The placement of children in need of care and protection : a comparative study between South African Law and Dutch Law in the light of international standards

Abstract

All children have the right to feel secure and to be protected. The two human rights instruments which specifically purport to protect children are the United Nations Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child (1990). Since 1995 both South Africa and the Netherlands have been state parties to the former treaty. South Africa is also bound by the latter document, which was intended to provide an additional standard pertaining to children on the African continent, whereas the Netherlands is bound by the European Convention. Therefore both countries are required to incorporate these standards in their national legislation. This poses the question whether South Africa and the Netherlands are in compliance with their international obligations pertaining to the provisions in relation to children in need of care and protection. When the child's own family, even with the necessary support, is not able to adequately care for the child, it may be necessary for the child to be removed from the family environment. In removal cases the state is responsible for ensuring the child's safety and well-being by providing alternative care. However, the latter should, in principle, be of a temporary nature. As the protection of a child in need of care and protection generally cannot be considered in isolation of his or her family,1 all efforts should be made to maintain families together, unless this would be contrary to the child's best interests. Pertaining to the latter, Article 8 of the European Convention plays a significant role in the Netherlands and beyond European borders. The standards as provided in these treaties, together with the input of the Committee on the Rights of the Child and case law as developed by the European Court of Human Rights, form the backdrop against which the substantive and procedural law pertaining to children in need of care and protection in the two countries are tested. The present thesis explores specifically the position of children in need of care and protection in terms of South African law and Dutch law. First an inventarisation takes place 1 The phrase “his and her” is used for the purpose of readability and consistency and not “her and his”. However, it should not in any way be interpreted as a gender preference. v regarding the international and regional standards, on the basis of which it is ascertained which provisions offer a better protection for these vulnerable children and thus should prevail. Subsequently, the relevant provisions in the national legislation of South Africa and the Netherlands will be discussed in the context of comparative analysis. As a result thereof, some recommendations are formulated in which it is attempted to contribute to a possible improvement of the substantive and procedural provisions on a national level pertaining to both countries. The purpose of the latter is ultimately to provide a better protection for children in need of care and protection, as well as the realisation and enhancement of their rights in terms of international law.