Parents and caregivers of children taken away from their primary caregivers over suspected neglect have been given a voice.
The Constitutional Court on Wednesday declared aspects of the Children’s Act unconstitutional, empowering parents, who would have otherwise had to watch from the sidelines as social workers decided the fate of their children, to voice their side of the story.
Wednesday’s ruling was confirmation of last year’s order by the Pretoria High Court, which emanated from the August 2010 raid by social workers, police and city officials who pounced on people begging on Pretoria streets with their children.
Despite not having a court order for the raids, the officials had taken to the streets, removing a three-year-old girl from a man who repairs shoes on a busy intersection in Pretoria, and two other girls, aged one and four, from their blind mother, who begged on the streets for a living.
The cobbler had taken his daughter to work because his partner was in hospital giving birth to another child, while the blind woman had been accompanied by an assistant.
With the help of the Centre for Child Law and Lawyers for Human Rights, they approached the Pretoria High Court to get their children back. The two girls were returned to their mother 11 days after the raid, while the man’s daughter was returned later, but a social worker was appointed for supervision.
The Pretoria High Court had declared sections 151 and 152 of the Children’s Act unconstitutional, saying it provided for a child to be removed from family care by state officials and placed in temporary safe care, but failed to provide for the judicial review of the removal and placement decisions made by social workers or the police.
As the law stood at the time, the matters involving children removed from their parents would be heard in a Children’s Court only after the 90 days it took social workers to compile a report.
Children will now have to be brought before a Children’s Court within 24 hours of removal, affording parents an opportunity to challenge the removal. The court will review the matter and make a decision on whether the removal was justified.
In confirming the high court’s order in a ruling read by Justice Thembile Skweyiya, the majority of the Constitutional Court judges said the removal of children from their parents cannot be taken lightly as the “separation may rupture the family unit and hamper the development of a child”.
“In addition to the limitation of the right to family or parental care, removal without automatic judicial review also infringes the right of access to courts under section 34 of the constitution. It is imperative, therefore, that the statutory framework for the removal of children provides for an appropriate degree of judicial oversight of the removals,” said Justice Skweyiya.
People who remove children are now required to inform the children’s parents and the Department of Social Development within 24 hours and then place the matter before the children’s court no later than the next court day. - The Star