I recently dealt with a case where a child was classified by the CMR (Christian Social Council) as an abandoned baby in need of care and protection. This case, although very upsetting, is more common than most would think.
Children’s rights are entrenched in our Constitution and they include inter alia the right to safety and security and the right to family/parental care or to alternative care when removed from the family environment (Section 28(1)(b) of the Constitution). Parliament has given effect to these rights by enacting the Children’s Act 38 of 2005 (herein after “the Act”) later amended by Children’s Amendment Act 41 of 2007.
The Act makes provision for the regulation of children’s rights and also provides a legal framework for the situation where children are in need of care and protection.
Section 150 lists the grounds to determine if a child is in need of care and protection and this includes circumstances where a child:
• has been exploited or lives in circumstances that expose the child to exploitation;
• has been abandoned/orphaned and is without visible means of support;
• lives or works on the streets or begs for a living;
• is addicted to dependence – producing substance and is without any support to obtain treatment for such dependency;
• is in a state of physical or mental neglect;
• may be at risk if returned to the custody of the parent, guardian or care-giver of the child, where there is reason to believe that he or she will live in or be exposed to circumstances which may seriously harm the physical, mental or social wellbeing of the child;
• where the child is in a state of physical or mental neglect;
• lives in, or is exposed to circumstances which may seriously harm the child’s physical, mental or social wellbeing;
• is being neglected or abused by the caregiver or other person who has control over the child.
Where a child fits into one of these categories the matter must be referred to the Children’s Court (Section 155 of the Act) who will then conduct an investigation into the circumstances of the child. Before a child can be formally found to be in need of care and protection, a formal enquiry and hearing will have to be conducted by the children’s court. This includes the appointment of a social worker to investigate the circumstances of the child.
Unfortunately, our Children’s court structure is not built around a sense of urgency and it does take time to have the court to conclude a formal enquiry.
Should there be a situation where the immediate removal of a child from his/her environment prior to obtaining the necessary authority is required, it can only be justified in a case of emergency where the child needs immediate emergency protection.
The applicable legislative provision for immediate removal is Section 152 of the Act and this allows any police official or social worker to remove a child from his/her current environment without first obtaining a court order.
Where the child is not in imminent danger (however the child’s situation is of concern) and it is not necessary to immediately remove the child, the correct procedure is for a children’s court magistrate to order an investigation into the circumstances of the child. The court will then appoint a social worker to do a thorough investigation and the court will consider the abovementioned criteria together with the social worker’s report and any other evidence the court may deem necessary (such as witness testimony) to determine if the child is in need of care and protection, and need to be removed from his/her environment.
After the social worker conducts an investigation and it is found that a child in not in need of care and protection, the court can still determine that the child and his/her family need to go for mediation, therapy or the matter can be postponed to monitor the situation (Section 46 and Section 156 of the Act).
All children have the right to feel safe, secure and to be protected against abuse and neglect. The abovementioned legislative instruments strive to protect children and safeguard their fundamental rights. Various professionals from different disciplines such as social workers, police officer, court clerks and children court magistrates need to work together effectively and interact constructively with each other to serve the children in need of care and protection.
Juanné Bester - Associate