes required by the context, to the children's court in so far as these provisions relate to –

(a) the issue and service of process;

(b) the appearance in court of advocates and attorneys;

(c) the execution of court orders;

(d) contempt of court; and

(e) penalties for –

(2) Rules made in terms of subsection (1) must be designed to avoid adversarial procedures and include rules concerning –

(a) appropriate questioning techniques for –

(b) the use of suitably qualified or trained interpreters.

53. (1) Except where otherwise provided in this Act, any person listed in this section may bring a matter whichmatter, which falls within the jurisdiction of a children’s court, to a clerk of the children’s court for referral to a children’s court.

(2) The persons who may approach a court, are:

(a) A child who is affected by or involved in the matter to be adjudicated;

(b) anyone acting in the interest of the child;

(c) anyone acting on behalf of a child who cannot act in his or her own name;

(d) anyone acting as a member of, or in the interest of, a group or class of children;

(e) anyone acting in the public interest.

54. A person who is a party in a matter before a children’s court is entitled to appoint a legal practitioner of his or her own choice and at his or her own expense.

55. (1) Notwithstanding the provisions of section 54, a child involved in a matter before a children’s court is entitled to legal representation.

(2) (a) A child may request the court to appoint a legal practitioner to represent him or her in such matter.

(b) If a legal practitioner appointed in terms of paragraph (a) does not serve the interests of the child in the matter, the court may terminate the appointment.

(3) If no legal practitioner is appointed in terms of subsection (2)(a), the court must inform the parent or care-giver of the child or a person who has parental responsibilities and rights in respect of the child, if present at the proceedings, and the child, if the child is capable of understanding, of the child’s right to legal representation.

(4) If no legal practitioner is appointed in terms of subsection (2)(a) after the court has complied with subsection (3), or if the court has terminated the appointment of a legal representative in terms of subsection (2)(b), the court may order that a legal practitioner be assigned to the child by the state, and at state expense, if substantial injustice would otherwise result.

(5) The court must record its reasons if it declines to issue an order in terms of subsections (4).

(6) If the court makes an order in terms of subsection (4), the clerk of the children’s court must request the Legal Aid Board to instruct a legal practitioner to represent the child.

56. Proceedings of a children’s court are closed and may be attended only by–

(b) the child involved in the matter before the court and any other party in the matter;

(d) the legal representative of a person who is entitled to legal representation;

(f) the designated social worker managing the case.

57. (1) The clerk of the children’s court may, by written notice in the prescribed manner, request a party in a matter before a children’s court, a family member of a child involved in the matter or a person who has another interest in the matter, to attend the proceedings of the children’s court.

(2) The person in whose physical control the child is must ensure that the child attends those proceedings except if the clerk of the children’s court or the court directs otherwise.

58. The following persons have the right to adduce evidence in a matter before a children’s court and, with the permission of the presiding officer of the children’s court, to question or cross-examine a witness or to address the court in argument:

(a) A child involved in the matter;

(b) a parent of the child;

(c) a person who has parental responsibilities and rights in respect of the child;

(d) a care-giver of the child;

(f) a person who the court decides has a sufficient interest in the matter.

59. (1) The clerk of the children’s court must, in the prescribed manner, summons a person to appear as a witness in a matter before the court to give evidence or to produce a book, document or other written instrument on request by –

(a) the presiding officer in the matter;

(c) the legal representative of a person mentioned in paragraph (b).

(2) A summons mentioned in subsection (1) must be served on the witness as if it were a summons to give evidence or to produce a book, document or other written instrument at a criminal trial in a magistrate’s court.

(3) Sections 188 and 189 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), read with such changes as the context may require, apply to a person who has been summonsed in terms of subsection (1) or required by the presiding officer to give evidence.

(4) A person summonsed in terms of subsection (1)(a) and who complied with the summons, is entitled to an allowance from state funds equal to that determined for witnesses summonsed to appear in criminal trials in a magistrate’s court.

(5) A person summonsed in terms of subsection (1)(b) or (c) is not entitled to an allowance from state funds except if the presiding officer so orders.

60. (1) The presiding officer in a matter before a children’s court controls the conduct of the proceedings, and may –

(b) question or cross-examine that person; or

(2) If a child is present at the proceedings, the court may order any person present in the room where the proceedings take place to leave the room if such order would be in the best interests of that child.

(3) Children’s court proceedings must be conducted in an informal manner and, as far as possible, in a relaxed and non-adversarial atmosphere which is conducive to attaining the co-operation of everyone involved in the proceedings.

61. (1) The presiding officer in a matter before a children’s court must –

(2) A child who is a party or a witness in a matter before a children’s court may be questioned through an intermediary as provided for in section 170A of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) if the court finds that this would be in the best interests of that child.

(3) The court –

(b) must record the reasons for any order in terms of paragraph (a).

62. (1) A children’s court, for the purposes of deciding a matter before it or any issue in the matter, may order, if necessary, that a designated social worker, family advocate, psychologist, medical practitioner or other suitably qualified person carry out an investigation to establish the circumstances of –

(a) the child;

(b) the parents or a parent of the child;

(c) a person who has parental responsibilities and rights in respect of the child;

(d) a care-giver of the child;

(e) the person in whose control the child is; or

(f) any other relevant person.

(2) A person referred to in subsection (1) may, subject to section 63(1) and (2)―

(a) obtain supplementary evidence or reports from other suitably qualified persons;

63. (1) A written report, purported to be compiled and signed by a medical practitioner, psychologist, family advocate, designated social worker or other professional person who on the face of the report formed an authoritative opinion in respect of a child or the circumstances of a child involved in a matter before a children’s court, or in respect of another person involved in the matter or the circumstances of such other person, is, subject to the decision of the presiding officer, on its mere production to the children’s court hearing the matter admissible as evidence of the facts stated in the report.

(2) The written report contemplated in subsection (1) must be submitted to the children's court within the prescribed period prior to the date of the hearing of the matter.

(3) If a person’s rights are prejudiced by a report referred to in subsection (1) the court must –

(b) give that person the opportunity –

64. (1) The proceedings of a children’s court may be adjourned only –

(a) on good cause shown, taking into account the best interests of the child;

(b) for a period of not more than 30 days at a time.

(2) A presiding officer of a children’s court may excuse any person from appearing at adjournment proceedings.

65. (1) A children’s court may monitor –

(a) compliance with an order made by it in a matter; or

(b) the circumstances of a child following an order made by it.

(2) For purposes of monitoring compliance with an order made by a children’s court or the circumstances of a child following an order, the court –

(a) when making that order, may order –

(3) When a person appears before the court in terms of subsection (2) the court may–

(b) confirm, vary or withdraw the order; or

(4) Any person may report any alleged non-compliance with an order of a children’s court, or any alleged worsening of the circumstances of a child following a court order, to the children’s court clerk, who must refer the matter to a presiding officer for a decision on possible further action.

66. Subject to the provisions of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), no person has access to children’s court case records, except–

(a) for the purpose of performing official duties in terms of this Act;

(c) for the purpose of a review or appeal; or

67. (1) Subject to the laws governing the public service, the Director-General: Justice and Constitutional Development may, for every children's court, appoint or designate one or more officers in the Department, or may appoint one or more persons in the prescribed manner and on the prescribed conditions, as clerks of the children's court, who must generally assist the court to which they are attached in performing its functions and who must perform the functions as may be prescribed in this Act or by way of regulation or in any other law.

(2) If a clerk of the children's court is for any reason unable to act as such or if no clerk of the children's court has been appointed or designated for any children's court under subsection (1), the presiding officer of the children's court may designate any competent officer in the Department to act as a clerk of the children's court for as long as the said clerk of the children's court is unable to act or until a clerk of the children's court is appointed or designated under subsection (1), as the case may be.

(3) For purposes of giving full effect to this Act persons may be appointed or designated as clerk of the children's court for one or more children's courts.

68. If a clerk of the children’s court is of the opinion that any child is in need of care and protection, the clerk of the children’s court must, in the prescribed manner, cause that child to be brought before the children’s court of the district in which the child resides by any police official, designated social worker, social service professional, authorised officer or by a parent, guardian or other person caring for the child.

69. (1) If a matter brought to or referred to a children’s court is contested, the court may order that a pre-hearing conference be held with the parties involved in the matter in order to –

(a) mediate between the parties;

(b) settle disputes between the parties to the extent possible; and

(c) define the issues to be heard by the court.

(2) Pre-hearing conferences may not be held in the event of a matter involving the alleged abuse or sexual abuse of a child.

(3) The child involved in the matter may attend and may participate in the conference unless the children’s court decides otherwise.

(4) The court may –

(c) consider the report on the conference when the matter is heard.

70. (1) The children’s court may cause a family group conference to be set up with the parties involved in a matter brought to or referred to a children’s court, including any other family members of the child, in order to find solutions for any problem involving the child.

(2) The children’s court must –

(c) consider the report on the conference when the matter is heard.

71. (1) The children’s court may, where circumstances permit, refer a matter brought or referred to a children’s court to any appropriate lay forum, including a traditional authority, in an attempt to settle the matter by way of mediation out of court.

(2) Lay forums may not be held in the event of a matter involving the alleged abuse or sexual abuse of a child.

(3) The children’s court may –

72. (1) If a matter is settled out of court and the settlement is accepted by all parties involved in the matter, the clerk of the children’s court must submit the settlement to the children’s court for confirmation or rejection.

(2) The court must consider the settlement and, if it is in the best interests of the child, may –

(a) confirm the settlement and make it an order of court;

(c) reject the settlement.

73. The clerk of the children’s court –

(a) may attend every children’s court hearing; and

74. No person may, without the permission of a court, in any manner publish any information relating to the proceedings of a children’s court which reveals or may reveal the name or identity of a child who is a party or a witness in the proceedings.

75. (1) The Minister of Justice and Constitutional Development, after consultation with the Minister, may make regulations concerning –

(2) Section 299(2) and (3), read with such changes as the context may require, applies to the making of regulations in terms of subsection (1) of this section.

76. Partial care is provided when a person, whether for or without reward, takes care of more than six children on behalf of their parents or care-givers during specific hours of the day or night, or for a temporary period, in terms of a private arrangement between the parents or care-givers and the provider of the service, but excludes the taking care of a child –

(a) by a school as part of tuition, training and other activities provided by the school;

(2) The Minister must determine the national norms and standards after consultation with the MECs for Social Development, the Financial and Fiscal Commission and the Minister of Finance.

78. (1) Any person may establish or operate a partial care facility provided that the facility –

(c) complies with the minimum norms and standards mentioned in section 83.

(2) The Minister by regulation may exempt any person or organisation or any category of person or organisation from the requirement to register on such conditions as may be prescribed.

79. As from the date on which section 78 takes effect an existing place of care registered or deemed to be registered in terms of the Child Care Act must be regarded as having been registered in terms of section 78 as a partial care facility.

80. (1) A provincial head of social development may by way of a written notice of enforcement instruct –

(a) a person operating an unregistered partial care facility –

(2) A person operating an unregistered partial care facility and who is instructed in terms of subsection (1)(a)(ii) to apply for registration within a specified period, may, despite the provisions of section 78, continue operating the facility during that period and, if that person applies for registration, until that person’s application has been processed.

81. (1) An application for registration or conditional registration of a partial care facility or for the reinstatement or renewal of a registration must –

(b) contain the particulars prescribed by regulation; and

(c) be accompanied by –

(2) An applicant must provide such additional information relevant to the application as the provincial head of social development may determine.

(3) An application for the renewal of registration or conditional registration must be made at least 90 days before the registration is due to expire, but the provincial head of social development may allow a late application on good cause shown.

82. (1) The provincial head of social development must –

(2) When considering an application the provincial head of social development must take into account all relevant factors, including whether –

(b) the applicant is a fit and proper person to operate a partial care facility;

(3) A person unsuitable to work with children is not a fit and proper person to operate or assist in operating a partial care facility.

(4) The provincial head of social development must consider the report contemplated in section 80(1)(c)(i) of a designated social worker before deciding an application for registration, conditional registration or renewal of registration.

83. Premises or a place used as a partial care facility must have –

(a) a safe area for the children to play;

(b) adequate space and ventilation;

(c) safe drinking water;

(d) hygienic and adequate toilet facilities;

(f) a hygienic area for the preparation of food for the children.

84. The registration or renewal of the registration of a partial care facility may be granted on such conditions as the provincial head of social development may determine, including conditions –

(b) stating the period for which the registration will remain valid; and

(c) providing for any other matters that may be prescribed by regulation.

85. (1) The provincial head of social development may cancel the registration or conditional registration of a partial care facility by written notice to the registration holder if –

(a) the facility is not maintained in accordance with –

(2) The provincial head of social development may in the case of the cancellation of a registration in terms of subsection (1)(a), (b), (c) or (e) –

(3) The provincial head of social development may assist a registration holder to comply with minimum norms and standards mentioned in section 83 or any provisions of this Act where the cancellation was due to non-compliance with those norms and standards, conditions, requirements or provisions.

86. An applicant aggrieved by a decision of a provincial head of social development in terms of section 82 or 84, or a registration holder aggrieved by a decision of a provincial head of social development in terms of section 85, may –

(a) lodge an appeal against that decision with the MEC for social development; or

(b) apply to a court of competent jurisdiction to review that decision.

87. (1) A provincial head of social development must –

(a) maintain a record of all available partial care facilities in the province; and

(2) Provincial strategies must include strategies for the provision of partial care facilities in its area, which must include measures –

(b) prioritising those types of partial care facilities most urgently required; and

(c) facilitating the identification and provision of suitable premises.

88. (1) The provincial head of social development may, by agreement with a municipality, assign the performance of some or all of the functions contemplated in sections 78, 80, 81, 82, 84, 85 and 87 to the most senior official responsible for social welfare services in the municipality if the provincial head of social development is satisfied that the municipality has the capacity to perform the functions concerned.

(2) The senior official referred to in subsection (1) may delegate any power or duty assigned to him or her in terms of this section to an official in the employ of the municipality.

(3) A delegation in terms of subsection (2) –

(b) must be in writing; and

(4) The delegating official may –

(b) at any time withdraw a delegation.

(5) An applicant aggrieved by a decision of an official in the employ of a municipality with regard to the consideration of an application for registration, conditional registration or renewal of registration in terms of section 82, or the conditions on which registration was granted in terms of section 84, or a registration holder aggrieved by a decision of a provincial head of social development to cancel the registration of a partial care facility in terms of section 85 may –

(a) lodge an appeal with the municipal council against that decision; or

(b) apply to the competent division of the High Court to review that decision.

89. (1) If a child dies while in partial care or following an occurrence at a partial care facility, the person operating the partial care facility must immediately after the child’s death report such death to a police official and the Director-General.

(2) The police official must investigate the circumstances of the death of such child in accordance with section 3 of the Inquests Act, 1959 (Act No. 58 of 1959).

90. The Minister may make regulations in terms of section 299 concerning –

(d) the management of partial care facilities; and

91. (1) Early childhood development, for the purposes of this Act, means the process of emotional, mental, spiritual, moral, physical and social development of children from birth to school-going age.

(2) Early childhood development services means services –

(a) intended to promote early childhood development; and

(3) Early childhood development programmes means programmes structured to provide early childhood services.

92. The Minister, after consultation with the Minister for Education, must include in the departmental strategy a comprehensive national strategy aimed at securing a properly resourced, co-ordinated and managed early childhood development system.

93. (1) Early childhood development services provided by an organ of state or a designated child protection organisation only qualify for funding from money appropriated by a provincial legislature if it complies with the national norms and standards mentioned in subsection (2).

(2) The Minister must determine the national norms and standards after consultation with the MECs for Social Development, the Financial and Fiscal Commission and the Ministers of Finance and Education.

94. (1) Early childhood development services complying with the minimum requirements prescribed by regulation must be provided by –

(2) Any other person or organisation not disqualified in terms of section 96(3) may provide early childhood development services, provided that those services comply with the minimum requirements prescribed by regulation.

(3) Any early childhood development services provided in terms of this section must be appropriate to the needs of the children to whom the services are provided.

95. (1) A person operating or managing a partial care facility or a child and youth care centre where early childhood development services are provided must register the early childhood development programme in terms of which such early childhood development services are provided with the provincial head of social development.

(2) An application for registration or conditional registration of an early childhood development programme or for the reinstatement or renewal of a registration must –

(b) contain the particulars prescribed by regulation; and

(c) be accompanied by –

(3) An applicant must provide such additional information relevant to the application as the provincial head of social development may determine.

(4) An application for the renewal of registration or conditional registration must be made at least 90 days before the registration is due to expire, but the provincial head of social development may allow a late application on good cause shown.

(5) The Minister by regulation may exempt any person or organisation from the requirement to register, on conditions that the Minister may prescribe.

96. (1) The provincial head of social development must –

(2) When considering an application, the provincial head of social development must take into account all relevant factors, including whether –

(3) A person unsuitable to work with children is not a fit and proper person to provide or assist in the provision of early childhood development services or programmes.

(4) The provincial head of social development must consider a report of a social worker before deciding an application for registration, conditional registration or renewal of registration.

97. The registration or renewal of the registration of an early childhood development programme may be granted on such conditions as the provincial head of social development may determine, including conditions –

(b) stating the period for which the registration will remain valid; and

(c) providing for any other matters that may be prescribed by regulation.

98. (1) A provincial head of social development may cancel the registration or conditional registration of an early childhood development programme by written notice to the registration holder if –

(2) The provincial head of social development may in the case of the cancellation of a registration in terms of subsection (1) (a), (b), (c) or (e) –

(3) A provincial head of social development may assist a registration holder to comply with the minimum requirements prescribed by regulation or any provisions of this Act where the cancellation was due to non-compliance with those minimum requirements, conditions or provisions.

(4) The cancellation of the registration or conditional registration of an early childhood development programme in terms of subsection (1) does not affect the registration or conditional registration of a partial care facility or a child and youth care centre.

99. A provincial head of social development may by way of a written notice of enforcement instruct –

100. A provincial head of social development may give advice to a partial care facility or a child and youth care centre providing early childhood development services in terms of section 93(1) on complying with the minimum requirements mentioned in that section.

101. (1) A provincial head of social development may authorise a person to assess the provision of early childhood development services or the content of early childhood development programmes, in order to determine whether the provision of the services or the content of the programme complies with the minimum requirements contemplated in section 93(1) and (2).

(2) Section 297(2) and (3), read with such changes as the context may require, applies to any assessment in terms of subsection (1) of this section.

102. (1) The provincial head of social development may, by agreement with a municipality, assign the performance of some or all of the functions contemplated in sections 95, 96, 97, 98, 99, 100 and 101 to the most senior official responsible for social welfare services in the municipality if the provincial head of social development is satisfied that the municipality has the capacity to perform the functions concerned.

(2) The senior official referred to in subsection (1) may delegate any power or duty assigned to him or her in terms of this section to an official in the employ of the municipality.

(3) A delegation in terms of subsection (2) –

(b) must be in writing; and

(4) The delegating official may –

(b) at any time withdraw a delegation.

(5) An applicant aggrieved by a decision of an official in the employ of a municipality with regard to the consideration of an application for registration, conditional registration or renewal of registration in terms of section 96, or the conditions on which registration was granted in terms of section 97, or a registration holder aggrieved by a decision of the official referred to in subsection (1) to cancel the registration of an early childhood development programme in terms of section 98 may –

(a) lodge an appeal with the municipal council against that decision; or

(b) apply to the competent division of the High Court to review that decision.

103. The Minister may make regulations in terms of section 299 concerning –

(d) any other matter necessary to facilitate the implementation of this Chapter.

104. The Minister must include in the departmental strategy a comprehensive national strategy aimed at securing a properly resourced, co-ordinated and managed child protection system.

Reporting of children in need of care and protection

105. (1) Any teacher, medical practitioner, psychologist, dentist, registered nurse, physiotherapist, speech therapist, occupational therapist, traditional health practitioner, legal practitioner, social worker, social service professional, minister of religion, religious leader, member of staff at a partial care facility, shelter, drop-in centre or child and youth care centre, labour inspector or police official who on personal observation concludes that a child has been abused in a manner causing physical injury, sexually abused or deliberately neglected, must report that conclusion to the provincial department of social development, a designated child protection organisation, police official or clerk of the children’s court.

(2) Any person who believes that a child is in need of care and protection because of abuse, sexual abuse or deliberate neglect, may report that belief to the provincial department of social development, a designated child protection organisation, police official or clerk of the children’s court.

(3) A person referred to in subsection (1) or (2) must substantiate that conclusion or belief to the provincial department of social development, a designated child protection organisation, a police official or a clerk of the children’s court.

(4) A medical practitioner or a registered midwife performing a termination of pregnancy on a child must, despite any provision of the Choice on Termination of Pregnancy Act, 1996 (Act No. 92 of 1996) requiring confidentiality, comply with subsection (1) if the pregnancy was due to sexual abuse of the child.

(5) The provincial department of social development, designated child protection organisation or clerk of the children’s court to whom a report has been made in terms of subsection (1), (2) or (6), must –

(a) make an initial assessment of the report;

(c) if the report is substantiated by such investigation, without delay –

(6) A police official to whom a report has been made in terms of subsection (1) or (2) must ensure the safety and well-being of the child concerned if the child’s safety or well-being is at risk, and notify the provincial department of social development or a designated child protection organisation of the report and any steps that have been taken with regard to the child.

(7) The provincial department of social development, designated child protection organisation or clerk of the children’s court who has conducted an investigation as contemplated in subsection (5) may, if he or she is satisfied that it is in the best interest of the child not to be removed from his or her home or place where he or she resides, but that the removal of the alleged offender from such home or place would secure the safety and well-being of the child, request a police official to take the steps referred to in section 153.

Provision of designated child protection services

(2) The Minister must determine the national norms and standards after consultation with the MECs for Social Development, the Financial and Fiscal Commission and the Minister of Finance.

(3) Designated child protection services may be provided by –

(a) the Department;

(b) a provincial department responsible for social development in a province; and

(c) a designated child protection organisation.

(4) Designated child protection services include –

(a) services aimed at supporting –

(b) services relating to –

(d) intervention and removal of children in appropriate cases;

(f) any other social work service that may be prescribed by regulation.

Designation of child protection organisations

107. (1) The Director-General or provincial head of social development may designate any appropriate organisation that complies with the prescribed criteria as a child protection organisation to perform in the relevant province all or any specific designated child protection services.

(2) A designation in terms of subsection (1) –

(a) must be in writing; and

Existing child welfare organisations

108. (1) Any organisation which, when section 107 takes effect, was a designated welfare organisation within the meaning of the Child Care Act must be regarded as having been designated in terms of section 107 as a child protection organisation to perform the designated child protection services which it performed immediately before that section took effect.

(2) An organisation referred to in subsection (1) is regarded to be a designated child protection organisation for a period of five years from the date on which section 107 takes effect, unless its designation is withdrawn in terms of section 110 before the expiry of that period.

Delegation of powers and duties to designated child protection organisations

109. (1) The Director-General or provincial head for social development may delegate to a designated child protection organisation such powers and duties in terms of this Act as may be necessary for the proper provision of designated child protection services by the organisation.

(2) Sections 303 and 304, read with such changes as the context may require, apply to any delegation in terms of subsection (1).

110. The Director-General or provincial head for social development may withdraw the designation of a child protection organisation to perform any, or any specific, designated child protection service –

(a) if the organisation –

(b) if it is in the best interest of the protection of children.

111. (1) The Director-General must keep and maintain a register to be called the National Child Protection Register.

(2) The National Child Protection Register consists of a Part A and a Part B.

112. (1) All Parts of the Register must be kept confidential and information in the Register may be accessed and disclosed only as provided for in this Act.

(2) The Director-General must take adequate steps –

(a) to protect the information in the Register; and

113. The purpose of Part A of the National Child Protection Register is –

(a) to have a record of abuse or deliberate neglect inflicted on specific children;

(d) to monitor cases and services to such children;

(f) to determine patterns and trends of abuse or deliberate neglect of children; and

114. (1) Part A of the National Child Protection Register must be a record of–

(2) Part A of the Register must reflect –

(a) in the case of reported incidents referred to in subsection (1)(a) –

(b) in the case of a conviction referred to in subsection (1) (b) –

(c) in the case of a finding by a children’s court referred to in subsection (1)(c) –

(d) any other information as may be prescribed by regulation.

115. Only the Director-General and officers of the Department designated by the Director-General have access to Part A of the National Child Protection Register, but the Director-General may, on such conditions as the Director-General may determine, allow access to –

(b) designated child protection organisations;

Disclosure of information in Part A of Register

116. (1) No person may disclose any information in Part A of the National Child Protection Register except –

(a) for the purpose of protecting the interests, safety or well-being of a specific child;

(d) to a person referred to in section 117 on written request by such person; or

(e) when ordered by a court to do so.

(2) The general rule with regard to the disclosure of information in Part A of the Register is that it must be in the best interest of the child, unless the information is disclosed following on an inquiry in terms of section 117.

117. (1) Anyone has the right, upon presentation of sufficient proof of his or her identity, to establish whether or not his or her name appears in Part A of the Register, and if so, the reasons why his or her name was entered in the Register.

(2) Inquiries in terms of subsection (1) whether a person’s name appears in Part A of the Register must be directed in the prescribed format to the Director-General on a confidential basis.

(3) The Director-General must respond to such inquiries and indicate whether the relevant person’s name is in Part A of the Register within 21 working days.

118. The purpose of Part B of the National Child Protection Register is to have a record of persons who are unsuitable to work with children and to use the information in the Register in order to protect children in general against abuse from these persons.

119. Part B of the National Child Protection Register must be a record of persons found in terms of section 120 to be unsuitable to work with children, and must reflect the following:

(a) the full names and surname of the person;

(b) the last known physical address of the person;

(c) the identification number of the person;

(e) any other information as may be prescribed by regulation.

120. (1) A finding that a person is unsuitable to work with children may be made by –

(a) a children’s court;

(2) A finding in terms of subsection (1) may be made by a court or a forum contemplated in subsection (1) of its own volition or on application by –

(a) an organ of state involved in the implementation of this Act;

(b) a prosecutor, if the finding is sought in criminal proceedings; or

(c) a person having a sufficient interest to protect children.

(3) The question whether a person is unsuitable to work with children may be heard by the court or legislative forum in disciplinary proceedings either in the course of or at the end of its proceedings.

(4) In criminal proceedings, a person must be found unsuitable to work with children on conviction of murder, attempted murder, rape, sexual abuse or assault with the intent to do grievous bodily harm with regard to a child.

(5) A finding in terms of subsection (1)(b) that a person is unsuitable to work with children is not dependent upon a finding of guilty or innocent in the criminal trial of that person.

121. The person in respect of whom a finding in terms of section 120 has been made may –

122. (1) The registrar of the relevant court, or the relevant administrative forum, or, if the finding was made on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing –

(b) of any appeal or review lodged by the affected person.

(2) The Director-General may not enter a person’s name in Part B of the National Child Protection Register –

(a) until the time for noting of an appeal or review has expired; or

123. (1) No person whose name appears in Part B of the National Child Protection Register may –

(e) work in any other form of employment or activity as may be prescribed.

(2) No person managing or operating a child and youth care centre, a partial care facility, a shelter or drop-in centre or a school may allow a person whose name appears in Part B of the Register to work with or have access to children at the centre, facility, shelter or school, either as an employee, volunteer or in any other capacity.

(3) No designated child protection organisation may allow a person whose name appears in Part B of the Register to work with or have access to children on its behalf, either as an employee, volunteer or in any other capacity.

(4) The South African Police Service may not allow a person whose name appears in Part B of the Register to work in a unit of the Service tasked with child protection.

124. If the name of a person is entered in Part B of the Register and that person –

125. (1) Only the following persons have access to Part B of the Register:

(a) the Director-General;

(b) officers of the Department designated by the Director-General;

(c) a provincial head of social development; and

(2) The Director-General may, on such conditions as the Director-General may determine, allow officers of a provincial education department designated by the head of that department access to Part B of the Register for the purpose of implementing section 123 in relation to schools under the jurisdiction of that department.

126. (1) Before a person is allowed to work –

(2) Anyone has the right, upon presentation of sufficient proof of his or her identity, to establish whether or not his or her name appears in Part B of the Register, and if so, the reasons why his or her name was entered in the Register.

(3) Inquiries in terms of subsection (1) or (2) whether a person’s name appears in Part B of the Register must be directed in writing to the Director-General on a confidential basis.

(4) The Director-General must respond to such inquiries and indicate whether the relevant person’s name is in Part B of the Register within 21 working days.

127. (1) No person may disclose the fact that the name of a particular person appears in Part B of the National Child Protection Register except –

(c) when ordered by a court to do so; or

(2) The general rule with regard to the disclosure of information in Part B of the Register is that it must be in the best interest of the child, unless the information is disclosed following on an inquiry in terms of section 126.

128. (1) A person whose name appears in Part B of the National Child Protection Register may in terms of subsection (2) apply for the removal of his or her name and any information relating to that person from the Register.

(2) Application for the removal of a name and particulars from the Register may be made –

(a) to any court, including a children’s court;

(b) to the Director-General, if the entry was made in error; or

(3) An application in terms of subsection (1) to remove a person’s name and particulars from Part B of the Register on the ground that the affected person has been rehabilitated, may only be made after at least five years have lapsed since the entry was made and after considering the prescribed criteria.

129. (1) Subject to section 5(2) of the Choice on Termination of Pregnancy Act, 1996 (Act No. 92 of 1996), a child may be subjected to medical treatment or a surgical operation only if consent for such treatment or operation has been given in terms of either subsection (2), (3), (4) or (5).

(2) (a) A child may consent, subject to paragraph (b), to medical treatment or a surgical operation, provided the child –

(i) is at least 12 years of age; and

(b) A child may not consent to a surgical operation in terms of paragraph (a) without the assistance of –

(i) the parent of the child; or

(ii) the primary care-giver of the child.

(3) The parent or primary care-giver of a child may, subject to section 31, consent to the medical treatment of or a surgical operation on the child if the child is–

(a) under the age of 12 years; or

(4) The superintendent of a hospital or the person in charge of the hospital in the absence of the superintendent may consent to the medical treatment of or a surgical operation on a child if –

(5) A High Court or children’s court may consent to the medical treatment of or a surgical operation on a child if –

(a) the child has been abandoned; or

(b) the parent or primary care-giver of the child –

(6) No parent or primary care-giver of a child may refuse to assist a child in terms of subsection (2)(b) or withhold consent in terms of subsection (3) by reason only of religious or other beliefs, unless that parent or primary care-giver can show that there is a medically accepted alternative choice to the medical treatment or surgical operation concerned.

130. (1) Subject to section 132, no child may be tested for HIV except when–

(b) the test is necessary in order to establish whether –

(2) Consent for a HIV-test on a child may be given by –

(a) the child, if the child is –

(e) the superintendent or person in charge of a hospital, if –

(f) a children’s court, if –

131. If HIV-testing of a child is done for foster care or adoption purposes, the state must pay the cost of such tests where circumstances permit.

132. (1) A child may be tested for HIV only after proper counselling, by an appropriately trained person, of –

(2) Post-test counselling must be provided by an appropriately trained person to –

133. (1) No person may disclose the fact that a child is HIV-positive without consent given in terms of subsection (2 ), except –

(b) when necessary for the purpose of carrying out the provisions of this Act;

(c) for the purpose of legal proceedings; or

(d) in terms of an order of a court.

(2) Consent to disclose the fact that a child is HIV-positive may be given by –

(a) the child, if the child is –

2. (b) the parent or care-giver, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a disclosure;

(d) the superintendent or person in charge of a hospital, if –

(e) a children’s court, if –

134. (1) No person may refuse –

(a) to sell condoms to a child over the age of 12 years; or

(2) Contraceptives other than condoms may be provided to a child on request by the child and without the consent of the parent or care-giver of the child provided –

(a) the child is at least 12 years of age;

(b) proper medical advice is given to the child; and

(3) A child who obtains condoms, contraceptives or contraceptive advice in terms of this Act is entitled to confidentiality in this respect, subject to section 105.

135. (1) The Director-General, a provincial head of social development or a designated child protection organisation may apply to a High Court, or a divorce court in divorce matters or a children's court for an order –

(2) An application in terms of subsection (1) may be brought without the consent of a parent or care-giver of the child if the child, at the time of the application –

(3) When considering an application the court must be –

(b) take into account all relevant factors, including –

(4) Section 29, read with such changes as the context may require, applies in respect of any proceedings in terms of this section.

136. (1) A provincial head of social development may recognise a household as a child-headed household if –

(a) the parent or primary care-giver of the household is terminally ill or has died;

(2) A child-headed household must function under the general supervision of an adult designated by –

(a) a children's court; or

(b) an organ of state or a non-governmental organisation determined by the provincial head of social development.

(3) The organ of state or non-governmental organisation referred to in subsection (2) –

(4) The adult referred to in subsection (2) and the organ of state or non-governmental organisation referred to in subsection (3) may not take any decisions concerning such household and the children in the household without consulting –

(a) the child at the head of the household; and

(5) The child heading the household may take all day-to-day decisions relating to the household and the children in the household as if that child was an adult primary care-giver.

(6) A child-headed household may not be excluded from any aid, relief or other programme for poor households provided by an organ of state in the national, provincial or local sphere of government solely by reason of the fact that the household is headed by a child.

137. (1) No person may without lawful authority or reasonable grounds –

(2) For the purposes of subsection (1) a person must be regarded as detaining a child if that person –

(a) causes the child to be detained; or

(b) induces the child to remain with him or her or any other person.

Unlawful taking or sending of children out of Republic

138. (1) No person may take or send a child out of the Republic –

(b) without consent –

(2) For the purposes of subsection (1) a person must be regarded as –

(a) taking a child out of the Republic if that person –

139. (1) A person who has control of a child, including a person who has parental responsibilities and rights in respect of the child, must respect to the fullest extent possible the child’s right to physical integrity as conferred by section 12 (1) (c), (d) and (e) of the Constitution.

(2) Any legislation and any rule of common or customary law authorising corporal punishment of a child by a court, including the court of a traditional leader, is hereby repealed to the extent that it authorises such punishment.

(3) No person may administer corporal punishment to a child at any child and youth care centre, partial care facility or shelter or drop-in centre.

(4) The Department must take all reasonable steps to ensure that –

140. (1) A person providing entertainment to children in any premises or enclosure must comply with subsection (2) if –

(b) the majority of the people attending the entertainment are children; and

(2) A person providing entertainment to children in the circumstances specified in subsection (1) must –

(3) No alcohol or tobacco products may be sold to children at places of entertainment.

(4) If the person providing the entertainment is not the owner of the premises or enclosure where the entertainment is provided, the owner or the owner’s agent must take all reasonable steps to ensure that subsections (2) and (3) are complied with.

(5) (a) A person authorised by a municipality in whose area a premises or enclosure is situated where entertainment described in subsection (1) is or is to be provided, or on reasonable suspicion is or is to be provided, may enter such enclosure in order to inspect whether subsections (2) or (3) are complied with.

(b) Section 297(2) and (3), read with such changes as the context may require, applies to any inspection in terms of paragraph (a) of this subsection.

141. (1) No person may –

(a) employ a child who is under the age of 15 years;

(e) encourage, induce or force a child, or allow a child, to perform labour that –

(2) Subsection (1)(a) does not prevent the performance of labour by a child, whether for reward or not –

(3) The Minister must take all reasonable steps to assist in ensuring the enforcement of the prohibition on the worst forms of child labour, including steps providing for the confiscation in terms of the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998), of assets acquired through the use of such child labour.

142. The Minister may make regulations in terms of section 299–

(d) prescribing –

(g) prescribing criteria for finding persons unsuitable to work with children;

143. (1) Early intervention services means social development services which are –

(a) designed to serve the purposes mentioned in section 144; and

(2) Prevention services means social development services –

(a) designed to serve the purposes mentioned in section 144; and

144. (1) Prevention and early intervention services or programmes must focus on:

(a) Preserving a child’s family structure;

(c) establishing appropriate interpersonal relationships within the family;

(d) promoting the well-being of children and the realisation of their full potential;

(h) avoiding the removal of a child from the family environment.

(2) Prevention and early intervention services or programmes may include –

(a) assisting families to obtain the basic necessities of life;

(b) empowering families to obtain such necessities for themselves.

(3) Prevention and early intervention services must involve and promote the participation of families, parents, care-givers and children in identifying and resolving their problems.

145. (1) Prevention and early intervention services provided by an organ of state, a designated child protection organisation or a non-governmental organisation only qualify for funding from money appropriated by a provincial legislature if it complies with the national norms and standards mentioned in subsection (2).

(2) The Minister must determine the national norms and standards after consultation with the MECs for Social Development, the Financial and Fiscal Commission and the Minister of Finance.

(3) In implementing subsection (1) families who lack the means of providing proper shelter, food and other basic necessities of life to their children must be given priority.

146. The Minister must include in the departmental strategy a comprehensive national strategy aimed at securing the provision of prevention and early intervention services to families, parents, care-givers and children across the country.

147. The provincial head of social development may assign the performance of any of the services described in section 145(1) to a municipality by agreement, if the provincial head of social development is satisfied that the municipality has the necessary capacity to provide the assigned services.

148. (1) Before making an order concerning the temporary or permanent removal of a child from that child's family environment, a children’s court may order –

(2) An order made in terms of subsection (1) must be for a specified period not exceeding six months.

(3) When a case resumes after the expiry of the specified period, a designated social worker’s report setting out progress with early intervention services rendered to the child and the family, parent or care-giver of the child, must be submitted to the court.

(4) After considering the report, the court may –

(a) decide the question whether the child should be removed; or

(5) Subsection (1) does not apply where the safety or well-being of the child is seriously and imminently at risk.

149. When a report of a designated social worker is produced before a court in order to assist a court in determining a matter concerning a child, the report must contain a summary of any prevention and early intervention services provided in respect of that child and the family, parent or care-giver of the child.

150. A child is in need of care and protection if, at the time of referral in terms of section 47 or reporting in terms of section 105, the child –

(a) has been abandoned, orphaned or is without any visible means of support;

(b) displays behaviour which cannot be controlled by the parent or care-giver;

(c) lives or works on the streets or begs for a living;

(e) has been exploited or lives in circumstances that expose the child to exploitation;

(h) is in a state of physical or mental neglect; or

151. (1) If, on evidence given by any person on oath or affirmation before a presiding officer it appears that a child who resides in the area of that presiding officer is in need of care and protection, the presiding officer must order that the question of whether the child is in need of care and protection be referred to a children’s court for decision.

(2) A presiding officer issuing an order in terms of subsection (1) may also order that the child be placed in temporary safe care if it appears to the court that it is necessary for the safety and well-being of the child.

(3) In deciding the question whether the child is in need of care and protection in terms of subsection (1) or when making an order in terms of subsection (2), the children’s court may exercise any of the functions assigned to it in terms of section 50(1) to (3).

(4) An order issued in terms of subsection (2) must identify the child in sufficient detail to execute the order.

(5) A person authorised by a court order may, either alone or accompanied by a police official –

(a) enter any premises mentioned in the order;

(b) remove the child from the premises; and

(c) on those premises exercise any power mentioned in section 50(3)(a) to (d).

(6) A police official referred to in subsection (5) may use such force as may be reasonably necessary to overcome any resistance against the entry of the premises contemplated in subsection (5)(a), including the breaking of any door or window of such premises: Provided that the police official shall first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter such premises.

(7) The person who has removed a child in terms of the court order must–

(8) The best interest of the child must be the determining factor in any decision whether a child in need of care and protection should be removed and placed in temporary safe care, and all relevant facts must for this purpose be taken into account, including the safety and well-being of the child as the first priority.

152. (1) A designated social worker or a police official may remove a child and place the child in temporary safe care without a court order if there are reasonable grounds for believing –

(a) that the child –

(2) If a designated social worker has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the social worker must—

(3) If a police official has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the police official must–

(4) The best interest of the child must be the determining factor in any decision whether a child in need of care and protection should be removed and placed in temporary safe care, and all relevant facts must for this purpose be taken into account, including the possible removal of the alleged offender in terms of section 153 from the home or place where the child resides, and the safety and well-being of the child as the first priority.

(5) Misuse of a power referred to in subsection (1) by a designated social worker in the service of a designated child protection organisation –

(6) Misuse of a power referred to in subsection (1) by a police official constitutes grounds for disciplinary proceedings against such police official as contemplated in section 40 of the South African Police Service Act, 1995 (Act No. 68 of 1995).

(7) Any person who removes a child must comply with the prescribed procedure.

153. (1) A police official to whom a report as contemplated in section 105(1) or (2) or a request as contemplated in section 105(7) has been made, may, if he or she is satisfied that it will be in the best interest of the child if the alleged offender is removed from the home or place where the child resides, issue a written notice which –

(2) The police official must forthwith forward a duplicate original of the written notice to the clerk of the children’s court.

(3) The mere production to the court of the duplicate original referred to in subsection (2) is prima facie proof of the issue of the original thereof to the alleged offender and that such original was handed to the offender.

(4) The provisions of section 55 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) apply, with the necessary changes, to a written notice handed to an alleged offender in terms of subsection (1).

(5) A children’s court before which an alleged offender to whom a written notice in terms of subsection (1) has been issued, appears, may summarily inquire into the circumstance which gave rise to the issuing of the notice.

(6) The court may, after having considered the circumstances which gave rise to the issuing of the written notice and after having heard the alleged offender–

(d) make any other order with regard to the matter as the court deems fit.

(7) Misuse of a power referred to in subsection (1) by a police official constitutes grounds for disciplinary proceedings against such police official as contemplated in section 40 of the South African Police Service Act, 1995 (Act No. 68 of 1995).

154. If there are reasonable grounds for believing that a sibling of a child placed in temporary safe care in terms of section 47, 151 or 152 is in need of care and protection, any of the following persons may bring the sibling before the children’s court to determine whether the sibling is in need of care and protection:

(a) A designated social worker or authorised officer;

(b) a person under whose care the child placed in temporary safe care is; or

(c) the provincial head of social development.

Decision of question whether child is in need of care and protection

155. (1) A children’s court must decide the question of whether a child who was the subject of proceedings in terms of section 47, 151, 152 or 154 is in need of care and protection.

(2) The child concerned must be brought before the court hearing the matter except if the court decides otherwise.

(3) The children’s court hearing the matter may –

(a) adjourn the matter for a period not exceeding 14 days at a time; and

(b) order that the child, pending decision of the matter, must –

(4) If the court finds that the child is in need of care and protection, the court may make an appropriate order in terms of section 156, taking into account the possibility of an order for early intervention services in terms of section 148.

(5) If the court finds that the child is not in need of care and protection, the court –

(b) may make an order for early intervention services in terms of section 148; or

(c) must decline to make an order, if the child is not in temporary safe care.

(6) When deciding the question of whether a child is a child in need of care and protection in terms of subsection (1) the court must have regard to a report of a designated social worker, which report must be in the prescribed format.

156. (1) If a children’s court finds that a child is in need of care and protection the court may make any order which is in the best interest of the child, which may be or include an order –

(a) referred to in section 46;

(2) The court that makes an order contemplated in subsection (1) may order that the child concerned be kept in temporary safe care until such time as effect can be given to the court’s order.

(3) An order made by the court in terms of subsection (1) –

(4) If a court finds that a child is not in need of care and protection the court may nevertheless issue an order referred to in subsection (1) in respect of the child, excluding a placement order.

157. (1) Before a children’s court gives an order in terms of section 156 for the removal of the child from the care of the child’s parent or care-giver, the court must–

(2) A designated social worker facilitating the reunification of a child with the child’s family in terms of subsection (1) (b) (ii) must –

(a) investigate the causes why the child left the family home;

(c) provide counselling to both the child and the family before and after reunification.

(3) A very young child who has been orphaned or abandoned by its parents must be made available for adoption in the manner and time-period prescribed except when this is not in the best interest of the child.

(4) When issuing an order involving the removal of the child from the care of the child’s parent or care-giver, the court may include in the court order instructions as to the implementation of the permanency plan for the child.

158. (1) A children’s court may issue an order placing a child in the care of a child and youth care centre only if another option is not appropriate.

(2) If a children’s court decides that a child should be placed in the care of a child and youth care centre, the court must –

(3) The provincial head of social development in the relevant province must place the child in a child and youth care centre offering the residential care programme or programmes which the court has determined for the child, taking into account –

(a) the developmental, therapeutic, educational and other needs of the child;

(c) any other instructions of the court;

(d) the distance of the centre from the child’s family or community;

(f) any other relevant factors.

(4) The provincial head of social development must, as a general rule, select a centre offering the programme ordered by the court which is located as close as possible to the child’s family or community.

159. (1) An order made by a children’s court in terms of section 156–

(a) lapses on expiry of –

(2) When deciding on an extension of the period of a court order in terms of subsection (1), the court must take cognisance of the views of –

(a) the child;

(c) where appropriate, the management of the centre where the child is placed; and

(d) any alternative care-giver of that child.

(3) Subject to section 176, no court order referred to in subsection (1) extends beyond the date on which the child in respect of whom it was made reaches the age of 18 years.

160. The Minister, after consultation with the Minister for Justice and Constitutional Development where court orders are regulated, may make regulations in terms of section 299 prescribing –

(a) the particulars which permanency plans must contain;

161. (1) A children’s court may make an order instructing a respondent to pay a sum of money or a recurrent sum of money –

(2) A contribution order takes effect from the date on which it is made unless the court orders that it takes effect from an earlier or later date.

(3) A children’s court may vary, suspend or rescind a contribution order or revive the order after it has been rescinded.

(4) If a court other than the court which made a contribution order varies, suspends, rescinds or revives the order in terms of subsection (3), the clerk of the first-mentioned court must immediately inform the clerk of the last mentioned court of such variation, suspension, rescission or revival.

162. (1) A contribution order may be made, varied, suspended, rescinded or revived by the children’s court of the area in which –

(a) the respondent is ordinarily resident, carries on business or is employed; or

(b) the child involved in the matter is ordinarily resident.

(2) A provisional contribution order may be made by a children’s court having jurisdiction in terms of subsection (1)(b) against a respondent resident in any country which is a proclaimed country within the meaning of the Reciprocal Enforcement of Maintenance Orders Act, 1963 (Act No. 80 of 1963), or a designated country within the meaning of the Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act, 1989 (Act No. 6 of 1989).

163. (1) A contribution order and a provisional contribution order have the effect of a maintenance order and a provisional maintenance order in terms of the Maintenance Act and the Reciprocal Enforcement of Maintenance Orders Act, 1963 (Act No. 80 of 1963), as may be appropriate.

(2) Sections 31 and 40 of the Maintenance Act, read with such changes as the context may require, apply to a person who refuses or fails to comply with a contribution order.

164. A contribution order must instruct the respondent to pay the sum stated therein to the clerk of the children’s court or to such other person as the court may determine.

165. (1) A children’s court which has made a contribution order against a respondent may –

(a) order the employer of the respondent –

(2) The employer must promptly pay any amount deducted under an order in terms of subsection (1) to the clerk of the children’s court or to such other person as is specified in the order.

166. A respondent against whom a contribution order is in force must –

167. A child is in alternative care if the child has been placed –

(a) in foster care;

(b) in court-ordered kinship care;

(d) in temporary safe care.

168. (1) Leave of absence may, subject to such limitations and conditions as may be prescribed by regulation, be granted to a child in alternative care –

(2) The management, person referred to in subsection (1), designated social worker or the head of social development in the province –

(3) In the case of foster care, the supervising designated social worker may at any time cancel any leave of absence granted in terms of subsection (1).

(4) When a child’s leave of absence has been cancelled, the management, person referred to in subsection (1), designated social worker or the head of social development must request the child to return to the child and youth care centre or person, or to the place where the child is in temporary safe care.

169. (1) A child in alternative care may not leave the Republic without the written approval of the Director-General first being obtained.

(2) In granting approval in terms on subsection (1), the Director-General may prescribe any terms and conditions to protect the best interest of the child in alternative care.

Children absconding from alternative care

170. (1) Any police official, designated social worker or authorised officer may apprehend a child in alternative care who –

(2) If a police official, designated social worker or authorised officer contemplated in subsection (1) has reasonable grounds to believe that a child is in or on certain premises, the police official, designated social worker or authorised officer may, without a warrant, enter and search the premises for the purpose of apprehending the child.

(3) A police official referred to in subsection (1) may use such force as may be reasonably necessary to overcome any resistance against the entry or search of the premises as contemplated in subsection (1), including the breaking of any door or window of such premises: Provided that the police official shall first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter such premises.

(4) On apprehending a child in alternative care who has absconded or failed to return in terms of subsection (1), the police official must ensure the safety and well-being of the child concerned, if the child’s safety or well-being is at risk, and notify the provincial department of social development or a designated child protection organisation of the fact the child has been apprehended and of any steps that have been taken with regard to the child.

(5) A child so apprehended or a child who returns, of his or her own accord, to the centre or person in whose alternative care he or she was before absconding –

(6) When the child is brought before a presiding officer of a children’s court, the presiding officer must –

(c) order that the child –

(7) The presiding officer of the children’s court must order the clerk of the children’s court to –

(b) notify the MEC of any order made in terms of subsection (6) (c).

(8) When an order has been made in terms of subsection (6) (c) (ii) the MEC may, after consideration of the report of the children’s court and such inquiry as the MEC may consider necessary –

(a) transfer the child in terms of section 171;

(b) remove the child from alternative care in terms of section 173;

(c) discharge the child from alternative care in terms of section 175; or

Transfer of children in alternative care

171. (1) The MEC for social development in the relevant province may, subject to subsection (5), by order in writing transfer a child in alternative care from the child and youth care centre or person in whose care or temporary safe care that child has been placed to any other child and youth care centre or person.

(2) The MEC may not transfer a child to a child and youth care centre in another province without the permission of the MEC for social development in that other province and without the prescribed financial arrangements regarding the placement being made.

(3) (a) If the MEC transfers a child in terms of subsection (1) to the care of the child’s parent, guardian or former care-giver under the supervision of a designated social worker, the order must specify the requirements with which the child and that parent, guardian or former care-giver must comply.

(b) If any requirement referred to in paragraph (a) is breached or not complied with, the designated social worker concerned may bring the child before a children’s court, which may, after an inquiry, vary the order issued by the MEC or make a new order in terms of section 156.

(4) Before the MEC issues an order in terms of subsection (1), a designated social worker must consult –

(a) the child;

(b) the parent or primary care-giver of the child, if available;

(d) the child and youth care centre or person to whom the child is to be transferred.

(5) If the MEC transfers a child from a secure care child and youth care centre to a less restrictive child and youth care centre or to the care of a person, the MEC must be satisfied that the transfer will not be prejudicial to other children.

(6) No order in terms of subsection (1) may be carried out without ratification by a children’s court if the child is transferred –

(a) from the care of a person to a child and youth care centre; or

(7) An order in terms of subsection (1) may not have the effect of extending the original placement order made by the court in terms of section 156 unless the order has been extended in terms of section 159(1)(b).

172. (1) The MEC for social development in the relevant province may, subject to subsection (3), determine that –

(b) another residential care programme be applied to such a child; or

(c) an additional residential care programme be applied to such a child.

(2) To give effect to subsection (1), the MEC may transfer the child to another child and youth care centre or to a person in terms of section 171.

(3) No determination in terms of subsection (1) may be carried out without ratification by a children’s court if that determination requires the application to the child of a residential care programme –

(a) which includes the secure care of the child; or

(b) which is more restrictive than the child’s current programme.

(4) A determination in terms of subsection (1) may not have the effect of extending the original placement order made by the court in terms of section 156 unless the order has been extended in terms of section 159(1)(b).

173. (1) A presiding officer of a children’s court or the MEC for social development in the relevant province may, in the best interest of a child at any time whilst the child is in alternative care, issue a notice directing that the child, pending any action in terms of subsection (3) –

(b) be put in temporary safe care at a place specified in the notice,

(2) The presiding officer of the children’s court issuing a notice of removal in terms of subsection (1) must order the clerk of the children’s court to submit a report to the MEC for social development in the relevant province on the reasons for the notice.

(3) The MEC must, within six months from the date on which a child has been moved and put in temporary safe care in terms of subsection (1) and after such inquiry as the MEC may consider necessary –

(a) transfer the child in terms of section 171;

(b) discharge the child from alternative care in terms of section 175; or

174. (1) A provincial head of social development may, in the best interest of a child at any time whilst the child is in alternative care, issue a notice directing that the child be provisionally transferred from alternative care into another form of care that is not more restrictive, as from a date specified in the notice, for a trial period of not more than six months.

(2) A notice of provisional transfer in terms of subsection (1) may be issued only after –

(a) procedures prescribed by regulation have been followed –

(3) A notice of provisional transfer is subject to the condition that –

(b) the MEC may at any time revoke the provisional transfer; and

(4) The MEC may at the end of or at any time during the trial period confirm the child’s placement or permanently discharge the child from alternative care in terms of section 175.

(5) The notice of provisional transfer shall be considered proof of eligibility for any form of state support which would have been payable if the transfer had been permanent.

175. (1) The MEC for social development in the relevant province may, in the best interest of a child at any time whilst the child is in alternative care, issue a notice directing that the child be discharged from alternative care as from a date specified in the notice.

(2) A notice of discharge in terms of subsection (1) may be issued only after –

(a) procedures prescribed by regulation have been carried out –

(3) A notice of discharge relieves the child and youth care centre from any further responsibilities in relation to the child.

176. (1) A child placed in alternative care is entitled, after having reached the age of 18 years, to continue staying in that care until the end of the year in which that person reached the age of 18 years.

(2) An MEC for social development may on application by a person placed as a child in alternative care, allow that person to remain in that care until the end of the year in which that person reaches the age of 21 years if –

(a) the current alternative care-giver is willing and able to care for that person; and

177. A child or person aggrieved by a decision of an MEC for social development in terms of section 170(8), 171, 172, 173, 174, 175, or 176 may –

(a) lodge an appeal with the Minister against that decision; or

(b) apply to the competent division of the High Court to review that decision.

178. (1) If a child in alternative care dies, the management of the child and youth care centre or person in whose care the child has been placed must immediately after the child’s death report such death to a police official and the Director-General.

(2) The police official must investigate the circumstances of the death of such child in accordance with section 3 of the Inquests Act, 1959 (Act No. 58 of 1959).

179. The Minister, after consultation with the Minister for Justice and Constitutional Development where court orders are regulated, may make regulations in terms of section 299 prescribing –

(a) limitations or conditions for leave of absence from alternative care;

180. (1) A child is in foster care if the child has been placed in the care of a person who is not the parent or guardian of the child as a result of –

(a) an order of a children’s court;

(b) a transfer in terms of section 171; or

(c) discharge in terms of section 175.

(2) Foster care excludes the placement of a child –

(a) in court-ordered kinship care;

(b) in temporary safe care; or

(c) in the care of a child and youth care centre.

(3) A child is in court-ordered kinship care if the child has in terms of an order of a children’s court been placed in the care of a family member who is not the parent or guardian of the child, but court-ordered kinship care excludes the placement of a child in the temporary safe care of a family member.

181. The purposes of foster care and court-ordered kinship care are to –

182. Before a children’s court places a child in foster care or kinship care, the court must follow the children’s court processes stipulated in Part 2 of Chapter 10 to the extent that the provisions of that Part are applicable to the particular case.

183. (1) A prospective foster parent or kinship care-giver must be –

(2) A person unsuitable to work with children is not a fit and proper person to be entrusted with the foster care or kinship care of a child.

184. (1) Before a children’s court places a child in foster care by court order in terms of section 156, the court must consider a report by a designated social worker about –

(a) the cultural, religious and linguistic background of the child; and

(2) A designated social worker must, in the case of a refugee or undocumented migrant child, make inquiries with the United Nations High Commissioner for Refugees, a service agency working in a relevant refugee community or the relevant Government department to identify suitable persons who are willing and able to provide foster care or kinship care to the child.

(3) A child may be placed in the foster care of a person from a different cultural, religious and linguistic background to that of the child, but only if –

(a) there is an existing bond between that person and the child; or

185. (1) Not more than six children may be placed in foster care or kinship care with a single person or two persons sharing a common household, except where –

(a) the children are siblings or related; or

(2) More than six children may be placed in foster care in terms of a cluster foster care scheme which provides for the children to be grouped in houses accommodating not more than six children per house or such other number of children per house as the court may determine.

Duration of kinship care orders and stable foster care placements

186. (1) A children’s court may, despite the provisions of section 159(1)(a) regarding the duration of a court order and after having considered the need for creating stability in the child’s life, issue a kinship care order for more than two years or extend such an order for more than two years at a time, if –

(a) the child has been abandoned by the biological parents;

(b) the child’s biological parents are deceased;

(d) it is in the best interest of the child.

(2) A children’s court may, despite the provisions of section 159(1)(a) regarding the duration of a court order, after a child has been in foster care for more than two years and after having considered the need for creating stability in the child’s life, order that –

(a) no further social worker supervision is required for that placement;

(b) no further social worker reports are required in respect of that placement; and

(3) Despite the provisions of subsections (2) and (3), a social worker must visit a child in foster care or a child in court-ordered kinship care at least once every two years to evaluate the placement.

187. (1) If a children’s court placing a child in foster care or kinship care is of the view that reunification between the child and the child’s biological parents is possible and in the best interest of the child, the court must issue the placement order subject to conditions providing for a designated social worker to facilitate such reunification as contemplated in section 156(3)(a).

(2) If the child has not been reunited with the child’s biological parents two months before the expiry of the initial court order or any extension of the order, the designated social worker appointed to facilitate the reunification must submit a report to the children’s court –

(a) explaining why the child was not reunited with the biological parents; and

(b) recommending any steps that may be taken to stabilise the child’s life.

(3) The children’s court considering the report may –

(c) terminate the services of the designated social worker with respect to the child.

188. (1) The foster parent or kinship care-giver of a child has those parental responsibilities and rights in respect of the child as set out in –

(b) an order of the children’s court amending the initial order;

(e) any applicable provisions of this Act.

(2) An order of the children’s court may give parental rights and responsibilities to a foster parent or kinship care-giver in addition to those normally necessary for a foster parent or kinship care-giver if –

(a) the child has been abandoned;

(b) the child is an orphan; or

(c) family reunification is not in the best interest of the child.

(3) A children’s court may in terms of section 65 monitor the suitability of the placement of a child in foster care or court-ordered kinship care.

189. (1) Foster care and court-ordered kinship care may be terminated by a children’s court only if it is in the best interest of the child.

(2) Before terminating the foster care or court-ordered kinship care of a child, the court must take into account all relevant factors, including –

(b) the bond that developed between –

(c) the prospects of achieving permanency in the child’s life by –

190. The Minister, after consultation with the Minister for Justice and Constitutional Development where court orders are regulated, may make regulations in terms of section 299 –

191. (1) A child and youth care centre is a facility for the provision of residential care to more than six children outside the child’s family environment in accordance with a residential care programme or programmes suited for the children in the facility, but excludes –

(a) a partial care facility;

(b) a shelter or drop-in centre;

(c) a boarding school;

(d) a school hostel or other residential facility attached to a school; or

(2) A child and youth care centre must offer a therapeutic programme designed for the residential care of children outside the family environment, which may include a programme designed for –

(c) the reception and temporary safe care of children pending their placement;

(f) the reception and temporary safe care of children for the purpose of –

(i) the reception, development and secure care of children in terms of an order –

(3) A child and youth care centre may in addition to its residential care programmes, offer—

(b) the treatment of children for addiction to dependence-producing substances; or

(c) any other service that may be prescribed by regulation.

192. (1) The Minister, after consultation with the Ministers of Education and of Health, must include in the departmental strategy a strategy framework aimed at ensuring an appropriate spread of child and youth care centres throughout the Republic providing the required range of residential care programmes in the various regions.

(2) The MEC must –

193. (1) A child and youth care centre established by an organ of state or a designated child protection organisation only qualifies for funding from money appropriated by a provincial legislature if it complies with the national norms and standards mentioned in subsection (2).

(2) The Minister must determine the national norms and standards after consultation with the MECs for Social Development, the Financial and Fiscal Commission and the Ministers of Finance and Education.

194. (1) The MEC for social development of a province must, from money appropriated by the relevant provincial legislature, establish and operate child and youth care centres for that province.

(2) Such child and youth care centres –

(a) must be managed and maintained in accordance with this Act; and

(b) must comply with –

195. As from the date on which section 194 takes effect –

196. (1) Any accredited organisation may establish or operate a child and youth care centre provided that the centre –

(a) is registered with the relevant provincial department of social development;

(2) Subsection (1) also applies to a child and youth care centre established in terms of section 194 if the centre is operated by an accredited organisation.

197. As from the date on which section 196 takes effect an existing privately operated children’s home registered or deemed to be registered in terms of the Child Care Act must be regarded as having been registered in terms of section 196 as a child and youth care centre providing a residential care programme mentioned in section 191(2)(a).

198. (1) A provincial head of social development may by way of a written notice of enforcement instruct –

(a) a person or organisation operating an unregistered child and youth care centre –

(2) A person or organisation operating an unregistered child and youth care centre and who is instructed in terms of subsection (1)(a)(ii) to apply for registration within a specified period may, despite the provisions of section 196 regarding the establishment of child and youth care centres by accredited organisations, be given permission by the provincial head of social development to continue operating the centre during that period and, if that person applies for registration, until that person’s application has been finalised.

199. (1) An application for registration of a child and youth care centre established by accredited organisations as referred to in section 196 or for the renewal of such a registration must –

(b) contain the particulars prescribed by regulation; and

(c) be accompanied by –

(2) An applicant must provide such additional information relevant to the application as the provincial head of social development may determine.

(3) An application for the renewal of registration must be made at least 90 days before the registration is due to expire, but the provincial head of social development may allow a late application on good cause shown.

200. (1) The provincial head of social development must –

(2) When deciding an application the provincial head of social development must take into account all relevant factors, including whether –

(a) the child and youth care centre complies with –

(b) the applicant is a fit and proper person to operate a child and youth care centre;

(3) A person unsuitable to work with children is not a fit and proper person to operate or assist in operating a child and youth care centre.

(4) The provincial head of social development must consider a report of a designated social worker before deciding an application for registration or renewal of registration.

201. The registration or renewal of the registration of a child and youth care centre may be granted on such conditions as the provincial head of social development may determine, including conditions –

(b) stating the period for which the registration will remain valid; and

(c) providing for any other matters that may be prescribed by regulation.

202. The provincial head of social development in the relevant province may, on application by the holder of a registration of a child and youth care centre, amend the registration by written notice to that person.

203. (1) The provincial head of social development in the relevant province may cancel the registration of a child and youth care centre by written notice to the registration holder if –

(a) the centre is not maintained in accordance with –

(2) A person unsuitable to work with children is not a fit and proper person to operate or assist in operating a child and youth care centre.

(3) The provincial head of social development may in the case of the cancellation of a registration in terms of subsection (1) (a), (b), (c) or (e) –

(4) The Director-General or a provincial head of social development may assist a registration holder to comply with –

where the cancellation was due to a failure to comply with those norms and standards, requirements or process.

(5) The cancellation of a registration which has not been suspended takes effect from a date specified in the notice referred to in subsection (1), which may not be earlier than 90 days from the date on which that notice was given, except if –

(b) the safety or protection of the children in the centre requires an earlier date.

204. The holder of a registration of a child and youth care centre may close the centre by –

205. If a child and youth care centre is to be closed as a result of the cancellation of its registration in terms of section 203 or voluntary closure of the centre in terms of section 204 every child placed in that centre must be transferred in terms of section 171.

206. An applicant aggrieved by a decision of a provincial head of social development with regard to the consideration of an application for registration or renewal of registration in terms of section 200, or the conditions on which registration was granted in terms of section 201, or a registration holder aggrieved by a decision of a provincial head of social development to cancel the registration of a child and youth care centre in terms of section 203, may apply to the MEC for social development or the High Court to review that decision.

207. (1) Each child and youth care centre must have a management board consisting of no fewer than six and no more than nine members.

(2) The members of a management board are appointed by –

(3) In appointing members of the management board, equitable representation by all stakeholders, including the community in which the child and youth care centre is located, must be ensured.

(4) No person unsuitable to work with children may be appointed or continue to serve as a member of a management board.

(5) A management board functions in terms of the regulations, and may exercise the powers and must perform the duties conferred on it in terms of this Act.

(6) The management board must create a children’s forum as part of the management board to ensure the participation of resident children in the operation of the centre.

208. (1) The person or organisation operating a child and youth care centre must appoint or designate –

(a) a person as the manager of the centre; and

(2) A person may be appointed or designated in terms of subsection (1) only after following an interview process prescribed by regulation.

(3) No person unsuitable to work with children may be appointed or designated in terms of subsection (1) or continue to serve at a child and youth care centre.

(4) The number of staff appointed or designated must be in accordance with any staff-to-children ratios that may be –

(a) prescribed by regulation; or

(b) required in the conditions of registration of the centre.

209. The management of a child and youth care centre must take all reasonable steps to ensure that the centre complies with the minimum norms and standards for child and youth care centres as prescribed.

210. A child and youth care centre must be managed –

(a) in accordance with –

211. (1) The provincial head for social development must ensure that a quality assurance process is carried out in respect of each child and youth care centre in the manner and at the intervals as prescribed.

(2) The management board of a child and youth care centre must without delay, after completion of the quality assurance process, submit a copy of the organisational development plan established for the centre in terms of the quality assurance process to the MEC for social development in the province.

212. The Minister may, where appropriate after consultation with the Ministers of Education and of Health, in terms of section 299 make regulations prescribing –

(f) the format and contents of registration certificates;

(g) methods and procedures to enforce compliance with registration conditions;

(n) matters relating to members of management boards, including –

(o) matters relating to the functioning of management boards, including –

(t) the rights of children in child and youth care centres;

(u) management, disciplinary and other practices in child and youth care centres;

(w) any other matter that may facilitate the implementation of this Chapter.

213. (1) A shelter is a facility located at a specific place which is managed for the purpose of providing basic services, including overnight accommodation and food, to children, including street children, who voluntarily attend the facility but who are free to leave.

(2) A drop-in centre is a facility located at a specific place which is managed for the purpose of providing basic services, excluding overnight accommodation, to children, including street children, who voluntarily attend the facility but who are free to leave.

214. (1) Shelters and drop-in centres established by an organ of state, designated child protection organisation or non-governmental organisation only qualify for funding from money appropriated by a provincial legislature if it complies with the national norms and standards mentioned in subsection (2).

(2) The Minister must determine the national norms and standards after consultation with the MECs for Social Development, the Financial and Fiscal Commission and the Minister of Finance.

215. Any person or organisation may establish or operate a shelter or drop-in centre provided that the shelter or drop-in centre –

(c) complies with –

216. As from the date on which section 215 takes effect an existing shelter registered in terms of the Child Care Act must be regarded as having been registered as a shelter in terms of section 215.

217. (1) The provincial head of social development may by way of a written notice of enforcement instruct –

(a) a person or organisation operating an unregistered shelter or drop-in centre –

(2) A person or organisation operating an unregistered shelter or drop-in centre and who is instructed in terms of subsection (1)(a)(ii) to apply for registration within a specified period may, despite the provisions of section 215, be given permission by the provincial head of social development to continue operating the shelter or drop-in centre during that period and, if that person applies for registration, until that person’s application has been finalised.

218. (1) An application for registration or conditional registration of a shelter or drop-in centre or for the renewal of a registration must –

(b) contain the particulars prescribed by regulation; and

(c) be accompanied by –

(2) An applicant must provide such additional information relevant to the application as the provincial head of social development may determine.

(3) An application for the renewal of registration must be made at least 90 days before the registration is due to expire, but the provincial head of social development may allow a late application on good cause shown.

219. (1) The provincial head of social development must –

(2) When considering an application, the provincial head of social development must take into account all relevant factors, including whether –

(a) the shelter or drop-in centre complies with –

(b) the applicant is a fit and proper person to operate a shelter or drop-in centre;

(3) A person unsuitable to work with children is not a fit and proper person to operate or assist in operating a shelter or drop-in centre.

(4) The provincial head of social development must consider a report of a designated social worker before deciding an application for registration, conditional registration or renewal of registration.

220. (1) Premises used as a shelter or drop-in centre must have –

(a) a safe area for the children to play;

(b) adequate space and ventilation;

(c) safe drinking water;

(d) hygienic and adequate toilet facilities;

(f) a hygienic area for the preparation of food for the children.

(2) Premises used as a shelter must, in addition, have –

(a) safe sleeping facilities; and

(b) staff available at the shelter 24 hours a day.

221. The registration or renewal of the registration of a shelter or drop-in centre may be granted on such conditions as the provincial head of social development may determine, including conditions –

(b) stating the period for which the registration will remain valid; and

(c) providing for any other matters that may be prescribed by regulation.

222. (1) A provincial head of social development may cancel the registration of a shelter or drop-in centre by written notice to the registration holder if –

(a) the shelter or drop-in centre is not maintained in accordance with –

(2) A person unsuitable to work with children is not a fit and proper person to operate or assist in operating a shelter or drop-in centre.

(3) The provincial head of social development may in the case of the cancellation of a registration in terms of subsection (1)(a), (b), (c) or (e) –

(4) A provincial head of social development may assist a registration holder to comply with the minimum norms and standards for shelters and drop-in centres contemplated in section 220.

223. An applicant aggrieved by a decision of a provincial head of social development with regard to the consideration of an application for registration, conditional registration or renewal of registration in terms of section 219, or the conditions on which registration was granted in terms of section 221, or a registration holder aggrieved by a decision of a provincial head of social development to cancel the registration of a shelter or drop-in centre in terms of section 222 may –

(a) lodge an appeal with the MEC for social development against that decision; or

(b) apply to the competent division of the High Court to review that decision.

224. (1) A provincial head of social development must –

(a) maintain a record of all available shelters and drop-in centres in its area; and

(2) A province’s strategies must include strategies for the provision of shelters and drop-in centres in the province, which must include measures –

(c) facilitating the identification and provision of suitable premises.

225. (1) The provincial head of social development may, by agreement with a municipality, assign the performance of some or all of the functions contemplated in sections 215, 217, 218, 219, 221 and 222 to the most senior official responsible for social welfare services in the municipality if the provincial head of social development is satisfied that the municipality has the capacity to perform the functions concerned.

(2) The senior official referred to in subsection (1) may delegate any power or duty assigned to him or her in terms of this section to an official in the employ of the municipality.

(3) A delegation in terms of subsection (2) –

(b) must be in writing; and

(4) The delegating official may –

(b) at any time withdraw a delegation.

(5) An applicant aggrieved by a decision of an official in the employ of a municipality with regard to the consideration of an application for registration, conditional registration or renewal of registration in terms of section 219, or the conditions on which registration was granted in terms of section 221, or a registration holder aggrieved by a decision of a provincial head of social development to cancel the registration of a shelter or drop-in centre in terms of section 222 may –

(a) lodge an appeal with the municipal council against that decision; or

(b) apply to the competent division of the High Court to review that decision.

226. (1) If a child dies on the premises of a shelter or drop-in centre or following an occurrence at the shelter or drop-in centre, the person operating the shelter or drop-in centre must immediately after the child’s death report such death to a police official and the Director-General.

(2) The police official must investigate the circumstances of the death of such child in accordance with section 3 of the Inquests Act, 1959 (Act No. 58 of 1959).

227. The Minister, after consultation with the Minister of Justice and Constitutional Development where review of decisions by the courts are regulated, may make regulations in terms of section 299 concerning –

(b) the different services that may be provided in terms of such registrations;

(d) the management of shelters and drop-in centres;

228. A child is adopted if the child has been placed in the permanent care of a person who is not the parent or guardian of the child as a result of a court order that has the effects contemplated in section 240.

229. The purposes of adoption are to –

230. Any child may be adopted provided –

(a) the adoption is in the best interest of the child; and

(b) the provisions of this Chapter are complied with.

231. (1) A child may be adopted –

(a) jointly by –

(b) by a widower, widow, divorced or unmarried person;

(d) by the biological father of a child born out of wedlock;

(e) by the foster parent or parents of the child; or

(f) by the kinship care-giver of the child.

(2) A prospective adoptive parent or parents must be –

(c) over the age of 18 years; and

(3) A person may not be disqualified from adopting a child based on his or her financial status.

(4) Any person who adopts a child may apply for means-tested social assistance where applicable.

(5) A person unsuitable to work with children is not a fit and proper person to adopt a child.

(6) (a) The foster parent or kinship care-giver of a child has the right to be considered as a prospective adoptive parent when the child becomes available for adoption.

(b) The foster parent or kinship care-giver of a child must be regarded as having elected not to apply for the adoption of the child if that foster parent or kinship care-giver fails to apply for the adoption of the child within 30 days after a notice calling on that foster parent or kinship care-giver to do so has been served on that foster parent or kinship care-giver by the clerk of the children’s court or the sheriff.

(7) A family member of a child other than a kinship care-giver who, prior to the adoption, has given notice to the clerk of the children’s court that he or she is interested in adopting the child has the right to be considered as a prospective adoptive parent when the child becomes available for adoption.

232. (1) A child may be adopted only if consent for the adoption has been given by –

(a) each parent of the child, whether the parents are married or not; and

(b) any other person who holds guardianship in respect of the child.

(2) Subsection (1) excludes a parent or person referred to in section 234 and a child may be adopted without the consent of such a parent or person.

(3) If the parent of a child wishes the child to be adopted by a particular person or persons the parent must state the name of that person or persons in the consent.

(4) The eligibility of the particular person or persons contemplated in subsection (3) as an adoptive parent or parents must be determined by the court in terms of section 231(2).

(5) Consent referred to in subsection (1) and given –

(a) in the Republic, must be –

(b) outside the Republic, must be –

(6) The court may on good cause shown condone any deficiency in the provision of a consent given outside the Republic in that the consent –

(a) was not signed in the presence of a person prescribed by regulation; or

(b) was not verified in a manner or by a person prescribed by regulation.

(7) A parent of a child or a person referred to in subsection (1)(b) who has consented to the adoption of the child may withdraw the consent within 60 days after having signed the consent, after which the consent is final.

233. (1) The court, on application by the Department, a provincial department of social development, a designated child protection organisation or an adoption social worker may issue an order freeing a parent or person whose consent to the adoption of the child is required in terms of section 232 from parental responsibilities and rights in respect of the child pending the adoption of the child.

(2) The parent or person whose consent to the adoption of the child is required in terms of section 232 must support an application for a freeing order in terms of subsection (1).

(3) A freeing order in terms of subsection (1) must authorise a designated child protection organisation or a person to exercise parental responsibilities and rights in respect of the child pending the adoption of the child.

(4) A freeing order lapses if –

(5) A freeing order relieves a parent or person from the duty to contribute to the maintenance of the child pending the adoption, unless otherwise ordered by the court.

234. (1) The consent of a parent of the child or any other person who has parental responsibilities or rights in respect of the child is not necessary for the adoption of the child, if that parent or person –

(a) is incompetent to give consent due to mental illness;

(2) If the parent referred to in subsection (1) is the biological father of the child, consent for the adoption is also not necessary if –

(3) A person referred to in subsection (2)(a) can for the purposes of that subsection acknowledge that he is the biological father of a child in any of the following ways:

(b) by voluntarily paying maintenance in respect of the child;

(c) by paying damages in terms of customary law; or

(4) A children’s court may on a balance of probabilities make a finding as to the existence of a ground on which a parent or person is excluded in terms of this section from giving consent for the adoption of a child.

235. (1) When a child becomes available for adoption, the clerk of the children’s court must take all reasonable steps to establish –

(2) A person who has consented to the adoption of a child in terms of section 232 and who wants the court to dispense with any other person’s consent on a ground set out in section 234, must submit a statement to that effect to the clerk of the children’s court.

(3) A clerk of the children’s court may request the Director-General: Home Affairs to disclose any information contained in the registration of birth of a child, including the identity and other particulars of a person who has acknowledged being the father or the mother of the child.

(4) If an adoption social worker involved in the proposed adoption of a child obtains information regarding the identity and whereabouts of a person whose consent for the adoption is necessary in terms of section 232 or whose consent for the adoption would have been necessary had it not been for section 234, thate social worker must without delay submit a report containing that information to the clerk of the children’s court.

236. (1) When a child becomes available for adoption, the clerk of the children’s court must without delay serve a notice on each person whose consent is in terms of section 232 required for the adoption.

(2) The notice must –

(3) If a person on whom a notice in terms of subsection (1) has been served fails to comply with a request contained in the notice within 30 days, that person must be regarded as having consented to the adoption.

237. (1) An application for the adoption of a child must –

(a) be made to a children’s court in a manner prescribed by regulation;

(b) be accompanied by an assessment referred to in section 231(2)(d); and

(c) contain such particulars as may be prescribed by regulation.

(2) When an application for the adoption of a child is brought before a children’s court, the clerk of the children’s court must submit to the court –

(c) any written responses to requests in terms of section 236(2);

(d) a report on any failures to respond to those requests; and

(3) An applicant has no access to any documents lodged with the court by other parties except with the permission of the court.

238. (1) When considering an application for the adoption of a child, the court must take into account all relevant factors, including –

(a) the religious and cultural background of –

(b) all reasonable preferences expressed by a parent and stated in the consent; and

(2) A children’s court considering an application may make an order for the adoption of a child only if –

(a) the adoption would be in the best interest of the child;

(b) the prospective adoptive parent or parents comply with section 231;

(d) no such consent has been withdrawn in terms of section 232(6); and

239. (1) If a parent or person referred to in section 232(1) withholds consent for the adoption of a child a children’s court may, despite the absence of such consent, grant an order for the adoption of the child if the court finds that –

(a) consent has unreasonably been withheld; and

(b) the adoption is in the best interest of the child.

(2) In determining whether consent is being withheld unreasonably, the court must take into account all relevant factors, including –

240. (1) An adoption order, except when otherwise provided in the order, terminates –

(d) any previous order made in respect of the placement of the child.

(2) An adoption order –

(d) does not affect any rights to property the child acquired before the adoption.

(3) An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child.

241. (1) A High Court or children’s court of competent jurisdiction may rescind an adoption order on application by –

(a) the adopted child;

(c) the adoptive parent or parents of the child.

(2) Any application in terms of subsection (1) must be lodged within a reasonable time not exceeding two years from the date of the adoption.

242. (1) An adoption order may be rescinded only if –

(a) rescission of the order is in the best interest of the child; or

(b) subsection (2) applies.

(2) An adoption order may be rescinded if –

243. Notice of an application for rescission of an adoption order must be given to –

(c) the Central Authority in the case of an inter-country adoption; and

(d) any other person who the court finds has a sufficient interest in the matter.

244. (1) As from the date on which the rescission of an adoption order takes effect –

(2) When rescinding an adoption order the court may –

(a) make an appropriate placement order in respect of the child concerned; or

245. (1) After an adoption order has been made by a children’s court in respect of a child whose birth has been registered in the Republic, the adoptive parent or parents of the child must apply in terms of the applicable legislation to the Director-General: Home Affairs to record the adoption and any change of surname of the child in the births register.

(2) An application in terms of subsection (1) must be accompanied by–

(a) the relevant adoption order as registered by the adoption registrar;

(b) the birth certificate of the child;

(c) the prescribed birth registration form; and

(d) a fee prescribed in terms of any applicable legislation, if any.

246. (1) After an adoption order has been made by a children’s court in respect of a child born outside the Republic, the adoptive parent or parents of the child must apply in terms of any applicable legislation to the Director-General: Home Affairs to register the birth of the child and to record the adoption of the child in the birth register.

(2) An application in terms of subsection (1) must be accompanied by–

(a) the relevant adoption order as registered by the adoption registrar;

(b) the birth certificate of the adopted child or, if the birth certificate is not available –

(d) a fee prescribed in terms of any applicable legislation, if any.

247. (1) A person designated by the Director-General as the adoption registrar must, in the prescribed manner, record information pertaining to and keep a register of –

(a) the registration numbers allocated to records of adoption cases;

(2) A clerk of the children’s court must –

248. (1) The information contained in the adoption register may not be disclosed to any person, except –

(a) to an adopted child after the child has reached the age of 18 years;

(2) The Director-General may require a person to receive counselling before disclosing any information contained in the adoptions register to that person in terms of subsection (1)(a), (b), (c) or (e).

249. (1) No person may –

(b) induce a person to give up a child for adoption in or outside the Republic.

(2) Subsection (1) does not apply to –

(a) the biological mother of a child receiving compensation for –

(c) the Central Authority receiving prescribed fees;