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  • Writer's pictureMyers Attorneys

Children and their rights

Everyone in South Africa is protected by the law and entitled to the rights contained in the Bill of Rights. Children are specifically and specially protected under Section 28 of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution) which contains children’s specific rights. The Children’s Act 38 of 2005 (hereinafter “the Act”) governs the laws concerning the care, contact and protection of children and the High Court of South Africa acts as the upper guardian of all children by enforcing these laws.

The Constitution and the Act define the term “child” as a person who is under the age of eighteen years. The first right a child is entitled to is that of a name and a nationality from birth. Children have the right to be cared for by their parents and/or their family. The right to be cared for extends to when a child is removed from the family environment (such as going to school). Furthermore, children have the right to basic nutrition, shelter, basic health care services and social services. There are a few protective rights that a child has which comprises of the rights to be protected from maltreatment, neglect, abuse or degradation and from exploitative labour practices.

Generally, where there is a right there is a responsibility and so, per Section 18 of the Act, every child has responsibilities which are age appropriate and which he or she is able to perform towards his or her family, community and state. A large portion of the Act legislates on who has parental responsibilities and rights, i.e. who has the right and responsibility to care, contribute to maintenance, maintain contact with, and act as a guardian of the child. The Act provides laws in respect of various scenarios such as surrogacy, sperm donors, adoption and scenarios where parents are divorced or live in different countries. The Act also makes provision for the appointment of social workers and childcare experts (welfare officers) and the establishment of places of safety, orphanages and the rights of orphans whilst it indicates the laws for adoption.

The Constitution mentions that a child’s best interests are of paramount importance in every matter concerning the child. The aforementioned is the principle applied in any legal matter to which a child is a party. We see this principle applied in both the Constitution and the Act when they protect and maintain a child’s adolescence by preventing a child from being used in direct armed conflict and from performing work or services that are age inappropriate or place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development. Moreover, by recognising the need a child has to engage in play and other age appropriate recreational activities which cumulatively assist in the child’s development. Another application of this principle can be found in the case of YG v State 2018 (1) SACR 64 (GJ) , in which the Constitutional Court heard a matter in which the defence of reasonable chastisement was used and is now to come to a decision on whether or not to prohibit the use of corporal punishment in the home and is to assess the Constitutionality thereof. What this means is that at present parents are allowed to use physical force (smack or spank) against their child for disciplinary purposes provided that the force they use is not extreme, but this could become illegal should the Court decide. The reason that the abovementioned defence and in turn corporal punishment is being challenged is due to a child’s right to human dignity; to be free from all types of violence whether from public or private sources; and the specific Constitutional Rights of children to be protected from maltreatment, neglect, abuse or degradation.

For all those who have a child in their family it is important to note that there is legal protection afforded to children even when they participate in criminal activity and have run-ins with the law. Children have a general right not to be detained except as a measure of last resort. If detained, there are further rights afforded to a child such as being kept separately from persons who are over the age of eighteen and to be treated according to their age.

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