Children's Act, 2005

Act 38 of 2005

This is the version of this Act as it was from 19 June 2006 to 31 March 2010. Read the latest available version.
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Act 38 of 2005
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South Africa

Children's Act, 2005

Act 38 of 2005

  • Published in Government Gazette 28944 on 19 June 2006
  • Assented to on 8 June 2006
  • There are multiple commencements
    • Provisions Status
    Chapter 1 (section 1–5); Chapter 2, section 6–11, section 13–17; Chapter 3, Part I, section 18–21, section 27; Part 2, section 30–31; Part 3, section 35; Part 4, section 36–40; Chapter 7, Part 3, section 130–134; Chapter 20, section 305(1)(b), 305(1)(c), 305(3), 305(4), 305(5), 305(6), 305(7); Chapter 21, section 307, section 308–311; Chapter 22, section 313–315 commenced on 1 July 2007 by Proclamation 13 of 2007.
    Chapter 2, section 12; Chapter 3, Part I, section 22–26, section 28–29; Part 2, section 32; Part 3, section 33–34; Part 4, section 41; Chapter 4 (section 42–75); Chapter 7, Part 2 (section 111–128); Part 3, section 129, section 142; Chapter 9 (section 150–160); Chapter 10 (section 161–166); Chapter 15 (section 228–253); Chapter 16 (section 254–273); Chapter 17 (section 274–280); Chapter 18 (section 281–291); Chapter 19 (section 292–303); Chapter 20, section 304, section 305(1)(a), 305(1)(d), 305(1)(k), 305(1)(l), 305(1)(m), 305(1)(n), 305(1)(o), 305(1)(p), 305(1)(q), 305(1)(r), 305(1)(s), 305(2), 305(8); Chapter 21, section 306, section 312; Chapter 22 (in part) commenced on 1 April 2010 by Proclamation R12 of 2010.
  • [This is the version of this document as it was from 19 June 2006 to 31 March 2010.]
GENERAL EXPLANATORY NOTE:***** Areas marked with five asterisks indicate omitted provisions which will be inserted by way of an Amendment Bill. That Bill will be dealt with in terms of the procedure prescribed by section 76 of the Constitution — as explained in paragraph 1 of the Memorandum on the Objects of the Bill.(English text signed by the President)ACTTo give effect to certain rights of children as contained in the Constitution; to set out principles relating to the care and protection of children; to define parental responsibilities and rights; to make further provision regarding children's courts; to provide for the issuing of contribution orders; to make new provision for the adoption of children; to provide for inter-country adoption; to give effect to the Hague Convention on Inter-country Adoption; to prohibit child abduction and to give effect to the Hague Convention on International Child Abduction; to provide for surrogate motherhood; to create certain new offences relating to children; and to provide for matters connected therewith.
WHEREAS the Constitution establishes a society based on democratic values, social justice and fundamental human rights and seeks to improve the quality of life of all citizens and to free the potential of each person;AND WHEREAS every child has the rights set out in section 28 of the Constitution;AND WHEREAS the State must respect, protect, promote and fulfill those rights;AND WHEREAS protection of children's rights leads to a corresponding improvement in the lives of other sections of the community because it is neither desirable nor possible to protect children's rights in isolation from their families and communities;AND WHEREAS the United Nations has in the Universal Declaration of Human Rights proclaimed that children are entitled to special care and assistance;AND WHEREAS the need to extend particular care to the child has been stated in the Geneva Declaration on the Rights of the Child, in the United Nations Declaration on the Rights of the Child, in the Convention on the Rights of the Child and in the African Charter on the Rights and Welfare of the Child and recognised in the Universal Declaration of Human Rights and in the statutes and relevant instruments of specialised agencies and international organisations concerned with the welfare of children;AND WHEREAS it is necessary to effect changes to existing laws relating to children in order to afford them the necessary protection and assistance so that they can fully assume their responsibilities within the community as well as that the child, for the full and harmonious development of his or her personality, should grow up in a family environment and in an atmosphere of happiness, love and understanding,BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—

Chapter 1
Interpretation, objects, application and implementation of Act

1. Interpretation

(1)In this Act, unless the context indicates otherwise—"abandoned", in relation to a child, means a child who—(a)has obviously been deserted by the parent, guardian or care-giver; or(b)has, for no apparent reason, had no contact with the parent, guardian, or care-giver for a period of at least three months;"abuse", in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes—(a)assaulting a child or inflicting any other form of deliberate injury to a child;(b)sexually abusing a child or allowing a child to be sexually abused;(c)bullying by another child;(d)a labour practice that exploits a child; or(e)exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally;"adopted child" means a child adopted by a person in terms of any law;"adoption compliance certificate"—(a)in relation to a convention country, means a certificate issued in terms of Article 23 of the Hague Convention on Inter-country Adoption; or(b)in relation to a non-convention country, means a similar certificate prescribed in the relevant agreement;"adoption registrar" means the person designated by the Director-General in terms of section 247(1);"adoption service" includes—(a)counselling of the parent of the child and, where applicable, the child;(b)an assessment of a child by an adoption social worker in terms of section 230(2);(c)an assessment of a prospective adoptive parent by an adoption social worker in terms of section 231(2);(d)the gathering of information for proposed adoptions as contemplated in section 237; and(e)a report contemplated in section 239(1)(b);"adoption social worker" means—(a)a social worker in private practice—(i)who has a speciality in adoption services and is registered in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978); and(ii)who is accredited in terms of section 251 to provide adoption services; or(b)a social worker in the employ of a child protection organisation which is accredited in terms of section 251 to provide adoption services;"adoption working agreement", for the purpose of Chapter 16, means a written agreement entered into by a child protection organisation accredited in terms of section 259 in the Republic with an equivalent organisation in another country to facilitate inter-country adoptions between the Republic and the country concerned;"adoptive parent" means a person who has adopted a child in terms of any law;*****"artificial fertilisation" means the introduction, by means other than natural means, of a male gamete into the internal reproductive organs of a female person for the purpose of human reproduction, including—(a)the bringing together of a male and female gamete outside the human body with a view to placing the product of a union of such gametes in the womb of a female person; or(b)the placing of the product of a union of male and female gametes which have been brought together outside the human body, in the womb of a female person;"authorised officer", in relation to any specific act, means a person who is authorised in writing by the presiding officer of the children's court to perform that act;"Bill of Rights" means the Bill of Rights contained in Chapter 2 of the Constitution;"care", in relation to a child, includes, where appropriate—(a)within available means, providing the child with—(i)a suitable place to live;(ii)living conditions that are conducive to the child's health well-being and development; and(iii)the necessary financial support;(b)safe guarding and promoting the well-being of the child;(c)protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;(d)respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child's rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;(e)guiding, directing and securing the child's education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child's age, maturity and stage of development;(f)guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child's age, maturity and stage of development;(g)guiding the behaviour of the child in a humane manner;(h)maintaining a sound relationship with the child;(i)accommodating any special needs that the child may have; and(j)generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child;"care-giver" means any person other than a parent or guardian, who factually cares for a child and includes—(a)a foster parent;(b)a person who cares for a child with the implied or express consent of a parent or guardian of the child;(c)a person who cares for a child whilst the child is in temporary safe care;(d)the person at the head of a child and youth care centre where a child has been placed;(e)the person at the head of a shelter;(f)a child and youth care worker who cares for a child who is without appropriate family care in the community; and(g)the child at the head of a child-headed household;"child" means a person under the age of 18 years;"children’s court" means a children's court referred to in section 42;*****"Child Care Act" means the Child Care Act, 1983 (Act No. 74 of 1983);*****"child labour" means work by a child which—(a)is exploitative, hazardous or otherwise inappropriate for a person of that age; and(b)places at risk the child's well-being, education, physical or mental health, or spiritual, moral, emotional or social development;"circumcision", in relation to a female child, means the removal of the clitoris by any means;"clerk of the court" means clerk of the court of the relevant magistrate's court; means the person appointed by the Director-General: Justice and Constitutional Development as the clerk of the children's court of the relevant magistrate's court;*****"commercial sexual exploitation", in relation to a child, means—(a)the procurement of a child to perform sexual activities for financial or other reward, including acts of prostitution or pornography, irrespective of whether that reward is claimed by, payable to or shared with the procurer, the child, the parent or care-giver of the child, or any other person; or(b)trafficking in a child for use in sexual activities, including prostitution or pornography;"commissioning parent" means a person who enters into a surrogate motherhood agreement with a surrogate mother;"contact", in relation to a child, means—(a)maintaining a personal relationship with the child; and(b)if the child lives with someone else—(i)communication on a regular basis with the child in person, including—(aa)visiting the child; or(bb)being visited by the child; or(ii)communication on a regular basis with the child in any other manner, including—(aa)through the post; or(bb)by telephone or any other form of electronic communication;"contribution order" means an order referred to in section 161, and includes a provisional contribution order referred to in section 162(2);"convention country" means, in accordance with the wording of Article 45 of the Hague Convention on Inter-country Adoption, any country in which the Convention has entered into force, except for a country against whose accession the Republic has raised an objection under Article 44 of the Convention;"delegation", in relation to a duty, includes an instruction to perform the duty;"Department" means the national department responsible for the provision of social development services;*****"designated social worker" means a social worker in the service of—(a)the Department or a provincial department of social development;(b)a designated child protection organisation; or(c)a municipality;"Director-General" means the Director-General of the Department, or where the context indicates the Director-General of another department, that Director-General;"Divorce Act" means the Divorce Act, 1979 (Act No. 70 of 1979);"divorce court" means the divorce court established in terms of section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929);*****"exploitation", in relation to a child, includes—(a)all forms of slavery or practices similar to slavery, including debt bondage or forced marriage;(b)sexual exploitation;(c)servitude;(d)forced labour or services;(e)child labour prohibited in terms of section 141; and(f)the removal of body parts;"family advocate" means a family advocate appointed in terms of the Mediation in Certain Divorce Matters Act;"family member", in relation to a child, means—(a)a parent of the child;(b)any other person who has parental responsibilities and rights in respect of the child;(c)a grandparent, brother, sister, uncle, aunt or cousin of the child; or(d)any other person with whom the child has developed a significant relationship, based on psychological or emotional attachment, which resembles a family relationship;*****"gamete" means either of the two generative cells essential for human reproduction;"genital mutilation", in relation to a female child, means the partial or complete removal of any part of the genitals, and includes circumcision of female children;"guardian" means a parent or other person who has guardianship of a child;"guardianship", in relation to a child, means guardianship as contemplated in section 18;"Hague Convention on Inter-country Adoption" means the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption signed at the Hague on 29 May 1993, a copy of the English text of which is set out in Schedule 1 to this Act;"Hague Convention on International Child Abduction" means the Hague Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980, a copy of the English text of which is set out in Schedule 2 to this Act;"High Court" means the High Court contemplated in section 166 of the Constitution;"in need of care and protection", in relation to a child, means a child who is in a situation contemplated in section 150(1);"labour inspector" means a labour inspector appointed under section 63 of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);"Maintenance Act" means the Maintenance Act, 1998 (Act No. 99 of 1998);"marriage" means a marriage—(a)recognised in terms of South African law or customary law; or(b)concluded in accordance with a system of religious law subject to specified procedures,and any reference to a husband, wife, widower, widow, divorced person, married person or spouse must be construed accordingly;"MEC for social development" means the member of the Executive Council of a province who is responsible for social development in the province;"Mediation in Certain Divorce Matters Act" means the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987);"medical practitioner" means a person registered or deemed to be registered as a medical practitioner under the Health Professions Act, 1974 (Act No. 56 of 1974) and includes a dentist so registered or deemed to be registered;"mental illness" means mental illness as defined in the Mental Health Care Act, 2002 (Act No. 17 of 2002);"Minister" means the Cabinet member responsible for social development, or where the context indicates another Minister, that Minister;*****"Municipal Systems Act" means the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);"National Child Protection Register" means the register referred to in section 111;"neglect", in relation to a child, means a failure in the exercise of parental responsibilities to provide for the child's basic physical, intellectual, emotional or social needs;"organ of state" means an organ of state as defined in section 239 of the Constitution;"orphan" means a child who has no surviving parent caring for him or her;"parent", in relation to a child, includes the adoptive parent of a child, but excludes—(a)the biological father of a child conceived through the rape of or incest with the child's mother;(b)any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation; and(c)a parent whose parental responsibilities and rights in respect of a child have been terminated;"parental responsibilities and rights", in relation to a child, means the responsibilities and the rights referred to in section 18;"party", in relation to a matter before a children's court, means—(a)a child involved in the matter;(b)a parent;(c)a person who has parental responsibilities and rights in respect of the child;(d)a prospective adoptive or foster parent of the child;(e)the department or the designated child protection organisation managing the case of the child; or(f)any other person admitted or recognised by the court as a party;*****"person unsuitable to work with children" means a person listed in Part B of the National Child Protection Register;"police official" means any member of the South African Police Service or a municipal police service appointed in terms of the South African Police Service Act, 1995 (Act No. 68 of 1995);"prescribed" means prescribed by regulation;"presiding officer" means a presiding officer of a children's court designated in terms of section 42;*****"provincial department of social development" means the department within a provincial administration responsible for social development in the province;"provincial head of social development" means the head of the provincial department of social development;"psychologist" means a psychologist registered or deemed to be registered as such in terms of the Health Professions Act, 1974 (Act No. 56 of 1974);*****"Public Service Act" means the Public Service Act, 1994 (Proclamation No. 103 of 1994);"RACAP" means the Register on Adoptable Children and Prospective Adoptive Parents contemplated in section 232;"regulation" means a regulation made in terms of this Act;"removal of body parts" means the removal of any organ or other body part from a living person in contravention of the National Health Act, 2003 (Act No. 61 of 2003);*****"respondent" means any person legally liable to maintain or to contribute towards the maintenance of a child for whose maintenance, treatment or special needs a contribution order is sought or has been made in terms of Chapter 10;"school" means—(a)an independent school registered or deemed to be registered in terms ofsection 46 of the South African Schools Act, 1996 (Act No. 84 of 1996); or(b)a public school contemplated in Chapter 3 of the South African Schools Act, 1996 (Act No. 84 of 1996);*****"serve", in relation to any notice, document or other process in terms of this Act, means to serve such notice, document or other process in accordance with the procedure provided for the serving of process in terms of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), and the rules applying to the proceedings of magistrates' courts;"sexual abuse", in relation to a child, means—(a)sexually molesting or assaulting a child or allowing a child to be sexually molested or assaulted;(b)encouraging, inducing or forcing a child to be used for the sexual gratification of another person;(c)using a child in or deliberately exposing a child to sexual activities or pornography; or(d)procuring or allowing a child to be procured for commercial sexual exploitation or in any way participating or assisting in the commercial sexual exploitation of a child;*****"social service professional" includes a probation officer, development worker, child and youth care worker, youth worker, social auxiliary worker and social security worker who are registered as such in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978);"social worker" means a person who is registered or deemed to be registered as a social worker in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978);"street child" means a child who—(a)because of abuse, neglect, poverty, community upheaval or any other reason, has left his or her home, family or community and lives, begs or works on the streets; or(b)because of inadequate care, begs or works on the streets but returns home at night;"surrogate mother" means an adult woman who enters into a surrogate motherhood agreement with the commissioning parent;"surrogate motherhood agreement" means an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent;"temporary safe care", in relation to a child, means care of a child in an approved child and youth care centre, shelter or private home or any other place, where the child can safely be accommodated pending a decision or court order concerning the placement of the child, but excludes care of a child in a prison or police cell;"traditional authority" means any authority which in terms of indigenous law or any other law administers the affairs of any group of indigenous people or any other persons resident within an area under the control of a traditional leader;"this Act" includes—(a)any regulation made in terms of this Act;(b)the rules regulating the proceedings of the children's courts in terms of section 52;"trafficking", in relation to a child—(a)means the recruitment, sale, supply, transportation, transfer, harbouring or receipt of children, within or across the borders of the Republic—(i)by any means, including the use of threat, force or other forms of coercion, abduction, fraud, deception, abuse of power or the giving or receiving of payments or benefits to achieve the consent of a person having control of a child; or(ii)due to a position of vulnerability,for the purpose of exploitation; and(b)includes the adoption of a child facilitated or secured through illegal means;"UN Protocol to Prevent Trafficking in Persons" means the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention against Transnational Organised Crime, 2000, a copy of the English text of which is set out in Schedule 3.
(2)In addition to the meaning assigned to the terms "custody" and "access" in any law, and the common law, the terms "custody" and "access" in any law must be construed to also mean "care" and "contact" as defined in this Act.
(3)In this Act, a word or expression derived from a word or expression defined in subsection (1) has a corresponding meaning unless the context indicates that another meaning is intended.
(4)Any proceedings arising out of the application of the Administration Amendment Act, 1929 (Act No. 9 of 1929), the Divorce Act, the Maintenance Act, the Domestic Violence Act, 1998 (Act No. 116 of 1998), and the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998), in so far as these Acts relate to children, may not be dealt with in a children's court.

2. Objects of Act

The objects of this Act are—
(a)to promote the preservation and strengthening of families;
(b)to give effect to the following constitutional rights of children, namely—
(i)family care or parental care or appropriate alternative care when removed from the family environment;
(ii)social services;
(iii)protection from maltreatment, neglect, abuse or degradation; and
(iv)that the best interests of a child are of paramount importance in every matter concerning the child;
(c)to give effect to the Republic's obligations concerning the well—being of children in terms of international instruments binding on the Republic;
(d)to make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
(e)to strengthen and develop community structures which can assist in providing care and protection for children;
(f)to protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards;
(g)to provide care and protection to children who are in need of care and protection;
(h)to recognise the special needs that children with disabilities may have; and
(i)generally, to promote the protection, development and well-being of children.

3. Conflicts with other legislation

(1)In the event of a conflict between a section of this Act and—
(a)provincial legislation relating to the protection and well-being of children, the conflict must be resolved in terms of section 146 of the Constitution; and
(b)a municipal by-law relating to the protection and well-being of children, the conflict must be resolved in terms of section 156 of the Constitution.
(2)In the event of a conflict between a regulation made in terms of this Act and—
(a)an Act of Parliament, the Act of Parliament prevails;
(b)provincial legislation, the conflict must be resolved in terms of section 146 of the Constitution; and
(c)a municipal by-law, the conflict must be resolved in terms of section 156 of the Constitution.
(3)For the proper application of subsection (2)(b) the Minister must in terms of section 146(6) of the Constitution submit all regulations made in terms of this Act and which affect a province, to the National Council of Provinces for approval.
(4)In this section "regulation" means—
(a)a regulation made in terms of this Act; and
(b)a rule regulating the proceedings of children's courts in terms of section 52.

4. Implementation of Act

(1)This Act must be implemented by organs of state in the national, provincial and, where applicable, local spheres of government subject to any specific section of this Act and regulations allocating roles and responsibilities, in an integrated, co-ordinated and uniform manner.
(2)Recognising that competing social and economic needs exist, organs of state in the national, provincial and where applicable, local spheres of government must, in the implementation of this Act, take reasonable measures to the maximum extent of their available resources to achieve the realisation of the objects of this Act.

5. Inter-sectoral implementation of Act

To achieve the implementation of this Act in the manner referred to in section 4, all organs of state in the national, provincial and, where applicable, local spheres of government involved with the care, protection and well-being of children must co-operate in the development of a uniform approach aimed at co-ordinating and integrating the services delivered to children.

Chapter 2
General principles

6. General principles

(1)The general principles set out in this section guide—
(a)the implementation of all legislation applicable to children, including this Act; and
(b)all proceedings, actions and decisions by any organ of state in any matter concerning a child or children in general.
(2)All proceedings, actions or decisions in a matter concerning a child must—
(a)respect, protect, promote and fulfil the child's rights set out in the Bill of Rights, the best interests of the child standard set out in section 7 and the rights and principles set out in this Act, subject to any lawful limitation;
(b)respect the child's inherent dignity;
(c)treat the child fairly and equitably;
(d)protect the child from unfair discrimination on any ground, including on the grounds of the health status or disability of the child or a family member of the child;
(e)recognise a child's need for development and to engage in play and other recreational activities appropriate to the child's age; and
(f)recognise a child's disability and create an enabling environment to respond to the special needs that the child has.
(3)If it is in the best interests of the child, the child's family must be given the opportunity to express their views in any matter concerning the child.
(4)In any matter concerning a child—
(a)an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided; and
(b)a delay in any action or decision to be taken must be avoided as far as possible.
(5)A child, having regard to his or her age, maturity and stage of development, and a person who has parental responsibilities and rights in respect of that child, where appropriate, must be informed of any action or decision taken in a matter concerning the child which significantly affects the child.

7. Best interests of child standard

(1)Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely—
(a)the nature of the personal relationship between—
(i)the child and the parents, or any specific parent; and
(ii)the child and any other care-giver or person relevant in those circumstances;
(b)the attitude of the parents, or any specific parent, towards—
(i)the child; and
(ii)the exercise of parental responsibilities and rights in respect of the child;
(c)the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;
(d)the likely effect on the child of any change in the child's circumstances, including the likely effect on the child of any separation from—
(i)both or either of the parents; or
(ii)any brother or sister or other child, or any other care-giver or person, with whom the child has been living;
(e)the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
(f)the need for the child—
(i)to remain in the care of his or her parent, family and extended family; and
(ii)to maintain a connection with his or her family, extended family, culture or tradition;
(g)the child’s—
(i)age, maturity and stage of development;
(ii)gender;
(iii)background; and
(iv)any other relevant characteristics of the child;
(h)the child's physical and emotional security and his or her intellectual, emotional, social and cultural development;
(i)any disability that a child may have;
(j)any chronic illness from which a child may suffer;
(k)the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
(l)the need to protect the child from any physical or psychological harm that may be caused by—
(i)subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
(ii)exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;
(m)any family violence involving the child or a family member of the child; and
(n)which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.
(2)In this section "parent" includes any person who has parental responsibilities and rights in respect of a child.

8. Application

(1)The rights which a child has in terms of this Act supplement the rights which a child has in terms of the Bill of Rights.
(2)All organs of state in any sphere of government and all officials, employees and representatives of an organ of state must respect, protect and promote the rights of children contained in this Act.
(3)A provision of this Act binds both natural or juristic persons, to the extent that it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

9. Best interests of child paramount

In all matters concerning the care, protection and well-being of a child the standard that the child's best interest is of paramount importance, must be applied.

10. Child participation

Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

11. Children with disability or chronic illness

(1)In any matter concerning a child with a disability due consideration must be given to—
(a)providing the child with parental care, family care or special care as and when appropriate;
(b)making it possible for the child to participate in social, cultural, religious and educational activities, recognising the special needs that the child may have;
(c)providing the child with conditions that ensure dignity, promote self-reliance and facilitate active participation in the community; and
(d)providing the child and the child's care-giver with the necessary support services.
(2)In any matter concerning a child with chronic illness due consideration must be given to—
(a)providing the child with parental care, family care or special care as and when appropriate;
(b)providing the child with conditions that ensure dignity, promote self-reliance and facilitate active participation in the community; and
(c)providing the child with the necessary support services.
(3)A child with a disability or chronic illness has the right not to be subjected to medical, social, cultural or religious practices that are detrimental to his or her health, well-being or dignity.

12. Social, cultural and religious practices

(1)Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being.
(2)A child—
(a)below the minimum age set by law for a valid marriage may not be given out in marriage or engagement; and
(b)above that minimum age may not be given out in marriage or engagement without his or her consent.
(3)Genital mutilation or the circumcision of female children is prohibited.
(4)Virginity testing of children under the age of 16 is prohibited.
(5)Virginity testing of children older than 16 may only be performed—
(a)if the child has given consent to the testing in the prescribed manner;
(b)after proper counselling of the child; and
(c)in the manner prescribed.
(6)The results of a virginity test may not be disclosed without the consent of the child.
(7)The body of a child who has undergone virginity testing may not be marked.
(8)Circumcision of male children under the age of 16 is prohibited, except when—
(a)circumcision is performed for religious purposes in accordance with the practices of the religion concerned and in the manner prescribed; or
(b)circumcision is performed for medical reasons on the recommendation of a medical practitioner.
(9)Circumcision of male children older than 16 may only be performed—
(a)if the child has given consent to the circumcision in the prescribed manner;
(b)after proper counselling of the child; and
(c)in the manner prescribed.
(10)Taking into consideration the child's age, maturity and stage of development, every male child has the right to refuse circumcision.

13. Information on health care

(1)Every child has the right to—
(a)have access to information on health promotion and the prevention and treatment of ill-health and disease, sexuality and reproduction;
(b)have access to information regarding his or her health status;
(c)have access to information regarding the causes and treatment of his or her health status; and
(d)confidentiality regarding his or her health status and the health status of a parent, care-giver or family member, except when maintaining such confiden­tiality is not in the best interests of the child.
(2)Information provided to children in terms of this subsection must be relevant and must be in a format accessible to children, giving due consideration to the needs of disabled children.

14. Access to court

Every child has the right to bring, and to be assisted in bringing, a matter to a court, provided that matter falls within the jurisdiction of that court.

15. Enforcement of rights

(1)Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights or this Act has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.
(2)The persons who may approach a court, are:
(a)A child who is affected by or involved in the matter to be adjudicated;
(b)anyone acting in the interest of the child or on behalf of another person who cannot act in their own name;
(c)anyone acting as a member of, or in the interest of, a group or class of persons; and
(d)anyone acting in the public interest.

16. Responsibilities of children

Every child has responsibilities appropriate to the child's age and ability towards his or her family, community and the state.

17. Age of majority

A child, whether male or female, becomes a major upon reaching the age of 18 years.

Chapter 3
Parental responsibilities and rights

Part I – Acquisition and loss of parental responsibilities and rights

18. Parental responsibilities and rights

(1)A person may have either full or specific parental responsibilities and rights in respect of a child.
(2)The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right—
(a)to care for the child;
(b)to maintain contact with the child;
(c)to act as guardian of the child; and
(d)to contribute to the maintenance of the child.
(3)Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must—
(a)administer and safeguard the child's property and property interests;
(b)assist or represent the child in administrative, contractual and other legal matters; or
(c)give or refuse any consent required by law in respect of the child, including—
(i)consent to the child's marriage;
(ii)consent to the child's adoption;
(iii)consent to the child's departure or removal from the Republic;
(iv)consent to the child's application for a passport; and
(v)consent to the alienation or encumbrance of any immovable property of the child.
(4)Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibilityarising from such guardianship.
(5)Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).

19. Parental responsibilities and rights of mothers

(1)The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.
(2)If–
(a)the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and
(b)the biological father of the child does not have guardianship in respect of the child,
the guardian of the child's biological mother is also the guardian of the child.
(3)This section does not apply in respect of a child who is the subject of a surrogacy agreement.

20. Parental responsibilities and rights of married fathers

The biological father of a child has full parental responsibilities and rights in respect of the child–
(a)if he is married to the child's mother; or
(b)if he was married to the child's mother at–
(i)the time of the child's conception;
(ii)the time of the child's birth; or
(iii)any time between the child's conception and birth.

21. Parental responsibilities and rights of unmarried fathers

(1)The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child–
(a)if at the time of the child's birth he is living with the mother in a permanent life-partnership; or
(b)if he, regardless of whether he has lived or is living with the mother–
(i)consents to be identified or successfully applies in terms of section 26 to be identified as the child's father or pays damages in terms of customary law;
(ii)contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and
(iii)contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
(2)This section does not affect the duty of a father to contribute towards the maintenance of the child.
(3)
(a)If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (l) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
(b)Any party to the mediation may have the outcome of the mediation reviewed by a court.
(4)This section applies regardless of whether the child was born before or after the commencement of this Act.

22. Parental responsibilities and rights agreements

(1)Subject to subsection (2), the mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with–
(a)the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order; or
(b)any other person having an interest in the care, well-being and development of the child.
(2)The mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement upon a person contemplated in subsection (1) those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such an agreement.
(3)Aparental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars.
(4)Subject to subsection (6), a parental responsibilities and rights agreement takes effect only if–
(a)registered with the family advocate; or
(b)made an order of the High Court, a divorce court in a divorce matter or the children's court on application by the parties to the agreement.
(5)Before registering a parental responsibilities and rights agreement or before making a parental responsibilities and rights agreement an order of court, the family advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child.
(6)
(a)A parental responsibilities and rights agreement registered by the family advocate may be amended or terminated by the family advocate on application–
(i)by a person having parental responsibilities and rights in respect of the child;
(ii)by the child, acting with leave of the court; or
(iii)in the child's interest by any other person, acting with leave of the court.
(b)A parental responsibilities and rights agreement that was made an order of court may only be amended or terminated on application–
(i)by a person having parental responsibilities and rights in respect of the child;
(ii)by the child, acting with leave of the court; or
(iii)in the child's interest by any other person, acting with leave of the court.
(7)Only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement that relates to the guardianship of a child.

23. Assignment of contact and care to interested person by order of court

(1)Any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children's court for an order granting to the applicant, on such conditions as the court may deem necessary–
(a)contact with the child; or
(b)care of the child.
(2)When considering an application contemplated in subsection (1), the court must take into account–
(a)the best interests of the child;
(b)the relationship between the applicant and the child, and any other relevant person and the child;
(c)the degree of commitment that the applicant has shown towards the child;
(d)the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
(e)any other fact that should, in the opinion of the court, be taken into account.
(3)If in the course of the court proceedings it is brought to the attention of the court that an application for the adoption of the child has been made by another applicant, the court–
(a)must request a family advocate, social worker or psychologist to furnish it with a report and recommendations as to what is in the best interests of the child; and
(b)may suspend the first-mentioned application on any conditions it may determine.
(4)The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.

24. Assignment of guardianship by order of court

(1)Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.
(2)When considering an application contemplated in subsection (1), the court must take into account–
(a)the best interests of the child;
(b)the relationship between the applicant and the child, and any other relevant person and the child; and
(c)any other fact that should, in the opinion of the court, be taken into account.
(3)In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child's existing guardian is not suitable to have guardianship in respect of the child.

25. Certain applications regarded as inter-country adoption

When application is made in terms of section 24 by a non-South African citizen for guardianship of a child, the application must be regarded as an inter-country adoption for the purposes of the Hague Convention on Inter-country Adoption and Chapter 16 of this Act.

26. Person claiming paternity

(1)A person who is not married to the mother of a child and who is or claims to be the biological father of the child may—
(a)apply for an amendment to be effected to the registration of birth of the child in terms of section 11 (4) of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992), identifying him as the father of the child, if the mother consents to such amendment; or
(b)apply to a court for an order confirming his paternity of the child, if the mother—
(i)refuses to consent to such amendment;
(ii)is incompetent to give consent due to mental illness;
(iii)cannot be located; or
(iv)is deceased.
(2)This section does not apply to—
(a)the biological father of a child conceived through the rape of or incest with the child's mother; or
(b)any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation.

27. Assignment of guardianship and care

(1)
(a)A parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of the death of the parent.
(b)A parent who has the sole care of a child may appoint a fit and proper person to be vested with care of the child in the event of the death of the parent.
(2)An appointment in terms of subsection (1) must be contained in a will made by the Parent.
(3)A person appointed in terms of subsection (1) acquires guardianship or care, as the case may be, in respect of a child–
(a)after the death of the parent; and
(b)upon the person's express or implied acceptance of the appointment.
(4)If two or more persons are appointed as guardians or to be vested with the care of the child, any one or more or all of them may accept the appointment except if the appointment provides otherwise.

28. Termination, extension, suspension or restriction of parental responsibilities and rights

(1)A person referred to in subsection (3) may apply to the High Court, a divorce court in a divorce matter or a children's court for an order—
(a)suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child; or
(b)extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.
(2)An application in terms of subsection (1) may be combined with an application in terms of section 23 for the assignment of contact and care in respect of the child to the applicant in terms of that section.
(3)An application for an order referred to in subsection (1) may be brought—
(a)by a co-holder of parental responsibilities and rights in respect of the child;
(b)by any other person having a sufficient interest in the care, protection, well-being or development of the child;
(c)by the child, acting with leave of the court;
(d)in the child's interest by any other person, acting with leave of the court; or
(e)by a family advocate or the representative of any interested organ of state.
(4)When considering such application the court must take into account—
(a)the best interests of the child;
(b)the relationship between the child and the person whose parental responsibilities and rights are being challenged;
(c)the degree of commitment that the person has shown towards the child; and
(d)any other fact that should, in the opinion of the court, be taken into account.

29. Court proceedings

(1)An application in terms of section 22(4)(b), 23, 24, 26(1)(b), or 28 may be brought before the High Court, a divorce court in a divorce matter or a children's court, as the case may be, within whose area of jurisdiction the child concerned is ordinarily resident.
(2)An application in terms of section 24 for guardianship of a child must contain the reasons why the applicant is not applying for the adoption of the child.
(3)The court hearing an application contemplated in subsection (1) may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.
(4)When considering an application contemplated in subsection (1) the court must be guided by the principles set out in Chapter 2 to the extent that those principles are applicable to the matter before it.
(5)The court may for the purposes of the hearing order that—
(a)a report and recommendations of a family advocate, a social worker or other suitably qualified person must be submitted to the court;
(b)a matter specified by the court must be investigated by a person designated by the court;
(c)a person specified by the court must appear before it to give or produce evidence; or
(d)the applicant or any party opposing the application must pay the costs of any such investigation or appearance.
(6)The court may, subject to section 55—
(a)appoint a legal practitioner to represent the child at the court proceedings; and
(b)order the parties to the proceedings, or any one of them, or the state if substantial injustice would otherwise result, to pay the costs of such representation.
(7)If it appears to a court in the course of any proceedings before it that a child involved in or affected by those proceedings is in need of care and protection, the court must order that the question whether the child is in need of care and protection be referred to a designated social worker for investigation in terms of section 155(2).

Part 2 – Co-exercise of parental responsibilities and rights

30. Co-holders of parental responsibilities and rights

(1)More than one person may hold parental responsibilities and rights in respect of the same child.
(2)When more than one person holds the same parental responsibilities and rights in respect of a child, each of the co-holders may act without the consent of the other co-holder or holders when exercising those responsibilities and rights, except where this Act, any other law or an order of court provides otherwise.
(3)A co-holder of parental responsibilities and rights may not surrender or transfer those responsibilities and rights to another co-holder or any other person, but may by agreement with that other co-holder or person allow the other co-holder or person to exercise any or all of those responsibilities and rights on his or her behalf.
(4)An agreement in terms of subsection (3) does not divest a co-holder of his or her parental responsibilities and rights and that co-holder remains competent and liable to exercise those responsibilities and rights.

31. Major decisions involving child

(1)
(a)Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child's age, maturity and stage of development.
(b)A decision referred to in paragraph (a) is any decision—
(i)in connection with a matter listed in section 18(3)(c);
(ii)affecting contact between the child and a co-holder of parental responsibilities and rights;
(iii)regarding the assignment of guardianship or care in respect of the child to another person in terms of section 27; or
(iv)which is likely to significantly change, or to have an adverse effect on, the child's living conditions, education, health, personal relations with a parent or family member or, generally, the child's well-being.
(2)
(a)Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b), that person must give due consideration to any views and wishes expressed by any co-holder of parentalresponsibilities and rights in respect of the child.
(b)A decision referred to in paragraph (a) is any decision which is likely to change significantly, or to have a significant adverse effect on, the co-holder's exercise of parental responsibilities and rights in respect of the child.

32. Care of child by person not holding parental responsibilities and rights

(1)A person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially, including a care-giver who otherwise has no parental responsibilities and rights in respect of a child, must, whilst the child is in that person's care—
(a)safeguard the child‘s health, well-being and development; and
(b)protect the child from maltreatment, abuse, neglect, degradation, discrimina­tion, exploitation, and any other physical, emotional or mental harm or hazards.
(2)Subject to section 129, a person referred to in subsection (1) may exercise any parental responsibilities and rights reasonably necessary to comply with subsection (1), including the right to consent to any medical examination or treatment of the child if such consent cannot reasonably be obtained from the parent or guardian of the child.
(3)A court may limit or restrict the parental responsibilities and rights which a person may exercise in terms of subsection (2).
(4)A person referred to in subsection (1) may not—
(a)hold himself or herself out as the biological or adoptive parent of the child; or
(b)deceive the child or any other person into believing that that person is the biological or adoptive parent of the child.

Part 3 – Parenting plans

33. Contents of parenting plans

(1)The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.
(2)If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.
(3)A parenting plan may determine any matter in connection with parental responsibilities and rights, including—
(a)where and with whom the child is to live;
(b)the maintenance of the child;
(c)contact between the child and—
(i)any of the parties; and
(ii)any other person; and
(d)the schooling and religious upbringing of the child.
(4)A parenting plan must comply with the best interests of the child standard as set out in section 7.
(5)In preparing a parenting plan as Contemplated in subsection (2) the parties must seek—
(a)the assistance of a family advocate, social worker or psychologist; or
(b)mediation through a social worker or other suitably qualified person.

34. Formalities

(1)A parenting plan—
(a)must be in writing and signed by the parties to the agreement; and
(b)subject to subsection (2), may be registered with a family advocate or made an order of court.
(2)An application by co-holders contemplated in section 33(1) for the registration of the parenting plan or for it to be made an order of court must—
(a)be in the prescribed format and contain the prescribed particulars; and
(b)be accompanied by a copy of the plan.
(3)An application by co-holders contemplated in section 33(2) for the registration of a parenting plan or for it to be made an order of court must—
(a)be in the prescribed format and contain the prescribed particulars; and
(b)be accompanied by—
(i)a copy of the plan; and
(ii)a statement by—
(aa)a family advocate, social worker or psychologist contemplated in section 33(5)(a) to the effect that the plan was prepared after consultation with such family advocate, social worker or psycholo­gist; or
(bb)a social worker or other appropriate person contemplated in section 33(5)(b) to the effect that the plan was prepared after mediation by such social worker or such person.
(4)A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.
(5)A parenting plan that was made an order of court may be amended or terminated only by an order of court on application—
(a)by the co-holders of parental responsibilities and rights who are parties to the plan;
(b)by the child, acting with leave of the court; or
(c)in the child's interest, by any other person acting with leave of the court.
(6)Section 29 applies to an application in terms of subsection (2).

35. Refusal of access or refusal to exercise parental responsibilities and rights

(1)Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22(4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
(2)
(a)A person having care or custody of a child whereby another person has access to that child or holds parental responsibilities and rights in respect of that child in terms of an order of any court or a parental responsibilities and rights agreement as contemplated in subsection (1) must upon any change in his or her residential address forthwith in writing notify such other person of such change.
(b)A person who fails to comply with paragraph (a) is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.

Part 4 – Miscellaneous

36. Presumption of paternity in respect of child born out of wedlock

If in any legal proceedings in which it is necessary to prove that any particular person is the father of a child born out of wedlock it is proved that that person had sexual intercourse with the mother of the child at any time when that child could have been conceived, that person is, in the absence of evidence to the contrary which raises a reasonable doubt, presumed to be the biological father of the child.

37. Refusal to submit to taking of blood samples

If a party to any legal proceedings in which the paternity of a child has been placed in issue has refused to submit himself or herself, or the child, to the taking of a blood sample in order to carry out scientific tests relating to the paternity of the child, the court must warn such party of the effect which such refusal might have on the credibility of that party.

38. Effect of subsequent marriage of parents on child

(1)A child born of parents who marry each other at any time after the birth of the child must for all purposes be regarded as a child born of parents married at the time of his or her birth.
(2)Subsection (1) applies despite the fact that the parents could not have legally married each other at the time of conception or birth of the child.

39. Rights of child born of voidable marriage

(1)The rights of a child conceived or born of a voidable marriage shall not be affected by the annulment of that marriage.
(2)No voidable marriage may be annulled until the relevant court has inquired into and considered the safeguarding of the rights and interests of a child of that marriage.
(3)Section 6 of the Divorce Act and section 4 of the Mediation in Certain Divorce Matters Act apply, with the necessary changes required by the context, in respect of such a child as if the proceedings in question were proceedings in a divorce action and the annulment of the marriage were the granting of a decree of divorce.
(4)Section 8(1) and (2) of the Divorce Act apply, with the necessary changes as the context may require, to the rescission or variation of a maintenance order, or an order relating to the care or guardianship of, or contact with, a child, or the suspension of a maintenance order or an order relating to contact with a child, made by virtue of subsection (3).
(5)A reference in any law–
(a)to a maintenance order or an order relating to the custody or guardianship of, or access to, a child in terms of the Divorce Act must be construed as a reference also to a maintenance order or an order relating to the custody or guardianship of, or access to, a child in terms of that Act as applied by subsection (3);
(b)to the rescission, suspension or variation of such an order in terms of the Divorce Act must be construed as a reference also to the rescission, suspension or variation of such an order in terms of that Act as applied by subsection (4).
(6)For purposes of this Act, the father of a child conceived of a voidable marriage where such marriage has been annulled is regarded to be in the same position as the father of a child who has divorced the mother of that child.

40. Rights of child conceived by artificial fertilisation

(1)
(a)Whenever the gamete or gametes of any person other than a married person or his or her spouse have been used with the consent of both such spouses for the artificial fertilisation of one spouse, any child born of that spouse as a result of such artificial fertilisation must for all purposes be regarded to be the child of those spouses as if the gamete or gametes of those spouses had been used for such artificial fertilisation.
(b)For the purpose of paragraph (a) it must be presumed, until the contrary is proved, that both spouses have granted the relevant consent.
(2)Subject to section 296, whenever the gamete or gametes of any person have been used for the artificial fertilisation of a woman, any child born of that woman as a result of such artificial fertilisation must for all purposes be regarded to be the child of that woman.
(3)Subject to section 296, no right, responsibility, duty or obligation arises between a child born of a woman as a result of artificial fertilisation and any person whose gamete has or gametes have been used for such artificial fertilisation or the blood relations of that person, except when–
(a)that person is the woman who gave birth to that child; or
(b)that person was the husband of such woman at the time of such artificial fertilisation.

41. Access to biographical and medical information concerning genetic parents

(1)A child born as a result of artificial fertilisation or surrogacy or the guardian of such child is entitled to have access to–
(a)any medical information concerning that child's genetic parents; and
(b)any other information concerning that child's genetic parents but not before the child reaches the age of 18 years.
(2)Information disclosed in terms of subsection (1) may not reveal the identity of the person whose gamete was or gametes were used for such artificial fertilisation or the identity of the surrogate mother.
(3)The Director-General: Health or any other person specified by regulation may require a person to receive counselling before any information is disclosed in terms of subsection (1).

Chapter 4
Children's courts

Part 1 – Establishment, status and jurisdiction

42. Children's courts and presiding officers

(1)For the purposes of this Act, every magistrate's court, as defined in the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), shall be a children's court and shall have jurisdiction on any matter arising from the application of this Act for the area of its jurisdiction.
(2)Every magistrate shall be a presiding officer of a children's court and every additional magistrate shall be an assistant presiding officer of a children's court for the district of which he is magistrate, additional magistrate or assistant magistrate.
(3)For the purposes of this Act, the Minister for Justice and Constitutional Development may, after consultation with the head of an administrative region defined in section 1 of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), appoint a magistrate or an additional magistrate as a dedicated presiding officer of the children's court, within existing resources.
(4)The presiding officer of the children's court is subject to the administrative control of the head of an administrative region, defined in section 1 of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944).
(5)The presiding officer of the children's court must perform such functions as may be assigned to him or her under this Act or any other law.
(6)For purposes of giving full effect to this Act, magistrates or additional magistrates may be designated as presiding officers for one or more children's courts.
(7)The Minister for Justice and Constitutional Development may, after consultation with the head of an administrative region, by notice in the Gazette define the area of jurisdiction of each children's court and increase or reduce the area of jurisdiction of each children's court in the relevant administrative region.
(8)The children's court hearings must, as far as is practicable, be held in a room which—
(a)is furnished and designed in a manner aimed at putting children at ease;
(b)is conducive to the informality of the proceedings and the active participation of all persons involved in the proceedings without compromising the prestige of the court;
(c)is not ordinarily used for the adjudication of criminal trials; and
(d)is accessible to disabled persons and persons with special needs.
(9)A children's court sits at a place within the district or province designated by the Minister for Justice and Constitutional Development as a magistrate's court.
(10)The publication of a notice referred to in subsection (7) does not affect proceedings which have been instituted but not yet completed at the time of such publication.

43. Status

A children's court is a court of record and has a similar status to that of a magistrate's court at district level.

44. Geographical area of jurisdiction of children's court

(1)The children's court that has jurisdiction in a particular matter is—
(a)the court of the area in which the child involved in the matter is ordinarily resident; or
(b)if more than one child is involved in the matter, the court of the area in which any of those children is ordinarily resident.
(2)Where it is unclear which court has jurisdiction in a particular matter, the children's court before which the child is brought has jurisdiction in that matter.

45. Matters children's court may adjudicate

(1)Subject to section 1(4), a children's court may adjudicate any matter, involving—
(a)the protection and well-being of a child;
(b)the care of, or contact with, a child;
(c)paternity of a child;
(d)support of a child;
(e)the provision of—
(i)early childhood development services; or
(ii)prevention or early intervention services;
(f)maltreatment, abuse, neglect, degradation or exploitation of a child, except criminal prosecutions in this regard;
(g)the temporary safe care of a child;
(h)alternative care of a child;
(i)the adoption of a child, including an inter-country adoption;
(j)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; or
(k)any other matter relating to the care, protection or well—being of a child provided for in this Act.
(2)A children's court—
(a)may try or convict a person for non—compliance with an order of a children's court or contempt of such a court;
(b)may not try or convict a person in respect of a criminal charge other than in terms of paragraph (a); and
(c)is bound by the law as applicable to magistrates' courts when exercising criminal jurisdiction in terms of paragraph (a).
(3)Pending the establishment of family courts by an Act of Parliament, the High Courts and Divorce Courts have exclusive jurisdiction over the following matters contemplated in this Act:
(a)The guardianship of a child;
(b)the assignment, exercise, extension, restriction, suspension or termination of guardianship in respect of a child;
(c)artificial fertilisation;
(d)the departure, removal or abduction of a child from the Republic;
(e)applications requiring the return of a child to the Republic from abroad;
(f)the age of majority or the contractual or legal capacity of a child;
(g)the safeguarding of a child's interest in property; and
(h)surrogate motherhood.
(4)Nothing in this Act shall be construed as limiting the inherent jurisdiction of the High Court as upper guardian of all children.

46. Orders children's court may make

(1)A children's court may make the following orders:
(a)An alternative care order, which includes an order placing a child—
(i)in the care of a person designated by the court to be the foster parent of the child;
(ii)in the care of a child and youth care centre; or
(iii)in temporary safe care;
(b)an order placing a child in a child-headed household in the care of the child heading the household under the supervision of an adult person designated by the court;
(c)an adoption order, which includes an inter-country adoption order;
(d)a partial care order instructing the parent or care-giver of the child to make arrangements with a partial care facility to take care of the child during specific hours of the day or night or for a specific period;
(e)a shared care order instructing different care-givers or child and youth care centres to take responsibility for the care of the child at different times or periods;
(f)a supervision order, placing a child, or the parent or care-giver of a child, or both the child and the parent or care-giver, under the supervision of a social worker or other person designated by the court;
(g)an order subjecting a child, a parent or care-giver of a child, or any person holding parental responsibilities and rights in respect of a child, to—
(i)early intervention services;
(ii)a family preservation programme; or
(iii)both early intervention services and a family preservation programme;
(h)a child protection order, which includes an order—
(i)that a child remains in, be released from, or returned to the care of a person, subject to conditions imposed by the court;
(ii)giving consent to medical treatment of, or to an operation to be performed on, a child;
(iii)instructing a parent or care-giver of a child to undergo professional counselling, or to participate in mediation, a family group conference, or other appropriate problem-solving forum;
(iv)instructing a child or other person involved in the matter concerning the child to participate in a professional assessment;
(v)instructing a hospital to retain a child who on reasonable grounds is suspected of having been subjected to abuse or deliberate neglect, pending further inquiry;
(vi)instructing a person to undergo a specified skills development, training, treatment or rehabilitation programme where this is necessary for the protection or well-being of a child;
(vii)instructing a person who has failed to fulfil a statutory duty towards a child to appear before the court and to give reasons for the failure;
(viii)instructing an organ of state to assist a child in obtaining access to a public service to which the child is entitled, failing which, to appear through its representative before the court and to give reasons for the failure;
(ix)instructing that a person be removed from a child's home;
(x)limiting access of a person to a child or prohibiting a person from contacting a child; or
(xi)allowing a person to contact a child on the conditions specified in the court order;
(i)a contribution order in terms of this Act;
(j)an order instructing a person to carry out an investigation in terms of section 50; and
(k)any other order which a children's court may make in terms of any other provision of this Act.
(2)A children's court may withdraw, suspend or amend an order made in terms of subsection (1), or replace such an order with a new order.

47. Referral of children by other court for investigation

(1)If it appears to any court in the course of proceedings that a child involved in or affected by those proceedings is in need of care and protection as is contemplated in section 150, the court must order that the question whether the child is in need of care and protection be referred to a designated social worker for an investigation contemplated in section 155(2).
(2)If, in the course of any proceedings in terms of the Administration Amendment Act, 1929 (Act No. 9 of 1929), the Matrimonial Affairs Act, 1953 (Act No. 37 of 1953), the Divorce Act, the Maintenance Act, the Domestic Violence Act, 1998 (Act No. 116 of 1998) or the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998), the court forms the opinion that a child of any of the parties to the proceedings has been abused or neglected, the court—
(a)may suspend the proceedings pending an investigation contemplated in section 155(2) into the question whether the child is in need of care and protection; and
(b)must request the Director for Public Prosecutions to attend to the allegations of abuse or neglect.
(3)A court issuing an order in terms of subsection (1) or (2) may also order that the child be placed in temporary safe care if it appears to the court that this is necessary for the safety and well-being of the child.

48. Additional powers

(1)A children's court may, in addition to the orders it is empowered to make in terms of this Act—
(a)grant interdicts and auxiliary relief in respect of any matter contemplated in section 45(1);
(b)extend, withdraw, suspend, vary or monitor any of its orders;
(c)impose or vary time deadlines with respect to any of its orders;
(d)make appropriate orders as to costs in matters before the court; and
(e)order the removal of a person from the court after noting the reason for the removal on the court record.
(2)A children's court may for the purposes of this Act estimate the age of a person who appears to be a child in the prescribed manner.

49. Lay-forum hearings

(1)A children's court may, before it decides a matter or an issue in a matter, order a lay forum hearing in an attempt to settle the matter or issue out of court, which may include—
(a)mediation by a family advocate, social worker, social service professional or other suitably qualified person;
(b)a family group conference contemplated in section 70; or
(c)mediation contemplated in section 71.
(2)Before ordering a lay forum hearing, the court must take into account all relevant factors, including—
(a)the vulnerability of the child;
(b)the ability of the child to participate in the proceedings;
(c)the power relationships within the family; and
(d)the nature of any allegations made by parties in the matter.

50. Investigations

(1)A children's court may, subject to section 155(9), before it decides a matter, order any person—
(a)to carry out an investigation or further investigation that may assist the court in deciding the matter; and
(b)to furnish the court with a report and recommendation thereon.
(2)An investigation or further investigation must be carried out—
(a)in accordance with any prescribed procedures; and
(b)subject to any directions and conditions determined in the court order.
(3)The court order may authorise a designated social worker or any other person authorised by the court to conduct the investigation or further investigation to enter any premises mentioned in the court order, either alone or in the presence of a police official, and on those premises—
(a)remove a child in terms of sections 47 and 151;
(b)investigate the circumstances of the child;
(c)record any information; and
(d)carry out any specific instruction of the court.
(4)In addition to the powers a police official has in terms of the South African Police Service Act, 1995 (Act No. 68 of 1995), the police official accompanying the designated social worker or other person authorised to conduct the investigation or further investigation may—
(a)enter the premises mentioned in the court order and conduct any search;
(b)question any person;
(c)request the name, address and identification details of any person on or residing or suspected to be residing on those premises;
(d)remove any person, from the child's home or place of normal residence in the manner contemplated in section 153 if the police official has a reasonable suspicion that the person—
(i)has caused the child harm; or
(ii)is likely to cause the child harm if the person is not so removed.
(e)record any information; and
(f)carry out any specific instruction of the court.
(5)A police official referred to in subsection (4) may use such force as may be reasonably necessary to overcome any resistance against the entry or search of the premises contemplated in subsection (4)(a), including the breaking of any door or window of such premises: Provided that such police official must first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter such premises.

51. Appeals

(1)Any party involved in a matter before a children's court may appeal against any order made or any refusal to make an order, or against the variation, suspension or rescission of such order of the court to the High Court having jurisdiction.
(2)An appeal in terms of subsection (1) must be noted and prosecuted as if it were an appeal against a civil judgment of a magistrate’s court, subject to section 45(2)(c).

Part 2 – Court proceedings

52. Rules and court proceedings

(1)Except as is otherwise provided in this Act, the provisions of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), and of the rules made in terms thereof as well as the rules made under the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), apply, with the necessary changes required by the context, to the children's court in so far as these provisions relate to—
(a)the issue and service of process;
(b)the appearance in court of advocates and attorneys;
(c)the execution of court orders;
(d)contempt of court; and
(e)penalties for—
(i)non-compliance with court orders;
(ii)obstruction of the execution of judgements; and
(iii)contempt of court.
(2)Rules made in terms of subsection (1) must be designed to avoid adversarial procedures and include rules concerning—
(a)appropriate questioning techniques for—
(i)children in general;
(ii)children with intellectual or psychiatric difficulties or with hearing or other physical disabilities which complicate communication;
(iii)traumatised children; and
(iv)very young children; and
(b)the use of suitably qualified or trained interpreters.

53. Who may approach court

(1)Except where otherwise provided in this Act, any person listed in this section may bring a matter which falls within the jurisdiction of a children's court, to a clerk of the children's court for referral to a children's court.
(2)The persons who may approach a court, are:
(a)A child who is affected by or involved in the matter to be adjudicated;
(b)anyone acting in the interest of the child;
(c)anyone acting on behalf of a child who cannot act in his or her own name;
(d)anyone acting as a member of, or in the interest of, a group or class of children; and
(e)anyone acting in the public interest.

54. Legal representation

A person who is a party in a matter before a children's court is entitled to appoint a legal practitioner of his or her own choice and at his or her own expense.

55. Legal representation of children

(1)Where a child involved in a matter before the children's court is not represented by a legal representative, and the court is of the opinion that it would be in the best interests of the child to have legal representation, the court must refer the matter to the Legal Aid Board referred to in section 2 of the Legal Aid Act, 1969 (Act No. 22 of 1969).
(2)The Board must deal with a matter referred to in subsection (1) in accordance with section 3B of that Act, read with the changes required by the context.

56. Attendance at proceedings

Proceedings of a children's court are closed and may be attended only by—
(a)a person performing official duties in connection with the work of the court or whose presence is otherwise necessary for the purpose of the proceedings;
(b)the child involved in the matter before the court and any other party in the matter;
(c)a person who has been instructed in terms of section 57 by the clerk of the children's court to attend those proceedings;
(d)the legal representative of a person who is entitled to legal representation;
(e)a person who obtained permission to be present from the presiding officer of the children's court; and
(f)the designated social worker managing the case.

57. Compulsory attendance of persons involved in proceedings

(1)The clerk of the children's court may, bywritten notice in the prescribed manner, request a party in a matter before a children's court, a family member of a child involved in the matter or a person who has another interest in the matter, to attend the proceedings of the children's court.
(2)The person in whose physical control the child is must ensure that the child attends those proceedings except if the clerk of the children's court or the court directs otherwise.

58. Rights of persons to adduce evidence, question witnesses and produce argument

The following persons have the right to adduce evidence in a matter before a children's court and, with the permission of the presiding officer of the children's court, to question or cross-examine a witness or to address the court in argument:
(a)A child involved in the matter;
(b)a parent of the child;
(c)a person who has parental responsibilities and rights in respect of the child;
(d)a care-giver of the child;
(e)a person whose rights may be affected by an order that may be made by the court in those proceedings; and
(f)a person who the court decides has a sufficient interest in the matter.

59. Witnesses

(1)The clerk of the children's court must, in the prescribed manner, summons a person to appear as a witness in a matter before the court to give evidence or to produce a book, document or other written instrument on request by—
(a)the presiding officer in the matter;
(b)the child or a person whose rights may be affected by an order that may be made by the court in those proceedings; or
(c)the legal representative of a person referred to in paragraph (b).
(2)A summons referred to in subsection (1) must be served on the witness as if it were a summons to give evidence or to produce a book, document or other written instrument at a criminal trial in a magistrate's court.
(3)Sections 188 and 189 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), read with such changes as the context may require, apply to a person who has been summonsed in terms of subsection (1) or required by the presiding officer to give evidence.
(4)A person summonsed in terms of subsection (1)(a) and who complied with the summons, is entitled to an allowance from state funds equal to that determined for witnesses summonsed to appear in criminal trials in a magistrate's court.
(5)A person summonsed in terms of subsection (1)(b) or (c) is not entitled to an allowance from state funds except if the presiding officer so orders.

60. Conduct of proceedings

(1)The presiding officer in a matter before a children's court controls the conduct of the proceedings, and may—
(a)call any person to give evidence or to produce a book, document or other written instrument;
(b)question or cross-examine that person; or
(c)to the extent necessary to resolve any factual dispute which is directly relevant in the matter, allow that person to be questioned or cross-examined by—
(i)the child involved in the matter;
(ii)the parent of the child;
(iii)a person who has parental responsibilities and rights in respect of the child;
(iv)a care-giver of the child;
(v)a person whose rights may be affected by an order that may be made by the court in those proceedings; or
(vi)the legal representative of a person who is entitled to a legal representative in those proceedings.
(2)If a child is present at the proceedings, the court may order any person present in the room where the proceedings take place to leave the room if such order would be in the best interests of that child.
(3)Children's court proceedings must be conducted in an informal manner and, as far as possible, in a relaxed and non-adversarial atmosphere which is conducive to attaining the co-operation of everyone involved in the proceedings.

61. Participation of children

(1)The presiding officer in a matter before a children's court must—
(a)allow a child involved in the matter to express a view and preference in the matter if the court finds that the child, given the child's age, maturity and stage of development and any special needs that the child may have, is able to participate in the proceedings and the child chooses to do so;
(b)record the reasons if the court finds that the child is unable to participate in the proceedings or is unwilling to express a view or preference in the matter; and
(c)intervene in the questioning or cross-examination of a child if the court finds that this would be in the best interests of the child.
(2)A child who is a party or a witness in a matter before a children's court must be questioned through an intermediary as provided for in section 170A of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) if the court finds that this would be in the best interests of that child.
(3)The court—
(a)may, at the outset or at any time during the proceedings, order that the matter, or any issue in the matter, be disposed of separately and in the absence of the child, if it is in the best interests of the child; and
(b)must record the reasons for any order in terms of paragraph (a).

62. Professional reports ordered by court

(1)A children's court, for the purposes of deciding a matter before it or any issue in the matter, may order, if necessary, that a designated social worker, family advocate, psychologist, medical practitioner or other suitably qualified person carry out an investigation to establish the circumstances of—
(a)the child;
(b)the parents or a parent of the child;
(c)a person who has parental responsibilities and rights in respect of the child;
(d)a care-giver of the child;
(e)the person under whose control the child is; or
(f)any other relevant person.
(2)A person referred to in subsection (1) may, subject to section 63(1) and (2)—
(a)obtain supplementary evidence or reports from other suitably qualified persons;
(b)be required by the court to present the findings of the investigation to the court by—
(i)testifying before the court; or
(ii)submitting a written report to the court.

63. Evidence

(1)A written report, purported to be compiled and signed by a medical practitioner, psychologist, family advocate, designated social worker or other suitably qualified person who on the face of the report formed an authoritative opinion in respect of a child or the circumstances of a child involved in a matter before a children's court, or in respect of another person involved in the matter or the circumstances of such other person, is, subject to the decision of the presiding officer, on its mere production to the children's court hearing the matter admissible as evidence of the facts stated in the report.
(2)The written report contemplated in subsection (1) must be submitted to the children's court within the prescribed period prior to the date of the hearing of the matter.
(3)If a person's rights are prejudiced by a report referred to in subsection (1) the court must—
(a)disclose the relevant parts of the report to that person within the prescribed period prior to the date of the hearing of the matter if that person is a party to the proceedings; and
(b)give that person the opportunity—
(i)to question or cross-examine the author of the report in regard to a matter arising from the report; or
(ii)to refute any statement contained in the report.

64. Adjournments

(1)The proceedings of a children's court may be adjourned only—
(a)on good cause shown, taking into account the best interests of the child;
(b)for a period of not more than 30 days at a time.
(2)A presiding officer of a children's court may excuse any person from appearing at adjournment proceedings.

65. Monitoring of court orders

(1)A children’s court may monitor—
(a)compliance with an order made by it in a matter; or
(b)the circumstances of a child following an order made by it.
(2)For purposes of monitoring compliance with an order made by a children's court or the circumstances of a child following an order, the court—
(a)when making that order, may order—
(i)any person involved in the matter to appear before it at any future date; or
(ii)that reports by a designated social worker be submitted to the court within a specified period or from time to time as specified in the order;
(b)at any time after making an order or when a report of non-compliance mentioned in subsection (4) is referred to it, may call or recall any person involved in the matter to appear before it.
(3)When a person appears before the court in terms of subsection (2) the court may—
(a)inquire whether the order has been or is being complied with, and if not, why the order has not been complied with or is not being complied with;
(b)confirm, vary or withdraw the order; or
(c)enforce compliance with the order, if necessary through a criminal prosecutionin a magistrate's court or in terms of section 45(2).
(4)Any person may report any alleged noncompliance with an order of a children's court, or any alleged worsening of the circumstances of a child following a court order, to the clerk of the children’s court, who must refer the matter to a presiding officer for a decisionon possible further action.

66. Protection of court case records

Subject to the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), no person has access to children's court case records, except—
(a)for the purpose of performing official duties in terms of this Act;
(b)in terms of an order of court if the court finds that such access would not compromise the best interests of the child;
(c)for the purpose of a review or appeal; or
(d)for the purpose of bona fide research or the reporting of cases in law reports, provided the provisions of section 74 are complied with.

67. Appointment or designation of clerks of children's courts

(1)Subject to the laws governing the public service, the Director-General: Justice and Constitutional Development may, for every children's court, appoint or designate one or more officials in the Department, or may appoint one or more persons in the prescribed manner and on the prescribed conditions, as clerks of the children's court, who must generally assist the court to which they are attached in performing its functions and who must perform the functions as may be prescribed in this Act or by way of regulation or in any other law.
(2)If a clerk of the children's court is for any reason unable to act as such or if no clerk ofthe children's court has been appointed or designated for any children's court under subsection (1), the presiding officer of the children's court may designate any competent official in the Department to act as a clerk of the children's court for as long as the said clerk of the children's court is unable to act or until a clerk of the children's court is appointed or designated under subsection (1), as the case may be.
(3)For purposes of giving full effect to this Act persons may be appointed or designated as clerk of the children's court for one or more children's courts.

68. Referral of matters by clerk of children's court

If it comes to the attention of the clerk of the children's court that a child may be in need of care and protection, the clerk must refer the matter to a designated social worker for investigation in terms of section 155(2).

Part 3 – Pre-hearing conferences, family group conferences, other lay-forums and settling matters out of court

69. Prehearing conferences

(1)If a matter brought to or referred to a children's court is contested, the court may order that a pre-hearing conference be held with the parties involved in the matter in order to—
(a)mediate between the parties;
(b)settle disputes between the parties to the extent possible; and
(c)define the issues to be heard by the court.
(2)Pre-hearing conferences may not be held in the event of a matter involving the alleged abuse or sexual abuse of a child.
(3)The child involved in the matter may attend and may participate in the conference unless the children's court decides otherwise.
(4)The court may—
(a)prescribe how and by whom the conference should be set up, conducted and by whom it should be attended;
(b)prescribe the manner in which a record is kept of any agreement or settlement reached between the parties and any fact emerging from such conference which ought to be brought to the notice of the court; and
(c)consider the report on the conference when the matter is heard.

70. Family group conferences

(1)The children's court may cause a family group conference to be set up with the parties involved in a matter brought to or referred to a children's court, including any other family members of the child, in order to find solutions for any problem involving the child.
(2)The children's court must—
(a)appoint a suitably qualified person or organisation to facilitate at the family group conference;
(b)prescribe the manner in which a record is kept of any agreement or settlement reached between the parties and any fact emerging from such conference which ought to be brought to the notice of the court; and
(c)consider the report on the conference when the matter is heard.

71. Other lay-forums

(1)The children's court may, where circumstances permit, refer a matter brought or referred to a children's court to any appropriate lay-forum, including a traditional authority, in an attempt to settle the matter by way of mediation out of court.
(2)Lay-forums may not be held in the event of a matter involving the alleged abuse or sexual abuse of a child.
(3)The children's court may—
(a)prescribe the manner in which a record is kept of any agreement or settlement reached between the parties and any fact emerging from such conference which ought to be brought to the notice of the court; and
(b)consider a report on the proceedings before the lay-forum to the court when the matter is heard.

72. Settling of matters out of court

(1)If a matter is settled out of court and the settlement is accepted by all parties involved in the matter, the clerk of the children's court must submit the settlement to the children's court for confirmation or rejection.
(2)The court must consider the settlement and, if it is in the best interests of the child, may—
(a)confirm the settlement and make it an order of court;
(b)before deciding the matter, refer the settlement back to the parties for reconsideration of any specific issues; or
(c)reject the settlement.

73. Other functions

The clerk of the children's court may attend every children's court hearing.

Part 4 – Miscellaneous matters

74. Publication of information relating to proceedings

No person may, without the permission of a court, in any manner publish any information relating to the proceedings of a children's court which reveals or may reveal the name or identity of a child who is a party or a witness in the proceedings.

75. Regulations

(1)The Minister for Justice and Constitutional Development, after consultation with the Minister, may make regulations concerning—
(a)the procedures to be followed at or in connection with the proceedings of children's courts and the powers, duties and functions of clerks of the children's court in as far as they relate to the proceedings of children's courts;
(b)the form of any application, authority, certificate, consent, notice, order, process, register or subpoena to be made, given, issued or kept;
(c)the carrying out and monitoring of investigations in terms of section 50(2), procedures regulating such investigations and the gathering of evidence;
(d)the holding of pre-hearing conferences in terms of section 69, procedures regulating such conferences and information that must be submitted to a children's court;
(e)the holding and monitoring of family group conferences or other lay-forums in terms of sections 70 and 71, procedures regulating such conferences and other lay-forums and information that must be submitted to a children's court;
(f)the qualifications and experience of persons facilitating family group conferences, including special requirements that apply to persons facilitating in matters involving the alleged abuse of children;
(g)documents in connection with matters brought to a children's court and records of the proceedings of children's courts, including regulations determining—
(i)the person by whom, the period for which and the manner in which those documents and records must be kept; and
(ii)access to those documents and records;
(h)the keeping of records with regard to matters brought to and dealt with by the children's court;
(i)the submission of court statistics and progress reports on those matters to the Magistrates' Commission established by section 2 of the Magistrates Act, 1993 (Act No. 90 of 1993);
(j)the payment of remuneration to persons who are not in the employ of the state as contemplated in sections 49, 50, 62, 69, 70 and 71; and
(k)any other matter required or permitted to be prescribed under this Act.
(2)Section 306(2) and (3), read with such changes as the context may require, applies to the making of regulations in terms of subsection (1).*****

Chapter 7
Protection of children

*****

Part 2 – National Child Protection Register

111. Keeping of National Child Protection Register

(1)The Director-General must keep and maintain a register to be called the National Child Protection Register.
(2)The National Child Protection Register consists of a Part A and a Part B.

112. Confidentiality of National Child Protection Register

(1)All Parts of the Register must be kept confidential and information in the Register may be accessed and disclosed only as provided for in this Act.
(2)The Director-General must take adequate steps—
(a)to protect the information in the Register; and
(b)if the Register is kept in electronic format, to secure the Register from unauthorised intrusion.

Part A of Register

113. Purpose of Part A of Register

The purpose of Part A of the Register is—
(a)to have a record of abuse or deliberate neglect inflicted on specific children;
(b)to have a record of the circumstances surrounding the abuse or deliberate neglect inflicted on the children referred to in paragraph (a);
(c)to use the information in the Register in order to protect these children from further abuse or neglect;
(d)to monitor cases and services to such children;
(e)to share information between professionals that are part of the child protection team;
(f)to determine patterns and trends of abuse or deliberate neglect of children; and
(g)to use the information in the Register for planning and budgetary purposes to prevent the abuse and deliberate neglect of children and protect children on a national, provincial and municipal level.

114. Contents of Part A of Register

(1)Part A of the Register must be a record of—
(a)all reports of abuse or deliberate neglect of a child made to the Director-General in terms of this Act;
(b)all convictions of all persons on charges involving the abuse or deliberate neglect of a child; and
(c)all findings by a children's court that a child is in need of care and protection because of abuse or deliberate neglect of the child.
(2)Part A of the Register must reflect—
(a)in the case of reported incidents referred to in subsection (1)(a)—
(i)the full names, surname, physical address and identification number of the child;
(ii)the age and gender of the child;
(iii)whether the child has a disability and if so, the nature of the disability;
(iv)whether the child has a chronic illness and if so, the nature of the chronic illness;
(v)the nature and a brief account of the incident, including the place and date of the incident;
(vi)the full names, surname, physical address and identification number of the parents or care-giver of the child; and
(vii)the name and physical address of the institution, child and youth care centre, partial care facility or shelter or drop-in centre, if the incident occurred at such a place;
(b)in the case of a conviction referred to in subsection (1)(b)—
(i)the full names, surname, physical address and identification number of the child;
(ii)the age and gender of the child;
(iii)whether the child has a disability and if so, the nature of the disability;
(iv)whether the child has a chronic illness and if so, the nature of the chronic illness;
(v)the full names, surname, physical address, identification number and occupation of the convicted person;
(vi)the nature and a brief account of the charge and conviction, including the place and date of the incident of which the person was charged; and
(vii)details of the relationship between the convicted person and the child;
(c)in the case of a finding by a children's court referred to in subsection (1)(c)—
(i)the full names, surname, physical address and identification number of the child;
(ii)the age and gender of the child;
(iii)whether the child has a disability and if so, the nature of the disability;
(iv)whether the child has a chronic illness and if so, the nature of the chronic illness;
(v)a brief summary of the court's reasons for finding the child to be in need of care and protection;
(vi)information on the outcome of the court's finding on the child;
(vii)the full names, surname, physical address and identification number of the parents or care-giver of the child; and
(viii)a brief summary of the services rendered to the child found to be in need of care; and
(d)any other prescribed information.

115. Access to Part A of Register

Only the Director-General and officials of the Department designated by the Director-General have access to Part A of the Register, but the Director-General may, on such conditions as the Director-General may determine, allow access to—
(a)a provincial head of social development, or an official of a provincial department of social development designated by the head of that department, for the purpose of performing his or her functions in terms of this Act;
(b)designated child protection organisations;
(c)a member of the unit of the South African Police Service tasked with child protection; or
(d)any other person for the purpose of conducting research on child abuse or deliberate neglect or related issues on condition that the full names, surname, physical address and identification number of the child must be excluded.

116. Disclosure of information in Part A of Register

(1)No person may disclose any information in Part A of the Register except—
(a)for the purpose of protecting the interests, safety or well-being of a specific child;
(b)within the scope of that person's powers and duties in terms of this Act or any other legislation;
(c)for the purpose of facilitating an investigation by the South African Police Service following a criminal charge involving abuse or deliberate neglect of a specific child;
(d)to a person referred to in section 117 on written request by such person; or
(e)when ordered by a court to do so.
(2)The general rule with regard to the disclosure of information in Part A of the Register is that it must be in the best interests of the child, unless the information is disclosed following an inquiry in terms of section 117.

117. Inquiries on information in Part A of Register

(1)Anyone has the right, upon presentation of sufficient proof of his or her identity, to establish whether or not his or her name appears in Part A of Register, and if so, the reasons why his or her name was entered in the Register.
(2)Inquiries in terms of subsection (1) must be directed in the prescribed format to the Director-General on a confidential basis.
(3)The Director-General must respond to such inquiries in writing within 21 working days and indicate whether the relevant person's name is in Part A of the Register.

Part B of Register

118. Purpose of Part B of Register

The purpose of Part B of the Register is to have a record of persons who are unsuitable to work with children and to use the information in the Register in order to protect children in general against abuse from these persons.

119. Contents of Part B of Register

Part B of the Register must be a record of persons found in terms of section 120 to be unsuitable to work with children, and must reflect—
(a)the full names, surname, last known physical address and identification number of the person;
(b)the fingerprints of the person, if available;
(c)a photograph of the person, if available;
(d)a brief summary of the reasons why the person was found to be unsuitable to work with children;
(e)in the case of a person convicted of an offence against a child, particulars of the offence of which he or she has been convicted, the sentence imposed, the date of conviction and the case number; and
(f)such other prescribed information.

120. Finding persons unsuitable to work with children

(1)A finding that a person is unsuitable to work with children may be made by—
(a)a children's court;
(b)any other court in any criminal or civil proceedings in which that person is involved; or
(c)any forum established or recognised by law in any disciplinary proceedings concerning the conduct of that person relating to a child.
(2)A finding in terms of subsection (1) may be made by a court or a forum contemplated in subsection (1) of its own volition or on application by—
(a)an organ of state involved in the implementation of this Act;
(b)a prosecutor, if the finding is sought in criminal proceedings; or
(c)a person having a sufficient interest in the protection of children.
(3)Evidence as to whether a person is unsuitable to work with children may be heard by the court or forum either in the course of or at the end of its proceedings.
(4)In criminal proceedings, a person must be found unsuitable to work with children—
(a)on conviction of murder, attempted murder, rape, indecent assault or assault with the intent to do grievous bodily harm with regard to a child; or
(b)if a court makes a finding and gives a direction in terms of section 77(6) or 78(6) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) that the person is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence or was by reason of mental illness or mental defect not criminally responsible for the act which constituted murder, attempted murder, rape, indecent assault or assault with the intent to do grievous bodily harm with regard to a child.
(5)Any person who has been convicted of murder, attempted murder, rape, indecent assault or assault with the intent to do grievous bodily harm with regard to a child during the five years preceding the commencement of this Chapter, is deemed to have been found unsuitable to work with children.
(6)A finding in terms of subsection (1)(b) that a person is unsuitable to work with children is not dependent upon a finding of guilty or innocent in the criminal trial of that person.

121. Disputes concerning findings

The person in respect of whom a finding in terms of section 120 has been made may—
(a)appeal against the finding to a higher court, if the finding was made by a court, or
(b)have the finding reviewed by a court, if the finding was made by a forum contemplated in section 120(1)(c).

122. Findings to be reported to Director-General

(1)The registrar of the relevant court, or the relevant administrative forum, or, if the finding was made on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing—
(a)of any finding in terms of section 120 that a person is unsuitable to work with children; and
(b)of any appeal or review lodged by the affected person.
(2)The Director-General must enter the name of a person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.
(3)If, after appeal or review proceedings have been concluded, a finding in terms of section 120 that a person is unsuitable to work with children is reversed, the Director-General must forthwith remove the name of the person from the Register.

123. Consequences of entry of name in Part B of Register

(1)No person whose name appears in Part B of the Register may—
(a)manage or operate, or participate or assist in managing or operating, an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre, a cluster foster care scheme, a school, club or association providing services to children;
(b)work with or have access to children at an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre, a school, club or association providing services to children, or in implementing a cluster foster care scheme, either as an employee, volunteer or in any other capacity;
(c)be permitted to become the foster parent or adoptive parent of a child;
(d)work in any unit of the South African Police Service tasked with child protection;
(e)be employed in terms of the Public Service Act in a position where that person works with or has access to children;
(f)be employed in terms of the Municipal Systems Act in a position where that person works with or has access to children; or
(g)work in any other form of employment or activity as may be prescribed.
(2)No person managing or operating or who participates or assists in managing or operating an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre or a school may allow a person whose name appears in Part B of the Register to work with or have access to children at the centre, facility, shelter or school, either as an employee, volunteer or in any other capacity.
(3)No designated child protection organisation may allow a person whose name appears in Part B of the Register to work with or have access to children on its behalf, either as an employee, volunteer or in any other capacity.
(4)The South African Police Service may not allow a person whose name appears in Part B of the Register to work in a unit of the Service tasked with child protection.
(5)The head of a state department may not allow a person whose name appears in Part B of the Register to be employed in a position where that person works with or has access to children.
(6)The municipal council of a municipality may not allow a person whose name appears in Part B of the Register to be employed in a position where that person works with or has access to children.

124. Disclosure of entry of name in Part B of Register

(1)If the name of a person is entered in Part B of the Register and that person—
(a)works with or has access to children at an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre or a school either as an employee, volunteer or in any other capacity, that person must disclose that fact to the person who manages or operates the institution, centre, facility, shelter or school;
(b)works with or has access to children on behalf of a designated child protection organisation either as an employee, volunteer or in any other capacity, that person must disclose that fact to the organisation;
(c)works in a unit of the South African Police Service tasked with child protection, that person must disclose that fact to the South African Police Service;
(d)is employed in terms of the Public Service Act in a position where he or she works with or has access to children, that person must disclose that fact to the head of the state department in which he or she is employed; or
(e)is employed in terms of the Municipal Systems Act in a position where he or she works with or has access to children, that person must disclose that fact to the municipal council of the municipality concerned.
(2)A person contemplated in subsection (1) who fails to disclose the fact that his or her name is entered in Part B of the Register is guilty of misconduct and his or her services may be terminated as a result thereof.

125. Access to Part B of Register

(1)Only the following persons have access to Part B of the Register:
(a)the Director-General;
(b)officials in the Department designated by the Director-General;
(c)a provincial head of social development;
(d)officials in the provincial department of social development designated by the provincial head of social development; and
(e)the manager or person in control of a designated child protection organisation dealing with foster care and adoption.
(2)The Director-General may, on such conditions as the Director-General may determine, allow officials of a provincial education department designated by the head of that department access to Part B of the Register for the purpose of implementing section 123 in relation to schools under the jurisdiction of that department.

126. Establishment of information in Part B of Register

(1)Before a person is allowed—
(a)to work with or have access to children at an institution providing welfare services to children, including a child and youth care centre, a partial care facility, a shelter or drop-in centre or school, the person managing or operating the institution, centre, facility, shelter or school must establish whether or not that person's name appears in Part B of the Register;
(b)to work with or have access to children on behalf of a designated child protection organisation, the organisation must establish whether or not that person's name appears in Part B of the Register;
(c)to work in a unit of the South African Police Service tasked with child protection, the Service must establish whether or not that person's name appears in Part B of the Register;
(d)to be employed in terms of the Public Service Act in a position where he or she works with or has access to children, the head of the state department in which he or she is to be employed must establish whether or not that person's name appears in Part B of the Register; or
(e)to be employed in terms of the Municipal Systems Act in a position where he or she works with or has access to children, the municipal council of that municipality must establish whether or not that person's name appears in Part B of the Register.
(2)Within 12 months of the commencement of this chapter—
(a)the person managing or operating an institution, centre, facility, shelter or school contemplated in subsection (1)(a) must establish whether the name of any person who works with or has access to children at the institution, centre, facility, shelter or school appears in Part B of the Register;
(b)a designated child protection organisation contemplated in subsection (1)(b) must establish whether the name of any person who works with or has access to children on behalf of the organisation appears in Part B of the Register;
(c)the South African Police Service must establish whether the name of any person who works in a unit of the South African Police Service tasked with child protection appears in Part B of the Register;
(d)the head of every state department must establish whether the name of any person employed in terms of the Public Service Act in a position where he or she works with or has access to children appears in Part B of the Register; and
(e)the municipal council of every municipality must establish whether the name of any person employed in terms of the Municipal Systems Act in a position where he or she works with or has access to children appears in Part B of the Register.
(3)Anyone has the right, upon presentation of sufficient proof of his or her identity, to establish whether or not his or her name appears in Part B of the Register, and if so, the reasons why his or her name was entered in the Register.
(4)Inquiries in terms of subsection (1), (2) or (3) must be directed in writing to the Director-General on a confidential basis.
(5)In the event of an inquiry made to the Director-General in terms of—
(a)subsection (1), the Director-General must respond in writing within 21 working days by indicating whether the person's name appears in Part B of the Register or not;
(b)subsection (2), the Director-General must respond in writing within six months by indicating whether the person's name appears in Part B of the Register or not; and
(c)subsection (3), the Director-General must respond in writing within 21 working days by indicating whether the person's name appears in Part B ofthe Register, and if so, the reasons why his or her name was entered in the Register.

127. Disclosure of names in Part B of Register prohibited

(1)No person may disclose the fact that the name of a particular person appears in Part B of the Register except—
(a)within the scope of that person's powers and duties in terms of this Act or any other law;
(b)to a body referred to in section 126(1) or (2) on written request by such person or institution;
(c)to a person referred to in section 126(3); or
(d)when ordered by a court to do so.
(2)The general rule with regard to the disclosure of information in Part B of the Register is that it must be in the best interests of the child, unless the information is disclosed following an inquiry in terms of section 126.
(3)The Director-General must inform a person found unsuitable to work with children when that person's name and particulars are entered in Part B of the Register.

128. Removal of name from Register

(1)A person whose name appears in Part B of the Register may in terms of subsection (2) apply for the removal of his or her name and any information relating to that person from the Register.
(2)Application for the removal of a name and particulars from the Register may be made—
(a)to any court, including a children's court;
(b)to the Director-General, if the entry was made in error; or
(c)to the High Court if the Director-General refuses an application in terms of paragraph (b).
(3)An application in terms of subsection (1) to remove a person's name and particulars from Part B of the Register on the ground that the affected person has been rehabilitated, may only be made after at least five years have lapsed since the entry was made and after considering the prescribed criteria.
(4)The name and particulars of a person convicted more than once of an offence with regard to a child may not be removed from Part B of the Register.

Part 3 – Protective measures relating to health of children

129. Consent to medical treatment and surgical operation

(1)Subject to section 5(2) of the Choice on Termination of Pregnancy Act, 1996 (Act No. 92 of 1996), a child may be subjected to medical treatment or a surgical operation only if consent for such treatment or operation has been given in terms of either subsection (2), (3), (4), (5), (6) or (7).
(2)A child may consent to his or her own medical treatment or to the medical treatment of his or her child if—
(a)the child is over the age of 12 years; and
(b)the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the treatment.
(3)A child may consent to the performance of a surgical operation on him or her or his or her child if—
(a)the child is over the age of 12 years; and
(b)the child is of sufficient maturity and has the mental capacity to understand the benefits, risks, social and other implications of the surgical operation; and
(c)the child is duly assisted by his or her parent or guardian.
(4)The parent, guardian or care-giver of a child may, subject to section 31, consent to the medical treatment of the child if the child is—
(a)under the age of 12 years; or
(b)over that age but is of insufficient maturity or is unable to understand the benefits, risks and social implications of the treatment.
(5)The parent or guardian of a child may, subject to section 31, consent to a surgical operation on the child if the child is—
(a)under the age of 12 years; or
(b)over that age but is of insufficient maturity or is unable to understand the benefits, risks and social implications of the operation.
(6)The superintendent of a hospital or the person in charge of the hospital in the absence of the superintendent may consent to the medical treatment of or a surgical operation on a child if—
(a)the treatment or operation is necessary to preserve the life of the child or to save the child from serious or lasting physical injury or disability; and
(b)the need for the treatment or operation is so urgent that it cannot be deferred for the purpose of obtaining consent that would otherwise have been required.
(7)The Minister may consent to the medical treatment of or surgical operation on a child if the parent or guardian of the child—
(a)unreasonably refuses to give consent or to assist the child in giving consent;
(b)is incapable of giving consent or of assisting the child in giving consent;
(c)cannot readily be traced; or
(d)is deceased.
(8)The Minister may consent to the medical treatment of or surgical operation on a child if the child unreasonably refuses to give consent.
(9)A High Court or children's court may consent to the medical treatment of or a surgical operation on a child in all instances where another person that may give consent in terms of this section refuses or is unable to give such consent
(10)No parent, guardian or care-giver of a child may refuse to assist a child in terms of subsection (3) or withhold consent in terms of subsections (4) and (5) by reason only of religious or other beliefs, unless that parent or guardian can show that there is a medically accepted alternative choice to the medical treatment or surgical operation concerned.

130. HIV-testing

(1)Subject to section 132, no child may be tested for HIV except when—
(a)it is in the best interests of the child and consent has been given in terms of subsection (2); or
(b)the test is necessary in order to establish whether—
(i)a health worker may have contracted HIV due to contact in the course of a medical procedure involving contact with any substance from the child's body that may transmit HIV; or
(ii)any other person may have contracted HIV due to contact with any substance from the child's body that may transmit HIV, provided the test has been authorised by a court.
(2)Consent for a HIV-test on a child may be given by—
(a)the child, if the child is—
(i)12 years of age or older; or
(ii)under the age of 12 years and is of sufficient maturity to understand the benefits, risks and social implications of such a test;
(b)the parent or care-giver, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a test;
(c)the provincial head of social development, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a test;
(d)a designated child protection organisation arranging the placement of the child, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a test;
(e)the superintendent or person in charge of a hospital, if—
(i)the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a test; and
(ii)the child has no parent or care-giver and there is no designated child protection organisation arranging the placement of the child; or
(f)a children's court, if—
(i)consent in terms of paragraph (a), (b), (c) or (d) is unreasonably withheld; or
(ii)the child or the parent or care-giver of the child is incapable of giving consent.

131. HIV-testing for foster care or adoption purposes

If HIV-testing of a child is done for foster care or adoption purposes, the state must pay the cost of such tests where circumstances permit.

132. Counselling before and after HIV-testing

(1)A child may be tested for HIV only after proper counselling, by an appropriately trained person, of —
(a)the child, if the child is of sufficient maturity to understand the benefits, risks and social implications of such a test; and
(b)the child's parent or care-giver, if the parent or care-giver has knowledge of the test.
(2)Post-test counselling must be provided by an appropriately trained person to—
(a)the child, if the child is of sufficient maturity to understand the implications of the result; and
(b)the child's parent or care-giver, if the parent or care-giver has knowledge of the test.

133. Confidentiality of information on HIV/AIDS status of children

(1)No person may disclose the fact that a child is HIV-positive without consent given in terms of subsection (2), except—
(a)within the scope of that person's powers and duties in terms of this Act or any other law;
(b)when necessary for the purpose of carrying out the provisions of this Act;
(c)for the purpose of legal proceedings; or
(d)in terms of an order of a court.
(2)Consent to disclose the fact that a child is HIV-positive may be given by—
(a)the child, if the child is—
(i)12 years of age or older; or
(ii)under the age of 12 years and is of sufficient maturity to understand the benefits, risks and social implications of such a disclosure;
(b)the parent or care-giver, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a disclosure;
(c)a designated child protection organisation arranging the placement of the child, if the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a disclosure;
(d)the superintendent or person in charge of a hospital, if—
(i)the child is under the age of 12 years and is not of sufficient maturity to understand the benefits, risks and social implications of such a disclosure; and
(ii)the child has no parent or care-giver and there is no designated child protection organisation arranging the placement of the child; or
(e)a children's court, if—
(i)consent in terms of paragraph (a), (b), (c) or (d) is unreasonably withheld and disclosure is in the best interests of the child; or
(ii)the child or the parent or care-giver of the child is incapable of giving consent.

134. Access to contraceptives

(1)No person may refuse—
(a)to sell condoms to a child over the age of 12 years; or
(b)to provide a child over the age of 12 years with condoms on request where such condoms are provided or distributed free of charge.
(2)Contraceptives other than condoms may be provided to a child on request by the child and without the consent of the parent or care-giver of the child if—
(a)the child is at least 12 years of age;
(b)proper medical advice is given to the child; and
(c)a medical examination is carried out on the child to determine whether there are any medical reasons why a specific contraceptive should not be provided to the child.
(3)A child who obtains condoms, contraceptives or contraceptive advice in terms of this Act is entitled to confidentiality in this respect, subject to section 105.

142. Regulations

The Minister may make regulations in terms of section 306—*****
(g)prescribing the manner and format in which the National Child Protection Register must be established and maintained;
(h)prescribing criteria for finding persons unsuitable to work with children;
(i)prescribing the procedure to be followed and the time periods to be adhered to when reporting a finding that a person is unsuitable to work with children to the Director-General;
(j)prescribing criteria for the assessment of applications for the removal of names of persons from Part B of the National Child Protection Register; and
(k)prescribing any other matter necessary to facilitate the implementation of this Chapter.
*****

Chapter 9
Child in need of care and protection

Part 1 – Identification of child in need of care and protection

150. Child in need of care and protection

(1)A child is in need of care and protection if, the child—
(a)has been abandoned or orphaned and is without any visible means of support;
(b)displays behaviour which cannot be controlled by the parent or care-giver;
(c)lives or works on the streets or begs for a living;
(d)is addicted to a dependence-producing substance and is without any support to obtain treatment for such dependency;
(e)has been exploited or lives in circumstances that expose the child to exploitation;
(f)lives in or is exposed to circumstances which may seriously harm that child's physical, mental or social well-being;
(g)may be at risk if returned to the custody of the parent, guardian or care-giver of the child as there is reason to believe that he or she will live in or be exposed to circumstances which may seriously harm the physical, mental or social well-being of the child;
(h)is in a state of physical or mental neglect; or
(i)is being maltreated, abused, deliberately neglected or degraded by a parent, a care-giver, a person who has parental responsibilities and rights or a family member of the child or by a person under whose control the child is.
(2)A child found in the following circumstances may be a child in need of care and protection and must be referred for investigation by a designated social worker:
(a)a child who is a victim of child labour; and
(b)a child in a child-headed household.
(3)If after investigation a social worker finds that a child referred to in subsection (2) is not a child in need of care and protection as contemplated in subsection (1), the social worker must where necessary take measures to assist the child, including counselling, mediation, prevention and early intervention services, family reconstruction and rehabilitation, behaviour modification, problem solving and referral to another suitably qualified person or organisation.

151. Removal of child to temporary safe care by court order

(1)If, on evidence given by any person on oath or affirmation before a presiding officer it appears that a child who resides in the area of the children's court concerned is in need of care and protection, the presiding officer must order that the question of whether the child is in need of care and protection be referred to a designated social worker for an investigation contemplated in section 155(2).
(2)A presiding officer issuing an order in terms of subsection (1) may also order that the child be placed in temporary safe care if it appears that it is necessary for the safety and well-being of the child.
(3)When referring the question whether the child is in need of care and protection in terms of subsection (1) or when making an order in terms of subsection (2), the children's court may exercise any of the functions assigned to it in terms of section 50(1) to (3).
(4)An order issued in terms of subsection (2) must identify the child in sufficient detail to execute the order.
(5)A person authorised by a court order may, either alone or accompanied by a police official—
(a)enter any premises mentioned in the order;
(b)remove the child from the premises; and
(c)on those premises exercise any power mentioned in section 50(3)(a) to (d).
(6)A police official referred to in subsection (5) may use such force as may be reasonably necessary to overcome any resistance against the entry of the premises contemplated in subsection (5)(a), including the breaking of any door or window of such premises: Provided that the police official shall first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter such premises.
(7)The person who has removed a child in terms of the court order must—
(a)without delay but within 24 hours inform the parent, guardian or care-giver of the child of the removal of the child, if that person can readily be traced; and
(b)within 24 hours refer the matter to a designated social worker for investigation in terms of section 155(2); and
(c)report the matter to the relevant provincial department of social development.
(8)The best interests of the child must be the determining factor in any decision whether a child in need of care and protection should be removed and placed in temporary safe care, and all relevant facts must for this purpose be taken into account, including the safety and well-being of the child as the first priority.

152. Removal of child to temporary safe care without court order

(1)A designated social worker or a police official may remove a child and place the child in temporary safe care without a court order if there are reasonable grounds for believing—
(a)that the child—
(i)is in need of care and protection; and
(ii)needs immediate emergency protection;
(b)that the delay in obtaining a court order for the removal of the child and placing the child in temporary safe care may jeopardise the child's safety and well-being; and
(c)that the removal of the child from his or her home environment is the best way to secure that child's safety and well-being.
(2)If a designated social worker has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the social worker must—
(a)without delay but within 24 hours inform the parent, guardian or care-giver of the child of the removal of the child, if that person can readily be traced; and
(b)not later than the next court day inform the relevant clerk of the children's court of the removal of the child; and
(c)report the matter to the relevant provincial department of social development.
(3)If a police official has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the police official must—
(a)without delay but within 24 hours inform the parent, guardian or care-giver of the child of the removal of the child, if that person can readily be traced; and
(b)refer the matter to a designated social worker for investigation contemplated in section 155(2); and
(c)without delay but within 24 hours notify the provincial department of social development of the removal of the child and of the place where the child has been placed; and
(d)not later than the next court day inform the relevant clerk of the children's court of the removal of the child.
(4)The best interests of the child must be the determining factor in any decision whether a child in need of care and protection should be removed and placed in temporary safe care, and all relevant facts must for this purpose be taken into account, including the possible removal of the alleged offender in terms of section 153 from the home or place where the child resides, and the safety and well-being of the child as the first priority.
(5)Misuse of a power referred to in subsection (1) by a designated social worker in the service of a designated child protection organisation—
(a)constitutes unprofessional or improper conduct as contemplated in section 27(1)(b) of the Social Service Professions Act, 1978 (Act No. 110 of 1978) by that social worker; and
(b)is a ground for an investigation into the possible withdrawal of that organisation's designation.
(6)Misuse of a power referred to in subsection (1) by a designated social worker employed in terms of the Public Service Act or the Municipal Systems Act constitutes unprofessional or improper conduct as is contemplated in section 27(1)(b) of the Social Service Professions Act, 1978 (Act No. 110 of 1978) by that social worker.
(7)Misuse of a power referred to in subsection (1) by a police official constitutes grounds for disciplinary proceedings against such police official as contemplated in section 40 of the South African Police Service Act, 1995 (Act No. 68 of 1995).
(8)Any person who removes a child must comply with the prescribed procedure.

153. Written notice to alleged offender

(1)A police official to whom a report contemplated in section 105(1) or (2) or a request contemplated in section 105(7) has been made, may, if he or she is satisfied that it will be in the best interests of the child if the alleged offender is removed from the home or place where the child resides, issue a written notice which—
(a)specifies the names, surname, residential address, occupation and status of the alleged offender;
(b)calls upon the alleged offender to leave the home or place where the child resides and refrain from entering such home or place or having contact with the child until the court hearing specified in paragraph (c);
(c)calls upon the alleged offender to appear at a children's court at a place and on a date and at a time specified in the written notice to advance reasons why he or she should not be permanently prohibited from entering the home or place where the child resides: Provided that the date so specified shall be the first court day after the day upon which the notice is issued; and
(d)contains a certificate under the hand of the police official that he or she has handed the original of such written notice to the alleged offender and that he or she has explained to the alleged offender the importance thereof.
(2)The police official must forthwith forward a duplicate original of the written notice to the clerk of the children's court.
(3)The mere production to the court of the duplicate original referred to in subsection (2) is prima facie proof of the issue of the original thereof to the alleged offender and that such original was handed to the offender.
(4)The provisions of section 55 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) apply, with the necessary changes, to a written notice handed to an alleged offender in terms of subsection (1).
(5)A children's court before which an alleged offender to whom a written notice in terms of subsection (1) has been issued, appears, may summarily inquire into the circumstances which gave rise to the issuing of the notice.
(6)The court may, after having considered the circumstances which gave rise to the issuing of the written notice and after having heard the alleged offender—
(a)issue an order prohibiting the alleged offender from entering the home or place where the child resides or from having any contact with the child, or both from entering such home or place and having contact with the child, for such period of time as the court deems fit;
(b)order that the alleged offender may enter the home or the place where the child resides or have contact with the child upon such conditions as would ensure that the best interests of the child are served;
(c)order that the alleged offender will be responsible for the maintenance of his or her family during the period contemplated in paragraph (a);
(d)refer the matter to a designated social worker for an investigation contemplated in section 155(2); or
(e)make such other order with regard to the matter as the court deems fit.
(7)Misuse of a power referred to in subsection (1) by a police official constitutes grounds for disciplinary proceedings against such police official as contemplated in section 40 of the South African Police Service Act, 1995 (Act No. 68 of 1995).

154. Other children in need of care and protection

If there are reasonable grounds for believing that a child at the same place or on the same premises as a child placed in temporary safe care in terms of section 47, 151 or 152 is in need of care and protection, the person under whose care the child placed in temporary safe care is or the provincial head of social development may refer that child to a designated social worker for investigation contemplated in section 155(2).

Part 2 – Children’s court processes

155. Decision of question whether child is in need of care and protection

(1)A children's court must decide the question of whether a child who was the subject of proceedings in terms of section 47, 151, 152 or 154 is in need of care and protection.
(2)Before the child is brought before the children's court, a designated social worker must investigate the matter and within 90 days compile a report in the prescribed manner on whether the child is in need of care and protection.
(3)The designated social worker must report the matter to the relevant provincial department of social development,
(4)
(a)If, after an investigation contemplated in subsection (2), the designated social worker finds that the child is not in need of care and protection, he or she must indicate the reasons for the finding in the report, which must be submitted to the children's court for review.
(b)The designated social worker must where necessary indicate in the report the measures recommended to assist the family, including counselling, mediation, prevention and early intervention services, family reconstruction and rehabilitation, behaviour modification, problem solving and referral to another suitably qualified person or organisation
(5)If, after an investigation contemplated in subsection (2), the designated social worker finds the child to be in need of care and protection, that child must be brought before the children's court.
(6)The children's court hearing the matter may—
(a)adjourn the matter for a period not exceeding 14 days at a time; and
(b)order that pending decision of the matter, the child must—
(i)remain in temporary safe care at the place where the child is kept;
(ii)be transferred to another place in temporary safe care;
(iii)remain with the person under whose control the child is;
(iv)be put under the control of a family member or other relative of the child; or
(v)be placed in temporary safe care.
(7)If the court finds that the child is in need of care and protection, the court may make an appropriate order in terms of section 156.
(8)If the court finds that the child is not in need of care and protection, the court—
(a)must make an order that the child, if the child is in temporary safe care, be returned to the person in whose control the child was before the child was put in temporary safe care;
(b)may make an order for early intervention services in terms of this Act; or
(c)must decline to make an order, if the child is not in temporary safe care.
(9)When deciding the question of whether a child is a child in need of care and protection in terms of subsection (1) the court must have regard to the report of the designated social worker referred to in subsection (2).

156. Orders when child is found to be in need of care and protection

(1)If a children's court finds that a child is in need of care and protection the court may make any order which is in the best interests of the child, which may be or include an order—
(a)referred to in section 46;
(b)confirming that the person under whose control the child is may retain control of the child, if the court finds that that person is a suitable person to provide for the safety and well-being of the child;
(c)that the child be returned to the person under whose care the child was before the child was placed in temporary safe care, if the court finds that that person is a suitable person to provide for the safety and well-being of the child;
(d)that the person under whose care the child was must make arrangements for the child to be taken care of in a partial care facility at the expense of such person, if the court finds that the child became in need of care and protection because the person under whose care the child was lacked the time to care for the child;
(e)if the child has no parent or care-giver or has a parent or care-giver but that person is unable or unsuitable to care for the child, that the child be placed in—
(i)foster care with a suitable foster parent;
(ii)foster care with a group of persons or an organisation operating a cluster foster care scheme;
(iii)temporary safe care, pending an application for, and finalisation of, the adoption of the child;
(iv)shared care where different care-givers or centres alternate in taking responsibility for the care of the child at different times or periods; or
(v)a child and youth care centre designated in terms of section 158 that provides a residential care programme suited to the child's needs;
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(g)that the child be placed in a facility designated by the court which is managed by an organ of state or registered, recognised or monitored in terms of any law, for the care of children with disabilities or chronic illnesses, if the court finds that—
(i)the child has a physical or mental disability or chronic illness; and
(ii)it is in the best interests of the child to be cared for in such facility;
(h)that the child be placed in a child and youth care centre selected in terms of section 158 which provides a secure care programme suited to the needs of the child, if the court finds—
(i)that the parent or care-giver cannot control the child; or
(ii)that the child displays criminal behaviour;
(i)that the child receive appropriate treatment or attendance, if needs be at state expense, if the court finds that the child is in need of medical, psychological or other treatment or attendance;
(j)that the child be admitted as an inpatient or outpatient to an appropriate facility if the court finds that the child is in need of treatment for addiction to a dependence-producing substance; or
(k)interdicting a person from maltreating, abusing, neglecting or degrading the child or from having any contact with the child, if the court finds that—
(i)the child has been or is being maltreated, abused, neglected or degraded by that person;
(ii)the relationship between the child and that person is detrimental to the well-being or safety of the child; or
(iii)the child is exposed to a substantial risk of imminent harm.
(2)The court that makes an order contemplated in subsection (1) may order that the child concerned be kept in temporary safe care until such time as effect can be given to the court's order.
(3)An order made by the court in terms of subsection (1)—
(a)is subject to such conditions as the court may determine which, in the case of the placement of a child in terms of subsection (1) (e) (i), (ii), (iii), (iv) or (v), may include a condition—
(i)rendering the placement of the child subject to supervision services by a designated social worker or authorised officer;
(ii)rendering the placement of the child subject to reunification services being rendered to the