The Bill was introduced to the National Assembly in August 2020 in order to make certain amendments to the Children's Act 38 of 2005 (the "Act"). These amendments seek to broaden the definitions in the Act, offer wider protection to minors in some instances and in other instances they cater for gaps in the Act insofar as it does not deal with updated legislation such as the Protection of Personal Information Act, 2013 (the "POPI Act").
The amendments further create certainty on the categories of children protected by the Act, provide for the rights of unmarried fathers to acquire parental responsibilities and rights; and widen the jurisdiction of the children's court and regional magistrates court to adjudicate on guardianship.
The Parliamentary Monitoring Group advises that the Bill is under consideration by the National Assembly.
Expanding the definitions in the Act to provide greater, more inclusive protection to children
- Abandoned child- The word "obviously" was removed from the definition of "abandoned child" when determining whether a child has been deserted and additional scenarios were included in the definition which would allow a child to qualify as abandoned.1 This amendment expands the definition of abandoned child to allow a wider range of children in different circumstances to be considered abandoned, thereby making it easier for those who seek to protect and assist the child to prove he/she is abandoned. Section 150(1)(a) is further amended to provide that a child is in need of care or protection where a child has been abandoned or orphaned and has no parent, guardian, family member or caregiver who is able and suitable to care for that child,2 resulting in these amendments being a positive step in ensuring that children who are especially vulnerable to human trafficking, sexual exploitation and abuse may receive the care and protection they require.
- Care- The definition of "care" in the Act provides that "'care', in relation to a child, includes, where appropriate- (a) within available means, providing the child with- (i) a suitable place to live." The Bill however removes the word "suitable" from the definition. The consequence of removing the word suitable is that this removes the standard that the place provided to a child to live in must meet and this could result in children being provided with unsuitable accommodation. The negative effects that could result from this removal are however overridden by the fact that section (a)(ii) of the definition, which provides that the child must be provided with "living conditions that are conducive to the child's health, well- being and development," remains intact. In response to concerns around the removal of the word "suitable", the Department of Social Development also raised the point that measurement of suitability is subjective and may result in different interpretations in any case.
- Sexual abuse- The definition of "sexual abuse" was amended to remove specific instances which would constitute sexual abuse and now provides that sexual abuse, in relation to a child, means any sexual offence against a child.3 The implication of broadening the definition of sexual abuse is that any act of sexual abuse directed towards a child will meet the definition and fall within the ambit and prosecution of the Sexual Offences Act (previously Immortality Act) 23 of 1957 ("Sexual Offences Act"), thereby offering more protection to children.
Key amendments to the provisions of the Act
The insertion of section 6A provides that a child's right to privacy and protection of personal information is subject to a number of acts, including the Films and Publication Act, 1996 and the POPI Act. Prior to this amendment the Act did not cater for what the POPI Act covers in that it did not provide that the information of children must be handled with a certain amount of care. This amendment closes the gap in the Act and makes the guidelines in the POPI Act, which set out how personal information of a child is to be processed and published, directly applicable to a child's right to privacy and protection of personal information, thereby offering the child more protection.
- Section 8 of the Act was amended to include subsection 4 which provides that "This Act applies to every child in the Republic of South Africa". 4 This inclusion highlights that the protection afforded by the Act does not distinguish between citizen and non- citizen children of the Republic and brings the Act in line with section 28 of the Constitution, which provides that children's rights apply to all children in the Republic, as well as the Sexual Offences Act, which offers protection to all children in the Republic. This inclusive protection is re- emphasised through the insertion of paragraphs (j), (k) and (l) in section 150(1), which provide that children who are unaccompanied migrants from another country, are victims of trafficking or have been sold by a parent, care- giver or guardian, all qualify as children in need of care or protection.
- The amended section 21(1)(a) of the Act removes the requirement that in order for a biological father to acquire parental responsibilities and rights, he must have lived in a permanent life partnership with the biological mother of the child at the time of the child's birth.5 This amended section 21(1)(a) now only requires a biological father to have lived with the biological mother at the time of the child's conception, or at any time between the child's conception and birth, in order to automatically acquire full parental responsibilities and rights. In addition, sections 21(1)(b)(i) and (ii) no longer require a biological father of the child to have contributed, whether this contribution is towards the child's upbringing or towards expenses in connection with the maintenance of the child, in good faith or for a reasonable period, making the requirement less ambiguous and more concise.6
- It is interesting to note that despite the fact that the constitutionality of section 21 of the Act has been called into question, insofar as the requirement to prove the cumulative criteria under section 21(1)(b) unfairly discriminates against unmarried fathers on the basis of marital status, the Bill has only made superficial changes to the provisions of section 21.
- Unmarried fathers who did not reside with the biological mother of the child at any time between the child's conception and birth still have to meet the strenuous requirements set out in section 21(1)(b) before they will be awarded parental responsibilities and rights. In addition, the amendment creates further uncertainty as it is unclear whether unmarried fathers who started living with the child's mother after the child's birth but not during the time between the child's conception and birth would be able to acquire parental responsibilities and rights in terms of the amended section 21(1)(a).7 If these superficial changes to the wording of the section intended to address this discrimination while still protecting the best interests of the child, the Bill has failed to achieved this purpose and further amendments must be made to the Act. The Department of Social Development seems to note this inadequacy of the Bill and the large hurdle it places before unmarried fathers, and responded to a number of public comments made on the Bill stating that it agrees with the recommendation to replace the word "and" with the word "or" in section 21(1)(b) in order to reduce the burden on unmarried fathers to satisfy all the conditions for acquisition of parental rights and responsibilities.
- Section 22(2A) was inserted into the Act and holds that "A child who is the subject of a parental responsibilities and rights agreement, must be given the opportunity to express his or her views regarding the content of such agreement: Provided he or she is of sufficient maturity and mental capacity to do so." Before this amendment, the Act did not provide an opportunity for a child to comment on the content of a parental responsibilities and rights agreement and so this amendment effectively increases a child's participation in decisions involving the child. It is worth noting that this opportunity is only provided in respect of parental responsibilities and rights agreements and has not been provided for parental plans concluded in terms of the Act.
- According to section 42(1) of the Act, every magistrate's court, as defined in the Magistrates Court Act 32 of 1944 shall be a children's court and shall have jurisdiction on any matter arising from the application of the Act for the area of its jurisdiction, however regional courts are not able to act as children's courts. The Act has however been amended to include a definition of "regional court" which sets out that this means a court for any regional division as contemplated in the Magistrates' Courts Act.
- In addition to the insertion of the definition, a number of the references to the Divorce Court, which is for all intents and purposes a High Court, have been replaced with a reference to the regional court. Regional courts are much cheaper and speedier to litigate in and so this inclusion of the regional court as the court that has jurisdiction to hear certain matters shows the emphasis the legislation is placing on ensuring that there is greater access to justice. This is further emphasized by the insertion of subsection 3A in section 45 of the Act, which provides that the High Court and children's court have concurrent jurisdiction over the guardianship of a child as contemplated in section 24 of the Act. In addition, subsection 3B was inserted which provides that the High Court, children's court and regional court have concurrent jurisdiction over the assignment, exercise, extension, restriction, suspension or termination of guardianship in respect of a child.
- The jurisdiction of the children's court has been widened in section 45 to include matters involving guardianship of an orphaned or abandoned child and matters involving an unaccompanied or separated migrant child or a child who is an asylum seeker or refugee as contemplated in the Refugees Act, 1998 (Act No. 130 of 1998). As noted by the Centre for Child law in its comments on the Bill, this increased jurisdiction of the children's court and regional court and the fact that the High Court no longer has exclusive jurisdiction in relation to guardianship maters of children is a positive step, as children's courts and regional courts are more accessible and more well versed in family law and child care matters and making guardianship applications accessible at the children's court will increase access to justice for a majority of people. Not only would reserving guardianship for the High Court exclusively only be in the interests of the more wealthy who have the necessary resources to use the High Court process, this amendment also serves to free up the already clogged roll of the High Court.
- Section 167 of the Act has been amended to provide that a child may not be in temporary safe care for longer than 72 hours without a court order, and this court order may not be granted for a period longer than six months at a time. In addition a child may not be in foster care or a registered child and youth center without a court order placing the child in such care. This amendment can have both positive and negative effects. The harm that is posed as a result of the increase of abuse occurring in foster care homes can be mitigated by the fact there must be a court order before a child may be placed in foster care and this also ensures that children are not lost in the system without certainty. However, on the other hand the actual implementation of this section could pose problems on the basis of the period lapsing without a court order being obtained, rendering the child without temporary safe care. It was recommended at the provincial public hearing submissions on the Bill that this period is too short and should be extended to 5 days.
- Section 249, which provided that no person may give or receive any consideration in cash or kind for the adoption of a child or induce a person to give a child up for adoption, and provided when provision of cash or consideration is allowed, has been deleted. The removal of this section now leaves a gap in the Act in relation to what governs when consideration may or may not be given for adoptions and the process for adoptions. As was noted in some of the public comments on the Bill, this could lead to a decline in adoption targets as a result of not being able to assist the mothers in paying the administration costs of the adoption and affecting the future of vulnerable children, as well as rendering Designated Children Protection Organisations and private adoption social workers unable to cover the costs of the adoption programme. In addition, it could take years for a body to finalise a new regulations relating to when consideration can be paid for adoptions, and this unregulated gap could potentially allow for the exploitation of mothers and children.
- The Bill provides some general clarification on specific aspects regarding adoption and prospective adoption parents, and the role of the Central Authority of the Republic in inter- country adoptions. This creates more certainty for prospective adoption parents in terms of the process that needs to be followed and what is expected of them.
- The Bill provides for the designation and functions for a Registrar of the National Child Protection Register. This may be a positive step as a registrar may be better equipped to handle certain functions that were previously assigned to the Director General, as the Bill sets out in the newly amended section 111(3) that the Director General must designate an official from the Department as the Registrar of the National Child Protection Register. However, the Bill does not set out the criteria one must meet in order to be designated as the registrar and this could pose a problem should an unqualified person be assigned this position.
This article was prepared by partner Sushila Dhever and candidate attorney Julia Hoffman.
1. The word "obviously" has been removed.
- Previously the definition provided that "'abandoned', in relation to a child, means a child who-
- The amended definition provides that: "'abandoned child' [, in relation to a child,] means a child who-(a) has [obviously] been deserted by [the] a parent, guardian or care-giver; [or] (b) [has,] for no apparent reason, had no contact with the parent, guardian or care-giver for a period of at least three months; or (c) has no knowledge as to the whereabouts of the parent, guardian or care-giver and such information cannot be ascertained by the relevant authorities;''(a) has obviously been deserted by the parent, guardian or care giver; or (b) has, for no apparent reason, had contact with the parent, guardian or care-giver for a period of at least three months;"
2. The phrase, "has no parent, guardian, family member or care-giver who is able and suitable to care for that child" has been inserted.
- Previously the section provided that "(1) A child is in need of care and protection if, the child- (a) has been abandoned and orphaned and does not have the ability to support himself or herself and such inability is readily apparent;"
- The amended section provides that: "(1) A child is in need of care and protection if, the child- (a) has been abandoned or orphaned and [does not have the ability to support himself or herself and such inability is readily apparent] has no parent, guardian, family member or care-giver who is able and suitable to care for that child;"
3. The specific instances which would constitute sexual abuse have been removed.
- Previously the definition provided that "'sexual abuse', in relation to a child, means- (a) sexually molesting or assaulting a child or allowing a child to be sexually molested or assaulted; (b) encouraging, inducing or forcing a child to be used for the sexual gratification of another person; (c) using a child in or deliberately exposing a child to sexual activities or pornography; or (d) procuring or allowing a child to be procured for commercial sexual exploitation or in any way participating or assisting in the commercial sexual exploitation of a child;"
- The amended definition provides that: "'sexual abuse' in relation to a child, means any sexual offence against a child;"
4. Section 8 of the Act deals with the application of the Act.
5. The requirement that the biological father must have lived with the mother of the child in a permanent life- partnership has been removed.
- Previously the section provided that "(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 the time of the child's birth he is living with the mother in a permanent life- partnership;"
- The amended section provides that "(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 the time of the child's [birth he] conception, or any time between the child's conception and birth, the biological father is living with the biological mother [in a permanent life-partnership];"
6. The requirement that the biological father of a child must have contributed in good faith and for a reasonable period of time has been removed.
- Previously the section provided that "(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-(b) if he, regardless of whether he has lived or is living with the mother- (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child's father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period."
- The amended section provides that ""(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-(b) if he, regardless of whether he has lived or is living with the biological mother- (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child's father or pays damages in terms of customary law; (ii) contributes or has attempted [in good faith] to contribute to the child's upbringing [for a reasonable period]; and (iii) contributes or has attempted [in good faith] to contribute towards expenses in connection with the maintenance of the child [for a reasonable period]."
7. J Heaton (2019) 'Notes on the Proposed Amendment of Section 21 of the Children's Act 38 of 2005' Potchefstroom Electronic Law Journal at para 3.2.
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