Parts of Children's Act declared invalid
Johannesburg - Some parts of the Children's Act were confirmed to be invalid by the Constitutional Court on Wednesday.
The North Gauteng High Court declared sections 151 and 152 of the Children's Act unconstitutional on May 27.
It found they failed to provide for a child removed from parental care and placed in temporary safe care to be brought before the Children’s Court for automatic review of the removal.
In terms of the Constitution, an order of constitutional invalidity by a high court must be referred to the Constitutional Court for confirmation, without which it will have no force.
The Constitutional Court ordered that the high court orders be set aside and replaced with an order that an additional paragraph be read-in to section 151 of the Children's Act.
The paragraph reads: "The court ordering the removal must simultaneously refer the matter to a designated social worker and direct that social worker to ensure that, among other things, the removal is placed before the Children’s Court for review before the expiry of the next court day after the removal."
Section 152(3)(b) of the act was replaced by a section reading: "Refer the matter of the removal before the end of the first court day after the day of the removal to a designated social worker who must ensure that, among other things, the removal is placed before the Children’s Court for review before the expiry of the next court day after the referral."
The case arises from an August 2010 raid in which children were removed from beggars and placed in temporary safe care.
This was done without a court order by Gauteng health and social development department social workers and City of Tshwane officials.
The children's parents approached the high court for an order restoring them to their care, which was granted following the court's assertion that the move constituted an infringement of the right of the child to family care or parental care.