SALC DRAFT DISCUSSION DOCUMENT: WORK IN PROGRESS
THE CHILD CARE ACT 74 OF 1983
The Child Care Act 74 of 1983 came into operation on 1 February 1987, its immediate predecessor being the Children's Act 33 of 1960. According to the Minister of Health and Welfare at the time of promulgation of Act 74 of 1983, the change in name signalled a recognition of "the general principle that the family is the normal social and biological structure within which the child must grow and develop. The legislation does not, therefore, focus solely on the child, or solely on the child's parents, but on both. The emphasis is, therefore, on the care of the child by his parents or by those entrusted with the custody of the child".
Several South African writers have, however, questioned whether the Child Care Act, in its original form (particularly the provisions relating to the criteria for the removal of children from parental care and/or for initiating children's court inquiries), really gave expression to the legislative purpose ostensibly underpinning it, viz. the encouragement and protection of the family unit as "the natural social structure for the growth and development of the child" by creating a proper balance between parental rights, duties and powers, on the one hand, and children's rights, on the other hand.
The Children's Act 33 of 1960 was wholly repealed by the Child Care Act, 1983 except insofar as it (the 1960 Act) related to the appointment of probation officers and the establishment, maintenance and management of schools of industries and reform schools. Section 58 of Act 33 of 1960 (dealing with the appointment and functions of probation officers) was subsequently repealed by section 20 of the Probation Services Act 116 of 1991, while the provisions of the 1960 Act relating to the establishment, maintenance and management of reform schools and schools of industries were repealed by section 113(1) of the Education Affairs Act (House of Assembly) 70 of 1988. Far-reaching amendments were in turn made to the Child Care Act, 1983 in terms of the Child Care Amendment Act 86 of 1991 (date of commencement 19 June 1991), the Child Care Amendment Act 96 of 1996 (date of commencement 1 April 1998 with the exception of section 8A, which is yet to come into operation), and the Child Care Amendment Act 13 of 1999 (date of commencement 1 January 2000).
5.2 Meaning of "child" for the purposes of the Child Care Act, 1983
The Child Care Act, 1983 defines a child as any person under the age of 18 years. In this regard, it is in line with the definition of a child contained in both the South African Constitution and in the United Nations Convention on the Rights of the Child. There are, however, circumstances in which certain provisions of the Child Care Act apply to persons over the age of 18 years. So, for example, a children's court may make an order in respect of any person who, at the commencement of the relevant children's court inquiry, was under the age of 18 years, but has attained the age of 18 years before the date of the order.
5.3 Provisions that empower (or could empower) children
5.3.1 Legal representation for children in children's court proceedings
Section 28(1)(h) of the South African Constitution guarantees to every child in South Africa the right to have a legal practitioner assigned to him or her by the state, and at state expense, in civil proceedings affecting him or her, "if substantial injustice would otherwise result". In an apparent attempt to give substance to this constitutional right, section 8A(1) of the Child Care Act provides that "[a] child may have legal representation at any stage of a proceeding under this Act". It is obligatory for the children's court to inform a child "who is capable of understanding, at the commencement of any proceeding, that he or she has the right to request legal representation at any stage of the proceeding".
This section is yet to come into operation.
According to section 8A(3) of the Child Care Act, 1983 a children's court may approve the appointment by a parent of a legal representative for the child concerned, "should the children's court consider it to be in the best interest of such child". Furthermore, the provision of legal representation for a child at state expense may be ordered by the children's court, at the commencement or at any other stage of the proceeding, the test again being whether or not the court considers this to be in the best interest of the child in question. If legal representation for the child at state expense is indeed ordered, then sections 8A(5) and (6) provide for appointment of the child's legal representative by the Legal Aid Board, followed by a detailed evaluation and report on the matter by the Board - essentially in order to determine whether the cost of the legal representation can be recovered from the parent/s of the child, his or her guardian or any other party to the proceedings.
However, these provisions concerning legal representation for children in children's court proceedings are unsatisfactory in several different respects. Perhaps most importantly, it is still not mandatory for the children's court properly to consider the issue of legal representation for the child in all such cases. For those commissioners of child welfare who do in fact consider the issue, no guidelines are provided by the legislation to assist them in making a decision one way or the other. The meaning of the phrase "who is capable of understanding" is unacceptably vague; however, it is obvious that many children who are involved in children's court inquiries will not be "capable of understanding" because of their tender years. It is also unclear what the responsibility of the commissioner is when a child does request legal representation - it would seem from section 8A that such a request can simply be denied, there being no obligation on the commissioner even to record reasons for his or her decision in this regard. Conversely, if a child refuses legal representation (as frequently happens with children in juvenile criminal courts), it would appear that the matter can simply be left there - there is no obligation on the children's court to go further and consider whether the best interests of the child require legal representation notwithstanding such refusal.
As regards the possibility of the appointment by a parent of a legal representative for the child, this provision fails to take cognisance of the potential for a conflict of interest, especially in view of the fact that parents are often in a position akin to that of defendants in child removal proceedings. Moreover, the overt emphasis on cost considerations evident from sections 8A(5) and (6) creates the danger that the level of legal representation for children in children's court proceedings will not be substantially increased - there is the very real risk that the cost factor will prove to be more compelling than the possibility of "substantial injustice" to the child.
In view of the abovementioned shortcomings of the new section 8A, it would seem that this section, even if it comes into operation now, in many cases will not give adequate protection to the child's constitutionally guaranteed right "to have a legal practitioner assigned [to him or her] . . . by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result". This new section also appears to fall short of the standard set by article 12 of the UN Convention on the Rights of the Child, which article obliges State Parties to "assure to the child who is capable of forming his or her own views the right to express those views freely in all matters [including any judicial or administrative proceedings] affecting the child, the view of the child being given due weight in accordance with his or her age and maturity." This participation by the child may be achieved through hearing the child in person or through a representative or an appropriate body.
It must be concluded that, although it represents the latest of a whole series of attempts to draft an appropriate provision, section 8A of the Child Care Act is too disjointed, and uses too broad a ground, to offer sufficient guidance on the important question of when children should have an enforceable right to representation in care proceedings. More specific guidelines are required. It is submitted that legal representation must be provided:
(a) to the child when so requested by the child concerned;
(b) where it appears or is alleged that the child has been physically or emotionally abused;
(c) where the child, a parent or guardian, a parent-surrogate or would-be adoptive or foster parent contest the placement recommendation of a social worker who has investigated the current circumstances of the child;
(d) where two or more adults are contesting in separate applications for placement of the child with them;
(e) where any other party besides the child will be legally represented at the hearing;
(f) where it is proposed that a child be trans-racially placed with adoptive parents who differ noticeably from the child in ethnic appearance;
(g) in any other situation where it appears that the child will benefit substantially from representation either in regard to the proceedings themselves or in regard to achieving the best possible outcome for the child.
It should be noted that, whilst in the list above children are not given the right to request representation in every situation no matter how wasteful, a children's rights approach is effectively catered for by making it mandatory for a representative to be appointed where the child so requests, or where any other party has a representative. The proposal to include representation in the case of obviously trans-racial placements is based upon the fact that it has been widely recognised that these typically involve difficult decision-making because of the longer-term danger of an identity crisis for the child which has to be balanced against the advantages of the placement.
A final, important consideration is who should have the task of applying the criteria that have been suggested in the previous paragraph. It is submitted that it should not be the commissioners who initially do so at the pre-hearing stage. It is surely fundamentally wrong to ask any adjudicating officer to decide, for example, that a party who will appear before him or her should not be entitled to a representative. Moreover, it has been found in the United States that this approach may affect the independence of the child's representative in care proceedings in a manner which is detrimental to the child. Rather, it might be better to set up a national network of full-time, specialised 'family law officers', who are entirely independent of the courts in which care proceedings are conducted. These officers would scrutinise the pre-hearing documentation in every children's court matter in order to discern whether one or more of the listed factors is present. Where there are grounds, the children's law officer would select a representative from a roll of legal practitioners available to work in the jurisdiction concerned. Where legal aid is applicable, the representative would be paid for by the state as is already envisaged under section 8A of the Child Care Act.
Should it become apparent, in the course of a hearing where a children's law officer has not appointed a representative, that a child advocate is needed, then the commissioner should be permitted to require the children's law officer to have one appointed.
5.3.2 The Children’s Court Assistant
References to the duties of an officer named the "children's court assistant" appear in many parts of the Act. For example, assistants are envisaged as involved in administrative matters preliminary to an actual children's court inquiry. Where the court assistant is in attendance at an inquiry, she or he has the right to examine \ cross-examine any witness, call witnesses, request for information, reports, documents, or for the appearance of any person as deemed necessary. A proper completion of these tasks will often be vital to an appropriate disposition of a case. The assistant can even be cross-examined, which appears to be a confusion of her role as a court officer.
Although the question of appropriate training needs careful consideration, it may be concluded that the concept of a children's court assistant is essentially a sound one under the Act as presently framed. In English and Scottish law, specialist officers carry out tasks similar to some of those of the children's court assistant.
Because of the basic and vital support that this officer can provide even under the current wording of the Act, involvement of assistants needs to become mandatory in all children's court proceedings. Their name should be changed to indicate a better status - perhaps to "Family Law Officer" as recommended by Mr D S Rothman.
As regards difficulties in practice, these have largely resulted from the decision to remove professionally trained children's court assistants in 1992. This left commissioners in the ethically difficult position of having to serve both as adjudicators and as the person who conducts each case. This has decidedly not been to the advantage of the vulnerable children who appear before them. Many commissioners have resorted to desperate measures such as borrowing criminal court prosecutors to serve as children's court assistants in some of their more complex cases. However, the use of prosecutors has, on the whole, been unsuccessful. The adversarial work style which prosecutors require in order to function effectively in criminal proceedings tends to be destructive when imported to the rather different environment of the children's courts. In the latter, it tends to damage efforts to produce a climate that may be conducive to rebuilding dysfunctional parent-child relationships. An important aim of many children's court cases is thus often compromised if prosecutors are used as children's court assistants. The fact that even investigative social workers have sometimes found themselves pressed into inappropriate duties as children's advocates in recent years is simply another consequence of the failure to supply children's courts with a necessary resource in the form of appropriately trained children's court assistants.
What, then, is the solution to the interrelated problems of proper representation and a suitable assistant in the children's court? The present situation, in which social workers have been systematically removed from posts as assistants and replaced by clerical staff, is certainly unacceptable. It has severely undermined the standing and efficiency of the children's court, inter alia, by placing commissioners in the ethically difficult situation of having to take on many of the tasks of an assistant - such as decisions about what witnesses should appear before them and cross-examination during hearings. What is surely needed is a return of professional children's court assistants to the children's court as originally intended. But what they obviously require by way of preparation is exposure to the skills and methodologies of both social work and the law. Persons who are prepared to have experience and preferably training in both fields should be sought. As a court with unique tasks, the children's court requires genuine child advocates with a thorough knowledge of court procedures combined with the sensitivity to know how to avoid destroying the last vestiges of a damaged child-parent relationship.
Thought must also be given to rendering children's court assistants ("family law officers") sufficiently independent of the commissioner that they can carry out their functions properly. Expansion of the existing family advocates' offices to take on the rather different child advocacy functions required in the children's courts is a possible solution which needs consideration. If family courts become a reality, the role of family advocates will, in any case, be inevitably expanded. In converting the Act into the nucleus of a Children's Code, thought needs to be given to new duties which will make the present concept of a children's court assistant more cost-effective.
Another staff member to be found in the children's courts is the clerk of the court. As with the commissioners, this officer will in most jurisdictions combine part-time children's court work with clerical duties pertinent to civil and criminal magistrates courts and will thus be expected to be something of a 'Jack of all trades'. In the absence of professionally trained children's court assistants, the clerks of the children's court are often expected to undertake duties such as reading investigative social workers' reports in order to see whether they are ready to be presented at an inquiry. This is not always obvious because clerical staff are now sometimes wrongly referred to as 'children's court assistants'. It is true that they are now compelled to fulfil some of the functions of children's court assistants, but they usually have no special training or qualifications to fit them for the position of children's court assistant. It is recommended that clerks should only have to carry out clerical \ secretarial tasks, and not those expected of a children's court assistant.
5.3.3 The right of children to self-expression
At the stage of the child's first appearance at a court she or he already has a great deal at stake. The commissioner (as the law presently stands) will now decide whether the child is to be the subject of an inquiry which may drastically affect her or his long-term future and, in the short-term pending the inquiry, the commissioner may well decide to have the child detained in a place of safety. Because the child's liberty is thus often at stake, it is a matter of concern that the Child Care Act does not provide her or him with a clear right to express views and wishes if able to do so. Regulation 9(2)(d), which deals with the information on which the commissioner may act at the "opening," refers to information provided by "the parent of the child and the children's court assistant or the social worker, police officer, or authorised officer," but does not refer to the child's evidence.
The absence of a clear right to give evidence (if old enough and otherwise able to) by the person most affected is an example of a lack of child-centredness in the Act. Unfortunately, the same criticism applies to other areas such as those provisions dealing with the presentation of evidence at the actual inquiry itself. The Child Care Act thus needs to be amended so as to afford the child a clear right to describe his circumstances and wishes, both at the "opening" and at the inquiry, and in all other types of appearances, and for due consideration to be given to these by the court. If the child is not able to take advantage of this right due to tender age, illness or other good reason, then this must be recorded as a finding of fact by the commissioner. This reform is necessary both from a due process perspective and because of the problem of powerlessness of children who are the subject of children's court hearings. Children must not, however, be pressured into expressing views they may be uncomfortable with - for example, where they feel unhappy that they may be choosing sides between parents if they express a view on a certain matter.
5.3.4 Consent to medical treatment or surgical intervention
In terms of section 39(4) of the Child Care Act, 1983 a child who has reached the age of 18 years is competent to consent, without the assistance of his or her parent or guardian, to the performance of any operation upon himself or herself, while a child over the age of 14 years is competent to consent, without such assistance, to the performance of any medical treatment of himself or herself or of his or her child. Unfortunately, the concepts "operation" and "medical treatment" are not defined in the Act and this may give rise to difficulties in practice.
In the case of G v Superintendent, Groote Schuur Hospital and Others, counsel for all parties accepted that the proposed abortion on a 14 year old girl should be regarded as "an operation" and not simply as "medical treatment". It is, however, probable that, in South African law, the dispensing of contraception (perhaps with the exception of the insertion of inter-uterine devices) qualifies as "medical treatment" in terms of section 39(4), so that a child aged 14 years or more can receive such contraception without the consent of a parent or guardian.
The provisions of section 39(4) do not exclude parental rights, but do mean that, in the cases covered by the section, if the child's views regarding medical treatment or surgical intervention differ from those of his or her parent or guardian, the child's views will enjoy priority. Seen from a different perspective, the question may be posed as to whether a child can refuse medical treatment or surgery against the wishes of his or her parents or guardian? One view is that, if the child is of sufficient age and maturity to understand fully the implications of his or her decision and to be capable of making up his or her own mind in an informed manner, then he or she can indeed refuse treatment or surgery in such cases. If, however, the child were to refuse surgery or treatment necessary to preserve his or her life or to save him or her from serious and lasting physical injury or disability, then it would appear that the High Court, in its capacity as the upper guardian of all minors, would be able to authorise such treatment or surgery against the child's wishes so as to serve the best interests of the child.
5.4 Provisions that protect (or could protect) children
5.4.1 Children "in need of care" :
In terms of the Child Care Amendment Act 96 of 1996, the primary ground for compulsory removal has been changed to the child being 'in need of care,' rather than the previous ground which required that the parents be found 'unfit' or 'unable' to care for the child. With this amendment, the legislature moved care proceedings from a predominantly fault or parent-based approach to a predominantly child-centred approach. This dramatic shift may be defended as being in line with section 28(2) of the Constitution, in terms of which, a 'child's best interest is of paramount importance in every matter concerning the child’.
Section 13(3) of the Child Care Act ,1983 reads as follows:
The children’s court before which a child is brought in terms of subsection (1) or (2) shall hold an inquiry in the prescribed manner and determine whether the child is a child in need of care: ... (our emphasis)
However, it is arguable that children's best interests might most efficiently have been served by a balanced set of removal grounds. Both child and parent-centred approaches should have been equally allowed for in the Child Care Act. By shifting attention almost entirely away from the parents, the newly amended section 14 of the Act might be seen as a charter for parental irresponsibility. Social workers who specialise in children's court proceedings have found from experience that at least some cases do arise in which the best results are achieved by requiring parents to confront and deal with their own responsibility for harm or neglect which they have inflicted on the child. Not only will the shift from parent to predominantly child-centred grounds make it easier for parents to avoid responsibility for the upbringing of their children, but also it may make it more difficult for parents to obtain legal representation via the auspices of legal aid. They may sometimes find themselves being informed that the child is now the centre of critical focus and it is therefore the child who has the right to a legal aid representative.
Despite the criticisms mentioned above of the new South African legislation as going rather far in the direction of a child-centred approach, it must be conceded that a degree of secondary focus upon parental conduct has been retained in the 1996 amendment. For example, in the situation of child abuse the new section 14(4)(aB)(vi) uses, as an indication of a child being 'in need of care' as required by the Act, the fact that the child:
"has been physically, emotionally or sexually abused or ill-treated by his or her parent or guardian or the person in whose custody he or she is;"
The question of the extent to which removal grounds should be parent-centred, as opposed to child-centred, is a difficult one. Sammon, writing from a Canadian perspective, appears to favour a parent-centred approach when he states that the 'central issue in protection proceedings' is the question 'are the individuals under scrutiny adequate parents?' English law, on the other hand, is predominantly child-centred. A care order or a supervision order can only be issued in England if the court is satisfied 'that the child concerned is suffering or is likely to suffer, significant harm'. However, English law has achieved a powerful and appropriate emphasis on parental responsibilities by making them a starting point in the Children Act 1989, and by giving attention to their definition and allocation.
In South Africa. if it appears to any court in the course of any proceedings before it that a child has no parent or guardian or that it is in the interest of the safety and welfare of a child that he or she be taken to a place of safety, that court may order that the child be taken to a place of safety and, as soon as possible thereafter, be brought before a children's court. A child may also be removed to a place of safety pursuant to a warrant issued by a commissioner of child welfare authorising any policeman, social worker or any other person to search for the child and to take him or her to a place of safety, to be kept there until he or she can be brought before a children's court. This warrant is issued on the strength of information on oath given by any person that there are reasonable grounds for believing that the child in question (who is within the commissioner's area of jurisdiction) has no parent or guardian or that it is in the interest of the child's safety and welfare that he or she be taken to a place of safety.
No warrant is required for the removal of the child from any place to a place of safety in "emergency situations", viz. where the policeman, social worker or authorised officer who removes the child has "reason to believe" that the child in question is a child "in need of care" and that the delay in obtaining a warrant will be prejudicial to the safety and welfare of that child. It would appear that the test for such an emergency removal is an objective one - the belief of the person doing the removing must be a reasonable one, based on facts which, on an objective approach, justify the conclusion that the child concerned is indeed a child "in need of care" on one of the grounds set out in section 14(4) of the Act.
Once a child has been removed to a place of safety in any of the ways set out above, the person who removed the child is obliged, as soon as possible after the removal, to inform the child's parent or guardian or the person in whose lawful custody the child is of such removal (if the parent, guardian or custodian is known to be in the district whence the child was removed and can be traced without undue delay). The relevant children's court assistant must also be informed of the reasons for the child's removal. Then, as soon as possible after the removal, the child must be brought before the children's court of the district where the place whence the child was removed is situated, so as to enable the commissioner of child welfare concerned either to confirm the child's detention in the place of safety and open a children's court inquiry or to set aside the detention and direct that the child be returned to the care of his or her parent, guardian or custodian without any further inquiry.
If the detention of the child in the place of safety is confirmed, the next step is to bring the child before the children's court of the district in which the child resides or happens to be for the purposes of an inquiry to determine whether the child is a child "in need of care". Here too the test is an objective one : the children's court must decide whether the child is in fact a child in need of care within the meaning of the Act.
In terms of section 14(4) of the Act, the children's court holding an inquiry must determine whether the child in question is a child in need of care in that :
(a) the child has no parent or guardian; or
(aA) the child has a parent or guardian who cannot be traced; or
(aB) the child -
(i) has been abandoned or is without visible means of support;
(ii) displays behaviour which cannot be controlled by his or her parents or the person in whose custody he or she is;
(iii) lives in circumstances likely to cause or conduce to his or her seduction, abduction or sexual exploitation;
(iv) lives in or is exposed to circumstances which may seriously harm the physical, mental or social wellbeing of the child;
(v) is in a state of physical or mental neglect;
(vi) has been physically, emotionally or sexually abused or ill-treated by his or her parents or guardian or the person in whose custody he or she is; or
(vii) is being maintained in contravention of section 10."
If, during the trial of a person under the age of 18 years, it appears to the court that the accused is a child in need of care, and that it is desirable to deal with him or her in terms of the Child Care Act, then it may "convert" the criminal trial into a children's court enquiry by stopping the trial and ordering that the accused be brought before a children's court of competent jurisdiction to be dealt with under the Child Care Act.
Proper notice of the pending inquiry into the children's court must be given to the parents, guardian or custodian of the child, who are required to attend the inquiry. Failure to give such notice may constitute an irregularity vitiating the proceedings. The inquiry takes place in camera, if possible in a room other than an ordinary court room and the procedure is generally less formal than that followed at a trial. However, as children's courts are courts of law, the ordinary rules of procedure and evidence must be observed, unless departure from such rules is specifically authorised. One notable example of such a departure is the court's power to receive and take action upon the reports of social workers, despite the fact that these reports often contain hearsay statements and opinions. The parents or adoptive parents of the child concerned, the child himself or herself, the respondent and any other person who, in the opinion of the commissioner, "has a substantial interest in the proceedings" are all parties to the proceedings, having the same rights and powers to examine witnesses, adduce evidence and address the court as a party to an ordinary civil action in a magistrate's court.
If the children's court concludes that the child before it is indeed a child in need of care, it may make one of the following orders :
(a) that the child be returned to the custody of his or her parents (or, if the parents are divorced or separated, of the parent designated by the court), guardian or custodian, under the supervision of a social worker and subject to such conditions as the court may impose on the child, parent/s, guardian or custodian;
(b) that the child be placed in the custody of a suitable foster parent under the supervision of a social worker;
(c) that the child be sent to a children's home designated by the Director-General; or
(d) that the child be sent to a school of industries designated by the Director-General.
Where the child is to be removed the range of court options is limited. The children's court can order that the child be placed in the custody of any suitable person who is available to serve as a foster parent; secondly, in a children's home, or, as its last resort, in a school of industries. At the end of the day, then, the children's court has a relatively limited range of options at its disposal. In our submission, it should also be granted the power to issue an order in regard to the parents in appropriate cases. For example, the children's court might require that they attend a therapeutic or community support-group course or be excluded from the family home and environment rather than the child. Power to issue state or private maintenance orders, and more of a breakdown of the components of parental responsibility, will also greatly increase the appropriateness of orders and range of options open to the court.
In selecting a suitable foster parent for the child, the court is obliged "to have regard to" the religious and cultural background of the child and of his or her parents as compared with that of the prospective foster parent.
A designation of a children's home may not be made by the Director-General unless the management of the home in question agrees to admit the child concerned. Once the Director-General has designated a children's home or school of industries, he or she must immediately notify the relevant commissioner of child welfare and social worker of the particulars of the designation. The commissioner of child welfare must then arrange for the child to be taken to the designated children's home or school of industries. If the Director-General cannot make the designation for whatever reason, he or she must without delay furnish the Minister with a report in connection with the child concerned and, after considering this report, the Minister may transfer the child to any other custody or institution or discharge the child from the place of safety where he or she is.
A deficiency in the Act which adversely affects the efficacy of the work of the children's courts is the lack of control that they have over reviewing, changing or even implementing their court orders. Particularly when the children's court orders that the child be placed in an institution, there can be a problem with delay or even failure in implementation of the children's court order because officials who work under the Director-General of Social Welfare are not answerable to the children's court. Unfortunately, it sometimes takes so long for these officials to find a place for the child that even after two years (which is the longest period that a children's court order can run for) the child is still languishing in a place of safety awaiting placement.
The legislature has recognised this problem, but has not effectively solved it. The response of the legislature was to promulgate an amendment to section 15 of the Act in 1991. This amendment permits the Minister to change the type of institutional placement ordered by the children's court without even referring back to the children's court. And further, where there has been a failure to secure a placement for the child before the final day of the children's court order, the amendment to section 15 permits the Minister to release the child. It is submitted that this provision, which allows the minister to entirely disregard the placement order of a children's court, is unconstitutional. In terms of section 28(1)(b) of the Constitution every child has the right 'to family care, parental care, or appropriate alternative care when removed from the family environment'. It would seem that a removed child's constitutional right to 'appropriate alternative care' will not be fulfilled if the officials of the Minister do not place the child in an institution as directed by the children's court, and simply leave him or her to languish in the original place of safety until the effluxion of the children's court order.
However, the fact that section 28(1)(b) of the Constitution may eventually be used counter this problem is not sufficient. The courts must be given far greater powers to review and amend their own placement orders than the children's courts currently have. Obviously, a change of circumstances may render a placement no longer appropriate for the child concerned. Also, children, particularly those placed in institutions, often encounter horrendous conditions such as bullying or other forms of abuse in which even their most basic human rights are regularly disregarded. Unfortunately, at present neither the staff of institutions nor the social workers who work with such children nor even the officials who work under the direction of the Minister of Education or Minister of Social Welfare are really accountable in a practical and effective way.
In view of the problems noted above it would seem necessary to amend the Act in such a way as to achieve both a channel of communication for children in need of care and more accountability for the adults who control them. One way to do this might be to give the courts the power or even duty to monitor certain of their child placement orders by having the child brought back to them at regular intervals. The child should also be able to demand to return before them on the basis of a prima facie case of a complaint / need for variation. Legislative provisions of this kind will help to give children a real voice, and will subject those adults who deal with them to a valuable and ongoing scrutiny from an authoritative, entirely independent source.
Staff under the authority of the Minister of Education and the Minister of Social Welfare currently have extensive powers to deal with children. In the case of children who are the subject of children's court orders, these powers should be greatly reduced. Instead, it is the courts which should be given the power to monitor and, if necessary, amend their own orders. It needs to be enacted that child care orders of the court are mandatory and must be implemented within a stipulated deadline. Consideration could be given to possible sanctions for failure to meet such deadlines.
Subject to the provisions of section 34 (ministerial powers to transfer children from one custody or institution to another), a children's court order lasts for a maximum period of two years or for such shorter period as the court may have determined. The order will then lapse unless the Minister extends it for a further period or periods not exceeding two years at a time - any such extension cannot, however, operate after the day on which the child turns 18. If necessary, the Minister may also order that any former pupil of or pupil in a school of industries whose "period of retention" therein has expired or is about to expire, return to or remain in that school of industries for such further period as he or she may fix. This period may be extended by the Minister from time to time, but no such order or extension may last beyond the end of the year in which the pupil turns 21 years of age.
In order to enable such a child or pupil to complete his or her education or training, the Minister has the power, on the application of or with the consent of a foster child or former foster child or pupil and his or her parents (if they can be traced) to approve that the foster child or pupil concerned remain in the custody of the relevant foster parent or institution after he or she has turned 18 years old, or has been discharged by ministerial order, or after the relevant children's court placement order has lapsed without being extended by the Minister.
Section 34 empowers the Minister to transfer children from one custody or institution to another. When the Minister acts under this section to effect such a transfer in the case of a child to whom a children's court order applies, then the court order is deemed to have been varied by the Minister's order. The Minister is also empowered to order, at any time, that a child be discharged from an institution or custody, if he or she "considers it desirable in the interests of" the child in question. Finally, a commissioner of child welfare who considers it desirable that a child be removed from the institution or custody in which he or she is without delay may order that such child be taken to a place of safety pending the Minister's decision as to his or her future.
The effect of a children's court order placing a child in an institution or in the custody of a person other than his or her parent or guardian is to divest the parent or guardian of his or her rights of control over and custody of the child, transferring these rights (including "the right to punish and to exercise discipline") to the management of the institution or the custodian concerned. A parent retains his or her common-law right of access to the child, however, as also the power to deal with the child's property, the power to consent to the child's marriage and the power to consent to an operation or medical treatment entailing serious danger to life. But the head of the institution concerned, or the person having the custody of the child may, in cases of urgency, authorise an operation on or medical treatment of the child without first consulting the child's parents or guardian or the Minister, provided that he or she has reasonable grounds for believing that the operation or treatment is necessary to preserve the child's life or to save the child from a serious and lasting injury or disability and that the need for the operation or treatment is so urgent that it ought not to be deferred for the purpose of consulting the parents or guardian or the Minister.
Where the children's court places the child in the custody of his or her parent/s or guardian under the supervision of a social worker, the parent or guardian must exercise his, her or their parental control over the child in accordance with the directions received from the supervising social worker.
Previously no appeal lied against a children's court finding that a child is in need of care or against any placement order made by a children's court. However, section 16A of the Child Care Act, 1983 now allows for an appeal against any order made or any refusal to make such an order to any competent division of the High Court of South Africa.
An aggrieved party or the commissioner himself or herself may also bring the matter before the High Court on review. The High Court will not interfere with the commissioner's decision upon the merits, but may set it aside if there was such irregularity in the proceedings that the applicant or the child may possibly be prejudiced thereby.
5.4.2 Children placed with persons other than their parents or custodian
In terms of section 10 of the Child Care Act, 1983, no person other than the managers of certain specified institutions or certain specified relatives may receive any child under the age of 7 years or any child "for the purpose of adopting him or her or causing him or her to be adopted" and care for such child apart from his or her parents or custodian for longer than 14 days unless such person has applied for the adoption of the child concerned or, in the case of the first-mentioned category of child, has obtained the consent in writing of the commissioner of child welfare of the district in which the child was residing immediately before he or she was received. In considering an application for such consent, the commissioner must have regard to the religious and cultural background of the child concerned as against that of the applicant. It has been held, however, that, as section 10 does not provide for any penalty for the contravention of the provisions thereof, such contravention does not constitute an offence for the purposes of the Child Care Act.
5.4.3 Ill-treated and abandoned children; children whose parents fail to maintain them properly
In terms of section 50(1)(a) of the Child Care Act, 1983, any parent or guardian of a child or any person having the custody of a child who ill-treats that child or allows him or her to be ill-treated, is guilty of an offence. An offence is also committed by "any other person" who ill-treats a child. "Ill-treatment" for the purposes of this section appears to include ill-treatment by omission and the fact that the accused's conduct constitutes the common-law crime of assault does not prevent it from also amounting to a contravention of section 50(1)(a). As regards the offence of "allowing ill-treatment", this section appears to impose a duty on a parent or guardian of a child or a person having custody of a child to prevent such child from being ill-treated by any other person.
"Abandonment" of a child by a parent or guardian or the person having custody of the child also constitutes an offence. Either a wilful omission or a wilful commission can constitute abandonment. It has, however, been held that it is only in exceptional circumstances that a parent who leaves his or her child with the other parent will be guilty of "abandonment" in terms of this section.
Any person legally liable to maintain a child who, while able to do so, fails to provide that child with adequate food, clothing, lodging and medical aid, is also guilty of an offence.
The maximum penalties upon conviction of any offence in terms of section 50 are a fine of R20 000,00 or imprisonment for a period of five years or both such fine and such imprisonment.
5.4.4 Reporting of suspected instances of ill-treatment, abuse or undernourishment of children
This manner of protecting children was an innovation of the Child Care Act, 1983. Although the duty to report initially rested only on medical and dental personnel (i.e. dentists, medical practitioners and nurses), the pool of obligated reporters has subsequently been widened considerably to include social workers, as also teachers and any persons employed by or managing children's homes, places of care or shelters. Section 42(1) now imposes a duty on any such person who examines, attends or deals with a child in circumstances giving rise to the suspicion that the child has been ill-treated or deliberately injured or suffers from a nutritional deficiency disease, immediately to notify the Director-General or any officer designated by him or her for this purpose, of those circumstances. The Director-General or the designated officer may then order the removal of the child concerned to a hospital or a place of safety, and must thereafter arrange that the child and his or her parents receive such treatment as may be determined by the Director-General or the said officer. Although failure to comply with these reporting obligations constitutes an offence, the classes of obligated reporters are exempt from all liability (both civil and criminal) in respect of any notification given in good faith in accordance with section 42.
Mandatory reporting of child abuse as required by section 42 of the Child Care Act is dealt with comprehensively in Chapter .... However, in a context where there is a serious lack of backup resources, mandatory reporting can heighten the vulnerability of children, and set them up for secondary abuse. It is absurd to keep expanding the range of people who are compelled to report, while doing nothing to attend to the failures in the child protection system which is supposed to be responding to reports. Further, we have two separate and unco-ordinated laws governing reporting, and a lack of proper procedures associated with either of them. The outcome of this is that confusion abounds, many people are ignoring the law, and the system is not working at all in most of the country.
It is also arguable that it makes no sense for every form of nutritional deficiency to be reported under this Act, and that reporting should in this case be confined to malnutrition which occurs as a component of abuse rather than a result of poverty. The latter type of case would be better dealt with in terms of primary health care and anti-poverty strategies. However, this argument may also be countered by the view that the idea should be to broaden, not narrow the scope of and protection afforded by a comprehensive new children’s statute.
In the proposed National Strategy on Child Abuse and Neglect (NSCAN), a call is made for an inter-disciplinary committee to be appointed to examine the whole issue of reporting from scratch, and to design a system for reporting - mandatory or otherwise - which takes account of the various ethical issues, roles and relationships involved and is properly geared to South African needs and realities. Obviously the Commission will benefit from some further specialist research, but time does not allow for it.
5.4.5 Necessary medical treatment of children
Where an operation or any treatment requiring parental consent is considered necessary for a child, and the parent or guardian refuses consent, or cannot be found, or is mentally unable to give consent, or is deceased, then the Minister may consent in his or her stead. The Minister acts on the report to this effect of a medical practitioner, provided that the Minister agrees with the opinion of the medical practitioner that the operation or treatment is indeed necessary. In an emergency situation, where the medical superintendent of a hospital (or the medical practitioner acting on his or her behalf) is of the opinion that an operation or medical treatment is necessary to preserve the child's life or to save him or her from serious and lasting injury or disability, and that the need for the operation or treatment is so urgent that it ought not to be deferred to obtain parental consent, such medical superintendent or practitioner may himself or herself supply the necessary consent.
In both the above cases, the person who is obliged to maintain the child is liable for the cost of the operation or treatment.
5.4.6 Commercial sexual exploitation
The aim of the insertion of a new section 50A in the Child Care Act, 1983 on commercial sexual exploitation by the Child Care Amendment Act 13 of 1999 is to protect children subject to this form of abuse. ‘Commercial sexual exploitation’ is defined as the "procurement of a child to perform a sexual act for a financial or other reward payable to the child, the parents or guardian of the child, the procurer or any other person". The definition is in keeping with the definition agreed upon at the Stockholm World Congress.
The offence of commercial sexual exploitation of children is regulated by a new section 50A. This section reads as follows:
"(1) Any person who participates or is involved in the commercial sexual exploitation of a child shall be guilty of an offence.
(2) Any person who is an owner, lessor, manager, tenant or occupier of property on which the commercial sexual exploitation of a child occurs and who, within a reasonable time of gaining information of such occurrence fails to report such occurrence at a police station, shall be guilty of an offence.
(3) Any person who is convicted of an offence in terms of this section, shall be liable to a fine, or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment."
Two components of the section are intended to strengthen protections for children who are subject to commercial sexual exploitation. The first is by the creation of an offence to criminalise participation in the commercial sexual exploitation of a child. This makes the client’s actions subject to criminal sanctions, in sharp contrast to the situation under the Sexual Offences Act 23 of 1957. Secondly, subsection (2) targets the owner, lessor, manager or occupier of property on which child prostitution is taking place who, whilst being aware of such occurrences, fail to report this to the police.
The definition of ‘commercial sexual exploitation’ is obviously critical. The definition as adopted in the Child Care Act refers to the notion of procurement of a child, a concept which does not appear elsewhere in the Act, but one which echoes the terminology of section 9 of the Sexual Offences Act 23 of 1957. The dictionary definition of procurement is the acquisition or obtainment or getting of something (in this instance a child’s sexual services). However, the meaning of procurement in the context of section 9 of the Sexual Offences Act has not been the subject of judicial consideration before. This may be problematic in interpreting the new definition and offences created by the amendment to the Child Care Act.
It seems that the prohibition in the Sexual Offences Act targets the parents or guardian who permits or ‘gets’ his or her child to enter into one or more of the forbidden activities. The word ‘procure’, as it is used in the Sexual Offences Act, therefore relates to the provision of the child’ sexual services, rather than the receipt thereof. This interpretation is strengthened by the last phrase, which confirms that the procurer is not the so-called ‘client’, but is the offending parent or guardian. According to Sloth-Nielsen and Loubser this is possibly not congruent with the dictionary meaning of the word ‘procure’, and the word therefore has a meaning specific to the context of the prohibition against parents or guardians who allow or offer their child for unlawful carnal intercourse or other immoral or indecent acts. They further submit that the usage of the word ‘procure’ in the Act is probably incorrect, given the ordinary meaning of the word.
It is also important to point out that the definition of ‘commercial sexual exploitation’ omits any reference to attempted procurement, which is included in comparable provisions of the Sexual Offences Act, as well as the reference to parents or guardians permitting a child to be procured. The fact that the definition of ‘commercial sexual exploitation’ in the Child Care Act refers only to (completed) procurement therefore seems more limited than the equivalent provision in the Sexual Offences Act. In addition, the focus of the definition, given the dictionary definition of ‘procure’ (i.e acquire, obtain or get) seems to be (in the view of Sloth-Nielsen and Loubser) directed at the procurer (‘client’), rather than the individual offering a particular child for commercial sexual exploitation (be it a parent or a pimp). There is therefore a shift in emphasis, and Sloth-Nielsen and Loubser submit that the meaning of procurement in section 50A of the Child Care Act is consequently different from the usage of ‘procure’ in the Sexual Offences Act.
Sloth-Nielsen and Loubser further state that it is questionable whether a parent or sibling who offers a child for commercial sexual purposes at a traffic light, or outside a nightclub would be committing an offence in terms of the new provision. The act in question is not necessarily covered by the definition which refers to commercial sexual exploitation as being constituted by the procurement (which signifies a completed transaction on the part of the ‘client’). If this is so, the question must then be posed whether the actions of an ‘offeror’ are nevertheless covered by the criminal prohibition created by section 50A. This would depend on whether the actions of the person offering the child for commercial sexual exploitation purposes can be regarded as ‘participating in’ or being ‘involved in’ commercial sexual exploitation of a child. The offeror can probably be held liable if a transaction is actually concluded with a procurer, but the client has been found, the offer refused, or the transaction interrupted. In other words, the parent or sibling who is merely offering a child’s sexual services would probably not be liable unless a client had been found. At most, the actions described above would be an attempt. This possible lacuna would have been addressed had the previous wording been retained, making it explicit that both the offering and obtaining of a child’s sexual services constituted commercial sexual exploitation.
Even under the proposed new definition, though, other actors who play a role in facilitating commercial sexual exploitation - brothel owners and escort agency managers or other go-betweens who allow children to operate as ‘independents’ under the aegis of their business - would be hard pressed to escape criminal liability. In the view of Sloth-Nielsen and Loubser, putting children on the agency books as it were, is tantamount to procurement itself, or at the very least participating in commercial sexual exploitation of children, and these activities would fall squarely within the ambit of the new provisions. This interpretation is strengthened by the fact that the definition refers to rewards payable to the child, which removes the possible defence that the child is engaging independently in sexual transactions, and that the brothel keeper or escort agency owner is merely a silent partner.
Sloth-Nielsen and Loubser indicate that the new provisions do bring about significant improvements. For the first time, the emphasis now falls on commercial sexual exploitation rather than proscribing prostitution, with its connotations of immoral yet often semi-voluntary conduct, and the long history of penalising the prostitute rather than the client. A second beneficial aspect is the reference in the definition to the involvement of children in any ‘sexual act’, which is admittedly broad, but replaces previously outdated and narrow definitions in comparable legislation. For example, section 9 of the Sexual Offences Act referred to above, applies the offence to ‘acts of unlawful carnal intercourse or any immoral or indecent act’ where children have been procured. The broader and simpler reference to sexual act opens the door to the consideration of a broad variety of exploitive activities concerning children. Involving children in self-masturbation or as third party voyeurs would now fall within the definition, whereas this is arguably not the case under the Sexual Offences Act. Another positive point is the extension of liability to owners, tenants, managers and occupiers of property who conduce to the trade in child sex on their premises. Sanctions have arisen in recent times where the state has been powerless to act against this set of profiteers in the commercial sexual exploitation industry. The new obligation to report, tied to hefty criminal sanctions, will undoubtedly encourage increased self-regulation amongst owners and occupiers of premises being used as so called budget hotels.
In conclusion Sloth-Nielsen and Louber suggest that the fact that the word procure and procurement have uncertain meanings depending on the context, may lead to legal uncertainty and ultimately a reluctance on the part of officials to arrest and prosecute where convictions may by uncertain. There is therefore a strong argument for the use of easily understood and clear language, especially given the rules that where criminal law provisions lack clarity, they must be narrowly interpreted in favour of the accused. The words offering, permitting or engaging a child for the purposes of commercial sexual exploitation are, for this reason, preferable.
Another matter which needs to be considered is the fact that the financial reward is a key element to the above definition of commercial sexual exploitation. A narrow interpretation of this requirement may limit the reward to money or something which has an ascertainable monetary value. This in turn may cause children or adults who have not received such a reward in relation to a child to fall outside of the ambit of this provision. However, there may also be circumstances where there is no remuneration, whether financial or in kind between the adult and child or between the adult and another adult with respect the child.
5.4.7 Unlawful removal of children
Two sections in the Child Care Act, 1983 have as its focus the protection of children from unlawful removal. Sections 51 and 52 of the Act reads as follows:
51 Unlawful removal of children
Any person who abducts or removes any child or pupil, or directly or indirectly counsels, induces or aids any child or pupil to abscond from any institution, place of safety or custody in which the child or pupil was lawfully placed, or knowingly harbours or conceals a child or pupil who has been so abducted or removed or has so absconded, or prevents him from returning to the institution, place of safety or custody from which he was abducted or removed or has absconded, shall be guilty of an offence.
52 Unlawful removal of foster child or pupil from Republic
Any person who without the approval of the Minister removes a foster child or pupil from the Republic shall be guilty of an offence.
South Africa acceded to the Hague Convention on the Civil Aspects of International Child Abduction, 1980 in 1996. This Convention seeks to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures for their prompt return to the country of their habitual residence, as well as to secure protection for rights of access. In South Africa the Office of the Family Advocate is designated as the central authority and as such is largely responsible for the implementation of the Convention.
5.4.8 Child labour
Despite the fact that child labour is a serious problem in South Africa and the fact that South African children have rights under both the Constitution and the UN Convention on the Rights of the Child to be protected against harmful or inappropriate labour, the statutory provisions regulating child labour are not very extensive. In terms of both section 52A of the Child Care Act and section 43 of the Basic Conditions of Employment Act 75 of 1997, it is a criminal offence to employ a child under the age of 15 years. Section 43 of the latter Act also makes it a criminal offence to employ a child in employment "(a) that is inappropriate for a person of that age; (b) that places at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development". Subject to the South African Constitution, all forced labour is prohibited and a person who, for his or her own benefit or for the benefit of someone else, causes, demands or imposes forced labour commits an offence.
As far as the Child Care Act is concerned, the Minister may, on conditions determined by him or her, by notice in the Gazette exclude any employment or any work from the provisions of section 52A(1). Exemption from the provisions of section 52A(1) may also be granted by the Minister to "any particular person, or persons generally".
5.4.9 Appeals / Reviews
A basic problem which sometimes adversely affects the quality of services provided by the children's courts is the difficulty of having an incorrect children's court decision reversed by a higher court. This problem was partially addressed in 1999 by the introduction of section 16A of the Child Care Act, 1983. It reads as follows:
An appeal shall lie against any order made or any refusal to make an order in terms of section 11, 15 or 38(2)(a), or against the variation, suspension or rescission of such order, to the competent division of the High Court of South Africa, and if brought, shall be noted and prosecuted as if it were an appeal against a civil judgement of a magistrate’s court.
The remedy of appeal is only available in a few, narrowly defined situations.
Orders of adoption or orders rescinding (terminating) adoption orders are subject to an appeal to the High Court. In terms of section 22(2) of the Act, an appeal against the order of adoption of the children's court can be brought by the parent or guardian of the adopted child. In terms of section 22(3), where the children's court has rescinded an order of adoption, an appeal against this termination of the order can be brought by a parent, guardian or adoptive parent who did not apply for the rescission. It is of course possible that the children's court might refuse an application to rescind one of its own adoption orders. Such a refusal can also be appealed against to the High Court.
The remedy of an appeal to a higher court is a sound one in the administration of justice. What is most unfortunate, therefore, is that this remedy is not available for other types of orders besides the adoption or those listed in section 16A.
Where a party wishes to challenge any other order made by the children's court, it is necessary to rely upon an attempt to persuade the high court to review the children's court decision. Review in South African law is a rather narrower remedy than an appeal, and it is also often more difficult to pursue successfully. In order to succeed in a review, the applicant party will have to show that a procedural irregularity was committed by the children's court. In practice, this is often difficult to achieve. As a result, children's court commissioners are aware that they are unlikely to be subject to scrutiny from higher courts. This is not a situation that is conducive to the best possible standards of the administration of justice, and it is also not in the best interests of the children who appear before children's courts.
It is submitted that the Act should be amended to allow for a broad right of appeal for any party to the proceedings who wishes to contend that a decision reached by the children's court was not in the best interests of the child who was the subject of the decision. This right of appeal should be available for any type of children's court order.
Generally, there is a need to impose more deadlines in the Act, together with effective sanctions for failure to meet them. However, there are situations where a more flexible approach may be called for. As an example of such a situation, one may consider the period between the opening and finalisation of a removal inquiry as discussed below.
Child commissioners who are particularly concerned about the serious interference with the child that deprivation of liberty represents tend to allow a maximum of about eight weeks between the initial appearance and the date set down for the inquiry. The purpose of having a delay between the two dates is to allow the designated social worker to undertake an investigation into the child's circumstances. If the child has come before the commissioner as a result of a section 254 (1) conversion of the case from a criminal court, then a delay of as little as two weeks may be quite appropriate because there will already be a fairly detailed social worker's report available in the form of the probation officer's pre-sentence report. But our research results indicate that many commissioners tend not to insist upon an early date for the inquiry. They thus do not bring much pressure to bear upon the social worker who is going to obtain the finalisation report into the child's background and circumstances.
Often, commissioners even allow the investigatory social worker to choose the date of the final hearing. This sometimes tends to mean that the time period between the opening and the finalisation of the inquiry stretches from about eight weeks until approximately sixteen to twenty-four weeks. Given the fundamental nature of a child's right to liberty and the reference to a right to a child's right to be detained"only for the shortest appropriate period time under section 28(1)(g) of the Constitution, any delay in finalisation of court proceedings is a matter for serious concern. In the meanwhile, the child often languishes in a place of safety. There, the child may be subject to bullying because of inadequate supervision, and with each day that passes without any certain resolution of his future, the temptation to abscond is likely to increase.
But, before one supports the approach of the stricter group of commissioners and criticizes those who take a more co-operative approach in regard to the social worker, one needs to be aware of how the interim period is sometimes utilised. Conscientious social workers try to use the interim period between the opening and finalisation of the children's court inquiry, not merely to report on the circumstances of the child, but also to engage in reconstruction services with the parents or guardian and the child in the hope of being able to recommend the happiest solution of all, namely, return of the child to his family group, rather than placement elsewhere. Even if the latter is on the cards, some of the most reputable institutions, such as Boys' Town, require one-week trial attendance periods or psychological assessment reports which, again, a conscientious social worker will try to achieve during the interim period so that she is in a position to recommend placement in a good institution. Many of the stricter group of children's court commissioners, in focussing exclusively upon the due-process gravity of dragging out their proceedings are, because of a lack of social work training and experience, giving inadequate weight to these kinds of considerations.
In fact, if the commissioner forms the impression that insufficient investigation, reconstruction or forward-planning has been undertaken by the investigating social worker in a section 13 inquiry, then it may be submitted that she needs to adopt either a leadership or supportive role and encourage the social worker to undertake further efforts. If need be, this should occur even at the expense of a remand of the inquiry date. It is clear that, when the work of the children's court is properly carried out, it often demands great skill in the balancing of due-process and welfare considerations.
A serious problem that tends to arise during the period between the opening and finalisation dates set by the children's court is that of the child absconding. In a study of the Durban children's court register for 1994, it was found that, out of a total of 553 cases dealt with by the court in that year, 30 were cases which had been transferred from the criminal courts and had got to the stage of an opening at the children's court. Of these 30, no fewer than 21 had subsequently been terminated without a finalisation of the inquiry because the child had absconded from the designated place of safety. In another of these cases the hearing was also aborted because the child concerned had committed a crime for which he had been charged in the period between the opening and finalisation dates set by the children's court.
The need for speedy processes, and the need to allow enough time for proper attempts at investigation and reconstruction by the social worker thus emerge as very significant but inherently conflicting considerations. Balancing these and, in appropriate cases, giving more weight to one or the other, are tasks which will often require great skill and sensitivity to a variety of considerations. The commissioner will also have to decide whether the best interests of the child require the commissioner to adopt a more pro-active or else passive work-style in relation to the efforts of the social worker during the period between the opening and finalisation of the inquiry. The absconding problem also raises the question of whether the new Children's Code should make provision for secure accommodation orders to be issued in appropriate cases.
Generally, the Act is deficient in that there is a lack of restriction as to how long inquiries can go on for. Cases frequently continue for many months. This often amounts to secondary abuse, especially in cases involving very young children, where time is of the essence for providing them with the bonding opportunities which are crucial for their normal development. It should be prescribed that once an inquiry is started nothing should prevent it from being completed as quickly as possible, and all concerned should commit themselves to the period set for the enquiry.
5.5 Provisions that affect (or could affect) children
5.5.1 Maintenance of children in need of care and contribution orders
A person or children's home is obliged to receive or resume the custody of any child under the Child Care Act. However, once a person or the management of a children's home has received or admitted a child placed in the custody of that person or sent to that children's home under the Act, that person or children's home (as the case may be) is deemed to have the custody of the child concerned and is obliged to maintain and care for him or her until
(a) the child dies; or
(b) the child is transferred to another custody or institution by order of the Minister; or
(c) the child is removed from the custody of that person or from that children's home by ministerial order; or
(d) any financial grant or contribution payable by the Minister towards the maintenance of the child is discontinued. These provisions do not affect any obligation imposed by any other law on any person to care for and maintain the child.
The Minister may, with the concurrence of the Minister of Finance, out of moneys appropriated by Parliament for this purpose, and on such conditions as may be prescribed, contribute towards the maintenance of any foster child by his or her foster parent, of any pupil in any institution, and of any child in any institution where such child has been admitted with the approval of the Director-General. The Minister may also, with the concurrence of the Minister of Finance, give approval for a grant to be paid to an organisation for the care of children (between the ages of one month and seven years) of bona fide working mothers who must of necessity work away from home, or bona fide work-seeking mothers. Place of safety grants for children detained in private (non-state) places of safety may be approved by a commissioner of child welfare, the amount of such grants being determined by the Minister with the concurrence of the Minister of Finance.
A contribution order (defined in section 1 as "an order for the payment or recurrent payment of a sum of money as a contribution towards the maintenance of a child in a place of safety or in any custody wherein he was placed under this Act or the Criminal Procedure Act, 1977") may be made against a parent or other person legally liable to maintain a child. Jurisdiction to make such an order depends on the respondent's residing, carrying on business or being employed within the court's jurisdiction. Where the respondent is outside the court's jurisdiction, but is resident in a "proclaimed country" within the meaning of section 1 of the Reciprocal Enforcement of Maintenance Orders Act 83 of 1963, a provisional contribution order may be made against him or her, which order then has the effect of a provisional maintenance order under that Act.
A contribution order may be enforced by ordinary execution, or by a garnishee order requiring the respondent's employer to deduct payments from his or her wages. In addition, a contribution order has the legal effect of a "maintenance order" under the Maintenance Act 23 of 1963, and failure to comply with it thus constitutes an offence under that Act. Payments under a contribution order are made, not to the person or the institution in whose custody the child is, but to an officer of the court. A contribution order may be varied, suspended, rescinded or reviewed after rescission by any children's court or magistrate's court in whose jurisdiction the respondent resides, carries on business or is employed, after completion of the prescribed inquiry or on application of the respondent. Appeal against the making, variation, rescission or revival of a contribution order lies to the High Court.
5.5.2 Legal representation for parents
The functioning of the children's courts would also be improved if the Act were amended in such a way as to entrench a clear right of legal representation (at State expense, if necessary) for certain adult parties. The adult parties who should be provided with representation would include biological parents (whether married or unmarried) and applicants for adoption. Other candidates might be foster parents, grandparents or other relatives, and perhaps even a non-related substitute parent who has become a 'relevant' caregiver for the child.
However, there is currently no guidance on the ethics and scope of the work done by legal practitioners in the children’s court, and prescripts might be needed. For example, in a recent case noted, lawyers appearing for a certain adult party instructed the latter to bar access to the child by her biological parents and told the party not to answer any questions or facilitate investigation by the social worker involved. The commissioner upheld these instructions. Lawyers are not presently precluded from resorting to technical procedural ploys where they wish to stall the outcome of a inquiry. The scope of their functions needs to be delimited.
5.5.3 Permanency Planning
One of the great challenges is how to provide a system of child care law that is accessible and flexible enough to cope the changes that occur in the lives of many children and yet promotes the security that tends to come from stable, longer-term relationships.
The main aim of permanency planning is to prevent multiple, temporary placements of children and to give children a sense of permanency. One very serious implication of permanency planning is the termination of parental responsibilities. When actively using the permanency planning approach as currently understood, therefore, the biological family has only a short time in which to rehabilitate before losing all control over the child. This is in order for the child to have a sense of permanency in her new situation. Permanency planning is not prescribed by the present Child Care Act, 1983.
In many foreign systems, permanency for the child implies either adoption or long-term foster-care where the foster family has some aspects of legal guardianship. Substitute family care is dealt with separately below.
Under the Child Care Act the maximum period that a children's court order can remain in effect for is two years. The original intention behind this limited time period was to pressurize the social worker and biological parents to engage in intensive reconstruction work. At the end of this two-year period, it was thought that the social worker and the biological parents should be able to evaluate the child's chances of either returning home or some other permanent plan being made. However, in practice, what seems to happen is that most children's court orders get renewed for further two year-periods and the social worker is theoretically expected to continue to provide reconstruction services to the biological parents for as long as the child is in substitute care, even if there is an ever-decreasing chance of the child returning home.
Although social workers are expected, in terms of current practice, to implement permanency plans for children, and although a strength of the present Act is its permanency planning orientation, children's courts often do not recognise either these plans or the service contracts drawn up with biological parents for their implementation. Later down the line, it often happens that neither the courts nor the relevant officials of Departments of Social Welfare recognise the need, where services to the family have failed to bear fruit over a specified period, to cease efforts towards rehabilitation and move towards settling the child with an alternative family. This negates the permanency planning orientation of the Act and sabotages social work services and the well-being of the child.
There is no legislation which either compels the provision of sufficient reconstruction services or provides for independent monitoring of the case leading to a proper decision about the time for termination of reconstruction services to the biological family and termination of parental rights over a foster child. The effect of the Ministry-controlled renewals is that biological parents are given forever to rehabilitate, and if they wish they may at any time stake a legal claim to their child, irrespective of how this destabilises the child's life.
The two-year period of children's court orders has thus failed to achieve its purpose. Different mechanisms are needed to compel sufficient reconstruction services and case monitoring. The court may need freedom to issue orders of, in some cases, longer than 2 years, in order to increase a sense of security for the child.
What emerges generally from the findings in regard to reconstruction services and permanency planning is a need for reform of the Child Care Act. New provisions must be promulgated which encourage a short, intensive period of reconstruction services, but in an integrated manner which brings the child and her family together for such services if this is feasible. If this fails to have the desired effect because of lack of progress and cooperation from the parents, then agencies and courts must become geared to switch to permanency planning.
Whilst it is necessary to avoid keeping children in limbo by several times renewing an original care order, it is also necessary to guard against leaving them unprotected because no action was taken at all when the original care order terminated. If the necessary report is not submitted to recommend renewal of an order, the order will then lapse, leaving a child unprotected and without financial support. Under the 1960 Act, once a child had been found " in need of care", he or she remained under state protection until discharged from the Act.
However, there is a high proportion of stable and satisfactory foster care placements which do not warrant bi-annual serial reports by social workers. The current requirement produces an immense administrative burden for social workers in the post-court phase the only purpose essentially of which is to ensure that the foster care grant is renewed. It is therefore submitted that, in order to release social workers for tasks that are generally more critical, the Child Care Act should be amended to allow for only one post-court report if a foster care placement is rated as not requiring further direct court monitoring. The children’s court, acting on the recommendation of the social worker, should be the forum required to make a ruling about whether a particular foster care placement merits such a single post-hearing report after the period of the initial children’s court order. This suggestion must be integrated with the earlier suggestion that in more problematic types of placement there should be much more, and not less, monitoring of the placement.
Section 16(3) (which deals with duration / extension of orders) has also caused problems by creating a distinction between pupils in schools of industries and reform schools on the one hand, and those in foster care or adoption on the other. It is possible to extend the legal protection of pupils in the first two types of placement to enable them to complete their education. This does not apply to those in residential or foster care - they may remain where they are and have a grant paid for them only if continuation of the placement is with their parents' as well as their own permission. There are cases in which this requirement is disadvantageous to the young person. Mental health workers have also made the point that in cases of mental disability in either the child or the parent there are specific problems with this section.
5.5.4 Reconstruction Services
As has been noted above, an important concept in social work is that of reconstruction services. Where a child has had to be removed from his parents, such services ideally involve regular visits by social workers to the child (in his institution) and to the parents (at home) for the purpose of intensive work aimed at rebuilding both the self-image of the parties concerned and, ultimately, the parent-child relationship. Overseas studies have shown that, where reconstruction services are properly and regularly carried out, they can gradually heal the parent-child relationship to the extent that it sometimes becomes possible to return the child to his family.
The Child Care Act needs to be amended from the point of view of requiring reconstructions services in appropriate cases with a view to avoiding or reducing the time span of removals of children with no permanent plan devised for their long-term future. Under the Act as presently framed there is a relatively weak emphasis upon the reconstruction services that are so vital in attempting to return institutionalised children to their families. Only in Regulation 15, under the belated title of "Reconstruction", does one find a brief instruction that the relevant Minister must be furnished with a social worker's report concerning "the possibility or desirability of restoring the child to the care of his parents" not later than three months before the expiry of a court order or an extension thereof. Information obtained during the course of our research indicates that the Minister often alter or extend children's court orders without obtaining a social worker's report at least three months beforehand. Such children are then subsequently dealt with illegally by the Minister concerned.
5.5.5 Adoption of children
The adoption of a child obviously has a dramatic effect on his or her legal position. The Child Care Act, 1983 contains numerous provisions on adoption and these are discussed fully elsewhere.
5.5.6 Leave of Absence from a Placement
Section 35 of the Child Care Act was intended to cover short periods of leave from where a child has been placed by a court order \ Ministerial extension thereof. Subject to specified requirements, it allows for the child to take a holiday with friends or even a biological parent, for example. However, this section has ended up, inappropriately, being the standard way of testing out the viability of a move of a child from an institution into foster care, or back into the care of the parents, before recommending an order of transfer.
In terms of the 1960 Act, this purpose was served by the issuing of a licence, which was operative for a maximum of two years. The licence could immediately be used, particularly in the case of a foster care placement, to apply for a foster care grant. But leave of absence as it now stands is not an arrangement which qualifies for state aid. The licence under the 1960 Act could be revoked if a serious problem arose and the child could be speedily returned to the children's home, whereas transfer under the current Act is a slow, bureaucratic process.
With the current "leave of absence" arrangement, the foster parent must maintain the child unassisted during the leave period. Only when a section 34 transfer order comes through, which generally takes months, can the foster parent apply for a foster grant, which then again takes months to come through. Welfare organisations cannot afford to finance these placements and many foster parents cannot afford to care for these children unaided. This scenario is a disincentive to foster care, and also a factor promoting placement breakdown, in a situation where we desperately need every foster home we can find. The omission of provision for release on licence was criticised when the 1983 Act came in and there have been calls for its return ever since. There has been considerable resistance to the concept from within the Department of Social Welfare, probably because of the administrative burden involved. The current system is no doubt easier for officials, but the old system worked far better for children and caregivers. An alternative strategy, although less satisfactory in terms of the time frames involved, would be to make provision for some form of state aid during any "leave of absence".
An additional problem is that under section 35(1)(b) a foster parent must agree to any period of leave of absence for a child under care of that parent. The foster parent can thus, for example, deny the child the opportunity to spend a holiday with the biological parents. This enables foster parents to sabotage the reconstruction process. The final decision in such situations should rest with the children’s court.
5.5.6 Absconder's Inquiries
According to section 38 of the Child Care Act, any child who has been placed by either a children's court or a juvenile court in the custody of a person or in any institution - meaning a place of safety, a children's home, a school of industries or a reform school - will be subject to an absconder's hearing if he or she runs away and is subsequently apprehended. Aside from the point (above) that a court should not usually be involved, the absconder's hearing as framed by section 38 of the Act gives rise to some serious points of concern. For one thing, it is laid down that at the hearing the commissioner of child welfare must simply 'interrogate' the child 'as to the reasons why he absconded.' There is no reference to any right of the child, for example, to have legal representation or to have any other person present acting on his or her behalf. It does not appear that the child even has a right to call witnesses who might be able to explain why he or she absconded. Surely, if the matter is serious enough for a court hearing, these basic rights should be specified in legislative form.
Another point of concern with absconder's hearings is the severely limited powers of the children's courts. According to section 38(2)(a) of the Act, the commissioner can do only one of two things after 'interrogating' the child. The commissioner may either order that the child be returned to the custody or institution from which she absconded or, 'if the commissioner is of the opinion that there are good reasons why the pupil or child could not be returned,' then the commissioner can only order that the child be kept in a place of safety 'pending any action by the Minister'. This is an example of the restricted powers which show the undeserved, secondary status of the children's courts as almost quasi courts that are unable to protect children from Ministerial bureaucracies. It seems entirely wrong that the children's court, having had its hearing, should not be able to offer a new, positive solution in respect of a child who has been found to have had good reasons for absconding.
It may well be that since the time when the child was originally placed in an institution the situation at home has improved or else some other factor may have arisen which makes a different placement from the original one appropriate. The children's court, surely, should be able to direct a new placement for the child in the light of new circumstances, rather than having to incarcerate the child in a place of safety awaiting, perhaps for a very long period of time.