South Africa: The Rights Of Minor Children In South Africa

What are the basic rights of minor children and to what extent do we have a responsibility to educate them about their rights?

This article mainly focuses on the basic rights of minor children in South Africa, from another point of view. We also discuss our responsibility towards ensuring that minor children are educated about their rights and if there are structures in place for minor children to approach if their basic rights are not protected.

Most articles focus on parental rights and responsibilities which can be acquired over minor children. These rights and responsibilities include inter alia care, contact, maintenance and guardianship and these topics will be discussed in detail in a follow-up article. However, there is a shortage of content relating to the basic rights of minor children as well as the community's responsibilities (from a unique point of view) towards minor children.

As parents (caregivers, teachers, guardians, social workers etc.) it is crucial to be fully acquainted with the rights of minor children. In South Africa the basic rights of minor children are fully set out in Chapter 2 of the Constitution of South Africa, 1996 – Chapter 2: Bill of Rights (hereinafter "the Bill of Rights").

Section 28 of the Bill of Rights expressly discusses the rights of minor children, which will be explained more fully below. Section 28(1) of the Bill of Rights focuses on the basic rights that minor children have, which include the following rights:

• the right to a name (their nationality and identity);
• the right to parental/family care, or alternative care when a competent Court removes minor children from their current circumstances if it is not in their best interests (this is explained in more detail in the Children's Act, Act 38 of 2005);
• the right to basic nutrition, shelter, basic health care services and social services;
• minor children should be protected from maltreatment, neglect, abuse or degradation;
• they should also be protected from exploitative labour practices;
• if they are a part of criminal proceedings (or any other legal proceedings) they have the right to have a legal practitioner assigned to the minor child by the state at their expense.

Section 28(2) of the Bill of Rights is also vital since it clearly states that "a child's best interests are of paramount importance in every matter concerning the child". The best interest of minor children standard is set out in detail in Section 7 of the Children's Act. Whenever a Court adjudicates over any matter concerning a minor child, they are legally obliged to take the best interest standard (as referred to above) into consideration and protect minor children at all costs. This obligation is not only assigned to Courts, but all persons who deal with minor children have an obligation to ensure that they are aware of minor children's rights and be familiar with the remedies available when they are concerned about a specific minor child.

The obligation is also acquired by Social Workers, Officers of the Court, teachers, psychologists etc. who all have an obligation to protect minor children which obligation extends further than only acquainting themselves with the basic rights of minor children. The obligation includes educating minor children on their rights as early as possible. Minor children (since they cannot be treated on the same basis as adults) are special since they lack the capacity to fight for themselves. They also lack emotional intelligence too, in certain instances, differentiate between what is regarded as right and wrong. Schools usually do their utmost best to educate minor children on their rights and there are remedies in place if someone suspects that a minor child lacks the necessary protection they deserve as set out not only in the Bill of Rights but also in the Children's Act.

As adults and a community, we need to stand together and acquaint ourselves with the rights of minor children. Furthermore, we should educate minor children on their own rights, to ensure that they are aware of their own rights.

This statement is powerful since it also speaks to the right of minor children to be heard when decisions that impact them directly are being made. However, their respective ages, emotional intelligence, and capacity must be considered when a decision is made on their behalf. Even if they have the right to voice their own concerns and/or needs, we still need to make decisions which are in their own best interests even if they are unaware of the same.

Contact our offices if you have any questions relating to minor children's rights and/or your obligation towards them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.