Children’s Amendment Bill

What is it and why is it needed?

Children’s rights are protected internationally by the Geneva Declaration on the Rights of the Child, the United Nations Declaration on the Rights of the Child, the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, and they are recognised in the Universal Declaration of Human Rights. In South Africa, the Children’s Act 38 of 2005 is the legislation that gives effect to the rights of children as contained in the Constitution, complies with these declarations, and sets out principles relating to the care and protection of children. However, the South African social landscape has changed since the inception of the Children’s Act in 2005. The Children’s Amendment Bill aims to fill the gaps of the current Act and transform the enforcement of children’s rights. What are some of the gaps the Bill intends to fill and what are the changes you need to be aware of?

Protection for children

The Bill amends and inserts certain definitions into the Act that provide more inclusive protection to minor children. It further provides for children’s right to privacy and protection of information, and this is aligned to a number of other acts, most importantly the Films and Publication Act, 1996 and the Protection of Personal Information Act (POPIA).

Early childhood development

The Bill provides for early childhood development (ECD) centres to be established in each province, though how these will be financed remains to be determined.

Unmarried fathers

The rights of unmarried fathers are extended. In South Africa many parents are not married at the time of the birth of their child. This exposes unmarried fathers to certain risks and challenges which the Amendment Bill seeks to overcome. Unmarried fathers, unlike married fathers, do not automatically assume full parental rights and responsibilities. However, children have an inherent right to parental care. Another important section has been inserted stating that “a child who is the subject of a parental responsibilities and rights agreement (i.e., parenting plan), must be given the opportunity to express his or her views regarding the content of such agreement, provided he or she is of sufficient maturity and mental capacity to do so.” This subsection echoes the voice of the child and re-emphasises the importance of child participation.

Children’s Court

Changes have been made to the Children’s Court’s jurisdiction, which go beyond what is currently set out under section 45 of the Children’s Act. The amendment will allow the Children’s Court to hear matters concerning the guardianship of a minor child, meaning the High Court no longer has exclusive jurisdiction over guardianship matters. The appeal and review procedure remains in place and matters can be taken to the High Court after a decision has been reached in the Children’s Court. The main reason for extending the jurisdiction of the Children’s Court is to allow access to justice for all members of the public in line with our Constitutional values of access to justice, equality and fairness. In addition to the insertion of the various definitions and the amended section 45, the majority of the references to the Divorce Court (the High Court) throughout the Act have been replaced with a reference to the regional court. This, again, is due to the lower courts being more accessible and speedier in matters of litigation, emphasising the importance of greater access to justice. More specifically, the Bill gives the High Court and Children’s Court concurrent jurisdiction over the guardianship of a child.

The Children’s Court was created to protect and promote the rights of children. The following people can apply to the Children’s Court:

• A child whose rights are affected
• A child who is involved in a dispute about their rights
• Someone who is acting in the best interest of the child
• Someone acting on behalf of a child or person who cannot act for themself
• Someone acting on behalf of a group or class of persons
• Someone acting in the public interest

Through the enhanced powers of the Children’s Court, the government aims to strengthen the protection mechanisms afforded to children across South Africa. The Amendment Bill, introduced in the National Assembly in August 2020, has passed through Parliament and is in the process of being translated into all 11 official languages, after which it will be published and come into effect.

Children first

SD Law a firm of family attorneys in Cape Town and Johannesburg with deep experience of helping families in a variety of circumstances. We know the Children’s Act inside and out and always act in the best interests of the child, while also respecting the dignity of both spouses in a divorce case. If you would like to discuss divorce or have questions about your existing parenting arrangements, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• What happens when a child wants to live with their other parent?
• Children’s Amendment Bill
• Child Guardianship Explained
• Children and divorce
• Judge sends letter to young brothers in custody row

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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