Notes Chapter 22

CHAPTER 22 – CHILDREN’S RIGHTS

 

• shift from powers of parents towards rights of children
• constitution and international human rights instruments have awarded specific rights iro children

 

Constitution:

• sec 28 – most important instrument in recognizing and protecting children rights
• all provisions applicable iro human beings, children extra clause –sec 28 (children’s rights clause)
• Purpose: to protect children –not their parents, therefore protects child not the parent.
• Sec 28 –page 272

 

 

Rights:

• (a) right to a name : Births & Death Reg act
• (b) & (c) right to family, parental care, nutrition, shelter, health care and social services: duty of parents – only passes to state only if family fails.
• State obliged to create environment – provide an infrastructure subject to available resources.
• Grootboom case: rights ito sec 28 must be taken in context of sec 25(5),26 and 27.
• (d) : protected from maltreatment : statutory and common laws, also DV act, enforcement of maintenance and child removal.   
• (h): legal representation: Soller v G variation of care order – one of the children ( a boy 15) asked for the order. Representative gives child a legal voice. Also Legal Aid Board v R –a 12 year old child sends a sms to child line to intervene because parents litigation about her care.

 

Sec28 (2) : Paramountcy of child’s interest:

• Before mostly family law – now in all law children’s interest must be considered. Eg sentencing an offender.
• Paramount consideration – paramount importance. No constitutional hierarchy of rights –therefore limitations of constitutional rights involves the weighing up of competing interests and an assessment of proportionality.
• Uncertainty sec 28(2) must be applied with sec 28(1) or whether separate constitutional right. MvS:

An amicus curiae (also spelled amicus curiæ; plural amici curiae) is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it. The information provided may be a legal opinion in the form of a brief (which is called an amicus brief when offered by an amicus curiae), a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision on whether to admit the information lies at the discretion of the court. The phrase amicus curiae is legal Latin and literally means "friend of the court".

• Terminology in this case – refers to sec 28(2) as a separate right, then links ec 28(1) and (2), and sometimes just refers to sec 28.

 

United Nations convention on the rights of the child:

 

• SA ratified the UNC on the Rights of the Child.
• Therefore comply with the obligations of the convention it imposes on state parties.
• Eg. Children should view – echoed in Children’s Act

 

African Charter on the Rights and Welfare of the Child:

 

• SA also ratified the ACRW – rights to freedom etc.

 

Children’s Act:

 

• Rights ito Children act supplement rights ito Constitution.
• Sec 6 – gives general principles that should guide implementation of legislation to a specific child.
• Sec 7 – best interest standard
• Sec 9 – requires standard must be of paramount importance
• Sec 10 – express view
• Sec12- right not to be subjected to social, cultural etc practices which are detrimental to his well-being. Prohibit female circumcision, virginity testing under 16.
• Sec 13- access to info on health promotion, treatment of illnesses etc.
• Sec14- assist child to bring matter to court.