It is common knowledge that one of the greatest ills plaguing our democracy is the neglect and abuse of children. Our Constitution entrenches children’s rights in our society, which include the right to safety and security, and parliament has given effect to such rights by enacting the Children’s Act, 34 of 2005 (“the Act”).
Chapter 9 of the Act (Sections 150 to 160) provides a proper legal framework to deal with situations where a child is in need of care and protection. The aim of this article is to inform the public of the circumstance when a child may be in need of care and protection and inform the public of a mechanism to combat situations where a child is in need of care and protection.
Section 150 of the Act stipulates that a child is in need of care and protection if, the child:
- Has been abandoned or orphaned and is without any visible means of support; • Displays behavior which cannot be controlled by the parent or care-giver;
- Lives or works on the streets or begs for a living;
- Is addicted to a dependence-producing substance and is without any support to obtain treatment for such dependency;
- Has been exploited or lives in circumstance that expose the child to exploitation;
- Lives in or is exposed to circumstances which may seriously harm the child’s physical, mental or social well-being;
- May be at risk if returned to the custody of the parent, guardian or care-giver of the child as 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 well-being of the child;
- Is in a state of physical or mental neglect; or
- Is being maltreated, abused, deliberately neglected or degraded by a parent, a care-giver, a person who has parental responsibilities and rights or a family member of the child or by a person under whose control the child is.
If a child falls into one of the categories listed in Section 150 or a person is concerned that they may fall within one of the categories, there are several steps can be taken to ensure the matter is properly investigated and the child protected by referring the matter to the Children’s Court in terms of Section 151 of the Act.
A referral in terms of Section 151 would request the court to order the investigation of the matter by a social worker and may further request that the child be removed to a place of safety pending the outcome of any investigation if necessary.
If investigations have concluded that a child is in need of care and protection, the court may make any order which is in the best interests of the child, which may be or include the following:
- Confirming that the person under whose control the child is may retain control of the child, if the court finds that that person is a suitable person to provide for the safety and well-being of the child;
- that the child be returned to the person under whose care the child was before the child was placed in temporary safe care, if the court finds that that person is a suitable person to provide for the safety and well-being of the child;
- that the person under whose care the child was must make arrangements for the child to be taken care of in a partial care facility at the expense of such person, if the court finds that the child became in need of care and protection because the person under whose care the child was lacked the time to care for the child;
- if the child has no parent or care-giver or has a parent or care-giver but that person is unable or unsuitable to care for the child, that the child be placedin-
- (i) foster care with a suitable foster parent;
- (ii) foster care with a group of persons or an organisation operating a cluster foster care scheme;
- (iii) temporary safe care, pending an application for, and finalisation of, the adoption of the child;
- (iv) shared care where different care-givers or centres alternate in taking responsibility for the care of the child at different times or periods; or
- (v) a child and youth care centre designated in terms of section 158 that provides a residential care programme suited to the child’s needs;
- that the child be placed in a facility designated by the court which is managed by an organ of state or registered, recognised or monitored in terms of any law, for the care of children with disabilities or chronic illnesses, if the court finds that-
- (i) the child has a physical or mental disability or chronic illness; and
- (ii) it is in the best interests of the child to be cared for in such facility;
- (iii) that the child be placed in a child and youth care centre selected in terms of section 158 which provides a secure care programme suited to the needs of the child, if the court finds-
- (i) that the parent or care-giver cannot control the child; or
- (ii) that the child displays criminal behaviour; • that the child receive appropriate treatment or attendance, if needs be at state expense, if the court finds that the child is in need of medical, psychological or other treatment or attendance;
- that the child be admitted as an inpatient or outpatient to an appropriate facility if the court finds that the child is in need of treatment for addiction to a dependence-producing substance; or
- interdicting a person from maltreating, abusing, neglecting or degrading the child or from having any contact with the child, if the court findsthat-
- (i) the child has been or is being maltreated, abused, neglected or degraded by that person;
- (ii) the relationship between the child and that person is detrimental to the child;
- (iii) the child is exposed to a substantial risk of imminent harm.
Any court order made by a Children’s Court in the circumstances described above must be aimed at securing stability in the child’s life and must be in the child’s best interests.
While any member of the public can approach the court in the interests of a child, as the circumstances of every situation differ from case to case, it is advisable that the person who intends to act in the interests of the child in question, approach a children’s law practitioner for proper advice and assistance.
Child neglect and abuse is an ever growing plague in society which can be properly addressed and quashed if members of the public are aware of the legal framework that exists to deal with it. Ultimately we must all assist in ensuring that the best interests of all children within the Republic are properly secured and catered for.