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What the Children’s Court can decide, when it can help, and when another court may be required
The Children’s Court is a specialised court that deals with matters affecting the care, protection and wellbeing of children in South Africa.
Every magistrate’s court is also a Children’s Court when it exercises jurisdiction under the Children’s Act 38 of 2005.
The Children’s Court can deal with matters including care and contact, paternity, children in need of care and protection, foster care, adoption and certain guardianship applications.
Since amendments to the Children’s Act took effect on 8 November 2023, the Children’s Court and High Court also share jurisdiction over certain guardianship applications.
The High Court nevertheless remains the upper guardian of all children in South Africa and retains powers that extend beyond those of the Children’s Court.
This article provides general information about South African law. It does not constitute legal advice and does not predict the outcome of an individual matter.
| Question | General position |
What is the Children’s Court? | Every magistrate’s court may sit as a Children’s Court under the Children’s Act. |
Can it deal with care and contact? | Yes, where the matter falls within its statutory jurisdiction. |
Can it grant guardianship? | Yes. Since 8 November 2023, certain guardianship applications may be brought in either the Children’s Court or High Court. |
Is it the only court dealing with children’s matters? | No. The High Court and, in appropriate matters, other courts may also exercise jurisdiction. |
Is it a criminal court? | No. It deals with the care, protection and wellbeing of children rather than criminal prosecution. |
Who may approach it? | A range of persons acting in a child’s interests may approach the court, depending on the matter. |
Are proceedings open to the public? | No. Children’s Court proceedings are closed, subject to the persons permitted by law or by the presiding officer. |
The Children’s Act gives effect to important constitutional protections afforded to children, including the principle that a child’s best interests are of paramount importance in every matter concerning that child.
Every magistrate’s court is designated as a Children’s Court.
The Children’s Court is therefore not ordinarily a separate building or institution. It is a magistrate’s court exercising the specialised powers given to it by the Children’s Act.
Its proceedings are intended to deal specifically with issues affecting children and their welfare.
The Children’s Court has jurisdiction over a broad range of matters affecting children.
Depending on the circumstances, this may include matters concerning:
The precise procedure depends on the type of matter being brought before the court.
The Children’s Court may deal with matters relating to the care of and contact with a child where the Children’s Act gives it jurisdiction.
The terms care and contact are used by the Children’s Act instead of the older expressions “custody” and “access”.
Care relates broadly to responsibility for a child’s day-to-day wellbeing and upbringing.
Contact relates to maintaining a personal relationship with the child, including spending time with and communicating with the child.
Where parents cannot agree on these arrangements, legal processes such as mediation, a parenting plan or a court application may become necessary.
For related guidance, see MVA’s article on Primary Residence and Contact With Children in South Africa.
Guardianship is different from care and contact.
It involves important legal powers and responsibilities relating to a child, including certain decisions concerning passports, travel, marriage, adoption and other matters identified in the Children’s Act.
Historically, an application for guardianship under section 24 of the Children’s Act had to be brought in the High Court.
That position changed.
The Children’s Amendment Act 17 of 2022 amended sections 24 and 45 of the Children’s Act, with the relevant amendments taking effect on 8 November 2023.
A person with an interest in the care, wellbeing and development of a child may now apply to either:
for an order granting guardianship under section 24.
The High Court and Children’s Court therefore have concurrent jurisdiction over those guardianship applications.
The High Court remains the upper guardian of all children and retains its broader jurisdiction.
The amendment did not replace the High Court with the Children’s Court. It expanded the courts that may deal with certain guardianship applications.
The amended Act also provides that the High Court, Children’s Court and Regional Court have concurrent jurisdiction over the assignment, exercise, extension, restriction, suspension or termination of guardianship in respect of a child.
For a fuller explanation, see MVA’s guide to Parental Responsibilities, Rights and Guardianship.
The Children’s Court can deal with issues relating to paternity in matters falling within its jurisdiction.
Paternity may become important where there is disagreement about:
In Botha v Dreyer (now Möller) (4421/08) [2008] ZAGPHC 395, the High Court dealt with a paternity dispute and confirmed its power, as upper guardian, to order DNA testing where necessary.
The case also considered the rights of unmarried fathers under section 21 of the Children’s Act.
For a fuller discussion, see MVA’s article on Unmarried Parents and Child Law in South Africa.
The Children’s Act gives standing to a range of people who may approach the court where a child’s protection, care or wellbeing is concerned.
Depending on the particular provision and type of application, this may include:
A person does not necessarily have to be the child’s biological parent to have standing.
Grandparents, family members and other interested persons may therefore be able to approach the court where the Children’s Act permits it.
Certain professionals listed in section 110 of the Children’s Act have a statutory duty to report where, on reasonable grounds, they conclude that a child has been abused in a manner causing physical injury, sexually abused or deliberately neglected.
Those reports are not simply made “to the Children’s Court”.
The Children’s Act prescribes reporting channels which, depending on the circumstances, may include:
The reporting obligations and procedure should be considered carefully where abuse, deliberate neglect or immediate danger is suspected.
Where a child may be in immediate danger, urgent intervention may be necessary.
The Children’s Act identifies circumstances in which a child may be found to be in need of care and protection.
These can include situations where a child:
Whether a child falls within the legal definition depends on the facts and the applicable provisions of the Children’s Act.
There are circumstances where a child may require immediate protection before an ordinary court process can be completed.
The Children’s Act contains mechanisms allowing authorised persons, including social workers and police officials in appropriate circumstances, to act where delay could place the child at serious risk.
Emergency removal of a child is a significant intervention and is subject to statutory safeguards and subsequent court oversight.
Where there is immediate danger to a child, urgent legal and child-protection intervention may be required.
A matter falling within the Children’s Court’s jurisdiction may generally be brought to the clerk of the Children’s Court at the relevant magistrate’s court.
Form 2 is prescribed for bringing a matter to the Children’s Court under section 53 of the Children’s Act.
The procedure and supporting documentation will depend on the type of matter.
Documents that may be relevant can include:
Not every Children’s Court matter follows exactly the same procedural route.
The correct procedure should therefore be identified before proceedings are instituted.
Jurisdiction will generally depend on factors such as where the child ordinarily resides and the particular statutory provision under which the matter is brought.
It should not simply be assumed that any magistrate’s court can hear every Children’s Court matter.
Where jurisdiction is uncertain, it is advisable to establish the correct court before documents are issued.
The best interests of the child are paramount.
Section 7 of the Children’s Act identifies factors that may be relevant when determining what is in a child’s best interests.
Depending on the matter, these can include:
The factors relevant to a particular case will depend on its facts.
No.
Children’s Court proceedings are closed to the general public.
Attendance is restricted to persons permitted under the Children’s Act and persons authorised by the presiding officer.
This protects the privacy of children and recognises the sensitive nature of the matters dealt with by the court.
The orders available depend on the type of matter before the court.
These may include:
Although section 45 refers to the ‘support of a child’, this must be read subject to section 1(4) of the Children’s Act. Ordinary proceedings arising under the Maintenance Act are dealt with in the Maintenance Court. The Children’s Court does, however, have specific powers to make contribution orders in circumstances provided for by the Children’s Act.
Where a child is placed in foster care, the duration and terms of the placement are determined in accordance with the Children’s Act.
A foster-care order may generally operate for a specified period and can, in appropriate circumstances and where the statutory requirements are met, be extended or made to operate until the child reaches 18.
The Children’s Act also regulates the number of children who may ordinarily be placed in foster care with a particular person or household, subject to recognised exceptions such as siblings and other circumstances where a larger placement may be appropriate.
The purpose remains the protection, stability and best interests of the child.
The Children’s Court has broad powers concerning children, but its jurisdiction is not unlimited.
It does not, for example:
Some matters may fall within:
depending on the nature of the dispute and relief sought.
Choosing the correct forum can therefore be important.
There are now some areas where the Children’s Court and High Court have concurrent jurisdiction.
Guardianship under section 24 is an important example.
That does not necessarily mean that either forum is equally suitable in every case.
Factors that may affect the choice of forum include:
Selecting the appropriate court at the outset can help avoid unnecessary procedural disputes, delay and cost.
The Children’s Court is concerned primarily with the care, protection and wellbeing of children.
It does not prosecute criminal offences.
Where conduct involving a child may also constitute a criminal offence, the criminal aspect is dealt with through the criminal justice system.
Child-protection proceedings and criminal proceedings can therefore arise from the same underlying facts but serve different purposes.
Legal advice may be helpful where:
The correct legal route will depend on the circumstances.
Martin Vermaak Attorneys Inc. advises on South African family-law matters involving:
Where it is unclear which court has jurisdiction or what application is required, obtaining advice before proceedings are started can help identify the appropriate process and avoid unnecessary delay and expense.
For related guidance, see MVA’s articles on:
This article provides general information about South African law and does not constitute legal advice. The appropriate court, procedure and relief depend on the facts of each matter and applicable law at the time.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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