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;

 

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) [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.