There are instances when a child may need help or protection. An abused or neglected child, for example, might need intervention with the state’s help. Fortunately, the Children’s Act, 2005 (Act 38 of 2005) gives effect to the rights of children contained in our constitution. These rights are carried out by the Children’s Court, which is expressly concerned with the care and safety of children (under 18).
The Children’s Act differs from previous legislation about children and covers other aspects relating to their rights. For instance, the Act gives effect to The Hague Convention on International Child Abduction and of Inter-Country Adoption. It also makes new provisions for the adoption of children.
What is The Children’s Act?
The Children’s Act deals specifically with matters regarding children’s care and protection and should not be confused with The Child Justice Act, 2008, which deals with children who are accused of committing an offence. The Children’s Court plays an important role in the practise of the Children’s Act.
The Children’s Court deals with all matters relating to the physical and emotional wellbeing of a child. Some of these include:
- the protection and well-being of a child
- the care of, or contact with a child
- support of a child
- prevention or early intervention services
- maltreatment, abuse, neglect, degradation or exploitation
Children’s Courts have the responsibility to make decisions about abandoned or neglected children and also take care of children needing protection or care. The Children’s Court won’t make judgements in criminal cases involving children, however, a social worker may remove a child from their guardians or parents if it’s in the child’s best interest. To find a Children’s Court is not very hard as every Magistrate’s Court in South Africa is also a Children’s Court. The magistrate also acts as the presiding officer of the Court.
The Act and parental rights and responsibilities
The Children’s Act not only deals with children but also parents and guardians concerning their rights and responsibilities. Some of the parental rights and responsibilities includes caring for the child, maintaining contact with the child, acting as the child’s guardian and contributing to the maintenance of the child.
Going to the Children’s Court
There are some people who have a social responsibility and requirement to go to a Children’s Court if they suspect a case of child abuse. These people include teachers, social workers, lawyers, ministers of religion and nurses. On the other hand, any person may go to the Children’s Court clerk if they are concerned about a child’s safety and protection. You do not have to be the parent or guardian of the child to raise an issue with the clerk. A child also has the right to go to the Court with a matter as long as it’s within the jurisdiction of that particular Court.
The Court has a friendly and relaxed atmosphere, which is designed to make it as comfortable as possible for children. When the court makes a decision on what to do with a child it uses the guidance of a report from a social worker. The report highlights the best interests of the child. The Court will take into consideration the social worker’s suggestions. The Court order is not permanent and will usually lapse after a two-year period.
Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.
Justice.gov.za. The Department of Justice and Constitutional Development, Family Law, The Children’s Act, 2005 (Act 38 of 2005). [online] Available at: http://www.justice.gov.za/vg/children/ [Accessed 19/05/2016].
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)