Children in need of care and protection and their right to family life

Abstract

This study was influenced by the circumstances of children in need of care and protection. I conducted the study through a lens that takes the perspectives of “family life” seriously. Section 28(1)(b) of South Africa’s Constitution provides for the right to family care, parental care, or appropriate alternative care to a child who is removed from family life. This provision prioritises the nurturing and development of children in families. South Africa has a diversity of family models which provide family or parental care to children. Children also face various challenges and difficulties in the family environment, such as abuse, neglect, poverty, exploitation, and other traumatic experiences which make them more vulnerable and in need of care and protection. These circumstances are identified as grounds for mandatory intervention and often influence the decision by the children’s court to remove children. The study demonstrates how family care, parental care, or appropriate alternative care are provided in South Africa’s Children’s Act, enforced by the judiciary, and have evolved in practice. Unfortunately, the Children’s Act does not explicitly provide for families, family care and the responsibility of the state to assist families to enable them to function optimally. Government and stakeholders therefore lack guidance in their engagement with the family to address the plight of children in families or raise the quality of life of the family on a continuous basis. The social worker who conducts investigations into the circumstances of the child who is in need of care and protection, must facilitate the provision of prevention and early intervention services with a view to strengthening the family. Unfortunately, social workers sometimes abuse their powers by removing children without prioritising the support needed to keep them in families. Furthermore, the state’s assistance in supporting families may be challenging due to resource constraints, underspending on the state budget, and delay in the delivery of services. Before the children’s court decides to remove the child into alternative care it must, upon identifying a specific ground for mandatory alternative care intervention, conduct an investigation and hold an inquiry regarding the circumstances of the child. The parent and the child must have access to information and participate in the decision-making process. Once the decision to remove the child is reached, the children’s court can opt for different alternative care options. It is crucial to decide on alternative care of a nature and quality that resembles family life. Such care must enable the child and the parent to mutually enjoy each other’s company, as this is an essential element of family life. Thus, the state must put measures in place to ensure that the child establishes contact and has a continuous relationship with family members in view of possible reunification with the family. Alternative care must also provide permanency planning which must explore the option of reuniting the child with his or her family after removal, or adoption if reunification efforts fail. Although adoption is preferred upon failure of reunification efforts, it is challenged by policy and practice which, if not carefully considered, may impact on the right of the child to family life. South Africa has ratified the United Nations Convention on the Rights of the Child (CRC) and is bound to develop its policies in line with the CRC. It is an issue of concern as to whether the implementation of the Children’s Act goes far enough in meeting CRC standards or complying with the Constitution. Thus, the study is means of comparative research, which includes international standards and foreign jurisdictions, with the view of suggesting improvements for South African child legislation. Recommendations for the best possible options towards refining the Children’s Act are made. The proposed provisions could advance the reform of child and family services and thus make a difference in the lives of children in families.