South Africa has some of the most progressive children’s legislation in the world. The Amendment Bill before Parliament strengthens protective measures for children even further and aims to close gaps in the child protection system. This article provides a summary of the additional controls being introduced. Some of the amendments concern terminology, to align the original Act with current family and child law practice, including the UN Convention on the Rights of the Child. Some of the changes are more significant.
The Bill makes further provision for the rights of unmarried fathers. Originally, an unmarried father enjoyed full parental responsibilities and rights if he was living with the mother at the time of the birth in a permanent life partnership…or… consented to be identified as the child’s father, contributed to the child’s upbringing for a reasonable period, and contributed to child maintenance expenses for a reasonable period.
Section 21, which covers unmarried fathers, has been amended to clarify that a father who is not married to the mother and who was living with her at any time between the child’s conception and birth automatically acquires full parental responsibilities and rights with regard to that child. A family advocate may issue a certificate confirming these parental responsibilities and rights.
Children in need of care and protection
Sections dealing with children in care or in need of protection have been tightened, and the interests of the child prioritised. A child who has been abandoned or orphaned and has no parent or other caregiver to care for them is considered a child “in need of care and protection”. This definition extends to “an unaccompanied migrant child from another country”, “a victim of trafficking”, or a child who “has been sold by a parent caregiver or guardian”. Furthermore, the Bill clarifies the application of the Children’s Act to all children in South Africa, including non-citizens. It extends the jurisdiction of the children’s court to include “guardianship of an orphaned or abandoned child” and an “unaccompanied or separated migrant child, or the child of an asylum seeker or refugee, as contemplated in the Refugees Act, 1998”.
The permitted duration for placing a child in temporary safe care has been amended. A child may not be placed in temporary safe care for more than 72 hours without a court order, or for more than six months at a time. If a child runs away from alternative care and is found and brought back within 48 hours, they will no longer appear before the children’s court. Instead, their social worker will assess the child and try to establish the reason for the escape. This acknowledges that some children find care homes very stressful and are not necessarily delinquent or unruly because they attempt to flee.
A new section has been added to the Children’s Act to expedite proceedings when a child has been abducted. This is to ensure that the interests of the child are represented and protected by eliminating delays in the judicial process. Children adapt and adjust quickly and, once adaptation to the new environment has occurred, it may not be in the child’s best interests to return home, even if the abduction was unlawful. On the day of the application for the return of a child, the Central Authority must bring the application to the attention of the judge president of the relevant division of the High Court for the appointment of a legal representative for the child.
Changes to Chapter 19 of the Children’s Act, Surrogate Motherhood, are minor, but ensure that the health and age of both the commissioning parents and surrogate mother are considered by the court before the surrogacy can be confirmed.
Early childhood development
Chapter Six of the Children’s Act deals with early childhood development, long recognised as critical in the development of a child’s cognitive, emotional, social and physical potential. The Bill amends the definition to include provision for children with disabilities. It also obliges the government to develop a comprehensive national strategy aimed at securing a properly resourced, coordinated, managed and inclusive early childhood development system. At provincial level MECs are responsible for ensuring their provincial strategies are inclusive and provide for children with disabilities and special needs. There must be a record maintained of registered early childhood development programmes in the province with specific mention of inclusive programmes. Furthermore, an MEC may prioritise funding for early childhood development programmes in rural, underserved, or poverty-declared wards, to ensure appropriate targeting of this vital service.
Adoption is covered at length, with particular attention paid to inter-country adoption and the adoption of a child of a child.
The Bill runs to 102 clauses, many of which are “minor consequential amendments” for clarification. However, some of the amendments significantly enhance the protective environment for all children in South Africa, whether citizens or not. We welcome these changes, which are summarised below:
- To provide for children’s right to privacy and protection of information
- To further provide for the rights of unmarried fathers; to extend the children’s court jurisdiction
- To further provide for funding of early childhood development programmes
- To provide for the designation and functions for a Registrar of the National Child Protection Register
- To further provide for the care of abandoned or orphaned children and additional matters that may be regulated
- To further provide for rules relating to care and protection proceedings
- To further provide for medical testing of children in need of care and protection or adoption
- To provide for additional matters relating to children in alternative care
- To further provide for matters relating to adoption and inter-country adoption
- To further provide for the hearing of child abduction matters
- To further provide for matters relating to surrogate motherhood
- To provide for matters connected therewith
Get professional help with parenting issues
SD Law is a firm of attorneys in Cape Town and an expert in family law. If you need help with child care and contact (custody and access) or a parenting plan, or if you have any questions about the Children’s Act and Amendment Bill, call Simon on 086 099 5146 or email firstname.lastname@example.org. We’ve helped many families reach agreement on complex parenting issues.
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This article first appeared on divorceattorneycapetown.co.za on 2020-11-12.
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