Your browser does not support JavaScript! Understanding the Children’s Court System in South Africa - Divorce, Family and Commercial Law Attorneys

Understanding the Children’s Court System in South Africa

HOME / Understanding the Children’s Court System in South Africa

Understanding the Children’s Court System in South Africa

Understanding the Children’s Court System in South Africa

Children play a vital role in society in the future of generations to come. With this crucial role, it’s important to ensure that their rights are upheld in the best way possible.

The Children’s Court in South Africa is a specialised legal entity established under the Children’s Act of 2005 (Act 38 of 2005), containing 22 chapters. It plays a crucial role in protecting the best interests of minors and ensuring the well-being of children in need of care and protection. 

Read further to gain a comprehensive understanding of the Children’s Court system, highlighting its purpose, structure, jurisdiction, procedures, and the essential role it plays in the lives of South African children.

The Children’s Act: Foundation of the Children’s Court

Explanation of the Children’s Act, 2005 (Act 38 of 2005)

The Children’s Act 38 of 2005, was established to give effect to certain rights of children as contained in the Constitution of South Africa Act 108 of 1996, particularly Section 28 of the Bill of Rights pertaining to children.

The foundation of the Children’s Court system in South Africa lies in the Children’s Act of 2005 (Act 38 of 2005). This legislation serves to protect and promote the rights of children, serving as a legal framework for their welfare, care, and rehabilitation. 

The Act outlines the procedures and provisions that guide the functioning of the Children’s Court, ensuring that all the rights and best interests of children are upheld. 

While children are the focus, everyone can gain guidance, including parents, guardians, grandparents, aunts, uncles, teachers, and social workers. 

Historical Context and Significance

The Act is a pivotal piece of legislation that represents a significant development in South Africa’s legal framework concerning minors. 

It was enacted to align with international conventions, focusing on the historical disparities and providing a unified legal foundation for child protection and justice.

Examining the Children’s Act, it stipulates further provision regarding children’s courts. Most of the legislation pieces covering issues involving children are covered in the Children’s Act, 2005, namely, inter-alia:

  • Defines parental responsibilities and rights.
  • Provides for the issuing of contribution orders. 
  • Makes new provision for the adoption of children, including inter-country adoption.
  • Gives effect to the Hague Convention on Inter-country adoption.
  • Prohibits child abduction and gives effect to the Hague Convention on International Child Abduction.
  • Provides for surrogate motherhood.
  • Creates new offences relating to children. 

Children’s Court System
Purpose and Jurisdiction of Children’s Courts

Children’s Courts are specialised legal entities dedicated to handling matters concerning children, youth, and families. 

Their primary focus is to ensure the protection, care, and rehabilitation of children in need, acting in the child’s best interests.

Types of Cases Handled by Children’s Courts

Children’s Courts have jurisdiction over a wide range of cases.

These cases involve minors, including applications for increased contact with minor children, protection and well-being of a minor child, adoption applications, and various matters relating to the care, protection, or well-being of a child as outlined in the Children’s Act.

One can file an application at the Children’s Court for the following matters:

  • Protection and well-being of a child
  • Care of, or contact with a child
  • Paternity and/or support of a child
  • Provision of early childhood development services
  • Prevention of early intervention services
  • Maltreatment, abuse, neglect, degradation, or exploitation of a child, except criminal prosecution in this regard
  • Temporary safe care of a child
  • Alternative care of a child
  • Adoption of a child, including an inter-country adoption
  • A child and youth care centre, a partial care facility or a shelter or drop-in centre, or any other facility purporting to be a care facility for children
  • Any other issue relating to the care, protection or well-being of a child provided for in this Act

Distinction from Criminal Courts

Children’s Courts focus on rehabilitating criminal offenders who are minors, rather than punitive measures. The approach is geared towards assisting juveniles in reintegrating positively into society.

Establishment and Structure

An Overview of Children’s Courts in South Africa

Every Magistrate’s Court in South Africa is designated as a Children’s Court, ensuring accessibility across the nation. 

The structure of Children’s Courts is specifically designed to be child-friendly, aiming to create a safe and nurturing environment where children can express themselves comfortably. 

Powers and Responsibilities of Presiding Officers

Presiding officers, usually magistrates, play a vital role in ensuring the proceedings in the Children’s Court are fair, child-friendly, and in line with the law. They prioritise the best interests of the child and implement rehabilitative measures.

Who Can Approach the Children’s Court?

Child holding a fluffy toy

Explanation of Parties Eligible to Approach the Court

Any person, child, interested party, or entity who, acting in the child’s best interest, can approach the Children’s Court. This includes those involved or affected by the matter in question or those acting on behalf of a child who cannot act independently.

Mandatory Reporters of Child Abuse

Certain professionals, including teachers, social workers, and healthcare practitioners, are mandated by law to report suspected cases of child abuse to the Children’s Court, contributing to protecting children from harm.

In the Act, it clearly states that a child requires care and protection for the following:

  • Abandonment or orphaned and is without any visible means of support. 
  • Displays behaviour which cannot be controlled by the parent or caregiver.
  • Lives or works on the streets or begs of a living.
  • Addiction to a dependence-producing substance and is without any support to obtain treatment for such dependency.
  • Exploited or lives in circumstances that expose the child to exploitation.
  • Resides in or is exposed to circumstances which may seriously harm the child physically, mentally, or socially.
  • May be at risk if returned to the custody of the parent, guardian, or caregiver of the child if there with the possibility that he/she will live or be exposed to circumstances which may seriously harm the physical, mental, or social aspect.
  • In a state of physical or mental neglect.
  • Being maltreated, abused, deliberately neglected, or degraded by a parent, a caregiver, a person who has parental responsibilities and rights or a family member of the child or by a person under control of the child.
  • Victim of child labour.
  • In a child-headed household.

The Court Process

A Step-by-step Breakdown of the Court Process

The court process within the Children’s Court involves multiple stages, including assessments, hearings, mediation, and sentencing. It is designed to be child-friendly, ensuring the child’s comfort and participation throughout the proceedings. 

The first step is to visit the Magistrate’s court nearest to where the child resides. Remember that this is the court that has jurisdiction over the case. There are two documents that must be submitted to the clerk. 

  • Form 2 
  • An affidavit that briefly states the basis of the claim and reason for approaching the court. You can head to the local police station and fill out an affidavit, ensuring you get it commissioned once completed. 
  • You may attach any information, photographs, recordings, reports or any other information which may be relevant to bring to the attention of the court.

The documents should be lodged with the clerk of the Children’s court. A court date will be allocated by a magistrate with instructions to subpoena the other parties to court, where applicable. 

It’s crucial to note that the court closely looks at all relevant factors to decide on the best interest of the child. In Section 7 of the Act, it lists several factors that the court must take into consideration when determining what is in the best interests of the child. 

The Role of Social Workers and Legal Representatives

Social workers play a crucial role in assessing the child’s circumstances and providing recommendations to the court. Legal representatives advocate for the child’s best interests during the proceedings, ensuring their voice is heard.

In a scenario in which a child is clearly in danger at the place he/she lives, a social worker or a police officer may assist in removing the child from their home and place the child in temporary safe care without a court order. 

However, there must be reasonable grounds for believing that the child needs care and protection and requires immediate emergency protection. Removal of a child to a place of safety may occur when the delay in obtaining a court order for the removal of the child may jeopardise the child’s safety and well-being. 

Child Participation and Protection During Proceedings

The Children’s Court places a strong emphasis on including the child in the decision-making process, valuing their perspectives, and ensuring a supportive and protective environment during proceedings and take into consideration the child’s age, maturity and stage of development and the views expressed by the child must be given due consideration.

Orders Issued by the Children’s Court

The Children’s Court issues various types of orders, such as alternative care orders, adoption orders, shared care orders, supervision orders, and child protection orders. These orders are aimed at ensuring the child’s safety, well-being, and proper care.

Here are the range of orders a Children’s Court can make, including but not limited to the following:

  • Alternative care orders, which include placing a child in the care of a youth and childcare centre, in the care of a person who the court has designated to be a foster parent of the child, or in a place of temporary care.
  • Any adoption orders, which include any inter-country adoptions.
  • Partial care orders which might involve instructing the parents or caregiver of the child to decide for the child to be cared for by a partial care facility during specific hours during the day or night or for a particular period.
  • Shared care order, which could involve instructing several caregivers or youth and childcare centres to take responsibility for the child’s care at different times or periods. 
  • Supervision order, which would place the child, parent, or caregiver of the child under the supervision of a social worker or other people the court designated to supervise.
  • Instruct the child, parent, or caregiver to attend early intervention services, a family preservation program, or both.
  • Hand out a child protection order.
  • Order that a professional investigates in terms of section 50 of the Children’s Act 38 of 2005.

Focus on the Best Interests of the Child

All orders issued by the Children’s Court revolves around the best interests of the child, striving to provide a nurturing and stable environment for their growth and development.

Legal Implications and Enforcement of Orders

Court orders issued by the Children’s Court carry legal weight and must be followed by all parties involved. Failure to comply with these orders can have legal consequences.

Alternative Care and Foster Care

Detailed Information on Alternative Care Options

Alternative care options, including foster care, provide a stable and nurturing environment for children who cannot remain with their biological families. This ensures they receive the care and support they need for healthy development.

Foster Care as a Vital Component of Child Protection

Foster care is a crucial aspect of the child protection system, offering children a temporary or long-term family-based care arrangement when biological family support is unavailable or inadequate.

The Children’s Court can decide on a Foster Care Order if it discovers that a child requires care and protection. It’s also applicable when it’s necessary for the protection and well-being of the child. 

Under a Foster Care Order, it entails that the child is placed in the care of a foster parent who is not the parent or guardian of the child. 

The foster parent can also be an active member of an organisation operating a cluster foster-care scheme and who has been assigned responsibility for the foster care of a child. 

How to Become a Foster Parent

Prospective foster parents undergo a thorough screening and approval process, ensuring they can provide a safe and nurturing environment for a child in need.

As for the number of children that a person can accommodate under foster care, the Act says that it’s not more than six children for a single person or two persons sharing a common household. 

An exception is when the children are siblings or blood relations or if the Court considers this to be in the best interests of all the children concerned. 

When it comes to the duration of a foster care placement, it can last for up to two years. However, it can be up to 18 years if all the requirements are met. 

Prevention and Early Intervention

The Role of the Children’s Court in Prevention

Children’s Courts actively engage in preventative measures, advocating for policies and programs that address the root causes of child neglect, abuse, and delinquency. Their efforts aim to create a safe environment for children to thrive.

Early Intervention Programs and Strategies

Early intervention strategies aim to address issues before they escalate into a bigger issue, promoting a healthy upbringing and reducing the likelihood of children entering the judicial system. Having an early intervention program can greatly help parents in developing their parenting skills. 

Addressing Child Safety and Protection

The Children’s Court collaborates with various stakeholders to develop strategies that enhance child safety and protection, fostering a secure environment for the nation’s children.

The National Child Protection Register

Purpose and Contents of the Register

The National Child Protection Register serves as a centralised database for documenting individuals who are convicted of crimes against children. Serving as a record of persons unsuitable to work with children, it acts as a preventative measure to safeguard children from potential harm.

Confidentiality and Accessibility

Access to the National Child Protection Register is controlled and regulated to maintain confidentiality while enabling authorised individuals to conduct necessary background checks.

Reporting and Consequences for Child Protection

The register assists in reporting and tracking individuals who pose a threat to children, contributing to informed decisions and protective measures to ensure the safety of minors.

Legal Framework and Regulations

Examination of Relevant Legislation and Amendments

A comprehensive review of the legal framework is necessary, including relevant legislation, amendments, and updates that may influence the functioning of the Children’s Court system.

Regulations Governing the Children’s Court

Regulations set by the government provide guidance and standardisation for the operations and procedures of the Children’s Court, ensuring consistency and adherence to the law.

Compliance with International Conventions

South Africa’s commitment to international conventions and treaties related to child rights and protection clearly demonstrate its alignment with global standards when it comes to child welfare.

Challenges and Improvements

Identifying Challenges within the Children’s Court System

If you take a closer look at the Children’s Court system, it has its share of flaws. Some of these challenges and limitations include resource constraints, backlogs, and systemic issues.

Proposed Improvements and Reforms

Some of the suggested improvements and reforms aim to enhance the efficiency and effectiveness of the Children’s Court system, ensuring better outcomes for children and families.

The Role of Stakeholders in Enhancing the System

Due to this, it’s best to highlight the essential role of various stakeholders, including government bodies, non-governmental organizations, and communities, in collaborating to improve the Children’s Court system.

Conclusion: Understanding the Children’s Court System in South Africa

The Children’s Court in South Africa stands as a pillar of protection and support for the nation’s children. 

Through a specialised legal framework and a child-centric approach, it strives to ensure that every child’s rights are upheld, and their best interests are at the forefront of all decisions. 

As we reflect on the significance of the Children’s Court, let us collectively work towards a society where the future of South Africa, its children, are nurtured, protected, and empowered to reach their full potential. 

For any legal concerns or questions about the Children’s Court, seeking expert legal advice is strongly recommended to protect children and preserve their rights.

Read More:

Relocation with Minor Children: Do you need your Ex’s consent?

How to calculate Child Maintenance (Use this Court Formula!)

BOOK A CONSULTATION
Book a Consultation






    Send me a copy