Summary of the Children's Act, no. 38 of 2005 (With Amendments)
The Children's Act governs all the laws relating to the care and protection of children. It defines the responsibilities and rights of parents. It makes provision for the establishment of Children’s Courts and the appointment of welfare officers. It regulates the establishment of places of safety, orphanages and the rights of orphans and sets out the laws for their adoption. It also provides for the contribution of certain people towards maintenance. In most cases, the guiding principle is the best interests of the child.
 Who is allowed to look after a child?
Apart from the parents of a child, only maternity homes, hospitals, places of safety and children’s homes are allowed to receive and care for a child for a period longer than 14 days (unless they have legal consent from the Child Commissioner of a district). Even if a person thinks that it is in the child’s best interest to remove him or her from the parents, there are still legal procedures to follow. The Child Care Act allows for the removal of a child from the custody of parents by a policeman, social worker or person officially authorised by a Children’s Court or the Minister of Welfare, if they believe that the child is in need of care. The child is taken to a place of safety, and must then be taken to the Children’s Court as soon as possible to determine if he or she is need of care. The parents or guardian of the child must be informed of the court investigation that will take place.
 When is a child in need of care?
When children are removed from their parents, they must be brought before the Children’s Court as soon as possible. The Children’s Court will then hold an inquiry to determine if the child is in need of care and what the best way will be to resolve the problem.
Children are believed to be in need of care if:
- the child has no parents or guardians;
- the parents or guardians cannot be traced
- the child has been abandoned or is without visible means of support
- the child’s behaviour cannot be controlled by his or her parents or guardian;
- the child lives in conditions likely to cause his or her seduction, abduction or sexual exploitation or circumstances that may seriously harm his or her physical, mental or social well-being
- the child is in a state of physical or mental neglect; and/or
- the child has been physically, emotionally or sexually abused or ill-treated by his or her parents, guardian or custodian.
(The Act will soon be updated to include children who are victims of child labour, unaccompanied foreign children, children who are victims of trafficking, street children and children in child-headed households.)
 What happens at Children's Courts?
At the court inquiry, a social worker must present a report on the family background and circumstances (if relevant) as well as recommendations on what would serve the child best. The commissioner may also order that a medical doctor and/or psychologist examine the child and report to the court. The person from whose care the child was removed or who is named in the report will be given a chance to give their side of the story. The commissioner may order that the inquiry takes place in the absence of the child.
The court must then decide if the child must be:
- returned to his or her parents, under the supervision of a social worker;
- placed in foster care;
- sent to a children’s home; or
- sent to a school of industries (a school for the reception, care, education and training of children).
If children are removed from their parents and placed in foster care or one of the institutions, the parents normally have the right to visit their children.
The Court order usually lapses after two years, unless the Minister of Social Development extends it, but the court can specify a shorter period.
A child will only be returned to his or her parental home after a report by a social worker is submitted. When a child is returned, it will be under the supervision and direction of a social worker. The social worker may instruct the child, parents, or whole family to participate in programmes that can help them. If the situation at home does not improve, the social worker may again recommend the removal of the child.
|Once adopted, a child becomes the legal child of its adoptive parents, which means that the rights, duties and parental power of the natural parents are transferred to the adoptive parents. Informal arrangements for the care of a child do not constitute adoption – the formal procedure must be followed.
Various charitable or voluntary adoption agencies can help people who want to adopt, but they must be registered. Don’t trust any adoption agency that is not registered. It is a criminal offence to receive money for an adopted child.
Adoption agencies investigate the adoptive parents and have waiting lists. Though not only babies are adopted, adoption is limited to children under 18. Although transracial or transcultural adoption is not impossible, the religious and cultural background of the child is one of the factors that the Court will consider to determine if the adoption is in the best interest of the child.
 Who is allowed to adopt a child?
A child may be adopted by:
(The Act is due to change shortly to include partners in a permanent domestic life-partnership and persons who share a common household and form a permanent family unit. This will include same-sex partners. Provisions are also being made for non-South Africans to adopt South African children, but only under carefully monitored circumstances.)
In all cases, the applicants must still satisfy the Court that they are trustworthy and financially capable of caring for the child, and that the adoption will be in the child’s best interests.
If the natural parents of the child are living, they must consent to the adoption. Children over the age of ten must also agree to the adoption. Adoption agencies may have their own rules about who they help, e.g. that the prospective parents must be from a specific religious background.
The best interest of the child will always count most. The Court will not make any adoption order unless it received the prescribed report by a social worker who has investigated the interests of the child.
Consent to adopt a child is required from:
- both natural parents, unless the father of a child born out of wedlock is unknown or does not want anything to do with the child;
- the child him- or herself if he or she is older than 10 years; and/or
- foster parents who must also indicate that they do not want to adopt the child themselves.
Where the parent(s) is dead, mentally ill, unknown or has assaulted or ill-treated the child or withholds consent unreasonably, their consent is not required. A natural parent can withdraw his or her consent within 60 days. Therefore, the court will only make a final order after the expiry of the 60-day period.
It is possible to appeal against an adoption order, if good grounds exist. It is also possible for an adoption order to be withdrawn, but also only for a very good reason (For example, if the child is found to be mentally ill or suffering from a congenital illness and the adoptive parents can prove that they were unaware of the illness).
 What if a person doesn't want their child to be adopted?
Normally, both the natural parents of a child must consent to an adoption (if they are living), but in the following cases, consent is not required:
- if a parent is considered to be mentally ill;
- if the parent deserted their child or they cannot be located;
- if a parent abused their child or allowed their child to be abused (includes physical, emotional and sexual abuse);
- if the Court finds that a parent is withholding consent unreasonably.
In the following cases, the father’s consent is not required:
- if he failed to acknowledge himself as the father of a child or failed to take on parental duties;
- if the child was conceived out of wedlock as a result of an incestuous relationship;
- if the father of a child born out of wedlock was convicted of raping or assaulting the mother;
- If he fails to respond to a notice of consent to adoption within 14 days.
For more information, see the Natural Fathers with Children Born out of Wedlock Act.
 Contribution orders
The Court may make a contribution order against a person for the maintenance of their child if the child is brought before the Court for inquiry. This means that a defaulting parent can be ordered to contribute a sum of money or a recurrent sum of money to the support of their child if that child has been removed from their care. The contribution order works in the same way as a maintenance order, and the Court can direct defaulter’s employers to deduct payment from wages or from the proceeds from the sale of property. If a person has a contribution order against them and they move without notifying the Court, they will be guilty of a criminal offence! For more information, see the Maintenance Act.
 Prevention of child abuse
The following acts are all criminal offences:
- ill-treatment of a child;
- allowing ill-treatment of a child;
- abandonment of a child by a parent or guardian;
- failure to care for a child by a person who is legally liable to maintain them. This means that the parent, adoptive parent, foster parent or guardian must provide the child with adequate food, clothing, shelter and medical assistance;
- the commercial sexual exploitation of a child;
- allowing commercial sexual exploitation of a child to occur on your property;
- abducting or removing or assisting a child to abscond from any institution, place of safety or custody in which the child has been legally placed;
- removing a foster child from the country;
- employment of child under the age of 15 (unless permission has been granted by the Minister of Labour)