ConCourt split over removal of children

2012-01-11 15:41

The Constitutional Court was split three ways over whether the Constitution requires that children removed from their parents by authorities have an automatic right to have this decision reviewed by a court.

The majority judgment, written by Justice Zak Yacoob and with which four other judges agreed, found that children temporarily removed by authorities in terms of the Children’s Act had the right to have such a decision reviewed by a court before the end of the next court day.

The Act allows for this in cases where children are in need of care and protection or of emergency protection.

The judgment was delivered in a case involving three girls, aged between one and four, who were removed from their parents by the Gauteng Department of Social Development at a busy intersection in Sunnyside, Pretoria, in 2009.

One of the girls was with her father, who repairs shoes, while the other two were with their blind mother, who begs at the intersection.

The Centre for Child Law intervened, through the High Court in Pretoria, on behalf of the parents, whose children have since been returned to them by an order of the high court.

It also declared unconstitutional the sections of the Children’s Act which allowed the removal, because they do not specify that a court must examine the case after the removal has taken place.

Yacoob found that “despite the tightly defined circumstances in which children can be removed, there exists always the possibility that a removal might be wrongly made”.

He found that the two relevant provisions of the Children’s Act, which provide for cases where children are removed with or without a prior court order, were an unjustifiable infringement of the rights of children to family and parental care and an infringement of the right to access to the court, because the decision was not reviewed after removal.

“It is in the interests of children that an incorrect decision by a court made without hearing the child or the parents, or by a designated social worker or police official be susceptible to automatic review by a court,” he wrote.

Yacoob ordered that the best solution to the urgent problem would be to add requirements to the Children’s Act which ensure that the removal is examined by a Children’s Court before the end of the next court day.

But a dissenting judgment, written by Justice Chris Jafta and with which Chief Justice Mogoeng Mogoeng agreed, said the parents had not proven that the provisions of the legislation were unconstitutional.

Jafta found that section 28, which deals specifically with the rights of children, does not mention an automatic right to review by a court.

He further said that section 28 specifically states that it does not cover parental care which is harmful to a child’s safety and that this is what the legislation was aimed at.

“As measures designed to protect children from harmful parental care, the [questioned] provisions do not limit the right to parental care,” he found.

Justice Tembile Skweyiya also wrote a minority judgment – with which Justice Johan Froneman concurred – but agreed with Yacoob’s solution to the case.

He found that children’s rights were limited by the removal itself, whereas Yacoob found that rights were infringed because there was no court review.

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