documents. Caleb and his siblings live on the street in Musina until a police officer takes him and his siblings to the local DSD offices. The children are then deemed in need of care and protection, and they are placed in care. The social worker tries to trace their aunt, but she is nowhere to be found. Applicable law: 1. 2. 3. Constitution: Section 28 of the Constitution confirms that every child has the right to be protected from maltreatment, neglect, abuse or degradation; Children’s Act: Section 150 states that abandoned children (including unaccompanied and separated migrant children) are children in need of care and protection; and Refugees Act: Section 3 makes provision for migrant children to make an individual or dependent application for refugee status in South Africa. Section 21A(1) (and Reg 10) specifically provides for unaccompanied migrant children to receive assistance in applying for refugee status through a Children’s Court inquiry. Solution: 1. 2. 3. Children’s Court processes: because the children are alone and the aunt cannot be traced, the children could be classified as “unaccompanied migrant children”.The DSD Guidelines stipulate that unaccompanied migrant children are assumed to need care and protection and their safety and wellbeing must therefore be secured through a Children’s Court inquiry; Refugee status: Caleb can apply for refugee status through two possible channels. Either: • through an individual claim based on the circumstances that forced him to leave DRC; or • through a dependent claim under his aunt if she is found and able to obtain proof of guardianship (see the “family joining” and Mubake case); or Children’s Court processes: if there are any issues encountered during the process, remember that the child is also protected by the Children’s Court, which can be approached for an order in terms of Sec 45 or Sec 46 of the Children’s Act if the DHA refuses to assist with the asylum application. www.lhr.org.za CASE STUDY 5: Raquelle was born in Mozambique and moved to South Africa with her parents when she was 2 years old, but when she was 16 years old both her parents died in a car accident. She was then referred to social workers by her neighbours and was placed in a CYCC after going through a Children’s Court inquiry. During the inquiry, it became clear that Raquelle had been left alone in South Africa with no other relatives. Efforts for family tracing in Mozambique were also unsuccessful. Raquelle further indicated that she wanted to remain in South Africa as she considered South Africa home - she speaks the local languages and attends school in South Africa, and her friends live here. She has no recollection of Mozambique and knows no relatives there as her parents never returned there since they moved to South Africa. She does not know what documents her parents used in South Africa - all she has in her possession is her birth certificate from Mozambique. Applicable law: 1. 2. 3. Constitution: Section 28 of the Constitution confirms that every child has the right to be protected from maltreatment, neglect, abuse or degradation; Children’s Act: Section 150 states that orphaned children are children in need of care and protection; and Immigration Act: Section 31(2)(b) allows a person to submit an application for permanent residence by exemption when “special circumstances” exist. Solution: 1. Children’s Court processes: because Raquelle is orphaned and alone in South Africa, she is a child in need of care and protection and her safety and well-being must be secured through a Children’s Court inquiry; www.savethechildren.org.za | 39