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The New Children's Act

Posted by: Bertus


The New Children’s Act 38 of 2005
The main objectives of the Act are to: •make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children; •strengthen and develop community structures which can assist in providing care and protection for children; •protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards; •provide care and protection for children who are in need of care and protection; •recognise the special needs that children with disabilities may have; •promote the protection, development and well-being of children; •promote the preservation and strengthening of families; •give effect to certain constitutional rights of children; •give effect to the Republic's obligations concerning the well-being of children in terms of international instruments binding on the Republic The Act sets out principles relating to the care and protection of children, defines parental responsibilities and rights and makes provision for matters such as children's courts, adoption, child abduction and surrogate motherhood. The principles call for the prioritisation of the best interest of the child, the right to the child being able to participate in any matter concerning that child, children living with disability or chronic illness and a child's right of access to court. The Act also clarifies the grey area which currently exists in relation to the age of adulthood. The Constitution and international instruments concerning children define a child as a person under the age of 18 years, while the Age of Majority Act, 1972 stipulates the age of 21 as the age of majority. The Act now determines that a child becomes a major on reaching the age of 18. There are a number of issues covered by the new Children’s Act, two of the most discussed and arguably most controversial lie in the provision that the act makes for open adoptions and the rights afforded to that of the unmarried father. As the law stood, the biological parent and family of a child is required to sever all ties with that child if he or she has been adopted. The family cannot visit, speak to or contact the child or children in any way. The new Children’s Act now allows for what is known as open adoption so, the adoptive family and the biological family can enter into an agreement which caters for the rights of the child and the biological family to know each other. They can go to court to determine things like, the terms regarding visitation, whether or not the child will retain the surname of his or her birth parent and so on. Certain provisions in the Act stems from the Lawrie Fraser case where an application by Lawrie Fraser for leave to appeal against his conviction for conspiracy to kidnap his son, who had been given up for adoption, was dismissed in the high court during 2003. During 1997 Fraser successfully contested the decision by his son's mother, a certain Adri Naude, to put the boy up for adoption. The Constitutional Court ruled in that following year that fathers had to be consulted about the adoption of an extramarital child. The love for his child paved the way for some of the provisions in the Children’s Act. Although the Constitutional Court ruled in principle on Fraser's application, in practice it ordered that his son by the name of Timothy stay with his adoptive parents, Barry and Julia Funnell. In an attempt to get his child back, Fraser organized to have the child kidnapped from the Funnels’ in Malawi. Fraser, his former lover Jennifer Uys, and Malawian Charles Mwandira were later arrested and Fraser was convicted of conspiring to kidnap the baby. Fraser's request for leave to appeal against his conviction was dismissed by the presiding judge, but he was granted leave to appeal against an effective four-year sentence handed down in 2000. In addition to the above mentioned adoption clause, the act also strives to afford unmarried fathers the rights that they were previously denied. The new law allows a father who has had a children out of wedlock to both have access to that children and to potentially adopt them. The Children’s Act aims to give unmarried fathers the same rights to parental responsibility that biological mothers have. The new law changes this as unmarried fathers who are living with the mother at the time of the birth of the baby has the same rights as the biological mother. Additionally, if the father is not residing with the mother at the time of the baby’s birth, he can apply for his rights by giving consent to be identified as the child’s father. Amongst a number of other issues, the act also deals with child trafficking, virginity testing and circumcision. It enables children to approach the court independently of a parent or guardian, whereas current legislation makes the presence of them mandatory. Arguably one of the most important aspects of the act exists in its National Child Protection Register. This section lists the names of people who are unsuitable to work with children. It will contain the names of paedophiles and anyone else who has committed a crime against a child. Compiled bt Bertus Preller Family Law Attorney

Comments (2)Add Comment
written by alfonso michael, August 20, 2010
It is a good piece of legislation. However, a lot of attention must go to family preservation. South Africa is experiencing dificulties in that regard. We have overlooked the importance as well as the role of the family in child upbringing. Infact, family has lost its place in modern society. That is why all the social ills surrounding children have occured. We need to rediscover our society, values and morals. Otherwise the debate about child care will be endless.

written by Bernad, September 11, 2010
its a great Act hope to see improvements in futuresmilies/wink.gif

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