SUBMISSION FOR INCLUSION IN THE DRAFT CHILDREN’S BILL
PREPARED BY LAWYERS FOR HUMAN RIGHTS AND THE NATIONAL CONSORTIUM FOR REFUGEE AFFAIRS
This submission aims to highlight the current draft Children’s Bill’s shortcomings in providing protection and care to foreign children in South Africa. It is important to recognise that migrant children are vulnerable, both as children and as migrants. It is LHR’s submission that the Bill fails to recognise specific vulnerabilities of certain categories of foreign children in need of care and assistance, for example, unaccompanied foreign minors and refugee children.
The current legal framework offers limited protection to foreign children, leaving them vulnerable to abuse and neglect. There is a large degree of uncertainty within the governmental and non-governmental child protection agencies about the legal and procedural position of foreign children. Although the Immigration Act. 13 of 2002 ("the Immigration Act") and Refugees Act, 130 of 1998 ("the Refugees Act") outline the rights and duties of foreigners in South Africa, it is inadequate in terms of the treatment and protection of foreign children. It is therefore important for the Children’s Bill, which will become the country’s principal childcare legislation, when enacted, to expressly include foreign children in its scope.
The current draft of the Children’s Bill deals with refugees and undocumented migrants in only two areas: foster care placements and trafficked children. In both cases the protection being suggested is haphazard and does not take into account the huge procedural gaps that challenge true access to protection for these children.
The Bill defines a child as "a child under the age of 18 years". In order to ensure certainty that the Bill indeed includes foreign children in its scope, LHR recommends that the definition be changed in the following way:
"Child means any child under the age of 18 years, regardless of nationality".
This important as, in our experience, governmental institutions often restrict access to services to South African citizens and permanent residents despite the constitutional- and other courts having clearly expressed that foreigners have the same fundamental rights as citizens unless the constitution itself provides otherwise.
One practical example was when Lawyers for Human Rights had to approach the Pretoria High Court to order the Commissioner of Child Welfare to open Children’s Court inquiries for unaccompanied foreign children in terms of Section 13 of the Child Care Act. The Commissioner refused to open the inquiries in part because the children were foreigners. His refusal was despite the Child Care Act’s definition of a child being neutral towards nationality and residence status, similar to the current draft’s definition.
See the following important Constitutional Court judgments:
In South Africa, the Constitution contains a number of rights to which any child, irrespective of their resident status in South Africa, are entitled to.
In addition to the Constitution, there are at least three statutes impacting on the rights of foreign children in South Africa. These are the Refugees Act 130 of 1998, Immigration Act 13 of 2000 and the Child Care Act 74 of 1983.
Domestic and international law recognise that refugee children are differently placed and have different requirements from other children. Refugee children obtain rights accorded to children generally, and as refugees specifically. Similarly, foreign children who are not eligible for refugee status also have needs specific to their circumstances, particularly in the context of the possible removal from the Republic. Unaccompanied refugee and foreign children are the legal responsibility of the government.
It is imperative that the Children’s Bill recognises the specific needs of refugee and other foreign children.
Section 21 of the first draft of the Children’s Bill contained certain rights relevant to refugee and foreign children. It is unfortunate that this section was omitted in the latest draft.
Therefore, LHR recommends that a section dealing with the specific rights of unaccompanied refugee and foreign children be added to the Bill. It could read as follows:
" Refugee and unaccompanied minors
(a) the rights set out in this Chapter,
LHR submits that the Children’s Courts are best placed to serve as an initial point of entry into the protection framework for foreign children.
This becomes particularly necessary in respect of issues relating to the determination of the residence status of the children and thereafter the departure and removal of children, declared as illegal foreigners in terms of the Immigration Act, from the Republic.
The Children’s Court must play a crucial role in ensuring access to justice for foreign children. This is important for a number of reasons.
Accordingly, LHR recommends the High Court should not have exclusive jurisdiction on matters relating to the departure and removal of a child from Republic, as presently provided for by section 45(3)(d) of the Bill.
Furthermore, LHR recommends that the Children’s Court’s authority to adjudicate matters, provided for in section 45(1) of the Bill be expressly extended to include
"any matter which relates to the manner in which children, who had been declared to be illegal foreigners in terms of the Immigration Act, are detained and removed from South Africa".
It appears from numerous reports, including the SAHRC, LHR, Human Rights Watch and others, that foreign children are regularly detained pending their removal in contravention of Section 28 the Constitution and that the provisions of the Child Care Act providing for the protection of children in need of care are being ignored when such children are foreigners.
In a recent high court application, LHR and the Centre for Child Law, had to approach the court to intervene in preventing the authorities from:
LHR, therefore, recommends that the following subsection be included as an additional order which the Children’s Court may make:
"An order instructing the circumstances when and the manner in which children, who had been declared to be illegal foreigners in terms of the Immigration Act, are detained and removed from the Republic."
A child is unaccompanied if no person can be found who by law or custom has primary responsibility for that child.
As mentioned in paragraph 4.1 hereinbefore, it is absolutely crucial that unaccompanied refugee and foreign children be recognised as children in need of care and protection, who are entitled to be dealt with in terms of Children’s Court proceedings.
To ensure that this happens at all relevant times, LHR recommends that the following subsection be added to section 150 of the Bill, which is the section that defines who are children in need of care and protection.
"(j) is an unaccompanied foreign child"