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eJOURNAL OF THE INTERNATIONAL CHILD AND YOUTH CARE NETWORK (CYC-Net) – ISSN 1605-7406

ISSUE 37 FEBRUARY 2002 •  CONTENTS •  HOME PAGE

child legislation

Rights of SA children to be extended

A checklist of proposals prepared for Parliament this year

A review of South Africa’s Child Care Act, described as the most far-reaching initiative yet to empower and protect children, proposes lowering the age of majority from 21 to 18 and giving 12-year-olds the right to choose to have an Aids test. The review by the South African Law Commission suggests scrapping, as a legal defence against charges of assault, justifiable parental chastisement. It says an educational campaign should be launched to discourage abusive punishment.

It also says children should have more say in divorce proceedings and that it should become a criminal offence for any parent unreasonably to refuse the other parent access to a child. It proposes that the right to choose to have an Aids test should also apply to children younger than 12 who are sufficiently mature. Twelve-year-olds should also be able to give the go-ahead for medical treatment, except for operations.

The commission recommends that all children, regardless of their age, should have access to contraceptives and treatment for sexually transmitted diseases. It recognises the right of all girls to have abortions. It proposes that hospitals be given the right to keep children they suspect are being abused and the banning of harmful cultural practices such as unhygienic circumcision.
All South African children should have access to a special grant to protect them against absolute poverty. This money should be available with other grants to meet special needs and circumstances, the commission says.

The report suggests that tax concessions be offered to private clinics providing emergency services to destitute children. It says provinces should be required to set money aside every year for children who should be going to school but cannot afford the fees.

Project co-ordinator Noel Zaal described the report as an important milestone and the most far-reaching initiative yet to empower and protect children. He said it had become necessary to give younger children more responsibility, partly because Aids was claiming, the lives of many parents. Deputy Justice Minister Cheryl Gillwald said the recommendations were intended to serve the best interests of children. "Too often children are faceless and ignored because they are not considered worthy of having opinions or making decisions affecting their futures."

Other proposals include making it obligatory for medical practitioners who perform abortions on girls younger than 16 to report to the authorities any suspicions that the girls are being sexually abused. A child conceived by artificial insemination should be regarded as the legitimate child of the parent or parents and direct parentage should be established for children born through surrogacy.

The commission recommends that unmarried fathers be able to acquire parental responsibility by entering into an agreement with the mother. Certain categories of unmarried fathers should be vested with automatic parental rights: those who acknowledge paternity and support the child financially; those who have lived with the child’s mother for longer than a year after the birth; and those who care for the child on a regular basis.

Partners in a domestic relationship, not only married couples, should be able to acquire parental rights through an agreement with the other partner or on application to court.

The report suggests funds be provided for projects to stop child labour and that schools be required to report children suspected of being employed. Money or goods acquired through child labour should be subject to confiscation by the Assets Forfeiture Unit, it says.

The government should finance rehabilitation programmes for street children and child prostitutes. The commission invited opinions about whether it should be made a criminal offence for a parent or guardian to cause a child to beg. Provision is made for children to be freed for adoption without their parents’ consent if this is in the children’s best interests.

There is to be wide-ranging consultation about the recommendations before they are given to the Minister of Justice for consideration. They are then to be considered by cabinet before being put to parliament.