Foster care

Protecting children through temporary care

You may have read the brilliant retelling of David Copperfield by Barbara Kingsolver, called Demon Copperhead. It tells the story of Demon, who was passed from foster home to foster home, often living in appalling conditions, before winding up addicted to opioids. (The story has a happy ending; he goes on to recover, but the journey is a difficult one.) On the other hand, you may have seen the 2009 film The Blind Side, a dramatised true story of Michael Oher, who rose from the foster care system in the US to become a professional American football player. These two accounts depict the extremes of foster care experiences for children. The reality is that most foster carers are kind and compassionate caregivers who provide a safe and loving environment for children who, for a variety of reasons, are unable to be cared for by their biological parents. A child may be taken into care as a result of abuse, neglect, abandonment or death of a parent. 

Foster care serves as a critical safety net. It is not a form of adoption; rather it is a temporary and court-supervised placement intended to safeguard the welfare of vulnerable children. The Children’s Act sets out the legal framework governing foster care placements and outlines the responsibilities of all parties involved. We explain foster care and what the law requires to ensure the system operates in the best interests of the child.

What is foster care?

Foster care is a legally sanctioned arrangement in which a child in need of protection is placed in the custody of a fit and proper adult, known as a foster carer. This arrangement is meant to offer a safe, stable and nurturing environment while the child’s long-term situation is assessed. The aim is to protect children from harm and promote their development while preserving the possibility of family reunification where appropriate. Foster care plays an indispensable role in South Africa’s child protection system. It allows vulnerable children to be placed in safe, caring homes when their own families cannot provide for them.

Who may be placed in foster care?

A child may be placed in foster care by the Children’s Court if the child is found to need care and protection and no suitable parent or guardian is available. Foster care is not necessarily provided by paid carers; it may also include kinship care, where the child is placed with a relative or close acquaintance, such as a sibling, aunt/uncle or grandparent.

Kinship care can deliver much-needed continuity and emotional support, particularly for children who have experienced trauma. It is often the preferred form of foster care, if there is a relative  willing and able to care for the child. The relative must approved by the court.

Legal requirements and oversight

When the Children’s Court issues a foster care placement order, it selects a specific individual to care for the child and ensures the person is both willing and suitable. A placement order is typically valid for up to two years and must be reviewed regularly. Ongoing judicial oversight is one of the defining features of foster care.

A designated social worker monitors the placement, offers support to the foster carer, and submits regular reports to the court regarding the child’s care and development. The placement must be reviewed at least every two years to determine whether it remains in the child’s best interest or  changes are required.

If these safeguards are not enforced, children may remain in unsuitable environments. For example, concerns were raised recently about a child in foster care with an elderly male carer. Despite allegations of emotional abuse and educational neglect, there had been a notable lack of social worker visits, and no scheduled review of the child’s placement had taken place. 

Responsibilities and limitations of foster parents

Foster parents do not enjoy full parental rights. Instead, they are entrusted with care of a child under the terms set out by the court and supervised by a social worker. They are responsible for the child’s daily care, including education, health and emotional development. They must also ensure the child’s rights are respected and cooperate with any supervision or intervention plans put in place by the social worker.

Certain individuals are disqualified from becoming foster carers. People who have been convicted of crimes against children, found unfit to care for children, or who fail to meet prescribed standards are prohibited from serving in this role.

Caring for children is expensive. Foster carers may apply for a foster care grant from the Department of Social Development to assist with the child’s upkeep. Funds cannot be used for personal gain. Foster care is a public duty, not a source of personal income.

When foster care ends

Foster care is a temporary arrangement. It takes place for the period indicated in the court order. At the end of that period, on recommendation of the social worker, the court order may be extended or the child may return to their biological family or be adopted. The placement automatically ends when the child turns 18, unless the court extends it for special reasons, such as enabling the child to complete their schooling.  

A child may be removed from a foster home if the placement is no longer in the child’s best interest. This could be due to neglect, abuse or the failure of the foster carer to comply with court or social worker requirements. The removal process generally requires a court order, although emergency removals are allowed in exceptional situations.

Becoming a foster carer

If you are interested in becoming a foster carer, whether for a relative’s child or for public service, you can apply to your nearest Department of Social Development office or an accredited child protection organisation. You (and the child, if applying for kinship care) will be assessed by a social worker. If the biological parents are known, they must be involved in the process. The child must also be involved. The social worker will compile a report for the Children’s Court, which will issue a court order for foster care if appropriate. It does not cost anything to become a foster carer.

Cape Town family lawyer can help

SD Law is a firm of attorneys in Cape Town, Johannesburg and Durban, who are experienced in family law. If you have any questions about foster care, or are concerned about the welfare of a child you know, call family lawyer Simon Dippenaar on 086 0995146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• The court as upper guardian of minor children
• Non-biological guardians
• Surrogacy

SD Law – Simon Dippenaar & Associates Inc.

Attorneys, Notaries & Conveyancers

SD Law is a Cape Town law firm with a strong practice in divorce and family law, urgent eviction matters, antenuptial contracts, liquor licence applications and selected commercial disputes. Clients instruct us when the matter is urgent, high-stakes or strategically sensitive, and when they want direct, clear legal advice backed by practical litigation experience.

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