Children's Act, 2005

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South Africa

Children's Act, 2005

Act 38 of 2005

  • Published in Government Gazette no. 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 of 2007.
    Chapter 1, section 1(1)(c), 1(1)(a)(i), 1(1)(a)(ii), 1(1)(a)(iii), 1(1)(c), 1(1)(d), 1(1)(e), 1(1)(f), 1(1)(g), 1(1)(h), 1(1)(i), 1(1)(j), 1(1)(c), 1(1)(d), 1(1)(e), 1(1)(f), 1(1)(g), 1(1)(a)(i), 1(1)(a)(ii), 1(1)(c), 1(1)(d), 1(1)(e), 1(1)(f), 1(1)(d), 1(1)(c), 1(1)(e), 1(1)(f), 1(1)(c), 1(1)(d), 1(1)(a), 1(1)(b), 1(1)(a), 1(1)(b), 1(1)(a), 1(1)(b); Chapter 5 (section 76–90); Chapter 6 (section 91–103); Chapter 7, Part 1 (section 104–110); Part 4, section 135, section 136–141, section 142(a), 142(b), 142(c), 142(d), 142(e), 142(f); Chapter 8 (section 143–149); Chapter 9, Part 2, section 156(1)(f); Chapter 11 (section 167–179); Chapter 12 (section 180–190); Chapter 13 (section 191–212); Chapter 14 (section 213–227); Chapter 15, section 250(3); Chapter 20, section 304(3)(a)(i), 304(3)(a)(ii), section 305(1)(e), 305(1)(f), 305(1)(g), 305(1)(h), 305(1)(i), 305(1)(j) commenced on 1 April 2010 by Children's Amendment Act, 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; Part 4, section 142(g), 142(h), 142(i), 142(j), 142(k); Chapter 9, Part 1 (section 150–154); Part 2, section 155, section 156(1)(a), 156(1)(b), 156(1)(c), 156(1)(d), 156(1)(e), 156(1)(g), 156(1)(h), 156(1)(i), 156(1)(j), 156(1)(k), 156(2), 156(3), 156(4), section 157, section 158–160; Chapter 10 (section 161–166); Chapter 15, section 228–249, section 250(1), 250(2), section 251, section 252–253; Chapter 16 (section 254–273); Chapter 17 (section 274–280); Chapter 18 (section 281–291); Chapter 19 (section 292–303); Chapter 20, section 304(1), 304(2), 304(3)(a)(iii), 304(3)(a)(iv), 304(3)(b), 304(3)(c), 304(3)(d), 304(3)(e), 304(3)(f), 304(3)(g), 304(3)(h), 304(4), 304(5), 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 of 2010.
    Chapter 7, Part 2, subpart, section 128A commenced on 22 January 2014 by Judicial Matters Amendment Act, 2013.
    Chapter 1, section 1(1)(c), 1(1)(g)(i), 1(1)(g)(ii), 1(1)(e), 1(1)(f), 1(1)(d), 1(1)(e), 1(1)(f), 1(1)(c), 1(1)(d); Chapter 9, Part 1, section 151(2A), section 152(2)(d), 152(3)(b)(i), 152(3)(b)(ii), 152(3)(b)(iii); Chapter 11, section 171(1A), section 176(3) commenced on 26 January 2018 by Children's Second Amendment Act, 2016.
    Chapter 7, Part 2, subpart, section 120(1A), 120(4A), 120(4B), section 122(1A); Chapter 9, Part 1, section 152A; Chapter 15, section 230(3)(f), 230(3)(g), section 242(2)(e) commenced on 26 January 2018 by Children's Amendment Act, 2016.
  • [This is the version of this document from 26 January 2018.]
  1. [Amended by Child Justice Act, 2008 (Act 75 of 2008) on 1 April 2010]
  2. [Amended by Children's Amendment Act, 2007 (Act 41 of 2007) on 1 April 2010]
  3. [Amended by Judicial Matters Amendment Act, 2013 (Act 42 of 2013) on 22 January 2014]
  4. [Amended by Legal Aid South Africa Act, 2014 (Act 39 of 2014) on 1 March 2015]
  5. [Amended by Prevention and Combating of Trafficking in Persons Act, 2013 (Act 7 of 2013) on 9 August 2015]
  6. [Amended by Judicial Matters Amendment Act, 2017 (Act 8 of 2017) on 2 August 2017]
  7. [Amended by Children's Second Amendment Act, 2016 (Act 18 of 2016) on 26 January 2018]
  8. [Amended by Children's Amendment Act, 2016 (Act 17 of 2016) on 26 January 2018]
(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 partial care of children; to provide for early childhood development; to provide for the issuing of contribution orders; to provide for prevention and early intervention; to provide for children in alternative care; to provide for foster care; to provide for child and youth care centres and drop-in centres; 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; and to create certain new offences relating to children; and to provide for matters connected therewith.[longtitle substituted by section 1 of Act 41 of 2007]
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;[paragraph (a) amended by section 1(a) of Act 18 of 2016](b)a social worker in the employ of a child protection organisation which is accredited in terms of section 251 to provide adoption services; or[paragraph (b) amended by section 1(a) of Act 18 of 2016](c)a social worker in the employ of the Department or a provincial department of social development, including a social worker employed as such on a part-time or contract basis, who has a specialty in adoption services and is registered in terms of the Social Services Professions Act, 1978 (Act No. 110 of 1978);[paragraph (c) added by section 1(a) of Act 18 of 2016]"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;"after-care" means the supportive service provided by a social worker or a social service professional to monitor progress with regard to the child's developmental adjustment as part of–(a)family preservation or reunification services;(b)adoption or placement in alternative care; or(c)discharge from alternative care;[definition of "after-care" inserted by section 3(a) of Act 41 of 2007]"alternative care" means care of a child in accordance with section 167;[definition of "alternative care" inserted by section 3(a) of Act 41 of 2007]"area", in relation to–(a)a metropolitan or local municipality, means the area for which the municipality has been established; and(b)a district municipality, means those parts of the area for which the municipality has been established which do not fall within the area of a local municipality;[definition of "area" inserted by section 3(a) of Act 41 of 2007]"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;"assessment of a child" means a process of investigating the developmental needs of a child, including his or her family environment or any other circumstances that may have a bearing on the child's need for protection and therapeutic services;[definition of "assessment of a child" inserted by section 3(b) of Act 41 of 2007]"assessment of a programme" means a process, conducted by a suitably qualified person, of determining whether the provision and the content of a programme complies with prescribed national norms and standards;[definition of "assessment of a programme" inserted by section 3(b) of Act 41 of 2007]"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;"child and youth care centre" means a facility described in section 191(1);[definition of "child and youth care centre" inserted by section 3(c) of Act 41 of 2007]"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-headed household" means a household recognised as such in terms of section 137;[definition of "child-headed household" inserted by section 3(d) of Act 41 of 2007]"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;"cluster foster care" means the reception of children in foster care in accordance with a cluster foster care scheme registered by the provincial head of social development;[definition of "cluster foster care" inserted by section 3(e) of Act 41 of 2007]"college" means college as defined in the Continuing Education and Training Act, 2006 (Act No. 16 of 2006);[definition of "college" inserted by section 1(b) of Act 18 of 2016]"cluster foster care scheme" means a scheme providing for the reception of children in foster care, managed by a nonprofit organisation and registered by the provincial head of social development for this purpose;[definition of "cluster foster care scheme" inserted by section 3(e) of Act 41 of 2007]"commercial sexual exploitation", in relation to a child means 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;[definition of "commercial sexual exploitation" substituted by section 48 of Act 7 of 2013]"commissioning parent" means a person who enters into a surrogate motherhood agreement with a surrogate mother;"Constitution" means the Constitution of the Republic of South Africa, 1996;[definition of "Constitution" inserted by section 1(a) of Act 17 of 2016]"contact", in relation to a child, means—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 child protection organisation" means an organisation designated in terms of section 107 to perform designated child protection services;[definition of "designated child protection organisation" inserted by section 3(f) of Act 41 of 2007]"designated child protection service" means a child protection service referred to in section 105;[definition of "designated child protection service" inserted by section 3(f) of Act 41 of 2007]"designated social worker" means a social worker in the service of—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);"drop-in centre" means a facility referred to in section 213;[definition of "drop-in centre" inserted by section 3(g) of Act 41 of 2007]"early childhood development programme" means a programme referred to in section 91(3);[definition of "early childhood development programme" inserted by section 3(g) of Act 41 of 2007]"early childhood development services" means services referred to in section 91(2);[definition of "early childhood development services" inserted by section 3(g) of Act 41 of 2007]"early intervention programme" means a programme referred to in section 143(2);[definition of "early intervention programme" inserted by section 3(g) of Act 41 of 2007]"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;"foster care" means care of a child as described in section 180(1) and includes foster care in a registered cluster foster care scheme;[definition of "foster care" inserted by section 3(h) of Act 41 of 2007]"foster parent" means a person who has foster care of a child by order of the children's court, and includes an active member of an organisation operating a cluster foster care scheme and who has been assigned responsibility for the foster care of a child;[definition of "foster parent" inserted by section 3(h) of Act 41 of 2007]"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;"grade 12" means grade 12 as defined in section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997);[definition of "grade 12" inserted by section 1(c) of Act 18 of 2016]"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;"higher education" means higher education as defined in section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997);[definition of "higher education" inserted by section 1(d) of Act 18 of 2016]"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);"midwife" means a person registered as a midwife under the Nursing Act, 1978 (Act No. 50 of 1978);[definition of "midwife" inserted by section 3(i) of Act 41 of 2007]"Minister" means the Cabinet member responsible for social development, or where the context indicates another Minister, that Minister;"municipality" means a metropolitan, local or district municipality established in terms of section 12 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), but to the extent that a municipality mayor must implement a provision of this Act in or in relation to an area which falls within the area of both a local municipality and a district municipality, "municipality" in such a provision means the relevant local municipality;[definition of "municipality" inserted by section 3(j) of Act 41 of 2007]"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;"nurse" means a person registered as a nurse under the Nursing Act, 1978 (Act No. 50 of 1978);[definition of "nurse" inserted by section 3(k) of Act 41 of 2007]"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;"partial care" means partial care referred to in section 76;[definition of "partial care" inserted by section 3(l) of Act 41 of 2007]"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;"permanency plan" means a documented plan referred to in section 157(1);[definition of "permanency plan" inserted by section 3(m) of Act 41 of 2007]"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;"prevention programme" means a programme referred to in section 143(1);[definition of "prevention programme" inserted by section 3(n) of Act 41 of 2007]"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);"quality assurance process" means the process referred to in section 211;[definition of "quality assurance process" inserted by section 3(o) of Act 41 of 2007]"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);"residential care programme" means a programme described in section 191(2) which is or must be offered at a child and youth care centre;[definition of "residential care programme" inserted by section 3(p) of Act 41 of 2007]"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);"secure care" means the physical containment in a safe and healthy environment–(a)of children with behavioural and emotional difficulties; and(b)of children in conflict with the law;[definition of "secure care" inserted by section 3(q) of Act 41 of 2007]"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;"sexual offence" means sexual offence as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), and any offence of a sexual nature in any other law;[definition of "sexual offence" inserted by section 1(b) of Act 17 of 2016]"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" [definition of "trafficking" deleted by section 48 of Act 7 of 2013]"UN Protocol to Prevent Trafficking in Persons" [definition of "UN Protocol to Prevent Trafficking in Persons" deleted by section 48 of Act 7 of 2013]
(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 South Africa referred to in section 2 of the Legal Aid South Africa Act, 2014.[subsection (1) amended by section 25(1) of Act 39 of 2014]
(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 5
Partial care

[Chapter 5 inserted by section 4 of Act 41 of 2007]

76. Partial care

Partial care is provided when a person, whether for or without reward, takes care of more than six children on behalf of their parents or care-givers during specific hours of the day or night, or for a temporary period, by agreement between the parents or care-givers and the provider of the service, but excludes the care of a child
(a)by a school as part of tuition, training and other activities provided by the school;
(b)as a boarder in a school hostel or other residential facility managed as part of a school; or
(c)by a hospital or other medical facility as part of medical treatment provided to the child.
[section 76 inserted by section 4 of Act 41 of 2007]

77. Strategy concerning partial care

(1)The Minister, after consultation with interested persons and the Ministers of Education, Finance, Health, Provincial and Local Government and Transport, must include in the departmental strategy a comprehensive national strategy aimed at ensuring an appropriate spread of partial care facilities throughout the Republic, giving due consideration as provided in section 11, to children with disabilities or chronic illnesses.
(2)The MEC for social development must—
(a)maintain a record of all the registered partial care facilities in the province; and
(b)within the national strategy contemplated in subsection (1), provide for a provincial strategy to ensure an appropriate spread of partial care facilities in the province.
(3)The MEC for social development must compile a provincial profile at the prescribed intervals in order to make the necessary information available for the development and review of the strategies contemplated in subsections (1) and (2).[section 77 inserted by section 4 of Act 41 of 2007]

78. Provision of partial care

(1)The MEC for social development may, from money appropriated by the relevant provincial legislature, provide and fund partial care facilities and services for the province, taking into consideration the national and provincial strategies contemplated in section 77.
(2)A partial care facility referred to in subsection (1)—
(a)must be managed and maintained in accordance with this Act; and
(b)must comply with—
(i)the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed; and
(ii)the structural safety, health and other requirements of the municipality of the area where the partial care facility is situated.
(3)The owner or manager of a partial care facility or provider of a partial care service only qualifies for funding contemplated in subsection (1) if such owner, manager or provider complies with the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed.
(4)The funding of partial care facilities must be prioritised—
(a)in communities where families lack the means of providing proper shelter, food and other basic necessities of life to their children; and
(b)to make facilities accessible to children with disabilities.
[section 78 inserted by section 4 of Act 41 of 2007]

79. National norms and standards for partial care

(1)The Minister, after consultation with interested persons and the Ministers of Education, Finance, Health, Provincial and Local Government and Transport, must determine national norms and standards for partial care by regulation.
(2)The national norms and standards contemplated in subsection (1) must relate to the following:
(a)A safe environment for children;
(b)proper care for sick children or children that become ill;
(c)adequate space and ventilation;
(d)safe drinking water;
(e)hygienic and adequate toilet facilities;
(f)safe storage of anything that may be harmful to children;
(g)access to refuse disposal services or other adequate means of disposal of refuse generated at the facility;
(h)a hygienic area for the preparation of food for children;
(i)measures for the separation of children of different age groups;
(j)the drawing up of action plans for emergencies; and
(k)the drawing up of policies and procedures regarding health care at the facility.
(3)A partial care facility for children with disabilities or chronic illnesses must, in addition to the national norms and standards contemplated in subsection (1)—
(a)be accessible to such children;
(b)provide facilities that meet the needs of such children; and
(c)employ persons that are trained in and provide training to persons employed at the facility on—
(i)the needs, health and safety of such children;
(ii)appropriate learning activities and communication strategies for such children; and
(iii)basic therapeutic interventions.
(4)A partial care facility may offer programmes appropriate to the developmental needs of the children in that facility as may be prescribed.[section 79 inserted by section 4 of Act 41 of 2007]

80. Partial care facility to be registered

(1)Any person or organisation may establish or operate a partial care facility provided that the facility—
(a)is registered with the provincial government of the province where that facility is situated;
(b)is managed and maintained in accordance with any conditions subject to which the facility is registered; and
(c)complies with the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed.
(2)The Minister may by regulation exempt any person or organisation or any category of person or organisation from the requirement to register on such conditions as may be prescribed.
(3)Partial care facilities operated or managed by a national or provincial state department or by a municipality must comply with subsection (1).
(4)As from the date on which this section takes effect an existing place of care registered or deemed to be registered in terms of the Child Care Act must be regarded as having been registered in terms of this section as a partial care facility.
(5)A facility referred to in subsection (4) is regarded as a registered partial care facility for a period of five years from the date on which that subsection takes effect, unless its registration is cancelled in terms of section 84 before the expiry of that period.[section 80 inserted by section 4 of Act 41 of 2007]

81. Application for registration and renewal of registration

(1)An application for registration or conditional registration of a partial care facility or for the reinstatement or renewal of registration must—
(a)be lodged with the provincial head of social development of the province where the facility is situated in accordance with a prescribed procedure;
(b)contain the prescribed particulars; and
(c)be accompanied by—
(i)a report by a social service professional on the viability of the application; and
(ii)any documents that may be prescribed.
(2)An applicant must provide such additional information relevant to the application as the provincial head of social development may determine.
(3)An application for the renewal of registration or conditional registration must be made at least 90 days before the registration is due to expire, but the provincial head of social development may allow a late application on good cause shown.
(4)The provincial head of social development must renew the registration of a partial care facility before the expiration thereof if the application for renewal was lodged at least 90 days before the registration was due to expire as contemplated in subsection (3).[section 81 inserted by section 4 of Act 41 of 2007]

82. Consideration of application

(1)The provincial head of social development must—
(a)within six months of receiving the application consider an application for registration or conditional registration or for the renewal of registration and either reject the application or, having regard to subsection (2), grant the registration or renewal with or without conditions;
(b)issue to the applicant a certificate of registration or conditional registration or renewal of registration in the prescribed form if the application is granted; and
(c)state in the certificate of registration the period for which the registration will remain valid.
(2)When considering an application the provincial head of social development must take into account all relevant factors, including whether—
(a)the facility complies with the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed;
(b)the applicant is a fit and proper person to operate a partial care facility;
(c)the applicant has the necessary funds and resources available to provide the partial care services of the type applied for;
(d)each person employed at or engaged in the partial care facility is a fit and proper person to assist in operating a partial care facility; and
(e)each person employed at or engaged in the partial care facility has the prescribed skills and training to assist in operating that partial care facility.
(3)A person unsuitable to work with children is not a fit and proper person to operate or assist in operating a partial care facility.
(4)The provincial head of social development must consider the report contemplated in section 81(1)(c)(i) of a social service professional before deciding an application for registration, conditional registration or renewal of registration.
(5)Notwithstanding section 78(3) a provincial head of social development may assist the owner or manager of a partial care facility to comply with the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed.[section 82 inserted by section 4 of Act 41 of 2007]

83. Conditional registration

The registration or renewal of registration of a partial care facility may be granted on such conditions as the provincial head of social development may determine, including conditions—
(a)specifying the type of partial care that may or must be provided in terms of the registration;
(b)stating the period for which the conditional registration will remain valid; and
(c)providing for any other matters that may be prescribed.
[section 83 inserted by section 4 of Act 41 of 2007]

84. Cancellation of registration

(1)The provincial head of social development may cancel the registration or conditional registration of a partial care facility by written notice to the registration holder if—
(a)the facility is not maintained in accordance with the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed;
(b)any condition subject to which the registration or renewal of registration was issued is breached or not complied with;
(c)the registration holder or the management of the facility contravenes or fails to comply with a provision of this Act;
(d)the registration holder becomes a person who is not a fit and proper person to operate a partial care facility; or
(e)a person who is not a fit and proper person to assist in operating a partial care facility is employed at or engaged in operating the facility.
(2)The provincial head of social development may in the case of the cancellation of a registration in terms of subsection (1)(a), (b), (c) or (e)—
(a)suspend the cancellation for a period to allow the registration holder to correct the cause of the cancellation; and
(b)reinstate the registration if the registration holder corrects the cause of the cancellation within that period.
(3)The provincial head of social development may assist a registration holder to comply with the prescribed national norms and standards contemplated in section 79, any requirements as may be prescribed or any provision of this Act where the cancellation was due to non-compliance with those national norms and standards, conditions, requirements or provision.[section 84 inserted by section 4 of Act 41 of 2007]

85. Notice of enforcement

(1)A provincial head of social development may by way of a written notice of enforcement instruct—
(a)a person or organisation operating an unregistered partial care facility—
(i)to stop operating that facility; or
(ii)to apply for registration in terms of section 81 within a period specified in the notice; or
(b)a person or organisation operating a registered partial care facility otherwise than in accordance with the provisions of this Act or any conditions subject to which the registration was issued, to comply with those provisions or conditions.
(2)A person or organisation operating an unregistered partial care facility and who is instructed in terms of subsection (1)(a)(ii) to apply for registration within a specified period, may, despite the provisions of section 80, continue operating the facility during that period and, if that person or organisation applies for registration, until that application has been processed.
(3)The Director-General or the provincial head of social development may apply to the High Court for an order to instruct a partial care facility, whether registered or not, to stop operating that facility.
(4)The High Court may grant an order for costs against the owner or manager of the partial care facility referred to in subsection (3) if so requested by the Director-General or provincial head of social development.[section 85 inserted by section 4 of Act 41 of 2007]

86. Appeal against and review of certain decisions

(1)An applicant or a registration holder aggrieved by a decision of a provincial head of social development in terms of this chapter may lodge an appeal against that decision in the prescribed form within 90 days with the MEC for social development, who must decide the appeal within 90 days of receipt thereof.
(2)An applicant or a registration holder that is not satisfied with the outcome of an appeal referred to in subsection (1) may apply to the competent division of the High Court to review that decision.[section 86 inserted by section 4 of Act 41 of 2007]

87. Record and inspection of and provision for partial care facility

(1)A provincial head of social development must—
(a)maintain a record of all partial care facilities in the province, the types of partial care facility and the number of each type of facility;
(b)compile a profile of the children in that province in the prescribed manner; and
(c)conduct inspections at the prescribed intervals of partial care facilities in the province to enforce the provisions of this Act.
(2)A provincial strategy contemplated in section 77(2) must include a strategy for the provision of partial care facilities in the province, which must include measures—
(a)facilitating the establishment and operation of sufficient partial care facilities in that province;
(b)prioritising those types of partial care facilities most urgently required; and
(c)liaising with municipalities on facilitating the identification and provision of suitable premises.
[section 87 inserted by section 4 of Act 41 of 2007]

88. Assignment of functions to municipality

(1)The provincial head of social development may, by written agreement with a municipality, assign the performance of some or all of the functions contemplated in sections 80, 81, 82, 83, 84, 85 and 87 to the municipal manager if the provincial head of social development is satisfied that the municipality complies with the prescribed requirements with regard to the capacity of that municipality to perform the functions concerned.
(2)The agreement must be in the prescribed form and contain the prescribed particulars.
(3)The municipal manager referred to in subsection (1) may delegate any power or duty assigned to him or her in terms of this section to a social service professional in the employ of the municipality.
(4)A delegation in terms of subsection (3)—
(a)is subject to any limitations, conditions and directions which the municipal manager may impose;
(b)must be in writing; and
(c)does not divest the municipal manager of the responsibility concerning the exercise of the power or the performance of the duty.
(5)The municipal manager may—
(a)confirm, vary or revoke any decision taken in consequence of a delegation in terms of this section, subject to any rights that may have accrued to a person as a result of the decision; and
(b)at any time withdraw a delegation.
(6)An applicant or a registration holder aggrieved by a decision of an official in the employ of a municipality in terms of this chapter may lodge an appeal against that decision in the prescribed form within 90 days with the municipal council, who must decide the appeal within 90 days of receipt thereof.
(7)An applicant or a registration holder that is not satisfied with the outcome of an appeal contemplated in subsection (6) may apply to the competent division of the High Court to review that decision.
(8)
(a)The provincial head of social development must monitor the performance of the functions assigned in terms of this section.
(b)The provincial head of social development may by notice in writing require the municipal manager or any other person in possession of information required by the provincial head of social development for purposes of monitoring the performance of the functions assigned by this section, to provide such information to the provincial head of social development within the period specified in the notice.
(c)If, after the functions contemplated in subsection (1) had been assigned to a municipality, it appears that a particular municipality no longer has the capacity to perform some or all of the functions assigned to it, the provincial head of social development may—
(i)amend the written agreement contemplated in subsection (1); or
(ii)withdraw the assignment of the functions.
[section 88 inserted by section 4 of Act 41 of 2007]

89. Serious injury, abuse or death of child in partial care facility

(1)If a child is seriously injured or abused while in partial care or following an occurrence at a partial care facility, the person operating the partial care facility or a person employed at the partial care facility must immediately report such injury or abuse to the provincial head of social development, who must cause an investigation to be conducted into the circumstances of the serious injury or abuse.
(2)If a child dies while in partial care or following an occurrence at a partial care facility, the person operating the partial care facility or a person employed at the partial care facility must immediately after the child's death report such death to—
(a)the parent, guardian or care-giver of the child;
(b)a police official; and
(c)the provincial head of social development.
(3)The police official must cause an investigation into the circumstances surrounding the death of the child to be conducted by the South African Police Service, unless the police official is satisfied that the child died of natural causes.[section 89 inserted by section 4 of Act 41 of 2007]

90. Regulations

The Minister may make regulations in terms of section 306 concerning—
(a)the national norms and standards that partial care facilities must comply with;
(b)the procedure to be followed in connection with the lodging and consideration of applications for registration in terms of this Chapter, for the renewal of such registration and for the suspension or cancellation of registration;
(c)the different types of partial care that may be provided in terms of such registration;
(d)the period for which registration is valid;
(e)the requirements that the different types of partial care facilities have to comply with;
(f)the management of partial care facilities;
(g)the procedure to be followed with regard to the children in a partial care facility if the partial care facility is closed down;
(h)the procedure to be followed and the fees to be paid in connection with the lodging and consideration of appeals in terms of this Chapter; and
(i)any other matter that may be necessary to facilitate the implementation of this Chapter.
[section 90 inserted by section 4 of Act 41 of 2007]

Chapter 6
Early childhood development

[Chapter 6 inserted by section 4 of Act 41 of 2007]

91. Early childhood development

(1)Early childhood development, for the purposes of this Act, means the process of emotional, cognitive, sensory, spiritual, moral, physical, social and communication development of children from birth to school-going age.
(2)Early childhood development services means services—
(a)intended to promote early childhood development; and
(b)provided by a person, other than a child's parent or caregiver, on a regular basis to children up to school-going age.
(3)An early childhood development programme means a programme structured within an early childhood development service to provide learning and support appropriate to the child's developmental age and stage.[section 91 inserted by section 4 of Act 41 of 2007]

92. Strategy concerning early childhood development

(1)The Minister, after consultation with interested persons and the Ministers of Education, Finance, Health, Provincial and Local Government and Transport must include in the departmental strategy a comprehensive national strategy aimed at securing a properly resourced, co-ordinated and managed early childhood development system, giving due consideration as provided in section 11, to children with disabilities or chronic illnesses.
(2)The MEC for social development must—
(a)maintain a record of all the early childhood development programmes registered in the province; and
(b)within the national strategy referred to in subsection (1), provide for a provincial strategy aimed at a properly resourced, co-ordinated and managed early childhood development system.
(3)The MEC for social development must compile a provincial profile at the prescribed intervals in order to make the necessary information available for the development and review of the strategies referred to in subsections (1) and (2).
[section 92 inserted by section 4 of Act 41 of 2007]

93. Provision of early childhood development programmes

(1)The MEC for social development may, from money appropriated by the relevant provincial legislature, provide and fund early childhood development programmes for that province.
(2)An early childhood development programme must—
(a)be provided in accordance with this Act; and
(b)comply with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed.
(3)The provider of an early childhood development programme only qualifies for funding contemplated in subsection (l) if such provider complies with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed.
(4)The funding of early childhood development programmes must be prioritised—
(a)in communities where families lack the means of providing proper shelter, food and other basic necessities of life to their children; and
(b)to make early childhood development programmes available to children with disabilities.
(5)An early childhood development programme must be provided by—
(a)a partial care facility providing partial care services for any children up to school-going age; and
(b)a child and youth care centre which has in its care any children up to school-going age.
(6)Any other person or organisation not disqualified in terms of section 97(3) may provide early childhood development programmes, provided that those programmes comply with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed.[section 93 inserted by section 4 of Act 41 of 2007]

94. National norms and standards for early childhood development programmes

(1)The Minister must determine national norms and standards for early childhood development programmes by regulation after consultation with interested persons and the Ministers of Education, Finance, Health, Provincial and Local Government and Transport.
(2)The prescribed national norms and standards contemplated in subsection (1) must relate to the following:
(a)The provision of appropriate developmental opportunities;
(b)programmes aimed at helping children to realise their full potential;
(c)caring for children in a constructive manner and providing support and security;
(d)ensuring development of positive social behaviour;
(e)respect for and nurturing of the culture, spirit, dignity, individuality, language and development of each child; and
(f)meeting the emotional, cognitive, sensory, spiritual, moral, physical, social and communication development needs of children.
(3)An early childhood development programme provided in terms of this section must be appropriate to the needs of the children to whom the programme is provided, including children with a disability, chronic illness and other special needs.[section 94 inserted by section 4 of Act 41 of 2007]

95. Early childhood development programme to be registered

(1)A person or organisation providing an early childhood development programme must—
(a)register the programme with the provincial head of social development of the province where that programme is provided;
(b)provide the programme in accordance with any conditions subject to which the programme is registered; and
(c)comply with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed.
(2)The Minister may by regulation exempt any person or organisation or any category of person or organisation from the requirement to register on such conditions as may be prescribed.
(3)An early childhood development programme provided by a national or provincial state department or a municipality must comply with subsection (1).[section 95 inserted by section 4 of Act 41 of 2007]

96. Application for registration and renewal of registration

(1)An application for registration or conditional registration of an early childhood development programme or for the renewal of registration must—
(a)be lodged with the provincial head of social development of the province where the early childhood development programme is provided in accordance with a prescribed procedure;
(b)contain the prescribed particulars; and
(c)be accompanied by any documents that may be prescribed.
(2)An applicant must provide such additional information relevant to the application as the provincial head of social development may determine.
(3)An application for the renewal of registration or conditional registration must be made at least 90 days before the registration is due to expire, but the provincial head of social development may allow a late application on good cause shown.
(4)The provincial head of social development must renew the registration of an early childhood development programme before the expiration thereof if the application for renewal was lodged at least 90 days before the registration was due to expire as contemplated in subsection (3).[section 96 inserted by section 4 of Act 41 of 2007]

97. Consideration of application

(1)The provincial head of social development must—
(a)within six months of receiving the application consider an application for registration or conditional registration or for the renewal of registration, and either reject the application or, having regard to subsection (2), grant the registration or renewal with or without conditions;
(b)issue to the applicant a certificate of registration or conditional registration or renewal of registration in the prescribed form if the application is granted; and
(c)state in the certificate of registration the period for which the registration will remain valid.
(2)When considering an application, the provincial head of social development must take into account all relevant factors, including whether—
(a)the early childhood development programme complies with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed;
(b)the applicant is a fit and proper person to provide an early childhood development programme;
(c)the applicant has the prescribed skills, training, funds and resources available to provide the early childhood development programme as applied for; and
(d)the early childhood development programme meets the emotional, cognitive, sensory, spiritual, moral, physical, social and communication development needs of the children to whom the programme will be presented.
(3)A person unsuitable to work with children is not a fit and proper person to provide or assist in the provision of early childhood development programmes.
(4)The provincial head of social development must consider the assessment referred to in subsection (6) of a suitably qualified person before deciding an application for registration, conditional registration or renewal of registration.
(5)Notwithstanding the provisions of section 93(3), a provincial head of social development may assist a person providing an early childhood development programme to comply with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed.
(6)A provincial head of social development must authorise a suitably qualified person to assess the provision and content of an early childhood development programme in order to determine whether the programme complies with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed.
(7)Section 304(2) and (3), read with such changes as the context may require, applies to any assessment in terms of subsection (6).[section 97 inserted by section 4 of Act 41 of 2007]

98. Conditional registration

The registration or renewal of registration of an early childhood development programme may be granted on such conditions as the provincial head of social development may determine, including conditions—
(a)specifying the type of early childhood development programme that may or must be provided in terms of the registration;
(b)stating the period for which the conditional registration will remain valid; and
(c)providing for any other matters that may be prescribed.
[section 98 inserted by section 4 of Act 41 of 2007]

99. Cancellation of registration

(1)A provincial head of social development may cancel the registration or conditional registration of an early childhood development programme by written notice to the registration holder if—
(a)the programme is not run in accordance with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed;
(b)any condition subject to which the registration or renewal of registration was issued is breached or not complied with;
(c)the registration holder contravenes or fails to comply with a provision of this Act;
(d)the registration holder becomes a person who is not a fit and proper person to provide an early childhood development programme; or
(e)a person who is not a fit and proper person to provide or assist in the provision of an early childhood development programme provides or assists in the provision of such a programme.
(2)The provincial head of social development may in the case of the cancellation of a registration in terms of subsection (l)(a), (b), (c) or (e)—
(a)suspend the cancellation for a period to allow the registration holder to correct the cause of the cancellation; and
(b)reinstate the registration if the registration holder corrects the cause of the cancellation within that period.
(3)A provincial head of social development may assist a registration holder to comply with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed or any provisions of this Act where the cancellation was due to non-compliance with those national norms and standards, requirements, conditions or provisions.
(4)The cancellation of the registration or conditional registration of an early childhood development programme in terms of subsection (1) does not affect the registration or conditional registration of a partial care facility or a child and youth care centre.[section 99 inserted by section 4 of Act 41 of 2007]

100. Notice of enforcement

A provincial head of social development may by way of a written notice of enforcement instruct—
(a)a person operating or managing a partial care facility or a child and youth care centre which does not provide an early childhood development programme, to comply with section 93(5) within a period specified in the notice;
(b)a person operating or managing a partial care facility or a child and youth care centre which does provide an early childhood development programme but of a standard that does not comply with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed, to comply with those national norms and standards and other requirements within a period specified in the notice; or
(c)a person who provides an early childhood development programme which does not comply with the prescribed national norms and standards contemplated in section 94 and such other requirements as may be prescribed-
(i)to stop the provision of that programme; or
(ii)to comply with those national norms and standards and other requirements within a period specified in the notice.
[section 100 inserted by section 4 of Act 41 of 2007]

101. Appeal against and review of certain decisions

(1)An applicant or a registration holder aggrieved by a decision of a provincial head of social development in terms of this chapter may lodge an appeal against that decision in the prescribed form within 90 days with the MEC for social development, who must decide the appeal within 90 days of receipt thereof.
(2)An applicant or a registration holder that is not satisfied with the outcome of an appeal referred to in subsection (1) may apply to the competent division of the High Court to review that decision.[section 101 inserted by section 4 of Act 41 of 2007]

102. Assignment of functions to municipality

(1)The provincial head of social development may, by written agreement with a municipality, assign the performance of some or all of the functions contemplated in sections 95, 96, 97, 98, 99 and 100 to the municipal manager if the provincial head of social development is satisfied that the municipality complies with the prescribed requirements with regard to the capacity of that municipality to perform the functions concerned.
(2)The agreement must be in the prescribed form and contain the prescribed particulars.
(3)The municipal manager referred to in subsection (1) may delegate any power or duty assigned to him or her in terms of this section to a social service professional in the employ of the municipality.
(4)A delegation in terms of subsection (3)—
(a)is subject to any limitations, conditions and directions which the municipal manager may impose;
(b)must be in writing; and
(c)does not divest the municipal manager of the responsibility concerning the exercise of the power or the performance of the duty.
(5)The municipal manager may—
(a)confirm, vary or revoke any decision taken in consequence of a delegation in terms of this section, subject to any rights that may have accrued to a person as a result of the decision; and
(b)at any time withdraw a delegation.
(6)An applicant or a registration holder aggrieved by a decision of an official in the employ of a municipality in terms of this chapter may lodge an appeal against that decision in the prescribed form within 90 days with the municipal council, who must decide on the appeal within 90 days of receipt thereof.
(7)An applicant or a registration holder that is not satisfied with the outcome of an appeal lodged as contemplated in subsection (6) may apply to the competent division of the High Court to review that decision.
(8)
(a)The provincial head of social development must monitor the performance of the functions assigned in terms of this section.
(b)The provincial head of social development may by notice in writing require the municipal manager or any other person in possession of information required by the provincial head of social development for purposes of monitoring the performance of the functions assigned by this section, to provide such information to the provincial head of social development within the period specified in the notice.
(c)If, after the functions contemplated in subsection (1) had been assigned to a municipality, it appears that a particular municipality no longer has the capacity to perform some or all of the functions assigned to it, the provincial head of social development may—
(i)amend the written agreement contemplated in subsection (1); or
(ii)withdraw the assignment of the functions.
[section 102 inserted by section 4 of Act 41 of 2007]

103. Regulations

The Minister may make regulations in terms of section 306 concerning—
(a)the national norms and standards that early childhood development programmes must comply with;
(b)any other requirements with which early childhood development programmes must comply;
(c)the procedure to be followed in connection with the lodging and consideration of applications for registration in terms of this Chapter and for the renewal of such registrations;
(d)the assessment and compulsory monitoring of early childhood development programmes; and
(e)any other matter necessary to facilitate the implementation of this Chapter.
[section 103 inserted by section 4 of Act 41 of 2007]

Chapter 7
Protection of children

Part 1 – Child protection system

[Part 1 inserted by section 5(a) of Act 41 of 2007]

104. Strategy concerning child protection

(1)The Minister, after consultation with interested persons and the Ministers of Education, Finance, Health and Justice and Constitutional Development and the South African Police Service, must develop a comprehensive inter-sectoral strategy aimed at securing a properly resourced, co-ordinated and managed national child protection system.
(2)The MEC for social development must, within the national strategy referred to in subsection (1), provide for a provincial strategy aimed at a properly resourced, co-ordinated and managed child protection system.
(3)The MEC for social development must compile a provincial profile at the prescribed intervals in order to make the necessary information available for the development and review of the strategies referred to in subsections (1) and (2).[section 104 inserted by section 5(a) of Act 41 of 2007]

105. Provision of designated child protection services

(1)The MEC for social development must, from money appropriated by the relevant provincial legislature, provide and fund designated child protection services for that province.
(2)Designated child protection services—
(a)must be managed and maintained in accordance with this Act; and
(b)must comply with the prescribed national norms and standards contemplated in section 106 and such other requirements as may be prescribed.
(3)Designated child protection services provided by an organ of state or a designated child protection organisation only qualify for funding from money appropriated by a provincial legislature if it complies with the prescribed national norms and standards contemplated in section 106 and such other requirements as may be prescribed.
(4)Designated child protection services may be provided by—
(a)the Department;
(b)a provincial department of social development; and
(c)a designated child protection organisation.
(5)Designated child protection services include—
(a)services aimed at supporting—
(i)the proceedings of children's courts; and
(ii)the implementation of court orders;
(b)services relating to—
(i)prevention services;
(ii)early intervention services;
(iii)the reunification of children in alternative care with their families;
(iv)the integration of children into alternative care arrangements;
(v)the placement of children in alternative care; and
(vi)the adoption of children, including inter-country adoptions;
(c)the carrying out of investigations and the making of assessments, in cases of suspected abuse, neglect or abandonment of children;
(d)intervention and removal of children in appropriate cases;
(e)the drawing up of individual development plans and permanency plans for children removed, or at risk of being removed, from their family; and
(f)any other social work service as may be prescribed.
[section 105 inserted by section 5(a) of Act 41 of 2007]

106. National norms and standards for child protection

(1)The Minister must determine national norms and standards for child protection by regulation after consultation with interested persons and the Ministers of Education, Finance, Health and Justice and Constitutional Development and the South African Police Service.
(2)The national norms and standards contemplated in subsection (1) must relate to the following:
(a)Prevention and early intervention programmes;
(b)assessment of a child;
(c)therapeutic programmes;
(d)after-care;
(e)family reunification and reintegration;
(f)foster care services;
(g)integration into alternative care;
(h)adoption services;
(i)permanency plans;
(j)education and information; and
(k)child-headed households.
[section 106 inserted by section 5(a) of Act 41 of 2007]

107. Designation of child protection organisation

(1)The Director-General or provincial head of social development, on written application, may designate any appropriate organisation that complies with the prescribed criteria as a child protection organisation to perform all or any specific designated child protection services in the relevant province.
(2)A designation in terms of subsection (1)—
(a)must be in writing;
(b)may be made on such conditions as the Director-General or provincial head of social development may determine; and
(c)must be made for such period as may be prescribed.
(3)The Director-General or provincial head of social development may assign to a designated child protection organisation such powers and duties in terms of this Act necessary for the proper provision of designated child protection services by the organisation.
(4)Sections 310 and 311 read with such changes as the context may require, apply to any assignment in terms of subsection (1).[section 107 inserted by section 5(a) of Act 41 of 2007]

108. Existing child welfare organisation

(1)Any organisation which, when section 107 takes effect, is a designated welfare organisation within the meaning of the Child Care Act must be regarded as having been designated in terms of section 107 as a child protection organisation to perform the designated child protection services which it performed immediately before that section took effect.
(2)An organisation referred to in subsection (1) is regarded as a designated child protection organisation for a period of five years from the date on which section 107 takes effect, unless its designation is withdrawn in terms of section 109 before the expiry of that period.[section 108 inserted by section 5(a) of Act 41 of 2007]

109. Withdrawal of designation

(1)The Director-General or provincial head of social development may withdraw the designation of a child protection organisation to perform any, or any specific, designated child protection service
(a)if the organisation—
(i)breaches or fails to comply with any conditions subject to which the designation was made; or
(ii)contravenes or fails to comply with a provision of this Act; or
(b)if it is in the best interest of the protection of children.
(2)Before the designation of a child protection organisation is withdrawn as contemplated in subsection (1), the Director-General or provincial head of social development, as the case may be, must conduct quality assurance in the prescribed manner of the child protection organisation concerned.[section 109 inserted by section 5(a) of Act 41 of 2007]

110. Reporting of abused or neglected child and child in need of care and protection

(1)Any correctional official, dentist, homeopath, immigration official, labour inspector, legal practitioner, medical practitioner, midwife, minister of religion, nurse, occupational therapist, physiotherapist, psychologist, religious leader, social service professional, social worker, speech therapist, teacher, traditional health practitioner, traditional leader or member of staff or volunteer worker at a partial care facility, drop-in centre or child and youth care centre who on reasonable grounds concludes that a child has been abused in a manner causing physical injury, sexually abused or deliberately neglected, must report that conclusion in the prescribed form to a designated child protection organisation, the provincial deparment of social development or a police official.
(2)Any person who on reasonable grounds believes that a child is in need of care and protection may report that belief to the provincial department of social development, a designated child protection organisation or a police official.
(3)A person referred to in subsection (1) or (2)—
(a)must substantiate that conclusion or belief to the provincial department of social development, a designated child protection organisation or police official; and
(b)who makes a report in good faith is not liable to civil action on the basis of the report.
(4)A police official to whom a report has been made in terms of subsection (1) or (2) or who becomes aware of a child in need of care and protection must—
(a)ensure the safety and well-being of the child concerned if the child's safety or well-being is at risk; and
(b)within 24 hours notify the provincial department of social development or a designated child protection organisation of the report and any steps that have been taken with regard to the child.
(5)The provincial department of social development or designated child protection organisation to whom a report has been made in terms of subsection (1), (2) or (4), must—
(a)ensure the safety and well-being of the child concerned, if the child's safety or well-being is at risk;
(b)make an initial assessment of the report;
(c)unless the report is frivolous or obviously unfounded, investigate the truthfulness of the report or cause it to be investigated;
(d)if the report is substantiated by such investigation, without delay initiate proceedings in terms of this Act for the protection of the child; and
(e)submit such particulars as may be prescribed to the Director-General for inclusion in Part A of the National Child Protection Register.
(6)
(a)A designated child protection organisation to whom a report has been made in terms of subsection (1), (2) or (4) must report the matter to the relevant provincial department of social development.