Children’s Act: Overview

This Act is planned to replace Child Care Act in 2008/9.

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The Children’s Act of 2005 will take over from the Child Care Act of 1983 when it comes into full effect, probably by late 2008 or 2009. The 2005 Act deals quite specifically with child labour and particularly with child trafficking. It therefore represents a considerable advance on the Child Care Act.

Some sections of the Act, which did not require further regulations, came into effect in July 2007. None of these sections refers specifically to child labour, but some give effect to important principles on which South Africa’s Child Labour Programme of Action (CLPA) is based, for example, putting the child’s interests first in all matters concerning the child and the participation of the child in decisions concerning him or her.

Part of the delay in bringing the 2005 law into effect lies in the need to pass a complementary Amendment Act. The principal Act deals mainly with the powers and functions of national government. The Children’s Amendment Bill deals with provincial functions and is being considered by Parliament.

Child trafficking

The Children’s Act devotes a chapter to child trafficking and makes the United Nations Protocol to Prevent Trafficking in Persons applicable as part of South African law.

The Act prohibits child trafficking and declares it an offence to traffick in children or to assist child trafficking. A first offender is liable to a jail term of up to 10 years and a repeat offender may be sentenced to a maximum of 20 years.

Child trafficking is defined as:
“The recruitment, sale, supply, transportation, transfer, harbouring or receipt of children, within or across the borders of the Republic (of South Africa)

• by any means, including the use of threat, force or other forms of coercion, abduction, fraud, deception, abuse of power, or the giving or receiving of payments or benefits to achieve the consent of a person having control of a child; or
• due to a position of vulnerability

for the purpose of exploitation”

Provisions on child trafficking include:

• Obliging Internet service providers to report to the police any site on their servers that publish information that might facilitate trafficking.
• Empowering the courts to suspend parental rights and responsibilities of parents or guardians who might reasonably be believed to have trafficked their children or allowed the trafficking of their children.
• Requiring immigration officials, police officers, social workers and health professionals who encounter a child victim of trafficking to refer the child to a social worker empowered to conduct a special investigation.
• Authorising the temporary placement in safe care of any child who appears to be a victim of trafficking pending the outcome of an investigation.

Transnational trafficking

The Act also deals with the international dimensions of trafficking.

• It provides that the President may enter into agreements with foreign states to facilitate the application of the UN Protocol to Prevent Trafficking in Persons or to supplement the Protocol.
• It sets out procedures for the return of a South African child – a citizen or permanent resident – who has been trafficked abroad.
• It gives the children’s court the discretion to order that an illegal foreign child be assisted to apply for asylum under the Refugees Act.
• It provides that, where a children’s court declares an illegal foreign child, who is a victim of trafficking, to be a child in need of care and protection, the child is automatically entitled to remain in South Africa for the duration of the court order.
• It sets out requirements for the return to country of origin of an illegal foreign child who is brought before the children’s court. The child’s safety and future care are paramount considerations.

The Children’s Amendment Act, 2007

Worst forms of child labour

Updated: March 2008

This Act, signed into law by the President in March 2008, specifically outlawes most of the worst forms of child labour. Section 141 of the Actl provides for the following:

• Slavery and practices similar to slavery is prohibited.

• Commercial sexual exploitation of children is prohibited.
  
• The use of children by adults to commit crime (CUBAC) is now considered a crime in itself, additional to the crime that the child has been used to perpetrate.
• Social workers encountering child labour is required to report cases of child labour to a police officer and to the Department of Labour.

Heavy penalties – up to 10 years for a first offender and up to 20 years for a repeat offender – will apply for people who offend by using a child in contravention of the provisions of this law.