Part I – Children and South African law
- Chapter 1 – Introduction to child law
- Chapter 2 – Status of children
- Chapter 3 – Children in their social context
Part II – Sources of child law
- Chapter 4 – The Children’s Act 2005
- Chapter 5 – International law
Part III – The autonomous child and children’s rights
- Chapter 6 – Children’s rights
- Chapter 7 – Children’s autonomy
Part IV – The legal relationship between parents and other caregivers and children
- Chapter 8 – Parental responsibilities and rights
- Chapter 9 – Who has parental responsibilities and rights?
- Chapter 10 – Surrogacy
- Chapter 11 – Adoption
- Chapter 12 – Resolving disputes about children
Part V – State-supported parenting
- Chapter 13 – Partial care of children
- Chapter 14 – Drop-in centres
- Chapter 15 – Early childhood development
- Chapter 16 – Child-headed households
Part VI – Child protection
- Chapter 17 – Child protection registers
- Chapter 18 – Prevention and early intervention services
- Chapter 19 – Children in need of care and protection
Part VII – Alternative care for children
- Chapter 20 – Alternative care
- Chapter 21 – Foster care
- Chapter 22 – Child and youth care centres
Part VIII – Children and private international law
- Chapter 23 – Intercountry adoption
- Chapter 24 – International child abduction
- Chapter 25 – Trafficking
Table of cases
Table of statutes
There are few things that say as much about a society as how we deal with children. From a lawyer’s point of view, the laws a society enacts, and how it fulfils those laws, are particularly telling. It is obvious why we treat children differently from adults and why we should protect them – from themselves, from the world they live in, and from adults. Children lack the capacities and experience adults generally enjoy, they are usually smaller and frailer than adults, and they are therefore more vulnerable to abuse and exploitation. So it is our moral duty to protect children from maltreatment, abuse, neglect or degradation.
In our country, this is also a legal duty. Section 28 of our Bill of Rights enshrines the rights of children. That provision specifies that every child has the right ‘to be protected from maltreatment, neglect, abuse or degradation’. This is a right that every child can claim against the State. But the right can also operate horizontally. This means it implicates you and me. In this way, our Constitution gives express legal form to our moral duties – to protect and nurture children.
But our concern should not be only to protect children from harm. It should also be to value and respect children’s moral agency. South African law has in recent years rightly embraced an inspiring notion that has been developing since two great human rights Covenants were adopted in 1966. This is the idea that children enjoy rights independently from (and sometimes in opposition to) the rights of their parents and other care-givers. The child is not merely a derivative rights-bearer, or a subordinate constitutional citizen. He or she has independent rights.
The status of the ‘rights-bearing child’ was greatly enhanced when the Convention on the Rights of the Child was adopted in 1989. Soon after, the African Charter on the Rights and Welfare of the Child (1990) was adopted. These instruments of international law have rightly resonated into our law – as many judgments after 1994 have recognised. Parliament has done the same. The Preambles to most recent children’s statutes, in particular the Children’s Act 2005 and the Child Justice Act 2008, expressly avow that they are giving effect to our international child law obligations.
The relationship between the children’s rights in our Constitution and international law is well documented. The rights section 28 enumerates, like a child’s right to ‘family care or parental care’, the right to shelter and other basic needs, and the pivotal principle that a child’s ‘best interests’ are of paramount importance, have triggered important judgments. Section 28 obviously reflects our country’s obligation under international law to ‘respect and protect’ children’s rights. But our Constitution does not simply codify international child law. Our job as academics, practitioners and judges is to understand and grow the meaning of international child law in our particular setting.
Over the fine words and principles of the law hangs a grim reality. These are the horrific social conditions that blight the lives of too, too many South African children. Empty tummies, aching poverty, preventable disease (including HIV and AIDS), shockingly poor public education, uneven access to health care, and our country’s grossly inequitable wealth distribution mean that all too often our high words produce little practical good in children’s lives.
Our job as constitutional lawyers is to make our constitutional promises real – first, for our country’s children. This is not for cosy sentimental reasons. It is because children represent our future. They represent the promise of a society and a country in which things will be better than we, the present generation of adults, have made them. We owe them a chance to do better than we have done.
So South African child law must be measured not only as an abstract set of legal rules, but also by the extent to which we can use it as an instrument of social betterment in our children’s lives.
I am happy to have the chance to say these things in a foreword to Dr Lawrence Schäfer’s splendid new treatise. It comes into a niche in which there are already excellent overviews and commentaries. But none can claim to be as exhaustive and detailed as this. Not only does Dr Schäfer’s book have the virtue of massively careful detail. His work has the additional value of its commanding sweep – of statute, common law, case law, international instruments and practice. In addition, Dr Schäfer is pungent in his critique of the courts and of Parliament where he needs to be. I commend his book confidently to practitioners, scholars, my judicial colleagues and to the hardest-pressed in this hard field – the social workers, administrators, parents and volunteers who provide so much loving, professional care for our country’s children.
Constitutional Court of South Africa
30 September 2011
1 See Centre for Child Law v Minister for Justice and Constitutional Development 2009 (6) SA 632 (CC) at para 26, drawing on the majority judgment of the United States Supreme Court in Roper v Simmons 543 US 551 (2005).
It comes as a surprise to many South African lawyers who speak to their foreign counterparts that, since the coming into operation of the Children’s Act 38 of 2005, South African child law has, in several respects, been more advanced than child law in many developed, foreign countries. We can justifiably be proud of what we have achieved. However, there is no justification for complacency, for South African child law still faces many challenges. Foremost is the effective implementation of the Children’s Act and the Child Justice Act 75 of 2008. Another area of concern is the conflicting and confusing approaches to children’s autonomy. As the author of this book accurately states in chapter 1: “One of the weaknesses in contemporary South African law is that it does not have a coherent doctrine of how to regard the increasingly independent child.”
Further, many children suffer deprivation because their parents quite simply are financially unable to maintain them and South Africa’s under-developed welfare system provides an insufficient safety net for them. Although the socioeconomic circumstances of children, strictly, fall outside the purview of child law, these circumstances nonetheless have a direct impact on many aspects of child law. The dire socio-economic situation in which many children find themselves is abundantly illustrated by the sources the author cites in chapter 3 and reminds the reader that the law alone is an inadequate tool to address children’s problems. It simultaneously reminds the reader of the need to tailor child law in a manner that properly takes those problems and the lived reality of children into account.
The book also makes it abundantly clear that child law is one of the fields of law in which private and public law cannot be separated into neat compartments. Instead, public and private law rules influence, and are inter-dependent on, each other in many areas. Furthermore, the author shows that domestic and international child law must be integrated. Further valuable features of the book are that, apart from discussing black-letter law, the author puts recent developments into their historical context and provides comparative references in respect of several topics.
The book is of impressive scope and range, particularly considering that it is the work of a single author. It is a most welcome addition to the burgeoning number of sources on South African child law.
Professor Jacqueline Heaton, Department of Private Law, UNISA, Pretoria, South Africa
Lawrence Schäfer’s Child Law in South Africa is a tour de force, immensely wide-ranging and scholastic, but never pedantic. The work covers every possible aspect of South African child law whilst setting this law within its international and human rights context with masterly comparative analysis. A must for everyone interested in family or child law, not only in South Africa but in the wider context.
Dr Brigitte Clark, UEA Law School, University of East Anglia, Norwich, England
Lawrence Schäfer’s Child Law in South Africa is a comprehensive and in-depth (academic) analysis of all aspects of child law. . . . Although the main focus of the book is South African child law, which in itself is very exciting, the reader will find a significant comparative component in the book, and that makes it an excellent source of information for everyone who is interested in the subject of child law. . . . [It] also deals with children in international and conflict of laws contexts. Another aspect which goes beyond South African child law and makes the book appealing for the wider legal audience is that it shows how international law rules are becoming a component of a national legal system – a process that is currently taking place in many other countries. The undoubted merit of the book is also that, despite the complexity of the subject, it is very easy to read.
Professor Olga Khazova, Member of the Executive Council of the International Society of Family Law, Institute of State and Law, Russian Academy of Sciences, Moscow, Russia