REPUBLIC OF SOUTH AFRICA

CHILDREN’S BILL

(As introduced in the National Assembly as a section 76-Bill; explanatory summary of Bill published in Government Gazette No. of 2003) (The English text is the official text of the Bill)

(MINISTER OF SOCIAL DEVELOPMENT)

[B -2003]

030803se

1. (1) In this Act, unless the context indicates otherwise—

"abandoned", in relation to a child, means a child who—

(a) has obviously been deserted by the parent, guardian or care-giver; or

"abuse", in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes—

(a) assaulting a child or inflicting any other form of deliberate injury on a child;

(b) sexually abusing a child or allowing a child to be sexually abused;

(c) bullying by another child;

(d) committing an exploitative labour practice in relation to a child; or

"adopted child" means a child adopted by a person in terms of this Act or any law regulating the adoption of children before this Act took effect;

"adoption compliance certificate"—

"adoption registrar" means the person designated by the Director-General in terms of section 247(1);

"adoption social worker" means—

(a) a social worker in private practice—

"adoption working agreement", for the purpose of chapter 17, means a written agreement entered into by an accredited child protection organisation in the Republic with an equivalent organisation in another country to facilitate inter-country adoptions between the Republic and the country concerned;

"adoptive parent" means a person who has adopted a child in terms of this Act or any law regulating the adoption of children before this Act took effect;

"alternative care" means care of a child in accordance with section 167;

"artificial fertilisation" means the introduction by other than natural means of a male gamete or gametes into the internal reproductive organs of a female person for the purpose of human reproduction, including—

"authorised officer", in relation to any specific act, means a person who has no direct or indirect financial interest in the performance of that act and who is authorised in writing by the presiding officer of the children’s court to perform that act;

"Bill of Rights" means the Bill of Rights contained in Chapter 2 of the Constitution;

"care", in relation to a child, includes, where appropriate—

(a) within available means, providing the child with—

(b) safeguarding and promoting the well-being of the child;

(g) guiding the behaviour of the child in a humane manner;

(h) maintaining a sound relationship with the child; and

"care-giver" means any person who factually cares for a child other than a parent or guardian, and includes—

(a) a foster parent;

(b) a kinship care-giver;

(d) a person who cares for a child whilst the child is in temporary safe care;

"child" means a person under the age of 18 years;

"Child Care Act" means the Child Care Act, 1983 (Act No. 74 of 1983);

"clerk of the children’s court" means the person appointed by the Director-General: Justice and Constitutional Development as the clerk of the children’s court of the relevant Magistrate’s Court;

"commercial sexual exploitation", in relation to a child, means—

"commissioning parent" means a person who enters into a surrogate motherhood agreement with a surrogate mother;

"contact", in relation to a child, means—

(a) maintaining a personal relationship with the child; and

(b) if the child lives with someone else—

"contribution order" means an order referred to in section 161, and includes a provisional contribution order referred to in section 162(2);

"convention country" means, in accordance with the wording of Article 45 of the Hague Convention on Inter-country Adoption, any country in which the Convention has entered into force, except for a country against whose accession the Republic has raised an objection under Article 44 of the Convention;

"delegation", in relation to a duty, includes an instruction to perform the duty;

"Department" means the national department responsible for the provision of social development services;

"designated social worker" means a social worker in the service of—

(a) the Department or a provincial department of social development; or

(b) a designated child protection organisation;

"Divorce Act" means the Divorce Act, 1979 (Act No. 70 of 1979);

"divorce court" means the divorce court established in terms of section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929);

"exploitation", in relation to a child, includes—

(b) sexual exploitation;

(c) servitude;

(d) forced labour or services;

(e) the worst forms of child labour prohibited in terms of section 141; and

(f) the removal of body parts;

"family advocate" means a family advocate appointed in terms of the Mediation in Certain Divorce Matters Act;

"family member", in relation to a child, means—

(a) a parent of the child;

(c) a grandparent, brother, sister, uncle, [or] aunt or cousin of the child;

"gamete" means either of the two generative cells essential for human reproduction;

"guardian" means a parent or other person who has guardianship of a child;

"guardianship", in relation to a child, means guardianship as contemplated in section 18;

"Hague Convention on Inter-country Adoption" means the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption signed at the Hague on 29 May 1993, a copy of the English text of which is set out in Schedule 1 to this Act;

"Hague Convention on International Child Abduction" means the Hague Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980, a copy of the English text of which is set out in Schedule 2 to this Act;

"High Court" means the High Court as contemplated in section 166 of the Constitution;

"in need of care and protection", in relation to a child, means a child who is in a situation contemplated in section 150(1);

"labour inspector" means a labour inspector appointed under section 63 of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);

"Maintenance Act" means the Maintenance Act, 1998 (Act No. 99 of 1998);

"marriage" means a marriage—

(a) recognised in terms of South African law or customary law; or

and any reference to a husband, wife, widower, widow, divorced person, married person or spouse must be construed accordingly;

"MEC for social development" means the member of the Executive Council of a province who is responsible for social development in the province;

"Mediation in Certain Divorce Matters Act" means the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987);

"medical practitioner" means a person registered or deemed to be registered as a medical practitioner under the Health Professions Act, 1974 (Act No. 56 of 1974) and includes a dentist so registered or deemed to be registered;

"mental illness" means mental illness as defined in the Mental Health Act, 1973 (Act No. 18 of 1973);

"Minister" means the Cabinet member responsible for social development, or where the context indicates another Minister, that Minister;

"National Child Protection Register" means the register referred to in section 111;

"neglect", in relation to a child, means a failure in the exercise of parental responsibilities to provide for the child’s basic physical, intellectual, emotional or social needs;

"organ of state" means an organ of state as defined in section 239 of the Constitution;

"orphan" means a child who has no surviving parent caring for him or her;

"parent", in relation to a child, includes the adoptive parent of a child, but excludes—

"parental responsibilities and rights", in relation to a child means the responsibilities and the rights referred to in section 18

"party", in relation to a matter before a children’s court, means—

(a) a child involved in the matter;

(b) a parent;

(c) a person who has parental responsibilities and rights in respect of the child;

(d) a prospective adoptive or foster parent or kinship care-giver of the child;

(f) any other person admitted or recognised by the court as a party;

"person unsuitable to work with children" means a person listed in Part B of the National Child Protection Register;

"police official" means any member of the South African Police Service or a municipal police service appointed in terms of the South African Police Service Act, 1995 (Act No. 68 of 1995);

"prescribed" means prescribed by regulation as contemplated in section 75, 90, 103, 142, 160, 179, 190, 212, 227, 253, 279 and 299;

"presiding officer" means a presiding officer of a children’s court designated in terms of section 42(1);

"provincial department of social development" means the department within a provincial administration responsible for social development in the province;

"provincial head of social development" means the head of the provincial department of social development;

"psychologist" means a psychologist registered or deemed to be registered as such in terms of the Health Professions Act, 1974 (Act No. 56 of 1974);

"RACAP" means the Register on Adoptable Children and prospective Adoptive Parents as contemplated in section 228;

"regulation" means a regulation made in terms of this Act;

"removal of body parts" means the removal of any organ or other body part from a living person in violation of the National Health Act, 2003;

"respondent" means any person legally liable to maintain or to contribute towards the maintenance of a child for whose maintenance, treatment or special needs a contribution order is sought or was made in terms of Chapter 11;

"school" means—

"serve", in relation to any notice, document or other process in terms of this Act, means to serve such notice, document or other process in accordance with the procedure provided for the serving of process in terms of the Magistrates’ Courts Act, 1944 (Act No 32 of 1944), and the rules applying to the proceedings of magistrates’ courts;

"sexual abuse", in relation to a child, means—

"social service professionals", includes probation officers, development workers, child and youth care workers, youth workers and social security workers who are registered in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978) once a professional board has been established for a particular professional group;

"social worker" means a person who is registered or deemed to be registered as a social worker in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978);

"street child" means a child who—

"surrogate mother" means an adult woman who enters into a surrogate motherhood agreement with the commissioning parent or parents;

"surrogate motherhood agreement" means an agreement between a surrogate mother and a commissioning parent or parents in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent or parents and in which the surrogate mother undertakes to hand over such a child to the commissioning parent or parents upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent or parents;

"temporary safe care", in relation to a child, means care of a child in an approved child and youth care centre, shelter or private home or any other place of a kind that may be prescribed by regulation, where the child can safely be accommodated pending a decision or court order concerning the placement of the child, but excludes care of a child in a prison or police cell;

"traditional authority" means any authority which in terms of indigenous law or any other law administers the affairs of any tribe or group of indigenous people or any other persons resident within an area under the control of a traditional leader;

"this Act" includes—

(a) any regulation made in terms of this Act;

(ii) due to a position of vulnerability,

for the purpose of exploitation.

"UN Protocol to Prevent Trafficking in Persons" means the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention against Transnational Organised Crime, 2000, a copy of the English text of which is set out in Schedule 3.

(2) In this Act, a word or expression derived from a word or expression defined in subsection (1) has a corresponding meaning unless the context indicates that another meaning is intended.

(a) to promote the preservation and strengthening of families;

(h) generally, to promote the protection, development and well-being of children.

(2) In the event of a conflict between a regulation made in terms of this Act and –

(a) an Act of Parliament, the Act of Parliament prevails;

(3) For the proper application of subsection (2) (b) the Minister must in terms of section 146(6) of the Constitution submit all regulations made in terms of this Act and which affect a province, to the National Council of Provinces for approval.

(4) In this section “regulation” means―

(a) a regulation made in terms of this Act; and

(b) a rule regulating the proceedings of children’s courts in terms of section 52(1).

4. (1) This Act must be implemented by organs of state in the national, provincial and, where applicable, local spheres of government subject to any specific section of this Act and regulations allocating roles and responsibilities, in an integrated, co-ordinated and uniform manner.

(2) Recognising that competing social and economic needs exist, organs of state in the national, provincial and where applicable, local spheres of government must, in the implementation of this Act, take reasonable measures to the maximum extent of their available resources to achieve the realisation of the objects of this Act.

5. To achieve the implementation of this Act in the manner referred to in section 4(2), all organs of state in the national, provincial and, where applicable, local spheres of government involved with the care, protection and well-being of children must co-operate in the development of a uniform approach aimed at co-ordinating and integrating the services delivered to children.

6. (1) The general principles set out in this section guide –

(b) respect the child’s inherent dignity;

(c) treat the child fairly and equitably;

(3) If it is in the best interest of the child, the child’s family must be given the opportunity to express their views in any matter concerning the child.

(4) In any matter concerning a child –

(b) a delay in any action or decision to be taken must be avoided as far as possible.

(5) A child, having regard to the age, maturity and stage of development of the child, and a person who has parental responsibilities and rights in respect of that child, where appropriate, must be informed of any action or decision taken in a matter concerning the child which significantly affects the child.

7[6]. (1) Whenever a provision of this Act requires the best interest of the child standard to be applied, the following factors must be taken into consideration where relevant:

(a) the nature of the personal relationship between –

(b) the attitude of the parents, or any specific parent, towards –

(f) the need for the child –

(g) the child’s –

(2) In this section "parent" includes any person who has parental responsibilities and rights in respect of a child.

8. (1) The rights which a child has in terms of this Act supplement the rights which a child has in terms of the Bill of Rights.

(2) All organs of state in any sphere of government and all officials, employees and representatives of an organ of state must respect, protect and promote the rights of children contained in this Act.

(3) A provision of this Chapter binds a natural or a juristic person, if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

9. (1) In all matters concerning the care, protection and well-being of a child the standard referred to in section 28 (2) of the Constitution that the child’s best interest is of paramount importance, must be applied.

(2) When the best interest of the child standard must be applied, the factors stipulated in section 7 of this Act must be taken into consideration where relevant.

10. Every child that is of an age, maturity and stage of development to participate meaningfully in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

(b) providing the child with conditions that ensure dignity, promote self-reliance and facilitate active participation in the community; and

(c) providing the child with the necessary support services.

(3) A child with a disability or chronic illness has the right not to be subjected to medical, social, cultural or religious practices that are detrimental to his or her health, well-being or dignity.

12. (1) Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to the well-being, health or dignity of the child.

(2) Every child –

(3) Genital mutilation or the circumcision of female children is prohibited.

(4) Virginity testing of children is prohibited.

(5) Taking into consideration the child's age, maturity and stage of development, every male child has the right to refuse circumcision.

(a) the person that performed the circumcision; or

(2) Information provided to children in terms of this subsection must be relevant and must be in a format accessible to children, giving due consideration to the needs of disabled children.

14. Every child has the right to bring, and to be assisted in bringing, a matter to a court, provided that matter falls within the jurisdiction of that court.

15. (1) Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights or this Chapter has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.

(2) The persons who may approach a court, are:

(a) A child who is affected by or involved in the matter to be adjudicated;

(d) anyone acting in the public interest.

16. Every child has responsibilities appropriate to the child’s age and ability towards his or her family, community and the state.

17. A child, whether male or female, becomes a major upon reaching the age of 18 years.

18. (1) A person may have either full or specific parental responsibilities and rights in respect of a child.

(a) to have custody of the child;

(b) to have access to the child;

(c) to act as the guardian of the child; and

(d) to contribute to the maintenance of the child.

(a) administer and safeguard the child’s property and property interests;

(iv) consenting to the child’s application for a passport; and

(4) Whenever more than one person have guardianship of a minor child, each one of them is competent, subject to subsection 5 or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.

(5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child shall be necessary in respect of consenting to the matters set out in subsection (3)(c).

19. (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.

the guardian of the child’s biological mother is also the guardian of the child.

(3) This section does not apply in respect of a child who is the subject of a surrogacy agreement.

(a) if he is married to the child’s mother; or

(2) This section does not affect the duty of a father of a child to contribute towards the maintenance of the child.

(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions imposed under subsection (1), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.

(b) Any party to the mediation may have the outcome of the mediation reviewed by a court.

(4) When this Act comes into operation, a biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20 or in terms of a court order, acquires full parental responsibilities and rights in respect of the child in accordance with subsection (1) regardless of whether the child was born before or after the commencement of this Act.

(2) The mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement upon a person contemplated in subsection (1) those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such agreement.

(3) A parental responsibilities and rights agreement must be in the format and contain the particulars prescribed by regulation.

(a) registered with the family advocate; or

(b) made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement.

(5) Before registering a parental responsibilities and rights agreement as contemplated in subsection (4)(a) or before making a parental responsibilities and rights agreement an order of the High Court, a divorce court or a children’s court as contemplated in subsection (4)(b), the family advocate or the court concerned, as the case may be, must be satisfied that the parental responsibilities and rights agreement concerned is in the best interest of the child that the agreement relates to.

(i) by a person having parental responsibilities and rights in respect of the child;

(ii) by the child, acting with leave of the court; or

(iii) in the child’s interest by any other person, acting with leave of the court.

(i) by a person having parental responsibilities and rights in respect of the child;

(ii) by the child, acting with leave of the court; or

(iii) in the child’s interest by any other person, acting with leave of the court.

(7) Only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement that relates to the guardianship of a child.

Assignment of parental responsibilities and rights to interested person by order of court

(a) contact with the child; or

(b) care of the child.

(2) When considering an application contemplated in subsection (1), the court must take into account –

(a) the best interest of the child;

(c) the degree of commitment that the applicant has shown towards the child;

(e) any other fact that should, in the opinion of the court, be taken into account.

(b) may suspend the first-mentioned application on any conditions it may determine.

(4) The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.

24. (1) Any person having an interest in the care, well-being or development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.

(2) When considering an application contemplated in subsection (1), the court must take into account –

(a) the best interest of the child;

(c) any other fact that should, in the opinion of the court, be taken into account.

(3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.

25. When application is made in terms of section 23(1) by a non-South African citizen for the assignment of full parental responsibilities and rights in respect of a child or to act as guardian of a child, the application must be regarded as an inter-country adoption for the purposes of the Hague Convention on Inter-country Adoption and Chapter 16 of this Act.

(b) apply to a court for an order confirming his paternity of the child, if the mother –

27. (1) (a) A parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of the death of the parent.

(b) A parent who has the sole care of a child may appoint a fit and proper person to be vested with care of the child in the event of the death of the parent.

(2) An appointment in terms of subsection (1) must form part of the will of the parent.

(a) after the death of the parent; and

(b) upon the person’s express or implied acceptance of the appointment.

(4) If two or more persons are appointed as guardians or to be vested with the care of the child, any one or more or all of them may accept the appointment except if the appointment provides otherwise.

(2) An application in terms of subsection (1) may be combined with an application in terms of section 23 for the assignment of responsibilities and rights in respect of the child to the applicant in terms of that section.

(a) by a co-holder of parental responsibilities and rights in respect of the child;

(c) by the child, acting with leave of the court;

(d) in the child’s interest by any other person, acting with leave of the court; or

(e) by a family advocate or the representative of any interested organ of state.

(4) When considering an application referred to in section 27 the court must take into account –

(a) the best interests of the child;

(c) the degree of commitment that the person has shown towards the child; and

(d) any other fact that should, in the opinion of the court, be taken into account.

29. (1) An application in terms of section 22(5)(a)(ii) or (b), 23(1), 25(1)(b) or 27(1) may be brought before the High Court, a divorce court in a divorce matter or a children’s court within whose area of jurisdiction the child concerned is ordinarily resident.

(2) An application in terms of section 23(1) for the assignment of full parental rights and responsibilities or to act as guardian of a child must contain reasons as to why the applicant is not applying for the adoption of the child.

(3) The court hearing an application contemplated in subsection (1) may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.

(4) When considering an application contemplated in subsection (1) the court must be guided by the principles set out in Chapter 2 to the extent that those principles are applicable to the matter before it.

(5) The court may for the purposes of the hearing order that―

(6) The court may –

(a) appoint a legal practitioner to represent the child at the court proceedings; and

(7) If it appears to a court in the course of any proceedings before it that a child involved in or affected by those proceedings is in need of care and protection, the court must order that the question whether the child is in need of care and protection be referred to a designated social worker for investigation in terms of section155(2).

30. (1) More than one person may hold parental responsibilities and rights in respect of the same child.

(2) When more than one person holds the same parental responsibilities and rights in respect of a child, each of the co-holders may act without the consent of the other co-holder or holders when exercising those responsibilities and rights, except where this Act, any other law or an order of court provides otherwise.

(3) A co-holder of parental responsibilities and rights may not surrender or transfer those responsibilities and rights to another co-holder or any other person, but may by agreement with that other co-holder or person allow the other co-holder or person to exercise any or all of those responsibilities and rights on his or her behalf.

(4) An agreement in terms of subsection (3) does not divest a co-holder of his or her parental responsibilities and rights and that co-holder remains competent and liable to exercise those responsibilities and rights.

31. (1) (a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

(2) (a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by any co-holder of parental responsibilities and rights in respect of the child.

(b) A decision referred to in paragraph (a) is any decision which is likely to change significantly, or to have a significant adverse effect on, the co-holder’s exercise of parental responsibilities and rights in respect of the child.

32. (1) A person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, including a care-giver who otherwise has no parental responsibilities and rights in respect of a child, must, whilst the child is in that person’s care –

(a) safeguard the child’s health, well-being and development; and

(2) Subject to section129, a person referred to in subsection (1) may exercise any parental responsibilities and rights reasonably necessary to comply with subsection (1), including the right to consent to any medical examination or treatment of the child if such consent cannot reasonably be obtained from the parent of the child.

(3) A court may limit or restrict the parental responsibilities and rights which a person may exercise in terms of subsection (2).

(4) A person referred to in subsection (1) may not –

(a) hold himself or herself out as the biological or adoptive parent of the child; or

33. (1) The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.

(2) If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.

(3) A parenting plan may determine any matter in connection with parental responsibilities and rights, including –

(a) where and with whom the child is to live;

(b) the maintenance of the child;

(c) contact between the child and –

(d) the schooling and religious upbringing of the child.

(4) A parenting plan must comply with the best interest of the child standard as set out in section 6.

(5) In preparing a parenting plan as contemplated in subsection 2 the parties must seek –

(a) the assistance of a family advocate, social worker or psychologist; or

34. (1) A parenting plan –

(a) must be in writing and signed by the parties to the agreement; and

(2) An application in respect of a parenting plan contemplated in section 33(1) for the registration of the parenting plan or to court must –

(a) be in the format and contain the particulars prescribed by regulation; and

(b) be accompanied by a copy of the plan.

(3) An application in respect of a parenting plan contemplated in section 33(2) for the registration of a parenting plan or to court must –

(a) be in the format and contain the particulars prescribed by regulation; and

(b) be accompanied by –

35. (1) A parenting plan registered with a family advocate may be amended or terminated only by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan;

(2) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application –

(b) by the child, acting with leave of the court; or

(c) in the child’s interest, by any other person acting with leave of the court.

(3) Section 29 applies to an application in terms of subsection (2).

36. If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.

37. If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.

38. (1) A child born of parents who marry each other at any time after the birth of the child must for all purposes be regarded as a child born of parents married at the time of his or her birth.

(2) Subsection (1) applies despite the fact that the parents could not have legally married each other at the time of conception or birth of the child.

39. (1) The rights of a child conceived or born of a voidable marriage shall not be affected by the annulment of that marriage.

(2) No voidable marriage may be annulled until the relevant court has inquired into and considered the safeguarding of the rights and interests of a child of that marriage.

(3) Section 6 of the Divorce Act and section 4 of the Mediation in Certain Divorce Matters Act apply with the necessary changes required by the context in respect of such a child as if the proceedings in question were proceedings in a divorce action and the annulment of the marriage were the granting of a decree of divorce.

(4) Section 8(1) and (2) of the Divorce Act, with the necessary changes as the context may require, apply to the rescission or variation of a maintenance order, or an order relating to the care or guardianship of, or access to, a child, or the suspension of a maintenance order or an order relating to access to a child, made by virtue of subsection (3) of this section.

(5) A reference in any legislation –

(6) For purposes of this Act, the father of a child conceived in a voidable marriage where such marriage has been annulled is regarded to be in the same position as the father of a child who has divorced the mother of that child.

40. (1) (a) Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses were used for such artificial fertilisation.

(b) For the purpose of paragraph (a) it must be presumed, until the contrary is proved, that both spouses have granted the relevant consent.

(2) Subject to section 290, whenever the gamete or gametes of any person have been used for the artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman.

(a) that person is the woman who gave birth to that child; or

(a) any medical information concerning that child’s genetic parents;

(2) Information disclosed in terms of subsection (1) may not reveal the identity of the person whose gamete or gametes have been used for such artificial fertilisation or the identity of the surrogate mother.

(3) The Director-General for Health or any other person specified by regulation may require a person to receive counselling before any information in terms of subsection (1) is disclosed.

42. (1) For the purposes of this Act, every magistrate's court, as defined in the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), shall be a children’s court and shall have jurisdiction on any matter arising from the application of this Act for the area of its jurisdiction.

(2) Every magistrate shall be a presiding officer of a children’s court and every additional magistrate shall be an assistant presiding officer of a children’s court for the district of which he is magistrate, additional magistrate or assistant magistrate.

(3) The presiding officer of the children’s court shall be subject to the administrative control of the head of an administrative region, defined in section 1 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944).

(4) The presiding officer of the children’s court must perform such functions as may be assigned to him or her under this Act or any other law.

(5) For purposes of giving full effect to this Act, magistrates or additional magistrates may be designated as presiding officers for one or more children's courts.

(6) The Minister of Justice and Constitutional Development may, after consultation with the head of an administrative region as mentioned in subsection (3), by notice in the Gazette define the area of jurisdiction of each children’s court and increase or reduce the area of jurisdiction of each children’s court.

(7) The Children’s Courts hearings must, as far as is practicable, be held in a room which –

(a) is furnished and designed in a manner aimed at putting children at ease;

(c) is not ordinarily used for the adjudication of criminal trials.

(8) A children’s court sits at a place within the district or province designated by the Minister of Justice and Constitutional Development as a magistrate’s court.

(9) The publication of a notice referred to in subsection (6) does not affect proceedings which have been instituted but not yet completed at the time of such publication.

43. A children's court is a court of record and has a similar status to that of a magistrate's court at district level.

44. (1) A children’s court has jurisdiction in respect of –

(b) all matters in which application is made for an order mentioned in section 46.

(2) The children’s court that has jurisdiction in a particular matter is –

(3) Where it is unclear which court has jurisdiction in a particular matter, the children’s court before which the child is brought has jurisdiction in that matter.

45. (1) For purposes of this Act, a children’s court may adjudicate any matter involving –

(a) the protection and well-being of a child;

(b) the care of, or contact with, a child;

(c) paternity of a child;

(d) support of a child;

(e) the provision of –

(g) the temporary safe care of a child;

(h) alternative care of a child;

(i) the adoption of a child, including an inter-country adoption;

(2) A children’s court –

(3) Pending the establishment of family courts by an Act of Parliament, the High Courts and Divorce Courts have exclusive jurisdiction over the following matters contemplated in this Act:

(a) The guardianship of a child;

(c) artificial fertilisation;

(d) the departure, removal or abduction of a child from the Republic;

(e) applications requiring the return of a child to the Republic from abroad;

(f) the age of majority or the contractual or legal capacity of a child;

(g) the safeguarding of a child’s interest in property; and

(h) surrogate motherhood.

(4) Nothing in this Act shall be construed as limiting the inherent jurisdiction of the High Courts as upper guardians of all children.

46. (1) A children’s court may make the following orders:

(a) An alternative care order, which includes an order placing a child –

(c) an adoption order, which includes an inter-country adoption order;

(h) a child protection order, which includes an order –

(i) a contribution order in terms of this Act;

(j) an order instructing a person to carry out an investigation in terms of section 50;

(2) A children’s court may withdraw, suspend or amend an order made in terms of subsection (1), or replace such an order with a new order.

47. (1) If it appears to any court in the course of proceedings that a child involved in or affected by those proceedings is in need of care and protection as is contemplated in section 150, the court must order that the question 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).

(2) If it appears to a court in the course of any proceedings in terms of the Matrimonial Affairs Act, 1953 (Act No. 37 of 1953), the Divorce Act, the Maintenance Act or the Domestic Violence Act, 1998 (Act No. 116 of 1998) that allegations of abuse or neglect made in respect of a child of any of the parties to the proceedings are well-founded, the court –

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

48. (1) A children’s court may –

(a) grant interdicts and auxiliary relief;

(b) extend, withdraw, suspend, vary or monitor any of its orders;

(c) impose or vary time deadlines with respect to any of its orders;

(d) make appropriate orders as to costs in matters before the court;

(2) A children’s court may for the purposes of this Act estimate the age of a person who appears to be a child in the prescribed manner.

49. (1) A children’s court may, before it decides a matter or an issue in a matter, order a lay forum hearing in an attempt to settle the matter or issue out of court, which may include –

(b) a family group conference contemplated in section 70; or

(c) mediation contemplated in section71.

(2) Before ordering a lay forum hearing, the court must take into account all relevant factors, including –

(a) the vulnerability of the child;

(b) the ability of the child to participate in the proceedings;

(c) the power relationships within the family; and

(d) the nature of any allegations made by parties in the matter.

50. (1) A children’s court may, subject to section 155(6), before it decides a matter, order any person –

(b) to furnish the court with a report and recommendation thereon.

(2) An investigation or further investigation must be carried out –

(a) in accordance with any procedures prescribed by regulation; and

(b) subject to any directions and conditions determined in the court order.

(3) The court order may authorise a designated social worker or any other person authorised by the court to conduct the investigation or further investigation to enter any premises mentioned in the court order, either alone or in the presence of a police official, and on those premises –

(a) remove a child in terms of sections 47 and 151;

(b) investigate the circumstances of the child;

(c) record any information; and

(d) carry out any specific instruction of the court.

(4) In addition to the powers a police official has in terms of the South African Police Service Act, 1995 (Act No. 68 of 1995), the police official accompanying the designated social worker or other person authorised to conduct the investigation or further investigation may –

(a) enter the premises mentioned in the court order and conduct any search;

(b) question any person;

(d) record any information; and

(e) carry out any specific instruction of the court.

(5) A police official referred to in subsection (4) may use such force as may be reasonably necessary to overcome any resistance against the entry or search of the premises contemplated in subsection (4)(a), including the breaking of any door or window of such premises: Provided that such police official must first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter such premises.

51. (1) Any party involved in a matter before a children’s court may appeal against any order made or any refusal to make an order, or against the variation, suspension or rescission of such order of the court to the High Court having jurisdiction.

(2) An appeal in terms of subsection (1) must be noted and prosecuted as if it were an appeal against a civil judgment of a magistrate’s court, subject to section 45(2)(c).

52. (1) Except as is otherwise provided in this Act, the provisions of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), and of the rules made in terms thereof as well as the rules made under the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), apply, with the necessary changes required by the context, to the children's court in so far as these provisions relate to –

(a) the issue and service of process;

(b) the appearance in court of advocates and attorneys;

(c) the execution of court orders;

(d) contempt of court; and

(e) penalties for –

(2) Rules made in terms of subsection (1) must be designed to avoid adversarial procedures and include rules concerning –

(a) appropriate questioning techniques for –

(b) the use of suitably qualified or trained interpreters.

53. (1) Except where otherwise provided in this Act, any person listed in this section may bring a matter which falls within the jurisdiction of a children’s court, to a clerk of the children’s court for referral to a children’s court.

(2) The persons who may approach a court, are:

(a) A child who is affected by or involved in the matter to be adjudicated;

(b) anyone acting in the interest of the child;

(c) anyone acting on behalf of a child who cannot act in his or her own name;

(d) anyone acting as a member of, or in the interest of, a group or class of children;

(e) anyone acting in the public interest.

54. A person who is a party in a matter before a children’s court is entitled to appoint a legal practitioner of his or her own choice and at his or her own expense.

55. (1) Notwithstanding the provisions of section 54, a child involved in a matter before a children’s court is entitled to legal representation.

(2) (a) A child may request the court to appoint a legal practitioner to represent him or her in such matter.

(b) If a legal practitioner appointed in terms of paragraph (a) does not serve the interests of the child in the matter, the court may terminate the appointment.

(3) If no legal practitioner is appointed in terms of subsection (2)(a), the court must inform the parent or care-giver of the child or a person who has parental responsibilities and rights in respect of the child, if present at the proceedings, and the child, if the child is capable of understanding, of the child’s right to legal representation.

(4) If no legal practitioner is appointed in terms of subsection (2)(a) after the court has complied with subsection (3), or if the court has terminated the appointment of a legal representative in terms of subsection (2)(b), the court may order that a legal practitioner be assigned to the child by the state, and at state expense, if substantial injustice would otherwise result.

(5) The court must record its reasons if it declines to issue an order in terms of subsections (4).

(6) If the court makes an order in terms of subsection (4), the clerk of the children’s court must request the Legal Aid Board to instruct a legal practitioner to represent the child.

56. Proceedings of a children’s court are closed and may be attended only by–

(b) the child involved in the matter before the court and any other party in the matter;

(d) the legal representative of a person who is entitled to legal representation;

(f) the designated social worker managing the case.

57. (1) The clerk of the children’s court may, by written notice in the prescribed manner, request a party in a matter before a children’s court, a family member of a child involved in the matter or a person who has another interest in the matter, to attend the proceedings of the children’s court.

(2) The person in whose physical control the child is must ensure that the child attends those proceedings except if the clerk of the children’s court or the court directs otherwise.

58. The following persons have the right to adduce evidence in a matter before a children’s court and, with the permission of the presiding officer of the children’s court, to question or cross-examine a witness or to address the court in argument:

(a) A child involved in the matter;

(b) a parent of the child;

(c) a person who has parental responsibilities and rights in respect of the child;

(d) a care-giver of the child;

(f) a person who the court decides has a sufficient interest in the matter.

59. (1) The clerk of the children’s court must, in the prescribed manner, summons a person to appear as a witness in a matter before the court to give evidence or to produce a book, document or other written instrument on request by –

(a) the presiding officer in the matter;

(c) the legal representative of a person mentioned in paragraph (b).

(2) A summons mentioned in subsection (1) must be served on the witness as if it were a summons to give evidence or to produce a book, document or other written instrument at a criminal trial in a magistrate’s court.

(3) Sections 188 and 189 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), read with such changes as the context may require, apply to a person who has been summonsed in terms of subsection (1) or required by the presiding officer to give evidence.

(4) A person summonsed in terms of subsection (1)(a) and who complied with the summons, is entitled to an allowance from state funds equal to that determined for witnesses summonsed to appear in criminal trials in a magistrate’s court.

(5) A person summonsed in terms of subsection (1)(b) or (c) is not entitled to an allowance from state funds except if the presiding officer so orders.

60. (1) The presiding officer in a matter before a children’s court controls the conduct of the proceedings, and may –

(b) question or cross-examine that person; or

(2) If a child is present at the proceedings, the court may order any person present in the room where the proceedings take place to leave the room if such order would be in the best interests of that child.

(3) Children’s court proceedings must be conducted in an informal manner and, as far as possible, in a relaxed and non-adversarial atmosphere which is conducive to attaining the co-operation of everyone involved in the proceedings.

61. (1) The presiding officer in a matter before a children’s court must –

(2) A child who is a party or a witness in a matter before a children’s court may be questioned through an intermediary as provided for in section 170A of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) if the court finds that this would be in the best interests of that child.

(3) The court –

(b) must record the reasons for any order in terms of paragraph (a).

62. (1) A children’s court, for the purposes of deciding a matter before it or any issue in the matter, may order, if necessary, that a designated social worker, family advocate, psychologist, medical practitioner or other suitably qualified person carry out an investigation to establish the circumstances of –

(a) the child;

(b) the parents or a parent of the child;

(c) a person who has parental responsibilities and rights in respect of the child;

(d) a care-giver of the child;

(e) the person in whose control the child is; or

(f) any other relevant person.

(a) obtain supplementary evidence or reports from other suitably qualified persons;

63. (1) A written report, purported to be compiled and signed by a medical practitioner, psychologist, family advocate, designated social worker or other professional person who on the face of the report formed an authoritative opinion in respect of a child or the circumstances of a child involved in a matter before a children’s court, or in respect of another person involved in the matter or the circumstances of such other person, is, subject to the decision of the presiding officer, on its mere production to the children’s court hearing the matter admissible as evidence of the facts stated in the report.

(2) The written report contemplated in subsection (1) must be submitted to the children's court within the prescribed period prior to the date of the hearing of the matter.

(3) If a person’s rights are prejudiced by a report referred to in subsection (1) the court must –

(b) give that person the opportunity –

64. (1) The proceedings of a children’s court may be adjourned only –

(a) on good cause shown, taking into account the best interests of the child;

(b) for a period of not more than 30 days at a time.

(2) A presiding officer of a children’s court may excuse any person from appearing at adjournment proceedings.

65. (1) A children’s court may monitor –

(a) compliance with an order made by it in a matter; or

(b) the circumstances of a child following an order made by it.

(2) For purposes of monitoring compliance with an order made by a children’s court or the circumstances of a child following an order, the court –

(a) when making that order, may order –

(3) When a person appears before the court in terms of subsection (2) the court may–

(b) confirm, vary or withdraw the order; or

(4) Any person may report any alleged non-compliance with an order of a children’s court, or any alleged worsening of the circumstances of a child following a court order, to the children’s court clerk, who must refer the matter to a presiding officer for a decision on possible further action.

66. Subject to the provisions of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), no person has access to children’s court case records, except–

(a) for the purpose of performing official duties in terms of this Act;

(c) for the purpose of a review or appeal; or

67. (1) Subject to the laws governing the public service, the Director-General: Justice and Constitutional Development may, for every children's court, appoint or designate one or more officers in the Department, or may appoint one or more persons in the prescribed manner and on the prescribed conditions, as clerks of the children's court, who must generally assist the court to which they are attached in performing its functions and who must perform the functions as may be prescribed in this Act or by way of regulation or in any other law.

(2) If a clerk of the children's court is for any reason unable to act as such or if no clerk of the children's court has been appointed or designated for any children's court under subsection (1), the presiding officer of the children's court may designate any competent officer in the Department to act as a clerk of the children's court for as long as the said clerk of the children's court is unable to act or until a clerk of the children's court is appointed or designated under subsection (1), as the case may be.

(3) For purposes of giving full effect to this Act persons may be appointed or designated as clerk of the children's court for one or more children's courts.

68. If it comes to the attention of the clerk of the children’s court that a child may be in need of care and protection, the clerk must refer the matter to a designated social worker for investigation in terms of section 155(2).

69. (1) If a matter brought to or referred to a children’s court is contested, the court may order that a pre-hearing conference be held with the parties involved in the matter in order to –

(a) mediate between the parties;

(b) settle disputes between the parties to the extent possible; and

(c) define the issues to be heard by the court.

(2) Pre-hearing conferences may not be held in the event of a matter involving the alleged abuse or sexual abuse of a child.

(3) The child involved in the matter may attend and may participate in the conference unless the children’s court decides otherwise.

(4) The court may –

(c) consider the report on the conference when the matter is heard.

70. (1) The children’s court may cause a family group conference to be set up with the parties involved in a matter brought to or referred to a children’s court, including any other family members of the child, in order to find solutions for any problem involving the child.

(2) The children’s court must –

(c) consider the report on the conference when the matter is heard.

71. (1) The children’s court may, where circumstances permit, refer a matter brought or referred to a children’s court to any appropriate lay forum, including a traditional authority, in an attempt to settle the matter by way of mediation out of court.

(2) Lay forums may not be held in the event of a matter involving the alleged abuse or sexual abuse of a child.

(3) The children’s court may –

72. (1) If a matter is settled out of court and the settlement is accepted by all parties involved in the matter, the clerk of the children’s court must submit the settlement to the children’s court for confirmation or rejection.

(2) The court must consider the settlement and, if it is in the best interests of the child, may –

(a) confirm the settlement and make it an order of court;

(c) reject the settlement.

73. The clerk of the children’s court –

(a) may attend every children’s court hearing; and

74. No person may, without the permission of a court, in any manner publish any information relating to the proceedings of a children’s court which reveals or may reveal the name or identity of a child who is a party or a witness in the proceedings.

75. (1) The Minister of Justice and Constitutional Development, after consultation with the Minister, may make regulations concerning –

(2) Section 299(2) and (3), read with such changes as the context may require, applies to the making of regulations in terms of subsection (1) of this section.

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.

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.

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

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

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

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

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;

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;

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;

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

(b) designated child protection organisations;

Disclosure of information in Part A of Register

(a) for the purpose of protecting the interests, safety or well-being 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.

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.

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.

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:

(b) the fingerprints of the person;

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

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

(a) a children’s court;

(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―

(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.

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

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

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

(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.

(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.

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;

(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.

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

(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―

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 –

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

(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.

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

(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.

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

(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;

(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

(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

(7) 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;

(d) is deceased.

(8) 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

(9) 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.

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

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

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

(a) the child, if the child is –

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

(f) a children’s court, if –

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.

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

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

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

(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 –

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

(e) a children’s court, if –

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

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

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

(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.

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

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 or orphaned and 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;

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

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

(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(2):

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

(b) an unaccompanied foreign child;

(c) a child who is a victim of trafficking;

(d) a street child; and

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

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).

(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 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–

(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.

(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—

(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–

(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 –

(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.

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 –

(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–

(e) 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).

154. If there are reasonable grounds for believing that a child at the same place or on the same premises as 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 may refer that child to a designated social worker for investigation as contemplated in section 155(2).

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) The designated social worker must report the matter to the relevant provincial department of Social Development.

(4) (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.

(5) 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 the matter.

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

(7) 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.

(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.

(9) 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 report of the designated social worker referred to in subsection (2)(a).

(a) referred to in section 46;

(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) –

(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.

(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;

(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.

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 –

(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;

(c) any other instructions of the court;

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

(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.

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

(a) lapses on expiry of –

(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;

(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.

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;

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 –

(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.

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).

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.

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.

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

(a) order the employer of the respondent –

(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.

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

228. A child is adopted if the child has been placed in the permanent care of a person who is not the parent or guardian of the child as a result of a court order that has the effects contemplated in section 241.

229. The purposes of adoption are to—

(a) the adoption is in the best interest of the child;

(b) the child is adoptable; and

(c) the provisions of this Chapter are complied with.

(2) A child is adoptable if―

(b) the whereabouts of the child’s parent or guardian cannot be established;

(c) the child has been abandoned;

(e) the child is in need of a permanent alternative placement.

(b) by a widower, widow, divorced or unmarried person;

(d) by the biological father of a child born out of wedlock;

(e) by the foster parent of the child; or

(f) by the kinship care-giver of the child.

(c) over the age of 18 years; and

(3) In the assessment of a prospective adoptive parent as contemplated in subsection (2)(d), an adoption social worker must take the cultural, ethnic and community diversity of adoptable children and prospective adoptive parents into consideration.

(4) A person may not be disqualified from adopting a child based on his or her financial status.

(5) Any person who adopts a child may apply for means-tested social assistance where applicable.

(6) A person unsuitable to work with children is not a fit and proper person to adopt a child.

(7) The biological father of a child who does not have guardianship in respect of the child in terms of chapter 3, the foster parent of a child or the kinship care-giver of a child must be regarded as having elected not to apply for the adoption of the child if that biological father, foster parent or kinship care-giver fails to apply for the adoption of the child within 30 days after a notice calling on that biological father, foster parent or kinship care-giver to do so has been served on that biological father, foster parent or kinship care-giver by the clerk of the children’s court or the sheriff.

(8) A family member of a child other than a kinship care-giver who, prior to the adoption, has given notice to the clerk of the children’s court that he or she is interested in adopting the child has the right to be considered as a prospective adoptive parent when the child becomes available for adoption.

(a) keeping a record of adoptable children; and

(b) keeping a record of suitable adoptive parents.

(2) The name and other identifying information on a child may be entered into RACAP if the child is adoptable as contemplated in section 231(2).

(3) The name and other identifying information on a child must be removed from RACAP if the child has been adopted.

(a) the provisions of section 232(2) has been complied with; and

(b) the person is a citizen of or a permanent resident of the Republic.

(a) has effect for a period of three years;

(b) may be renewed as prescribed;

(i) on written notice of withdrawal being given to the Director-General;

(ii) on the death of the registered person;

(b) any other person who holds guardianship in respect of the child; and

(i) 10 years of age or older; or

(2) Subsection (1) excludes a parent or person referred to in section 236 and a child may be adopted without the consent of such a parent or person.

(3) If the parent of a child wishes the child to be adopted by a particular person the parent must state the name of that person in the consent.

(4) The eligibility of the particular person contemplated in subsection (3) as an adoptive parent must be determined by the court in terms of section 232(2).

(5) Consent referred to in subsection (1) and given―

(6) The court may on good cause shown condone any deficiency in the provision of a consent given outside the Republic in that the consent―

(a) was not signed in the presence of a person prescribed by regulation; or

(b) was not verified in a manner or by a person prescribed by regulation.

(7) A parent of a child or a person referred to in subsection (1)(b) or the child referred to in subsection (1)(c) who has consented to the adoption of the child may withdraw the consent within 60 days after having signed the consent, after which the consent is final.

(b) the provision of information, including medical information, about the child.

(2) An agreement contemplated in subsection (1) may not be entered into without the consent of the child if the child is of an age, maturity and stage of development to understand the implications of such an agreement.

(3) The adoption social worker facilitating the adoption of the child must assist the parties in preparing a post-adoption agreement and counsel them on the implications of such an agreement.

(4) A court may, when granting an application in terms of section 238 for the adoption of the child, confirm a post-adoption agreement if it is in the best interest of the child.

(5) A post-adoption agreement must be in the format prescribed by regulation.

(a) takes effect only if made an order of court;

(b) may be amended or terminated only by an order of court on application—

(i) by a party to the agreement; or

(ii) by the adopted child.

235. (1) The court, on application by the Department, a provincial department of social development, a designated child protection organisation or an adoption social worker may issue an order freeing a parent or person whose consent to the adoption of the child is required in terms of section 233 from parental responsibilities and rights in respect of the child pending the adoption of the child.

(2) The parent or person whose consent to the adoption of the child is required in terms of section 233 must support an application for a freeing order in terms of subsection (1).

(3) A freeing order in terms of subsection (1) must authorise a designated child protection organisation or a person to exercise parental responsibilities and rights in respect of the child pending the adoption of the child.

(5) A freeing order relieves a parent or person from the duty to contribute to the maintenance of the child pending the adoption, unless otherwise ordered by the court.

(a) is incompetent to give consent due to mental illness;

(3) If the parent referred to in subsection (1) is the biological father of the child, consent for the adoption is also not necessary if―

(4) A person referred to in subsection (3)(a) can for the purposes of that subsection acknowledge that he is the biological father of a child in any of the following ways:

(b) by voluntarily paying maintenance in respect of the child;

(c) by paying damages in terms of customary law; or

(5) A children’s court may on a balance of probabilities make a finding as to the existence of a ground on which a parent or person is excluded in terms of this section from giving consent for the adoption of a child.

(2) A person who has consented to the adoption of a child in terms of section 233 and who wants the court to dispense with any other person’s consent on a ground set out in section 236, must submit a statement to that effect to the clerk of the children’s court.

(3) A clerk of the children’s court may request the Director-General: Home Affairs to disclose any information contained in the registration of birth of a child, including the identity and other particulars of a person who has acknowledged being the father or the mother of the child.

(4) If a social worker involved in the proposed adoption of a child obtains information regarding the identity and whereabouts of a person whose consent for the adoption is necessary in terms of section 233 or whose consent for the adoption would have been necessary had it not been for section 236, the social worker must without delay submit a report containing that information to the clerk of the children’s court.

238. (1) When a child becomes available for adoption, the clerk of the children’s court must without delay serve a notice on each person whose consent is in terms of section 233 required for the adoption.

(3) If a person on whom a notice in terms of subsection (1) has been served fails to comply with a request contained in the notice within 30 days, that person must be regarded as having consented to the adoption.

(a) be made to a children’s court in a manner prescribed by regulation;

(ii) information on whether the adoption is in the best interest of the child; and

(iii) prescribed medical information in relation to the child.

(c) be accompanied by an assessment referred to in section 232(2)(d);

(e) contain such particulars as may be prescribed by regulation.

(c) any written responses to requests in terms of section 238(2);

(d) a report on any failures to respond to those requests; and

(3) An applicant has no access to any documents lodged with the court by other parties except with the permission of the court.

(b) all reasonable preferences expressed by a parent and stated in the consent; and

(2) A children’s court considering an application may make an order for the adoption of a child only if―

(a) the adoption would be in the best interest of the child;

(b) the prospective adoptive parent comply with section 232(2);

(d) no such consent has been withdrawn in terms of section 233(7); and

(a) consent has unreasonably been withheld; and

(b) the adoption is in the best interest of the child.

(d) any previous order made in respect of the placement of the child.

(d) does not affect any rights to property the child acquired before the adoption.

(3) An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child.

(a) the adopted child;

(c) the adoptive parent of the child.

(2) Any application in terms of subsection (1) must be lodged within a reasonable time not exceeding two years from the date of the adoption.

(a) rescission of the order is in the best interest of the child; or

(b) subsection (4) applies: Provided that it is in the best interest of the child.

(4) An adoption order may be rescinded if―

(5) Notice of an application for rescission of an adoption order must be given to –

(c) the Central Authority in the case of an inter-country adoption; and

(d) any other person who the court finds has a sufficient interest in the matter.

244. (1) As from the date on which the rescission of an adoption order takes effect—

(2) When rescinding an adoption order the court may―

(a) make an appropriate placement order in respect of the child concerned; or

245. (1) After an adoption order has been made by a children’s court in respect of a child whose birth has been registered in the Republic, the adoptive parent of the child must apply in terms of the applicable legislation to the Director-General: Home Affairs to record the adoption and any change of surname of the child in the births register.

(a) the relevant adoption order as registered by the adoption registrar;

(b) the birth certificate of the child;

(c) the prescribed birth registration form; and

(d) a fee prescribed in terms of any applicable legislation, if any.

246. (1) After an adoption order has been made by a children’s court in respect of a child born outside the Republic, the adoptive parent of the child must apply in terms of any applicable legislation to the Director-General: Home Affairs to register the birth of the child and to record the adoption of the child in the birth register.

(a) the relevant adoption order as registered by the adoption registrar;

(d) a fee prescribed in terms of any applicable legislation, if any.

(a) the registration numbers allocated to records of adoption cases;

(2) A clerk of the children’s court must―

248. (1) The information contained in the adoption register may not be disclosed to any person, except —

(a) to an adopted child after the child has reached the age of 18 years;

(2) The Director-General may require a person to receive counselling before disclosing any information contained in the adoptions register to that person in terms of subsection (1)(a), (b), (c) or (e).

(3) Notwithstanding subsection (1), an adopted child or an adoptive parent is entitled to have access to any medical information concerning―

(a) the adopted child; or

(b) the biological parents of the adopted child, provided that such information relates directly to the health of the adopted child.

(4) Notwithstanding subsection (1), parties to a post-adoption agreement as contemplated in section 234 are entitled to have access to such information about the child as has been stipulated in the agreement.

(2) Subsection (1) does not apply to―

(f) an organ of State; or

(g) any other persons as may be prescribed by regulation.

(b) an adoption social worker;

(c) the Central Authority in the case of inter-country adoptions; or

(2) Subsection (1) does not prohibit the rendering of services in connection with the adoption of a child by a lawyer, psychologist or other professional person.

*****

251. (1) The Director-General may in terms of a process prescribed by regulation accredit —

(b) a designated child protection organisation to provide adoption services.

(2) The Director-General must keep a register of all adoption social workers and designated child protection organisations accredited to perform adoption services.

252. (1) No person may publish or cause to be published in any form or by any means an advertisement dealing with the placement or adoption of a specific child.

(2) Subsection (1) does not apply in respect of―

(a) the publication of a notice in terms of this Act or a court order;

(d) other forms of advertisements specified by regulation.

(c) prescribing procedures for determining the age of a child;

(e) prescribing advertising guidelines for recruitment purposes;

(a) to give effect to the Hague Convention on Inter-country Adoption;

(b) to provide for the recognition of certain foreign adoptions;

(c) to find fit and proper adoptive parents for an adoptable child; and

(d) generally to regulate inter-country adoptions.

(2) An agreement contemplated in subsection (1)(a) or (b) may not be in conflict with the provisions of the Hague Convention on Inter-country Adoption.

(3) The President may agree to any amendment or revocation of an agreement contemplated in subsection (1)(a) or (b).

(4) An agreement contemplated in subsection (1)(a) or (b) or any amendment or revocation thereof, shall not be of any force or effect until the ratification of, or accession to, or amendment or revocation of such agreement has been approved by Parliament.

Hague Convention on Inter-country Adoption to have force of law

256. (1) The Hague Convention on Inter-country Adoption is in force in the Republic and its provisions are law in the Republic.

(2) The ordinary law of the Republic applies to an adoption to which the Convention applies but, where there is a conflict between the ordinary law of the Republic and the Convention, the Convention prevails.

257. (1) For purposes of the Hague Convention on Inter-country Adoption, "Central Authority" —

(a) in relation to the Republic, means the Director-General; or

(2) The Director-General, after consultation with the Director-General of the Department of Justice and Constitutional Development, must perform the functions assigned by the Convention to Central Authorities.

258. (1) The Central Authority of the Republic may in terms of section 303 delegate any powers or duties of the Central Authority under the Hague Convention on Inter-country Adoption to an officer in the Department.

(2) Any powers or duties of the Central Authority in terms of Articles 15 to 21 of the Convention and sections 261(3) and (4), 262(3) and (4), 264(2) and 265(2) may, to the extent determined by the Central Authority, be performed by —

(a) another organ of state; or

259. (1) The Central Authority may, on application by a child protection organisation—

(a) accredit the organisation to provide inter-country adoption services; and

(2) The Central Authority may accredit a child protection organisation to provide inter-country adoption services for such period and on such conditions as may be prescribed.

(3) A child protection organisation accredited in terms of this section to provide inter-country adoption services―

(4) Subsection (1) does not prohibit the rendering of services in connection with the adoption of a child by a lawyer, psychologist or other professional person.

260. (1) A child protection organisation accredited in terms of section 259 to provide inter-country adoption services may enter into an adoption working agreement with an accredited adoption agency in another country.

(2) A child protection organisation referred to in subsection (1)—

261. (1) A person habitually resident in a convention country who wishes to adopt a child habitually resident in the Republic must apply to the central authority of the convention country concerned.

(2) If the central authority of the convention country concerned is satisfied that the applicant is fit and proper adopt, it shall prepare a report on that person in accordance with the requirements of the Hague Convention on Inter-country Adoption and any requirements as may be prescribed and transmit the report to the Central Authority of the Republic.

(3) If an adoptable child is available for adoption, the Central Authority will prepare a report on the child in accordance with the requirements of the Hague Convention on Inter-country Adoption and any requirements as may be prescribed and forward it to the central authority of the convention country concerned.

(4) If the Central Authority and the central authority of the convention country concerned both agree on the adoption, the Central Authority will refer the application for adoption together with all relevant documents and the reports contemplated in subsections (2) and (3) to the children’s court for consideration in terms of section 239.

(a) the adoption is in the best interest of the child;

(b) the child is in the Republic;

(f) the Central Authority of the Republic has agreed to the adoption of the child; and

(6) The Central Authority of the Republic may withdraw its consent to the adoption of the child within a period of 140 days since the date on which it has consented to the adoption, provided that it is in the best interests of the child to do so.

(7) An order of court contemplated in subsection (5) takes effect only after the period referred to in subsection (6) has lapsed and the Central Authority has not withdrawn its consent within the stated period.

(8) This section does not apply to a child habitually resident in the Republic and who is to be placed for adoption outside the Republic with a family member of that child or with a person who will become an adoptive parent jointly with the child’s biological parent.

(9) The provisions of Chapter 15 apply to the adoption of a child referred to in subsection (8).

262. (1) A person habitually resident in a non-convention country who wishes to adopt a child habitually resident in the Republic must apply to the competent authority of the non-convention country concerned.

(2) If the competent authority of the non-convention country concerned is satisfied that the applicant is fit and proper to adopt, it shall prepare a report on that person in accordance with the prescribed requirements and transmit the report to the Central Authority in the Republic.

(3) If an adoptable child is available for adoption, the Central Authority will prepare a report on the child in accordance with the prescribed requirements and transmit it to the competent authority in the non-convention country concerned.

(4) If the Central Authority and the competent authority in the non-convention country concerned both agree on the adoption, the Central Authority will refer the application for adoption together with all relevant documents and the reports contemplated in subsections (2) and (3) to the children’s court for consideration in terms of section 239.

(a) the adoption is in the best interest of the child;

(b) the child is in the Republic;

(f) the Central Authority of the Republic has agreed to the adoption of the child; and

(6) The Central Authority of the Republic may withdraw its consent to the adoption of the child within a period of 140 days since the date on which it has consented to the adoption, provided that it is in the best interests of the child to do so.

(7) An order of court contemplated in subsection (5) takes effect only after the period referred to in subsection (6) has lapsed and the Central Authority has not withdrawn its consent within the stated period.

(8) This section does not apply to a child habitually resident in the Republic and who is to be placed for adoption outside the Republic with a family member of that child or with a person who will become an adoptive parent jointly with the child’s biological parent.

(9) The provisions of Chapter 15 apply to the adoption of a child referred to in subsection (8).

263. If the children’s court has approved the adoption of a child in terms of section 261 or 262, the Central Authority may issue an adoption compliance certificate.

264. (1) A person habitually resident in the Republic who wishes to adopt a child habitually resident in a convention country must apply to the Central Authority.

(2) If the Central Authority is satisfied that the applicant is fit and proper to adopt, it shall prepare a report on that person in accordance with the requirements of the Hague Convention on Inter-country Adoption and any requirements as may be prescribed and transmit the report to the central authority of the convention country concerned.

(3) If an adoptable child is available for adoption, the central authority of the convention country concerned shall prepare a report on the child in accordance with the requirements of the Hague Convention on Inter-country Adoption and transmit it to the Central Authority.

(4) If the Central Authority and the central authority of the convention country concerned both agree on the adoption, the central authority in that country will refer the application for adoption for the necessary consent in that country.

265. (1) A person habitually resident in the Republic who wishes to adopt a child habitually resident in a non-convention country must apply to the Central Authority.

(2) If the Central Authority is satisfied that the applicant is fit and proper to adopt, it shall prepare a report on that person in accordance with the requirements of the non-convention country concerned and transmit the report to the competent authority of that country.

(3) If an adoptable child is available for adoption, the competent authority of the non-convention country concerned shall prepare a report on the child in accordance with the prescribed requirements and transmit it to the Central Authority.

(4) If the Central Authority and the competent authority of the non-convention country concerned both agree on the adoption, the competent authority of that country will refer the application for adoption for the necessary consent in that country.

266. (1) The adoption in a convention country of a child habitually resident in that convention country by a person habitually resident in the Republic shall be recognised in the Republic if an adoption compliance certificate issued in that country is in force for the adoption.

(2) The adoption in a convention country of a child habitually resident in that convention country by a person habitually resident in another convention country shall be recognised in the Republic if an adoption compliance certificate issued in the convention country where the adoption was granted is in force for the adoption.

(3) If an adoption compliance certificate was not issued in the relevant convention country, the Central Authority may issue a declaration recognising the adoption.

(4) A declaration in terms of subsection (3) is, upon production by any person in a court, admissible as evidence in any proceedings before the court.

(5) The adoption of a child referred to in subsections (1) and (2) shall not be recognised if a declaration is made in terms of section 270 that an adoption or a decision in terms of article 27 of the Hague Convention on Inter-country Adoption has no effect in the Republic.

267. Subject to section 270 an adoption compliance certificate is evidence, for the purposes of the laws of the Republic, that the adoption to which the certificate relates —

268. The Central Authority may issue a declaration recognising the adoption of a child in a non-convention country if —

269. If the adoption of a child is recognised in terms of section 266 or 268, the adoption has in the Republic the effects as set out in section 241.

270. (1) The Central Authority may declare that an adoption to which section 266 or 268 applies or a decision made in terms of article 27 of the Hague Convention on Inter-country Adoption may not be recognised in the Republic if the adoption or decision is manifestly contrary to public policy in the Republic, taking into account the best interests of the relevant child.

(2) If the Central Authority declares that an adoption or decision referred to in subsection (1) may not be recognised, the adoption or decision has no effect in the Republic.

271. (1) In the event of a refusal to recognise an inter-country adoption as contemplated in section 270, an application for the adoption of a child from a convention country or a non-convention country may be made to the children's court.

(2) The provisions of Chapter 15, with the necessary changes which the context may require, applies to the adoption of a child referred to in subsection (1).

272. Subject to the provisions of section 248 with regard to access to the adoption register, read with such changes as the context may require, the Central Authority may disclose to a person older than 18 years who, as a child, was adopted in accordance with the Hague Convention on Inter-country Adoption, any information in the records of the Central Authority concerning that person’s origin.

273. No person may process or facilitate an inter-country adoption otherwise than in terms of this Chapter.

(a) to give effect to the Hague Convention on International Child Abduction; and

(b) to combat parental child abduction.

275. The Hague Convention on International Child Abduction is in force in the Republic and its provisions are law in the Republic, subject to the provisions of this Act.

276. (1) For purposes of the Hague Convention on International Child Abduction, "Central Authority" –

(2) The Chief Family Advocate must perform the functions assigned by the Convention to Central Authorities.

277. (1) The Central Authority of the Republic may, subject to such conditions as he or she may impose, delegate or assign any powers or duties conferred or imposed upon him or her under the Hague Convention on International Child Abduction to any Family Advocate appointed in terms of the Mediation in Certain Divorce Matters Act.

(2) The delegation, assignment and conditions imposed must be in writing.

278. (1) In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3 of the Hague Convention on International Child Abduction, a High Court may, prior to the making of an order for the return of the child, request the Central Authority to provide a report on the domestic circumstances of the child prior to the alleged abduction.

(2) The court may, prior to the making of an order for the return of the child, order interim protective relief for the child, the applicant or the defendant.

(3) The court must, in considering an application in terms of this Chapter for the return of a child, afford that child the opportunity to raise an objection to being returned and in so doing must give due weight to that objection, taking into account the age and maturity of the child.

279. A legal representative must represent the child, subject to section 55, in all applications in terms of the Hague Convention on International Child Abduction.

280. (1) The Minister of Justice and Constitutional Development may make regulations –

(2) A regulation made under subsection (1) may prescribe a penalty of a fine or of imprisonment for a period not exceeding 12 months for any contravention thereof or failure to comply therewith.

(a) to give effect to the UN Protocol to Prevent Trafficking in Persons; and

(b) generally to combat trafficking in children.

281. The UN Protocol to Prevent Trafficking in Persons is in force in the Republic and its provisions are law in the Republic, subject to the provisions of this Act.

(2) An agreement contemplated in subsection (1)(a) or (b) may not be in conflict with the provisions of the UN Protocol to Prevent Trafficking in Persons.

(3) The President may agree to any amendment or revocation of an agreement contemplated in subsection (1)(a) or (b).

(4) An agreement contemplated in subsection (1)(a) or (b) or any amendment or revocation thereof, shall not be of any force or effect until the ratification of, or accession to, or amendment or revocation of such agreement has been approved by Parliament.

283. (1) No person, natural or juristic, or a partnership may traffic a child or allow a child to be trafficked.

(i) the intended exploitation; or

(ii) the adoption of the child facilitated or secured through illegal means.

(a) within the scope of his or her employment;

(b) within the scope of his or her actual or apparent authority; or

(4) A finding by a court that a juristic person or partnership has committed an act in contravention of the prohibition set out in subsection (1) serves as a ground for revoking its license or registration to operate.

(2) An Internet service provider operating in the Republic must report to the South African Police Service sites on its server that contain information in contravention of subsection (1).

285. (1) The Director-General of the Department of Foreign Affairs, without delay and with due regard to the safety of a South African child who has been trafficked to another country must, through its diplomatic channels, facilitate the return of the child to South Africa.

(3) Subsection (1) and (2) apply to any child who, at the time of entry into the territory of the country to which the child had been trafficked, had permanent residence in South Africa.

(4) The Director-General must, if it is essential for the best interest of the child, authorise an adult person to escort a child referred to in subsection (1), or a child victim of trafficking found in the Republic who is a South African child or a child residing permanently in South Africa if the parent, guardian, care-giver or other person who has parental responsibilities and rights in respect of the child provides sufficient proof that he or she does not have the financial means to travel to the country or place in the Republic where the child is for the purpose of escorting the child back to South Africa or to the place in the Republic from where the child has been trafficked.

(5) If the Director-General has authorised an adult person to escort a child as contemplated in subsection (3), an allowance as prescribed shall be made available for this purpose.

(6) The Director-General of the Department of Home Affairs must, on arrival of a child referred to in subsection (1) in South Africa, refer the child to a designated social worker for an investigation in terms of section 155(2).

287. An immigration official, a police official, social worker, social service professional, medical practitioner or registered nurse who comes into contact with a child victim of trafficking in the Republic must refer that child to a designated social worker as contemplated in section 288(1).

(b) may, pending such investigation, be placed in temporary safe care.

(2) If, after an investigation contemplated in subsection (1)(a), an illegal foreign child is brought before the children’s court, the court may order that the child be assisted in applying for asylum in terms of the Refugees Act, 1998 (Act No. 130 of 1998).

(3) A finding in terms of section 156 that an illegal foreign child victim of trafficking is a child in need of care and protection serves as authorisation for allowing the child to remain in the Republic for the duration of the children’s court order.

(b) the safety of the child in the country to which the child is to be returned; and

(c) the possibility that the child might be re-trafficked, harmed or killed.

(2) A child contemplated in subsection (1) must, if it is essential for the best interest of the child, be escorted by an adult person authorised by the Director-General if the parent, guardian, care-giver or other person who has parental responsibilities and rights in respect of the child provides sufficient proof that he or she does not have the financial means to travel to South Africa for the purpose of escorting the child back to his or her country of origin or to the country from where the child has been trafficked.

(3) If the Director-General has authorised an adult person to escort a child as contemplated in subsection (2), an allowance as prescribed shall be made available for this purpose.

290. (1) Any person who, while being a citizen of or permanently residing in the Republic of South Africa, a juristic person or a partnership registered in terms of any law in the Republic that commits any act outside the Republic which would have constituted an offence in terms of this chapter had it been committed inside the Republic, is guilty of that offence as if the offence was committed in the Republic and is liable on conviction to the same penalty prescribed for such offence.

(2) A person, natural or juristic, or partnership may not be prosecuted for an act contemplated in subsection (1) if that person or partnership has been acquitted or convicted, in the country where the act was committed, of that act which would have constituted an offence in terms of this chapter had it been committed in the Republic of South Africa.

(3) The court of the area in which the person or partnership contemplated in subsection (1) is ordinarily resident shall have jurisdiction to try the matter as if the offence had been committed within its jurisdiction.

291. (1) No surrogate motherhood agreement is valid unless –

(a) the agreement is in writing and is signed by all the parties thereto;

(b) the agreement is entered into in the Republic;

(2) A court may, on good cause shown, dispose with the requirement set out in subsection (1)(d).

292. (1) Where a commissioning parent is married or involved in a permanent relationship, the court may not confirm the agreement unless the husband, wife or partner of the commissioning parent has given his or her written consent to the agreement and has become a party to the agreement.

(2) Where the surrogate mother is married or involved in a permanent relationship, the court may not confirm the agreement unless her husband or partner has given his or her written consent to the agreement and has become a party to the agreement.

(3) Where a husband or partner of a surrogate mother who is not the genetic parent of the child unreasonably withholds his or her consent, the court may confirm the agreement.

293. No surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person.

294. A court may not confirm a surrogate motherhood agreement unless–

(b) the commissioning parent or parents –

(c) the surrogate mother –

295. (1) No artificial fertilisation of the surrogate mother may take place –

(a) before the surrogate motherhood agreement is confirmed by the court;

(2) Any artificial fertilisation of a surrogate mother in the execution of an agreement contemplated in this Act must be done in accordance with the provisions of the Human Tissue Act, 1983 (Act No. 65 of 1983).

Effect of surrogate motherhood agreement on status of child

296. (1) The effect of a valid surrogate motherhood agreement is that –

(2) Any surrogate motherhood agreement that does not comply with the provisions of this Act is invalid and any child born as a result of any action taken in execution of such an arrangement is for all purposes be deemed to be the child of the woman that gave birth to that child.

297. (1) A surrogate mother who is also a genetic parent of the child concerned may, at any time prior to the lapse of a period of sixty days after the birth of the child, terminate the surrogate motherhood agreement by filing written notice with the court.

(2) The court must terminate the confirming the agreement in terms of section 285 upon finding, after notice to the parties to the agreement and a hearing, that the surrogate mother has voluntarily terminated the agreement and that she understands the effects of the termination, and the court may issue any other appropriate order if it is in the best interests of the child.

(3) The surrogate mother incurs no liability to the commissioning parents for exercising her rights of termination in terms of this section, except for compensation for any payments made by the commissioning parents in terms of section 294.

298. The effect of the termination of a surrogate motherhood agreement in terms of section 291 is that –

299. (1) A surrogate motherhood agreement is terminated by an abortion that may be carried out in terms of the Choice on Termination of Pregnancy Act, 1996 (Act No. 92 of 1996).

(2) For the purposes of the Choice on Termination of Pregnancy Act, 1996, the decision to undergo an abortion lies with the surrogate mother, but she must inform the commissioning parents of her decision prior to the abortion and consult with the commissioning parents before the abortion is carried out.

(3) The surrogate mother incurs no liability to the commissioning parents for exercising her right to an abortion pursuant to this section except for compensation for any payments made by the commissioning parents in terms of section 294 where the decision to abort is taken for any reason other than on medical grounds.

300. (1) Subject to subsections (2) and (3), no person may in connection with a surrogate motherhood agreement give or promise to give to any person, or receive from any person, a reward or compensation in money or in kind.

(2) No promise or agreement for the payment of any compensation to a surrogate mother or any other person in connection with a surrogate motherhood agreement or the execution of such an agreement is enforceable, except a claim for –

(3) Any person who renders a bona fide professional legal or medical service with a view to the confirmation of a surrogate motherhood agreement in terms of section 288 or in the execution of such an agreement, is entitled to reasonable compensation therefor.

301. (1) The identity of the parties to court proceedings with regard to a surrogate motherhood agreement may not be published without the written consent of the parties concerned.

(2) No person may publish any facts that reveal the identity of a person born as a result of a surrogate motherhood agreement.

302. (1) No person may artificially fertilise a woman in the execution of a surrogate motherhood agreement or render assistance in such an artificial fertilisation, unless that artificial fertilisation is authorised by a court in terms of the provisions of this Act.

(2) No person may in any way for or with a view to compensation make known that any person is or might possibly be willing to enter into a surrogate motherhood agreement.

303. (1) A person authorised by the Director-General, a provincial head of social development or a municipality may enter any child and youth care centre, partial care facility, shelter or drop-in centre or any place which on reasonable suspicion is being used as an unregistered child and youth care centre, partial care facility, shelter or drop-in centre, in order –

(a) to inspect that centre, facility, shelter or place and its management; or

(2) (a) An identity card prescribed by regulation must be issued to each person authorised in terms of subsection (1).

(b) When inspecting such a centre, facility, shelter or place, a person authorised in terms of subsection (1) must, on demand, produce such an identity card.

(3) A person authorised in terms of subsection (1) may for the purposes of that subsection –

(a) determine whether the centre, facility, shelter or place complies with –

(4) A person authorised in terms of subsection (1) must –

(5) A person authorised in terms of subsection (1) must submit a report to the Director-General, the provincial head of social development or a municipality, as may be appropriate, on any inspection carried out by that person in terms of this section.

304. (1) A person is guilty of an offence if that person –

(a) commits an act in contravention of the prohibition set out in section 12(3);

(d) fails to comply with a request in terms of section 57 (1);

(l) hinders or obstructs –

(p) has been issued with a written notice as contemplated in section 153(1) and –

(2) A person unfit to work with children is guilty of an offence if that person –

(b) assumes the foster care, kinship care or temporary safe care of a child; or

(3) A parent, guardian, other person who has parental responsibilities rights in respect of a child, care-giver of a child or person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, is guilty of an offence if that parent or care-giver or other person –

(a) abuses or deliberately neglects the child; or

(b) abandons the child.

(4) A person who is the owner, lessor, manager, tenant or occupier of any premises on which the commercial sexual exploitation of a child has occurred is guilty of an offence if that person, on gaining information of that occurrence, fails to promptly take reasonable steps to report the occurrence to the South African Police Service.

(5) Subject to subsection (8), a person convicted of an offence in terms of subsection (1), (2), (3), (4) or (5) is liable to a fine as may be determined in terms of applicable legislation, or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment.

(6) A person convicted of an offence in terms of subsection (1), (2), (3), (4) or (5) more than once is liable to a prescribed fine or imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.

(7) A person convicted of an offence in terms of subsection (1)(s) is, in addition to any other offence of which he or she may be convicted, liable to a prescribed fine or imprisonment for a period not exceeding 20 years or to both such fine and such imprisonment.

305. (1) The Minister may make regulations prescribing –

(a) any matter referred to in sections 90, 103, 142, 160, 179, 190, 212, 227 and 253;

(e) any other matter that may facilitate the implementation of this Act.

(2) Regulations made in terms of subsection (1) may –

(a) apply –

(b) differentiate between different –

(3) Regulations made in terms of subsection (1) may provide that any person who contravenes or fails to comply with a provision thereof is guilty of an offence and liable on conviction to –

(a) imprisonment for a period not exceeding two years;

(b) an appropriate fine; or

(c) both a fine and imprisonment.

306. (1) The Minister may delegate any power or duty assigned to the Minister in terms of this Act to –

(a) the Director-General or an officer in the employ of the Department;

(b) an MEC responsible for social development, by agreement with the MEC; or

(c) any organ of state, by agreement with that organ of state.

(2) A delegation in terms of subsection (1) –

(b) must be in writing;

(c) may include the power to sub-delegate; and

(3) The Minister may confirm, vary or revoke any decision taken in consequence of a delegation or sub-delegation in terms of this section, subject to any rights that may have accrued to a person as a result of the decision.

(4) The Minister may –

(a) not delegate a power or duty–

(b) at any time withdraw a delegation.

307. (1) The Minister may assign any power or duty assigned to the Minister in terms of this Act to an MEC responsible for social development, by agreement with the MEC.

(2) An assignment in terms of subsection (1) –

(b) must be in writing;

(c) may include the power to delegate; and

(3) The Minister may confirm, vary or revoke any decision taken in consequence of an assignment in terms of this section, subject to any rights that may have accrued to a person as a result of the decision.

(4) The Minister may –

(a) not assign a power or duty–

(b) at any time withdraw an assignment.

308. (1) An MEC for social development may delegate any power or duty assigned to the MEC in terms of this Act to –

(b) any organ of state, by agreement with that organ of state.

(2) A delegation in terms of subsection (1) –

(b) must be in writing;

(c) may include the power to sub-delegate; and

(3) The MEC may confirm, vary or revoke any decision taken in consequence of a delegation or sub-delegation in terms of this section, subject to any rights that may have accrued to a person as a result of the decision.

(4) The MEC may –

(a) not delegate a power or duty to publish notices in the Government Gazette; and

(b) at any time withdraw a delegation.

309. (1) The Director-General may delegate any power or duty assigned to him or her in terms of this Act to –

(a) an officer in the employ of the Department;

(b) any organ of state, by agreement with that organ of state.

(2) A delegation in terms of subsection (1) –

(b) must be in writing;

(3) The Director-General may –

(b) at any time withdraw a delegation.

310. (1) The provincial head of social development may delegate any power or duty assigned to him or her in terms of this Act to –

(a) an officer in the employ of the province concerned;

(b) any organ of state, by agreement with that organ of state.

(2) A delegation in terms of subsection (1) –

(b) must be in writing;

(3) The provincial head may –

(b) at any time withdraw a delegation.

311. (1) The Minister or an MEC for social development in a province may, subject to the departmental strategic plan, enter into an agreement with a designated child protection organisation or other appropriate person, for the provision of any service that may or must be provided in terms of this Act, by such organisation or person on an agency basis.

(2) The Minister or MEC may delegate to such organisation or person such powers and duties in terms of this Act as may be required for the proper performance of the service.

(3) Section 300 or 302, as may be appropriate, and read with such changes as the context may require, applies in respect of any delegation in terms of subsection (2).

312. The laws referred to in the second column of Schedule 4 are hereby amended to the extent indicated in the third column of the Schedule.

313. Anything done in terms of legislation repealed in terms of section 306 which can be done in terms of a provision of this Act, must be regarded as having been done in terms of that provision of this Act.

314. This Act is called the Children’s Act, 2003, and takes effect on a date fixed by the President by proclamation in the Gazette.