a community child and youth care worker; and the head of a child-headed household. Although a kinship caregiver or relative is not expressly mentioned, it can be inferred from ‘a person who cares for a child with the implied or express consent of a parent or guardian of the child.’54 This interpretation accords with the CRC’s definition of a caregiver,55 which has further been elaborated upon by the CRC Committee as follows:
The definition of “caregivers”, referred to in article 19, paragraph 1, as “parent(s), legal guardian(s) or any other person who has the care of the child”, covers those with clear, recognized legal, professional-ethical and/or cultural responsibility for the safety, health, development and well-being of the child, primarily:
parents, foster parents, adoptive parents, caregivers in kafalah of Islamic law, guardians, extended family and community members; education, school and early childhood personnel; child caregivers employed by parents; recreational and sports coaches – including youth group supervisors; workplace employers or supervisors; and institutional personnel (governmental or non-governmental) in the position of caregivers for example responsible adults in health-care, juvenile justice and drop-in and residential-care settings. In the case of unaccompanied children, the State is the de facto caregiver.56
With reference to child protection generally, the main objectives of the Act include family preservation;
giving effect to children’s right to parental or family care, or alternative care, where necessary; ensuring the provision of social services to children; and protecting children from abuse, degradation, maltreatment, or neglect.57 Thus, the provision of alternative care for children deprived of a family environment forms a component part of a variety of services available for children under the broader child protection framework.58
The Children’s Court decides on whether a child is in need of care and protection if the child:
a. has been abandoned or orphaned and is without any visible means of support;
b. displays behaviour which cannot be controlled by the parent or care-giver;
c. lives or works on the streets or begs for a living;
d. is addicted to a dependence-producing substance and is without any support to obtain treatment for such dependency;
e. has been exploited or lives in circumstances that expose the child to exploitation; lives in or is exposed to circumstances which may seriously harm that child’s physical, mental or social well-being;
54 Sec 1, ‘care-giver’ (b).
55 Art 19(1) CRC.
56 CRC Committee GC 13 (2011) para 33. It will be recalled that some of these were discussed in previous chapters of this study based on the provisions of Articles 5 of the CRC and 20(1) of the ACRWC in ‘clear recognition of the fact that the extended family and other de facto care-givers play a role especially in traditional and rural communities in Africa.’ See sections 2.2.2, Chapter Two and 3.6.1, Chapter Three. See also Mezmur (2008) 25-26.
57 Sec 2(a)(b)(i)-(iii).
58 Dutschke M Defining Children’s Constitutional Right to Social Services – A Project 28 Working Paper (2006) 57. Other components of a child protection system include prevention and early intervention measures, family reunification services, and adoption. See Sloth-Nielsen J ‘Protection of Children’ in Davel CJ & Skelton AM Commentary on the Children’s Act (Revision Service 2, 2010) 7-2H.
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f. 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;
g. is in a state of physical or mental neglect; or
h. is being maltreated, abused, deliberately neglected or degraded by a parent, care-giver, a person who parental responsibilities and rights or a family member of the child or by a person under whose control the child is.59
A child in any of the circumstances listed above is automatically considered to be in need of care and protection. Where a police officer or social worker in an emergency situation is of the view that a child is in need of care and protection leading to a removal of the child from his parent, guardian or caregiver, the Constitutional Court has held that such removal is subject to automatic review by the a children’s court on the day following the removal. The decision was handed down in the case of C and Others & v Department of Health and Social Development, Gauteng & Others,60 the first case to challenge the constitutionality of the Children’s Act. This is to ensure that the children and families or caregivers involved get a chance to be heard thereby minimising the possibility of an incorrect action or decision on the matter, leading the court to order the inclusion of additions to the provisions of Sections 151 and 152 of the Children’s Act.61 The Constitutional Court noted that the absence of a provision on automatic review in the Act as ‘retrogressive’
considering that it was present in the old Child Care Act.62 The court noted that the removal, in appropriate circumstances, of a child from parental/family care, leading to placement in alternative is a limitation on the child’s right to parental/family care. However, the right to alternative care is a ‘secondary right, not an equivalent alternative right’; the right to parental/family care remains the primary right that should not be carelessly interfered with.63 Thus:
The coercive removal of a child from her or his home environment is undoubtedly a deeply invasive and disruptive measure. Uninvited intervention by the state into the private sphere of family life threatens to
59 Sec 150(1)(a)-(h).
60 *2012+ ZACC 1. See also Zaal FN, ‘A first finding of unconstitutionality regarding the Children’s Act 38 of 2005’ (2012) 75 Journal of Contemporary Roman-Dutch Law 168. This was in relation to the High court decision that preceded the Constitutional Court’s judgment.
61 C v Department of Health, paras 22-39.
62 C v Department of Health, para 17. Earlier in 2009, Gallinetti already pointed out that the omission is ‘highly prejudicial’ to children, as well as their parents or caregivers. See Gallinetti J, ‘The wisdom of Solomon: Removal of children as part of the child protection system in the Children’s Act 38 of 2005’ (2009) 23 Speculum Juris 54. See also Zaal FN, ‘Imperilling children and social workers? Preliminary care removals under the Children’s Act 38/2005’ (2008) Social Work Practitioner-Researcher 290; Zaal FN,
‘Child removal procedures under the Child Care Act: Some new dangers to contend with’ (1998) South African Law Journal 233;
Matthias & Zaal ‘Can we build up a better children’s court? Some recommendations for improving the processing of child-removal cases’ in Keightley (ed) Children’s Rights (1996) 53-54.
63 C v Department of Health, para 24; Skelton (2013) 605.
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rupture the integrity and continuity of family relations, and even to disgrace the dignity of the family, both parents and children, in their own esteem as well as in the eyes of their community. Both sections 151 and 152 of the Children’s Act authorise removals, yet neither section subjects removals to automatic review, which would enable the affected family, including the removed child, to make representations on whether removal was in the best interests of the child.64
In effect, the State should not arbitrarily ‘interfere with the integrity of the family,’65 and where the removal of a child from the family is contemplated, it requires an adequate degree of consideration in relation to the best interests of the child and the sanctity of the family.66
With reference to (f) above (returning a child to the care of a parent, guardian or caregiver), the Constitutional Court emphasised the importance of the quality of care available to children within the family environment in the case of van der Burg v National Director of Public Prosecutions.67 Although the focus of the case was the civil forfeiture of a home illegally used for the storage and sale of liquor, the court held that it was not in the best interests of the children to be raised in such an environment which exposed them to ‘circumstances which may seriously harm [their] physical, mental or social well-being’.68 This led the court to suo moto order an investigation as to whether the children concerned were in need of care and protection.69
Further, the Constitutional Court has developed jurisprudence with reference to children who become in need of care and protection due to lawful separation from their parent(s) or caregiver(s), arising from incarceration or the risk of custodial sentences.70 Since consideration has to be given to the provision of alternative care for the children involved, it was noted in the case of S v M that the best interests of children should not be ‘swallowed up’ or ‘subsumed’ when considering the culpability and sentencing regime for the caregiver concerned.71 The court developed a set of guidelines for the sentencing process to among others ensure that the interests of children of a person who faces a custodial sentence are
64 C v Department of Health, para 23.
65 C v Department of Health, para 24.
66 C v Department of Health, para 27.
67 [2012] ZACC 12.
68 van der Burg case, para 77.
69 Sec 155.
70 See secs 9(4) CRC & 30(1) ACRWC.
71 S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC) paras 30, 33.