Govt explains new Children's Act
Sholain Govender and David Masango11 July 2007
South Africa has put certain sections of the new Children's Act, which lowers the age of majority to 18 and allows those above 12 access to HIV testing and contraceptives into immediate effect, gaining much approval from the Children's Rights Centre.
The Children's Act of 2005 (Act No. 38 of 2005) sets out principles relating to the care and protection of children, defines parental responsibilities and rights and makes provision for matters such as children's courts, adoption, child abduction and surrogate motherhood.
The principles call for the prioritisation of the best interest of the child, the right to the child being able to participate in any matter concerning that child, children living with disability or chronic illness and a child's right of access to court.
The Act also clarifies the grey area that currently exists in relation to the age of adulthood, whereby the Age of Majority Act of 1972 stipulates the age of 21 as the age of majority, while a child was defined as someone under the age of 18.
"Between 18 and 21 you're neither a child nor an adult. The Children's Act of 2005 clarifies that grey area and brings in line with section 28 (3) of the Constitution. Now any person under 18, unless married or emancipated by order of court, is a child and any person over 18 is an adult," the department of social development explained.
It added that the Constitution and the African Charter on the Rights and Welfare of the Child defined a child as any person under the age of 18 years.
"[The] government felt that the changed socio-economic and political circumstances in South Africa justify the advancement of the age of majority to 18 years," the department said.
HIV testing and contraceptives
Children's Rights Centre spokesperson Noreen Ramsden last week welcomed the decision to give access to HIV/Aids testing contraceptives to those aged above 12 years, stating every person of a reproductive age should have such access, in addition to reproductive information.
The Aids Foundation of South Africa's deputy director Nozuko Majola agreed that this provided a platform for families, health care providers and schools to start talking about sexual reproductive health more openly with the youth.
Responding to criticism that it excluded parental involvement in allowing children to undergo HIV testing or gain access to contraceptives, the department of social development said: "The Act provides that children should be provided with access to contraceptives. This is in realisation of the fact that children are sexually active at a very young age, even though the legal age of consent is 16."
"Furthermore, given HIV and Aids [prevalence], especially amongst teenagers, it would be unwise to deny children access to condoms," the department maintained.
It explained that the provision of the reproductive health services to minors would help government detect children who were in need of care.
"We are mindful of the fact that a sexually active child may be a child in need of care. Therefore the health practitioners would be required to report suspicious cases to a child protection organisation, social workers, police officers or children's court," the department said.
"The child would then receive proper attention and assistance. This would assist children who are abused, neglected and exploited."
It further emphasised that access to contraceptives should go hand in hand with appropriate sexuality education.
The Act also contains new provisions on the parental responsibilities and rights of unmarried fathers relating to access to the custody of their children, with Ramsden stating that giving unmarried fathers custody of their children would encourage South African men to be better fathers.
Regulations still required
Social Development Minister Zola Skweyiya explained last week that the bulk of the Act dealt with matters that need to be implemented on a practical level, which meant regulations were required before it could be fully implemented.
"The Act, however, also deals with principles that are fundamental to the manner in which children are treated and protected," he said.
"To ensure the application of these important principles to all matters affecting children, the legislation containing the principles should be put into operation as soon as possible."
According to the department, the main objectives of the Act are to:
- Make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
- Strengthen and develop community structures which can assist in providing care and protection for children; protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards;
- Provide care and protection for children who are in need of care and protection;
- Recognise the special needs that children with disabilities may have;
- Promote the protection, development and well-being of children;
- Promote the preservation and strengthening of families;
- Give effect to certain constitutional rights of children;
- Give effect to the Republic's obligations concerning the well-being of children in terms of international instruments binding on the Republic