Chapter 4 CHILDREN’S COURT AND CHILD PROTECTION PROCESS What is a Children’s Court? A Children’s Court is a special court that deals with issues affecting children. It includes matters concerning the care, protection and well-being of a child. Every Magistrate’s Court in South Africa is a Children’s Court. Section 44 of the Children’s Act states that the Children’s Court has jurisdiction over all children in South Africa, irrespective of whether the child is documented or not, and regardless of the child’s citizenship, refugee or immigration status. The Children’s Act similarly applies to all children in South Africa. This was confirmed by the High Court in the matter of NS v Presiding Officer of the Children’s Court Johannesburg (2184/18) [2018] ZAGPJHC 59 (6 February 2018). The High Court reviewed and set aside the decision of the Presiding Officer of the Children’s Court in Johannesburg to refuse to deal with an adoption application on the basis that the child was an undocumented Zimbabwean citizen (the child was in South Africa on a visitor’s visa that had expired). The High Court stated that it was irrelevant whether the child is foreign and whether the child is “legally or illegally” in the country. With what matters can a Children’s Court assist? The Children’s Court can assist with a variety of matters under the Children’s Act, including: 4. 5. 6. The Children’s Court has the power to make various court orders including the following: 1. 2. 3. 2. 3. the paternity of a child and confirmation of parental rights and responsibilities for an unmarried father; the support or maintenance of a child; care or contact with a child; www.lhr.org.za an order instructing an organ of state (such as the DHA) to assist a child in obtaining access to a public service to which the child is entitled; an order instructing a person who failed to fulfil a statutory duty towards a child to appear before the court and to give reasons for the failure; and an order convicting a person for noncompliance with, or refusal, or failure to obey a court order by the Children’s Court. (See Sec 45 and Sec 46 of the Children’s Act for a list of specific matters dealt with in the Children’s Court and examples of court orders it can make). Who can bring a matter before the Children’s Court? Any person acting in the interests of a child can approach the Children’s Court by taking the following steps: 1. 2. 1. the maltreatment, abuse, neglect, degradation or exploitation of a child, except criminal prosecutions in this regard; the formalisation of relations between a child and a caregiver through foster care, guardianship or adoption; and care and protection of a child. 3. approach the Magistrate Court nearest to you; ask for the Children’s Court section of the court and inform the clerk that you wish to enrol a matter (concerning a child) as an interested party; ask to complete a “Form 2”, i.e., the form that gets completed when bringing a matter www.savethechildren.org.za | 31