1. Why protect children's rights?
The inclusion in the Bill of Rights of a special section on the rights of the child was an
important development for South African children, most of whom had suffered under
apartheid for many years. Some had been detained without trial, tortured and assaulted;
many faced discrimination in healthcare, education and other areas.
Children need special protection because they are among the most vulnerable members of
society. They are dependent on others - their parents and families, or the state when these
fail - for care and protection.
As a result, the drafters of our Constitution have made children's rights a priority - and have
stated that the best interests of a child are the overriding concern when it comes to any
matter affecting him or her.
2. Section 28 - Children
Section 28 of the Bill of Rights, entitled "Children", says:
1. Every child has the right to -
a name and a nationality from birth;
family care or parental care, or to appropriate alternative care when removed
from the family environment;
basic nutrition, shelter, basic health care services and social services;
be protected from maltreatment, neglect, abuse or degradation;
be protected from exploitative labour practices
not be required or permitted to perform work or provide services that -
are inappropriate for a person of that child's age; or
place at risk the child's well-being, education, physical or mental health or
spiritual, moral or social development;
not be detained except as a measure of last resort, in which case, in addition to
the rights a child enjoys under sections 12 and 35, the child may be detained only for
the shortest appropriate period of time, and has the right to be -
kept separately from detained persons over the age of 18 years; and
is treated in a manner, and kept in conditions, that take account of the child's
age;
have a legal practitioner assigned to the child by the state, and at state
expense, in civil proceedings affecting the child, if substantial injustice would
otherwise result; and
not be used directly in armed conflict, and to be protected in times of armed
conflict.
2. A child's best interests are of paramount importance in every matter concerning
the child.
3. In this section 'child' means a person under the age of 18 years.
This section gives children the right to a name, citizenship and some form of care.
Children need food and shelter, and should be protected from abuse, neglect and
degradation. No child should work when under-age, or do work that would interfere
with his or her education or development.
Children should be jailed only as a last resort and should not have to share a cell with adults.
They should not take part in wars and should be protected during conflict.
The second sub-section, a very important clause, says a child's interests are the most
important consideration in any matter concerning the child.
3. Other rights
That the Bill of Rights has a section devoted to children does not mean that the rights in the
others sections do not apply to them too. The sections that deal with equality, human dignity,
religion and health - as well as many others - are especially relevant and also apply to
children.
4. The best interest of the child
The ‘best interests of the child’ standard is a very important standard that we must use to
measure everything that is done for a child. Sometimes it is difficult to decide what a child’s
best interests are, as you often have to weigh up different issues carefully.
In deciding what is in a child’s best interests in this situation, you should consider all factors,
including the child’s right to socialise (mix with other children), to live a ‘normal’ life, to
remain healthy and to learn and develop with other children.
5. New legislation
The Bill of Rights is not the only instrument the law uses to guard children's rights.
Legislation that provides specific protection for children includes:
the Child Care Act of 1983, which makes it a criminal offence if a person who has to
maintain a child doesn't provide the child with clothes, housing and medical care;
the Basic Conditions of Employment Act of 1997, which makes it illegal to employ a
child under 15;
the Domestic Violence Act of 1998, which defines different forms of domestic violence
and explains how a child can get a protection order against the abuser; and
the Films and Publications Act of 1996, which protects children from exploitation in
child pornography.
One example of new legislation passed in response to a Constitutional Court ruling - in this
case, the Fraser judgment - is the Natural Fathers of Children Born out of Wedlock Act of
1997.
It gives natural unmarried fathers - including those whose marriages are not recognised by
the state, for example Muslim and Hindu marriages - the statutory right to go to court to ask
for access, custody or guardianship of their children. The interests of the children are seen
as most important in deciding on custody or access to children.
The Children's Bill, which went before Parliament in 2003, is meant to replace the Child Care
Act of 1983. It aims to provide a holistic approach to the rights of all children.
