CHAPTER 7

PROTECTION OF CHILDREN

 

Part 2

National Child Protection Register

Keeping of National Child Protection Register

111. (1) The Director-General must keep and maintain a register to be called the National Child Protection Register.

(2) The National Child Protection Register consists of a Part A and a Part B.

Confidentiality of National Child Protection Register

112. (1) All Parts of the National Child Protection Register must be kept confidential and information in the Register may be accessed and disclosed only as provided for in this Act.

(2) The Director-General must take adequate steps―

(a) to protect the information in the Register; and

(b) if the Register is kept in electronic format, to secure the Register from unauthorised intrusion.

Part A of Register

Purpose of Part A of Register

113. The purpose of Part A of the National Child Protection Register is―

(a) to have a record of abuse or deliberate neglect inflicted on specific children;

(b) to have a record of the circumstances surrounding the abuse or deliberate neglect inflicted on the children referred to in paragraph (a);

(c) to use the information in the Register in order to protect these children from further abuse or neglect;

(d) to monitor cases and services to such children;

(e) to share information between professionals that are part of the child protection team;

(f) to determine patterns and trends of abuse or deliberate neglect of children; and

(g) to use the information in the Register for planning and budgetary purposes to prevent the abuse and deliberate neglect of children and protect children on a national, provincial and municipal level.

Contents of Part A of Register

114. (1) Part A of the National Child Protection Register must be a record of―

(a) all reports of abuse or deliberate neglect of a child made to the Director-General in terms of section 105(5)(c)(iii);

(b) all convictions of all persons on charges involving the abuse or deliberate neglect of a child; and

(c) all findings by a children’s court that a child is in need of care and protection because of abuse or deliberate neglect of the child.

(2) Part A of the National Child Protection Register must reflect―

(a) in the case of reported incidents referred to in subsection (1)(a)―

(i) the full names, surname, physical address and identification number of the child;

(ii) the age and gender of the child;

    1. whether the child has a disability and if so, the nature of the disability;

    2. whether the child has a chronic illness and if so, the nature of the chronic illness;

(v) the nature and a brief account of the incident, including the place and date of the incident;

(vi) the full names, surname, physical address and identification number of the parents or care-giver of the child; and

(vii) the name and physical address of the other institution child and youth care centre, partial care centre or shelter or drop-in centre, if the incident occurred at such a place;

(b) in the case of a conviction referred to in subsection (1) (b)―

(i) the full names, surname, physical address and identification number of the child;

(ii) the age and gender of the child;

    1. whether the child has a disability and if so, the nature of the disability;

    2. whether the child has a chronic illness and if so, the nature of the chronic illness;

(v) the full names, surname, physical address, identification number and occupation of the convicted person;

(vi) the nature and a brief account of the charge and conviction, including the place and date of the incident of which the person was charged; and

(vii) details of the relationship between the convicted person and the child;

(c) in the case of a finding by a children’s court referred to in subsection (1)(c)―

(i) the full names, surname, physical address and identification number of the child;

(ii) the age and gender of the child;

    1. whether the child has a disability and if so, the nature of the disability;

    2. whether the child has a chronic illness and if so, the nature of the chronic illness;

(v) a brief summary of the court’s reasons for finding the child to be in need of care and protection;

(vi) information on the outcome of the court’s finding on the child;

(vii) the full names, surname, physical address and identification number of the parents or care-giver of the child; and

(viii) a brief summary of the services rendered to the child found to be in need of care; and

(d) any other information as may be prescribed by regulation.

Access to Part A of Register

115. Only the Director-General and officers of the Department designated by the Director-General have access to Part A of the National Child Protection Register, but the Director-General may, on such conditions as the Director-General may determine, allow access to―

(a) a provincial head of social development, or an official of a provincial department of social development designated by the head of that department, for the purpose of performing his or her functions in terms of this Act;

(b) designated child protection organisations;

(c) a member of the unit of the South African Police Service tasked with child protection; or

(d) any other person for the purpose of conducting research on child abuse or deliberate neglect or related issues: Provided that the information referred to in section 114(2)(a)(i) must be excluded.

Disclosure of information in Part A of Register

116. (1) No person may disclose any information in Part A of the National Child Protection Register except―

(a) for the purpose of protecting the interests, safety or well-being of a specific child;

(b) within the scope of that person’s powers and duties in terms of this Act or any other legislation;

(c) for the purpose of facilitating an investigation by the South African Police Service following a criminal charge involving abuse or deliberate neglect of a specific child;

(d) to a person referred to in section 117 on written request by such person; or

(e) when ordered by a court to do so.

(2) The general rule with regard to the disclosure of information in Part A of the Register is that it must be in the best interest of the child, unless the information is disclosed following on an inquiry in terms of section 117.

Inquiries on information in Part A of Register

117. (1) Anyone has the right, upon presentation of sufficient proof of his or her identity, to establish whether or not his or her name appears in Part A of the National Child Protection Register, and if so, the reasons why his or her name was entered in the Register.

(2) Inquiries in terms of subsection (1) whether a person’s name appears in Part A of the National Child Protection Register must be directed in the prescribed format to the Director-General on a confidential basis.

(3) The Director-General must respond to such inquiries in writing and indicate whether the relevant person’s name is in Part A of the Register within 21 working days.

Part B of Register

Purpose of Part B of Register

118. The purpose of Part B of the National Child Protection Register is to have a record of persons who are unsuitable to work with children and to use the information in the Register in order to protect children in general against abuse from these persons.

Contents of Part B of Register Compare clause 114 for consistency

119. Part B of the National Child Protection Register must be a record of persons found in terms of section 120 to be unsuitable to work with children, and must reflect the following:

(a) the full names and surname of the person;

(b) the last known physical address of the person;

(c) the identification number of the person;

(d) the fingerprints of the person;

(e) a photograph of the person, if available;

(f) a brief summary of the reasons why the person was found to be unsuitable to work with children;

(g) in the event of a person convicted of an offence against a child, particulars of the offence that he or she has been convicted of, the sentence imposed, the date of conviction and the case number; and

(h) any other information as may be prescribed by regulation.

Finding persons unsuitable to work with children

120. (1) A finding that a person is unsuitable to work with children may be made by―

(a) a children’s court;

(b) any other court in any criminal or civil proceedings in which that person is involved either as a party or a witness; or

(c) any forum established or recognised by legislation in any disciplinary proceedings concerning the conduct of that person relating to a child.

(2) A finding in terms of subsection (1) may be made by a court or a forum contemplated in subsection (1) of its own volition or on application by –

(a) an organ of state involved in the implementation of this Act;

(b) a prosecutor, if the finding is sought in criminal proceedings; or

(c) a person having a sufficient interest to protect children.

(3) The question whether a person is unsuitable to work with children may be heard by the court or legislative forum in disciplinary proceedings either in the course of or at the end of its proceedings.

(4) In criminal proceedings, a person must be found unsuitable to work with children―

(a) on conviction of murder, attempted murder, rape, sexual abuse or assault with the intent to do grievous bodily harm with regard to a child; and

(b) if a court makes a finding and gives a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977 (Act No. 55 of 1977) that the person is by reason of mental illness or mental defect not capable of understanding the procedures so as to make a proper defence or was by reason of mental illness or mental defect not criminally responsible for the act which constituted murder, attempted murder, rape, sexual abuse or assault with the intent to do grievous bodily harm with regard to a child.

(5) Any person that has been convicted of murder, attempted murder, rape, sexual abuse or assault with the intent to do grievous bodily harm with regard to a child during the five years preceding the commencement of this Chapter, is deemed to have been found a person unsuitable to work with children.

(6) A finding in terms of subsection (1)(b) that a person is unsuitable to work with children is not dependent upon a finding of guilty or innocent in the criminal trial of that person.

Enquire about current employers

Disputes concerning findings

121. The person in respect of whom a finding in terms of section 120 has been made may―

(a) appeal against the finding to a higher court, if the finding was made by a court, or

(b) have the finding reviewed by a court, if the finding was made by a forum contemplated in section 120(3).

Findings to be reported to Director-General

122. (1) The registrar of the relevant court, or the relevant administrative forum, or, if the finding was made on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing―

(a) of any finding in terms of section 120 that a person is unsuitable to work with children; and

(b) of any appeal or review lodged by the affected person.

(2) The Director-General must enter the name of a person found unsuitable to work with children as contemplated in section 120 in Part B of the Register―

(a) as soon as the time for noting of an appeal or review has expired; or

(b) if an appeal or review has been noted, as soon as the appeal or review proceedings have been concluded and the finding confirmed.

Consequences of entry of name in Part B of Register

123. (1) No person whose name appears in Part B of the National Child Protection Register may –

(a) manage or operate, or participate or assist in managing or operating, an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre, a cluster foster care scheme, a school, a club or association providing services to children;

(b) work with or have access to children at an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre, a school, a club or association providing services to children, or in implementing a cluster foster care scheme, either as an employee, volunteer or in any other capacity;

(c) be permitted to become the foster parent, kinship care-giver or adoptive parent of a child;

(d) work in any unit of the South African Police Service tasked with child protection; or

(e) work in any other form of employment or activity as may be prescribed.

(2) No person managing or operating or who participates or assists in managing or operating an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre or a school may allow a person whose name appears in Part B of the National Child Protection Register to work with or have access to children at the centre, facility, shelter or school, either as an employee, volunteer or in any other capacity.

(3) No designated child protection organisation may allow a person whose name appears in Part B of the National Child Protection Register to work with or have access to children on its behalf, either as an employee, volunteer or in any other capacity.

(4) The South African Police Service may not allow a person whose name appears in Part B of the Register to work in a unit of the Service tasked with child protection.

Disclosure of entry of name in Part B of Register

124. (1) If the name of a person is entered in Part B of the National Child Protection Register and that person―

(a) works with or has access to children at an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre or a school either as an employee, volunteer or in any other capacity, that person must disclose that fact to the person who manages or operates the institution, centre, facility, shelter or school;

(b) works with or has access to children on behalf of a designated child protection organisation either as an employee, volunteer or in any other capacity, that person must disclose that fact to the organisation; or

(c) works in a unit of the South African Police Service tasked with child protection, that person must disclose that fact to the South African Police Service.

(2) A person contemplated in subsection (1) who fails to disclose the fact that his or her name is entered in Part B of the National Child Protection Register is guilty of misconduct and his or her services may be terminated as a result thereof.

Access to Part B of Register

125. (1) Only the following persons have access to Part B of the National Child Protection Register:

(a) the Director-General;

(b) officers of the Department designated by the Director-General;

(c) a provincial head of social development;

(d) officers of the provincial department of social development designated by the provincial head of social development; and

(e) the manager or person in control of a designated child protection organisation dealing with foster care and adoption.

(2) The Director-General may, on such conditions as the Director-General may determine, allow officers of a provincial education department designated by the head of that department access to Part B of the Register for the purpose of implementing section 123 in relation to schools under the jurisdiction of that department.

Establishment of information in Part B of Register

126. (1) Before a person is allowed―

(a) to work with or have access to children at an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre or a school, the person managing or operating the institution, centre, facility, shelter or school must establish whether or not that person’s name appears in Part B of the National Child Protection Register;

(b) work with or have access to children on behalf of a designated child protection organisation, the organisation must establish whether or not that person’s name appears in Part B of the National Child Protection Register; or

(c) to work in a unit of the South African Police Service tasked with child protection, the Service must establish whether or not that person’s name appears in Part B of the National Child Protection Register.

(2) Within 12 months of the commencement of this chapter―

(a) the person managing or operating an institution, centre, facility, shelter or school contemplated in subsection (1)(a) must establish whether the name of any person who works with or has access to children at the institution, centre, facility, shelter or school appears in Part B of the National Child Protection Register;

(b) a designated child protection organisation contemplated in subsection (1)(b) must establish whether the name of any person who works with or has access to children on behalf of the organisation appears in Part B of the National Child Protection Register; and

(c) the South African Police Service must establish whether the name of any person who works in a unit of the South African Police Service tasked with child protection appears in Part B of the National Child Protection Register.

(3) Anyone has the right, upon presentation of sufficient proof of his or her identity, to establish whether or not his or her name appears in Part B of the National Child Protection Register, and if so, the reasons why his or her name was entered in the Register.

(4) Inquiries in terms of subsection (1), (2) or (3) whether a person’s name appears in Part B of the Register must be directed in writing to the Director-General on a confidential basis.

(5) In the event of an inquiry made to the Director-General in terms of―

(a) subsection (1), the Director-General must respond in writing within 21 working days by indicating whether the person’s name appears in Part B of the National Child Protection Register or not;

(b) subsection (2), the Director-General must respond in writing within six months days by indicating whether the person’s name appears in Part B of the National Child Protection Register or not;

(c) subsection (3), the Director-General must respond in writing within 21 working days by indicating whether the person’s name appears in Part B of the Register, and if so, the reasons why his or her name was entered in the Register.

Disclosure of names in Part B of Register prohibited

127. (1) No person may disclose the fact that the name of a particular person appears in Part B of the National Child Protection Register except –

(a) within the scope of that person’s powers and duties in terms of this Act or any other legislation;

(b) to a person or institution referred to in section 126(1), (2) or (3) on written request by such person or institution;

(c) when ordered by a court to do so; or

(d) when the disclosure is made to a person whose name appears in Part B of the Register.

(2) The general rule with regard to the disclosure of information in Part B of the Register is that it must be in the best interest of the child, unless the information is disclosed following on an inquiry in terms of section 126.

(3) The Director-General must inform a person found unsuitable to work with children when that person’s name and particulars are entered in Part B of the Register.

Removal of name from Register

128. (1) A person whose name appears in Part B of the National Child Protection Register may in terms of subsection (2) apply for the removal of his or her name and any information relating to that person from the Register.

(2) Application for the removal of a name and particulars from the National Child Protection Register may be made –

(a) to any court, including a children’s court;

(b) to the Director-General, if the entry was made in error; or

(c) to the High Court if the Director-General refuses an application in terms of paragraph (b).

(3) An application in terms of subsection (1) to remove a person’s name and particulars from Part B of the National Child Protection Register on the ground that the affected person has been rehabilitated, may only be made after at least five years have lapsed since the entry was made and after considering the prescribed criteria.

(4) The name and particulars of a person convicted of an offence with regard to any child more than once, regardless of whether the convictions occurred on the same day or not, may not be removed from Part B of the National Child Protection Register.

Part 3

Protective measures relating to health of children

Consent to medical treatment and surgical operations

129. (1) Subject to section 5(2) of the Choice on Termination of Pregnancy Act, 1996 (Act No. 92 of 1996), a child may be subjected to medical treatment or a surgical operation only if consent for such treatment or operation has been given in terms of either subsection (2), (3), (4), (5), (6) or (7).

(2) A child may consent to his or her own medical treatment or to the medical treatment of his or her child if―

(a) the child is over the age of 12 years; and

(b) the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the treatment.

(3) A child may consent to the performance of a surgical operation on him or her or his or her child if―

(a) the child is over the age of 12 years;

(b) the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the surgical operation [treatment]; and

(c) the child is duly assisted by his or her parent or guardian.

(4) The parent, guardian or care-giver of a child may, subject to section 31, consent to the medical treatment of the child if the child is–

(a) under the age of 12 years; or

(b) over that age but is of insufficient maturity or [does not have the mental capacity] to understand the benefits, risks and social implications of the treatment.

(5) The parent or guardian of a child may, subject to section 31, consent to a surgical operation on the child if the child is–

(a) under the age of 12 years; or

(b) over that age but is of insufficient maturity or [does not have the mental capacity] to understand the benefits, risks and social implications of the operation.

(6) The superintendent of a hospital or the person in charge of the hospital in the absence of the superintendent may consent to the medical treatment of or a surgical operation on a child if―

(a) the treatment or operation is necessary to preserve the life of the child or to save the child from serious or lasting physical injury or disability; and

(b) the need for the treatment or operation is so urgent that it cannot be deferred for the purpose of obtaining consent that would otherwise have been required.

(6) The Minister may consent to the medical treatment of or surgical operation on a child if the parent or guardian of the child―

(a) unreasonably refuses to give consent or to assist the child in giving consent;

(b) is [physically or mentally] incapable of giving consent or of assisting the child in giving consent;

(c) cannot readily be traced; or

(d) is deceased.

(7) A High Court or children’s court may consent to the medical treatment of or a surgical operation on a child in all instances where another person that may give consent in terms of this section refuses or is unwilling or unable to give such consent

(8) No parent, guardian or care-giver of a child may refuse to assist a child in terms of subsection (3) or withhold consent in terms of subsections (4) and (5) by reason only of religious or other beliefs, unless that parent or guardian can show that there is a medically accepted alternative choice to the medical treatment or surgical operation concerned.

HIV-testing

130. (1) Subject to section 132, no child may be tested for HIV except when–

(a) it is in the best interest of the child and consent has been given in terms of subsection (2); or

(b) the test is necessary in order to establish whether –

(i) a health worker may have contracted HIV due to contact in the course of a medical procedure involving contact with any substance from the child’s body that may transmit HIV; or

(ii) any other person may have contracted HIV due to contact with any substance from the child’s body that may transmit HIV, provided the test has been authorised by a court.

(2) Consent for a HIV-test on a child may be given by –

(a) the child, if the child is –

(i) 12 years of age or older; or

(ii) under the age of 12 years and is of sufficient maturity to understand the benefits, risks and social implications of such a test;

(b) the parent or care-giver, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a test;

(c) the provincial head of social development, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a test;

(d) a designated child protection organisation arranging the placement of the child, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a test;

(e) the superintendent or person in charge of a hospital, if –

(i) the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a test; and

(ii) the child has no parent or care-giver and there is no designated child protection organisation arranging the placement of the child; or

(f) a children’s court, if –

(i) consent in terms of paragraph (a), (b), (c) or (d) is unreasonably withheld; or

(ii) the child or the parent or care-giver of the child is incapable of giving consent.

HIV-testing for foster care or adoption purposes

131. If HIV-testing of a child is done for foster care or adoption purposes, the state must pay the cost of such tests where circumstances permit.

Counselling before and after HIV-testing

132. (1) A child may be tested for HIV only after proper counselling, by an appropriately trained person, of –

(a) the child, if the child is of sufficient maturity to understand the benefits, risks and social implications of such a test; and

(b) the child’s parent or care-giver, if the parent or care-giver has knowledge of the test.

(2) Post-test counselling must be provided by an appropriately trained person to –

(a) the child, if the child is of sufficient maturity to understand the implications of the result; and

(b) the child’s parent or care-giver, if the parent or care-giver has knowledge of the test.

Confidentiality of information on HIV/AIDS status of children

133. (1) No person may disclose the fact that a child is HIV-positive without consent given in terms of subsection (2 ), except –

(a) within the scope of that person’s powers and duties in terms of this Act or any other legislation;

(b) when necessary for the purpose of carrying out the provisions of this Act;

(c) for the purpose of legal proceedings; or

(d) in terms of an order of a court.

(2) Consent to disclose the fact that a child is HIV-positive may be given by –

(a) the child, if the child is –

(i) 12 years of age or older; or

(ii) under the age of 12 years and is of sufficient maturity to understand the benefits, risks and social implications of such a disclosure;

(b) the parent or care-giver, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a disclosure;

(c) a designated child protection organisation arranging the placement of the child, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a disclosure;

(d) the superintendent or person in charge of a hospital, if –

(i) the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a disclosure; and

(ii) the child has no parent or care-giver and there is no designated child protection organisation arranging the placement of the child; or

(e) a children’s court, if –

(i) consent in terms of paragraph (a), (b), (c) or (d) is unreasonably withheld and disclosure is in the best interest of the child; or

(ii) the child or the parent or care-giver of the child is incapable of giving consent.

Access to contraceptives

134. (1) No person may refuse―

(a) to sell condoms to a child over the age of 12 years; or

(b) to provide a child over the age of 12 years with condoms on request where such condoms are provided or distributed free of charge.

(2) Contraceptives other than condoms may be provided to a child on request by the child and without the consent of the parent or care-giver of the child provided―

(a) the child is at least 12 years of age;

(b) proper medical advice is given to the child; and

(c) a medical examination is carried out on the child to determine whether there are any medical reasons why a specific contraceptive should not be provided to the child.

(3) A child who obtains condoms, contraceptives or contraceptive advice in terms of this Act is entitled to confidentiality in this respect, subject to section 105.

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Regulations

142. The Minister may make regulations in terms of section 299―

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(g) prescribing the manner and format in which the National Child Protection Register must be established and maintained;

(h) prescribing criteria for finding persons unsuitable to work with children;

(i) prescribing the procedure to be followed and the time periods to be adhered to when reporting a finding that a person is unsuitable to work with children to the Director-General;

(h) prescribing criteria for the assessment of applications for the removal of names of persons from Part B of the National Child Protection Register; and

(i) prescribing any other matter necessary to facilitate the implementation of this Chapter.

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CHAPTER 9[10]

CHILD IN NEED OF CARE AND PROTECTION

Part 1

Identification of child in need of care and protection

Child in need of care and protection

150. (1) A child is in need of care and protection if, at the time of referral in terms of section 47 or reporting in terms of section 105, the child –

(a) has been abandoned, orphaned or is without any visible means of support;

(b) displays behaviour which cannot be controlled by the parent or care-giver;

(c) lives or works on the streets or begs for a living;

(d) is addicted to a dependence-producing substance and is without any support to obtain treatment for such dependency;

(e) has been exploited or lives in circumstances that expose the child to exploitation;

(f) lives in or is exposed to circumstances which may seriously harm that child’s physical, mental or social well-being;

(g) may be at risk if returned to the custody of the parent, guardian or care-giver of the child as there is reason to believe that he or she will live in or be exposed to circumstances which may seriously harm the physical, mental or social well-being of the child;

(h) is in a state of physical or mental neglect; or

(i) is being maltreated, abused, deliberately neglected or degraded by a parent, a care-giver, a person who has parental responsibility or a family member of the child, or by a person under whose control the child is.

(2) A child found in the following circumstances may be a child in need of care and protection and must be referred for investigation by a designated social worker in terms of section 155:

(a) a child who is a victim of child labour;

(b) an illegal unaccompanied foreign child;

(c) a refugee child;

(d) a street child; and

(e) a child in a child-headed household.

Removal of children to temporary safe care by court order

151. (1) If, on evidence given by any person on oath or affirmation before a presiding officer it appears that a child who resides in the area of that presiding officer is in need of care and protection, the presiding officer must order that the question of whether the child is in need of care and protection be referred to a designated social worker for investigation as contemplated in section 155(2) [a children’s court for decision] .

(2) A presiding officer issuing an order in terms of subsection (1) may also order that the child be placed in temporary safe care if it appears to the court that it is necessary for the safety and well-being of the child.

(3) When referring [In deciding] the question whether the child is in need of care and protection in terms of subsection (1) or when making an order in terms of subsection (2), the children’s court may exercise any of the functions assigned to it in terms of section 50(1) to (3).

(4) An order issued in terms of subsection (2) must identify the child in sufficient detail to execute the order.

(5) A person authorised by a court order may, either alone or accompanied by a police official –

(a) enter any premises mentioned in the order;

(b) remove the child from the premises; and

(c) on those premises exercise any power mentioned in section 50(3)(a) to (d).

(6) A police official referred to in subsection (5) may use such force as may be reasonably necessary to overcome any resistance against the entry of the premises contemplated in subsection (5)(a), including the breaking of any door or window of such premises: Provided that the police official shall first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter such premises.

(7) The person who has removed a child in terms of the court order must–

(a) without delay but within 24 hours inform the parent, guardian or [primary] care-giver of the child of the removal of the child, if that person can readily be traced; and

(b) not later than the first court day bring the matter to the clerk of the children’s court for referral to a children’s court in terms of section 68.

(8) The best interest of the child must be the determining factor in any decision whether a child in need of care and protection should be removed and placed in temporary safe care, and all relevant facts must for this purpose be taken into account, including the safety and well-being of the child as the first priority.

Removal of children to temporary safe care without court order

152. (1) A designated social worker or a police official may remove a child and place the child in temporary safe care without a court order if there are reasonable grounds for believing―

(a) that the child―

(i) is in need of care and protection; and

(ii) needs immediate emergency protection;

(b) that the delay in obtaining a court order for the removal of the child and placing the child in temporary safe care may jeopardise the child’s safety and well-being; and

(c) that the removal of the child from his or her home environment is the best way to secure that child’s safety and well-being.

(2) If a designated social worker has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the social worker must—

(a) without delay but within 24 hours inform the parent, guardian or [primary] care-giver of the child of the removal of the child, if that person can readily be traced;

(b) not later than the next court day inform the relevant clerk of the children’s court of the removal of the child.

(3) If a police official has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the police official must–

(a) without delay but within 24 hours inform the parent, guardian or [primary] care-giver of the child of the removal of the child, if that person can readily be traced;

(b) without delay but within 24 hours notify the provincial department of social development or a designated child protection organisation of the removal of the child and where the child has been placed in temporary safe care; and

(c) not later than the next court day inform the relevant clerk of the children’s court of the removal of the child and the provincial department of social development or the designated child protection organisation notified in terms of paragraph (b).

(4) The best interest of the child must be the determining factor in any decision whether a child in need of care and protection should be removed and placed in temporary safe care, and all relevant facts must for this purpose be taken into account, including the possible removal of the alleged offender in terms of section 153 from the home or place where the child resides, and the safety and well-being of the child as the first priority.

(5) Misuse of a power referred to in subsection (1) by a designated social worker in the service of a designated child protection organisation –

(a) constitutes unprofessional or improper conduct as contemplated in section 27(1)(b) of the Social Service Professions Act, 1978 (Act No. 110 of 1978) by that social worker; and

(b) is a ground for an investigation into the possible withdrawal of that organisation’s designation.

(6) Misuse of a power referred to in subsection (1) by a police official constitutes grounds for disciplinary proceedings against such police official as contemplated in section 40 of the South African Police Service Act, 1995 (Act No. 68 of 1995).

(7) Any person who removes a child must comply with the prescribed procedure.

Written notice to alleged offender

153. (1) A police official to whom a report as contemplated in section 105(1) or (2) or a request as contemplated in section 105(7) has been made, may, if he or she is satisfied that it will be in the best interest of the child if the alleged offender is removed from the home or place where the child resides, issue a written notice which –

(a) specifies the names, surname, residential address, occupation and status of the alleged offender;

(b) calls upon the alleged offender to leave the home or place where the child resides and refrain from entering such home or place or having contact with the child until the court hearing specified in paragraph (c);

(c) calls upon the alleged offender to appear at a children’s court at a place and on a date and at a time specified in the written notice to advance reasons why he or she should not be permanently prohibited from entering the home or place where the child resides: Provided that the date so specified shall be the first court day after the day upon which the notice is issued; and

(d) contains a certificate under the hand of the police official that he or she has handed the original of such written notice to the alleged offender and that he or she has explained to the alleged offender the importance thereof.

(2) The police official must forthwith forward a duplicate original of the written notice to the clerk of the children’s court.

(3) The mere production to the court of the duplicate original referred to in subsection (2) is prima facie proof of the issue of the original thereof to the alleged offender and that such original was handed to the offender.

(4) The provisions of section 55 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) apply, with the necessary changes, to a written notice handed to an alleged offender in terms of subsection (1).

(5) A children’s court before which an alleged offender to whom a written notice in terms of subsection (1) has been issued, appears, may summarily inquire into the circumstance which gave rise to the issuing of the notice.

(6) The court may, after having considered the circumstances which gave rise to the issuing of the written notice and after having heard the alleged offender–

(a) issue an order prohibiting the alleged offender from entering the home or place where the child resides or from having any contact with the child, or both from entering such home or place and having contact with the child, for such period of time as the court deems fit;

(b) order that the alleged offender may enter the home or the place where the child resides or have contact with the child upon such conditions as would ensure that the best interests of the child are served;

(c) order that the alleged offender will be responsible for the maintenance of his family during the period contemplated in paragraph (a); and

(d) make any other order with regard to the matter as the court deems fit.

(7) Misuse of a power referred to in subsection (1) by a police official constitutes grounds for disciplinary proceedings against such police official as contemplated in section 40 of the South African Police Service Act, 1995 (Act No. 68 of 1995).

Other children in need of care and protection

154. If there are reasonable grounds for believing that a child at the same place or on the same premises as [sibling of] a child placed in temporary safe care in terms of section 47, 151 or 152 is in need of care and protection, the person under whose care the child placed in temporary safe care is or the provincial head of social development [any of the following persons] may refer that child to a designated social worker for investigation as contemplated in section 155(2). [bring the sibling before the children’s court to determine whether the sibling is in need of care and protection:

(a) A designated social worker or authorised officer;

(b) a person under whose care the child placed in temporary safe care is; or

(c) the provincial head of social development.]

Part 2

Children’s court processes

Decision of question whether child is in need of care and protection

155. (1) A children’s court must decide the question of whether a child who was the subject of proceedings in terms of section 47, 151, 152 or 154 is in need of care and protection.

(2) Before the child is brought before the children’s court, a designated social worker must investigate the matter and compile a report on whether the child is in need of care and protection in such a format and containing such other information as may be prescribed.

(3) (a) If, after an investigation contemplated in subsection (2), the designated social worker finds that the child need not be referred to the children’s court, he or she must indicate the reasons for the finding in the report, which must be submitted to the children’s court for review.

(b) The designated social worker must indicate in the report the measures to be taken to assist the family if appropriate, including counselling, mediation, prevention and early intervention services, family reconstruction and rehabilitation, behaviour modification, problem solving and referral to another suitably qualified person or organisation.

(4) If, after an investigation contemplated in subsection (2), the designated social worker finds reasons for considering the child to be in need of care and protection, the child concerned must be brought before the court that has jurisdiction in [hearing] the matter.

(5) The children’s court hearing the matter may―

(a) adjourn the matter for a period not exceeding 14 days at a time; and

(b) order that the child, pending decision of the matter, must―

(i) remain in temporary safe care at the place where the child is kept;

(ii) be transferred to another place in temporary safe care;

(iii) remain with the person under whose control the child is;

(iv) be put under the control of a family member or other relative of the child; or

(v) be placed in temporary safe care.

(6) If the court finds that the child is in need of care and protection, the court may make an appropriate order in terms of section 156, taking into account the possibility of an order for early intervention services in terms of section 148.

(7) If the court finds that the child is not in need of care and protection, the court―

(a) must make an order that the child, if the child is in temporary safe care, be returned to the person in whose control the child was before the child was put in temporary safe care;

(b) may make an order for early intervention services in terms of section 148; or

(c) must decline to make an order, if the child is not in temporary safe care.

(8) When deciding the question of whether a child is a child in need of care and protection in terms of subsection (1) the court must have regard to the [a] report of the [a] designated social worker referred to in subsection (2)(a)[, which report must be in the prescribed format].

Orders when child is found to be in need of care and protection

156. (1) If a children’s court finds that a child is in need of care and protection the court may make any order which is in the best interest of the child, which may be or include an order―

(a) referred to in section 46;

(b) confirming that the person under whose control the child is may retain care of the child, if the court finds that that person is a suitable person to provide for the safety and well-being of the child;

(c) that the child be returned to the person under whose care the child was before the child was placed in temporary safe care, if the court finds that that person is a suitable person to provide for the safety and well-being of the child;

(d) that the person under whose care the child was make arrangements for the child to be taken care of in a partial care facility at the expense of such person, if the court finds that the child became in need of care and protection because the person under whose care the child was lacked the time to care for the child;

(e) if the child has no parent or care-giver or has a parent or care-giver but that person is unable or unsuitable to care for the child, that the child be placed in –

(i) court-ordered kinship care, if the child has a family member who is able, suitable and willing to be entrusted with the care of the child;

(ii) foster care with a suitable foster parent;

(iii) foster care with a group of persons or an organisation operating a cluster foster care scheme;

(iv) temporary safe care, pending an application for, and finalisation of, the adoption of the child;

(v) shared care where different care-givers or centres alternate in taking responsibility for the care of the child at different times or periods; or

(vi) a child and youth care centre designated in terms of section 158 that provides a residential care programme suited to the child’s needs;

(f) if the child lives in a child-headed household, that the child must remain in that household subject to section 136;

(g) that the child be placed in a facility designated by the court which is managed by an organ of state, or registered, recognised or monitored in terms of legislation, for the care of children with disabilities or chronic illnesses, if the court finds that–

(i) the child has a physical or mental disability or chronic illness; and

(ii) it is in the best interest of the child to be cared for in such facility;

(h) that the child be placed in a child and youth care centre selected in terms of section 158 which provides a secure care programme suited to the needs of the child, if the court finds –

(i) that the parent or care-giver cannot control the child; or

(ii) that the child displays criminal behaviour;

(i) that the child receive appropriate treatment or attendance, if needs be at state expense, if the court finds that the child is in need of medical, psychological or other treatment or attendance;

(j) that the child be admitted as an inpatient or outpatient to an appropriate facility if the court finds that the child is in need of treatment for addiction to a dependence-producing substance; or

(k) interdicting a person from maltreating, abusing, neglecting or degrading the child or from having any contact with the child, if the court finds that –

(i) the child has been or is being maltreated, abused, neglected or degraded by that person;

(ii) the relationship between the child and that person is detrimental to the well-being or safety of the child; or

(iii) the child is exposed to a substantial risk of imminent harm.

(2) The court that makes an order contemplated in subsection (1) may order that the child concerned be kept in temporary safe care until such time as effect can be given to the court’s order.

(3) An order made by the court in terms of subsection (1) –

(a) is subject to such conditions as the court may determine which, in the case of the placement of a child in terms of subsection (1) (e) (i), (ii), (iii), (iv) or (v), may include a condition –

(i) rendering the placement of the child subject to supervision services by a designated social worker or authorised officer;

(ii) rendering the placement of the child subject to reunification services being rendered to the child and the child’s parents, care-giver or guardian, as the case may be, by a designated social worker or authorised officer; or

(iii) requiring the person in whose care the child has been placed, to co-operate with the supervising designated social worker or authorised officer or to comply with any requirement laid down by the court, failing which the court may reconsider the placement; and

(b) may be reconsidered by a children’s court at any time, and be confirmed, withdrawn or amended as may be appropriate.

(4) If a court finds that a child is not in need of care and protection the court may nevertheless issue an order referred to in subsection (1) in respect of the child, excluding a placement order.

Court orders to be aimed at securing stability in child’s life

157. (1) Before a children’s court gives an order in terms of section 156 for the removal of the child from the care of the child’s parent or care-giver, the court must―

(a) obtain and consider a report by a designated social worker on the conditions of the child’s life, which must include –

(i) an assessment of the developmental, therapeutic and other needs of the child;

(ii) details of family preservation services that have been considered or attempted; and

(iii) a documented permanency plan taking into account the child’s age and developmental needs aimed at achieving stability in the child’s life and containing the particulars prescribed by regulation; and

(b) consider the best way of securing stability in the child’s life, including whether such stability could be secured by –

(i) leaving the child in the care of the parent or care-giver under the supervision of a designated social worker, provided that the child’s safety and well-being must receive first priority;

(ii) placing the child in alternative care for a limited period to allow for the reunification of the child and the parent or care-giver with the assistance of a social worker;

(iii) placing the child in alternative care with or without terminating parental responsibilities and rights of the parent or care-giver;

(iv) making the child available for adoption; or

(v) issuing instructions as to the evaluation of progress made with the implementation of the permanency plan at specified intervals.

(2) A designated social worker facilitating the reunification of a child with the child’s family in terms of subsection (1) (b) (ii) must –

(a) investigate the causes why the child left the family home;

(b) address those causes and take precautionary action to prevent a recurrence; and

(c) provide counselling to both the child and the family before and after reunification.

(3) A very young child who has been orphaned or abandoned by its parents must be made available for adoption in the manner and time-period prescribed except when this is not in the best interest of the child.

(4) When issuing an order involving the removal of the child from the care of the child’s parent or care-giver, the court may include in the court order instructions as to the implementation of the permanency plan for the child.

Placement of children in child and youth care centres

158. (1) A children’s court may issue an order placing a child in the care of a child and youth care centre only if another option is not appropriate.

(2) If a children’s court decides that a child should be placed in the care of a child and youth care centre, the court must –

(a) determine the residential care programme or programmes best suited for the child; and

(b) order that the child be placed in a child and youth care centre offering that particular residential care programme or programmes.

(3) The provincial head of social development in the relevant province must place the child in a child and youth care centre offering the residential care programme or programmes which the court has determined for the child, taking into account –

(a) the developmental, therapeutic, educational and other needs of the child;

(b) the permanency plan for the child which was considered by the court, and any instructions issued by the court with regard to the implementation of the permanency plan;

(c) any other instructions of the court;

(d) the distance of the centre from the child’s family or community;

(e) the safety of the community and other children in the centre, in the case of a child in need of secure care; and

(f) any other relevant factors.

(4) The provincial head of social development must, as a general rule, select a centre offering the programme ordered by the court which is located as close as possible to the child’s family or community.

Duration and extension of orders

159. (1) An order made by a children’s court in terms of section 156–

(a) lapses on expiry of –

(i) two years from the date the order was made; or

(ii) such shorter period for which the order was made; and

(b) may be extended by a children’s court for a period of not more than two years at a time.

(2) When deciding on an extension of the period of a court order in terms of subsection (1), the court must take cognisance of the views of –

(a) the child;

(b) the parent and any other person who has parental responsibilities and rights in respect of the child;

(c) where appropriate, the management of the centre where the child is placed; and

(d) any alternative care-giver of that child.

(3) Subject to section 176, no court order referred to in subsection (1) extends beyond the date on which the child in respect of whom it was made reaches the age of 18 years.

Regulations

160. The Minister, after consultation with the Minister for Justice and Constitutional Development where court orders are regulated, may make regulations in terms of section 299 prescribing –

(a) the particulars which permanency plans must contain;

(b) the manner in, and time-intervals at which, permanency plans must be evaluated;

(c) procedures for determining whether a child has been abandoned or orphaned; and

(d) any other matter that may be necessary to facilitate the implementation of this Chapter.

CHAPTER 10[11]

CONTRIBUTION ORDERS

Issue of contribution orders

161. (1) A children’s court may make an order instructing a respondent to pay a sum of money or a recurrent sum of money –

(a) as a contribution towards the maintenance or treatment of, or the costs resulting from the other special needs of a child –

(i) placed in alternative care; or

(ii) temporarily removed by order of the court from the child’s family for treatment, rehabilitation, counselling or another reason; or

(b) as a short-term emergency contribution towards the maintenance or treatment of, or the costs resulting from, the other special needs of a child in urgent need.

(2) A contribution order takes effect from the date on which it is made unless the court orders that it takes effect from an earlier or later date.

(3) A children’s court may vary, suspend or rescind a contribution order or revive the order after it has been rescinded.

(4) If a court other than the court which made a contribution order varies, suspends, rescinds or revives the order in terms of subsection (3), the clerk of the first-mentioned court must immediately inform the clerk of the last mentioned court of such variation, suspension, rescission or revival.

Jurisdiction

162. (1) A contribution order may be made, varied, suspended, rescinded or revived by the children’s court of the area in which –

(a) the respondent is ordinarily resident, carries on business or is employed; or

(b) the child involved in the matter is ordinarily resident.

(2) A provisional contribution order may be made by a children’s court having jurisdiction in terms of subsection (1)(b) against a respondent resident in any country which is a proclaimed country within the meaning of the Reciprocal Enforcement of Maintenance Orders Act, 1963 (Act No. 80 of 1963), or a designated country within the meaning of the Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act, 1989 (Act No. 6 of 1989).

Effect of contribution orders

163. (1) A contribution order and a provisional contribution order have the effect of a maintenance order and a provisional maintenance order in terms of the Maintenance Act and the Reciprocal Enforcement of Maintenance Orders Act, 1963 (Act No. 80 of 1963), as may be appropriate.

(2) Sections 31 and 40 of the Maintenance Act, read with such changes as the context may require, apply to a person who refuses or fails to comply with a contribution order.

Payments to be made to person determined by court

164. A contribution order must instruct the respondent to pay the sum stated therein to the clerk of the children’s court or to such other person as the court may determine.

Attachment of wages of respondents

165. (1) A children’s court which has made a contribution order against a respondent may –

(a) order the employer of the respondent –

(i) to deduct the amount of the contribution which that respondent has been ordered to pay, from the respondent’s wages, salary or remuneration; and

(ii) to pay that amount to the clerk of the court or to any other person specified in the order; or

(b) vary, suspend or rescind such an order or revive the order after it has been rescinded.

(2) The employer must promptly pay any amount deducted under an order in terms of subsection (1) to the clerk of the children’s court or to such other person as is specified in the order.

Change of residence or work by respondent

166. A respondent against whom a contribution order is in force must –

(a) give notice, in writing, to the clerk of the children’s court which made the order of any change in that person’s residential address or place of work; and

(b) state in that notice the new residential address or the name and address of the new employer.