This Act is there to help keep families together and make sure a child is cared for by family or parents, or is placed in alternative care when there is no family. The Act talks about protecting children from abuse, harm and neglect and to do this, many different services and resources need to be made available for children.
The Act says that when the government has to make a decision or do something that involves children, it has to think about the legal and personal issues that will affect children. The Act says that the state has to respect:
- The rights of all children in South Africa. These rights are contained in the Bill of Rights in the Constitution. The Constitution clearly states that children’s rights must be promoted, protected and respected.
- The dignity and worth of the child. The state must make sure that all children are treated equally and are not discriminated against.
- The child’s need for development and growth. A child needs to be able to play and engage in activities that suit the child’s age and developmental capacity.
- The right of children with disabilities to be encouraged and supported while taking care of their special needs.
Another point that needs to be remembered when looking at children’s issues is that the family and the child have a right to be heard. If it is in the ‘best interests of the child’, then the family will be given a chance to express their points of view even in times of conflict.
Best interests of the child (Chapter 2, Section 7)
The best interests of the child are the first things to think about when making a decision that will affect the child. Sometimes when a child’s best interests are ignored, the child ends up in an even worse situation. The Act says that it is also important to look at the attitude of the parent towards the child and their attitude about their duties as a parent.
“Children may have rights but they also have responsibilities. Rights are things that you are free to do and responsibilities are things you are expected to do.”
Other factors that need to be considered are the age, the gender and the background of the child and whether the child has any disability, illness or any special needs. All these issues should be considered with care, but if a child is in need and faces the possible threat of physical or emotional harm, then the child needs to be helped quickly without exposing the child to any more harm.
Child participation (Chapter 2, Section 10)
Every child has the right to participate and to have a voice. This means that every child may take part in any matter that concerns their care and well-being, depending on their age and maturity level.
Children living with a disability or chronic illness (Chapter 2, Section 11)
The Act says that children living with a disability or chronic illness have special needs and these should be recognised. These children must be given every opportunity to take part in social, cultural, religious or educational activities.
The right to dignity and self-worth is very important for all children living with a disability or a chronic illness. These children need to be encouraged to participate in their community and should be loved and cared for in a family environment to live a life that is as full of possibility and growth as it can be.
Social, cultural & religious practices (Chapter 2, Section 12)
The Act wants to protect children from practices that can be harmful to their well-being and health, and protects all children so the child’s cultural or religious background does not matter. There are many cultural practices that are seen as harmful to children and go against the rights of a child as set out in our Constitution and the United Nation’s Convention on the Rights of a Child.
The Children’s Act tries to set down clear ground rules that must be followed by everyone in the country. Children cannot be forced to marry and they cannot be allowed to marry if they are underage. Children should have a right to play and enjoy their childhood while they are still young – marriage is a big responsibility for a child to bear. There are still some cultures in the world where girls as young as 12 years old are being married to men who are much older than they are.
Top 10 countries with the highest prevalence rates of child marriage*
- Niger – 76%
- Central African Republic – 68%
- Chad – 67%
- Bangladesh – 59%
- South Sudan – 52%
- Mali – 52%
- Guinea – 52%
- Burkina Faso – 52%
- Mozambique – 48%
- India – 47%
*Percentage of women 20-24 years old who were first married or in union before they were 18 years old. Source: UNICEF global databases 2018, based on Multiple Indicator Cluster Surveys (MICS), Demographic and Health Surveys (DHS), and other national surveys.
The Act prohibits certain cultural and religious practices. For example, genital mutilation is prohibited, virginity testing on children under 16 years of age is not allowed, and a child under 16 can only be circumcised if it is for medical or religious reasons, or as long as the practice is part of the child’s faith
Practices that the Act allows but with certain restrictions:
- Virginity testing of children older than 16 years, as long as the child understands what is happening, has agreed to the test and the testing follows an accepted approach. An accepted approach is one that follows a way that has been followed for many years – a recognised custom or tradition. Virginity testing means that a young girl’s genitals can be checked by an older woman to see if there has been any interference and to make sure that the young girl is still a virgin. A child’s body may not be marked after virginity testing and no one can release the results of the test or force the child to disclose the results.
- Circumcision of male children over 16 years, as long as the child has an understanding of what will happen and has agreed. If a child does not want to be circumcised, he has a right to say no.
Children’s responsibilities & age of majority (Chapter 2, Section 16 & 17)
Children may have rights but they also have responsibilities. Rights are things that you are free to do and responsibilities are things you are expected to do; therefore, rights and responsibilities go hand in hand. If there are rights then there are responsibilities and you may not have one without the other. For example, a child has a right to be proud of their own culture but they also have a responsibility to respect the culture of others.
A child has a responsibility to their family, the community and the state
Children grow into their responsibilities. Babies need someone to take care of all their needs and cannot have any responsibilities. When they grow older, the responsibilities grow with them, until they reach the age of 18 and the law says they are now adults. The law recognises that children change and it deals with children differently depending on their age. For example, the law understands that a very young child cannot always tell the difference between the real world and the imaginary world.
At 18, children have reached the age of majority and have all the rights and responsibilities of an adult. The duty of a parent or guardian to support their child ends when the child becomes an adult, unless the child is still furthering their education, or is mentally or physically dependent on a parent, guardian or caregiver.
For all other children, once they reach the age of 18 years and start earning a living and taking care of themselves, they have full legal capacity. This means they can sue and be sued in a court of law, they can enter into contracts without the help of a guardian, they can choose to marry without their parents’ or guardians’ consent and many other rights that they are free to have without their parents’ permission.