KID Notes

Study unit theme 1 International and regional

framework
UNCRC part of human rights treaty system
The UN Convention on the Rights of the Child (UNCRC) is an
international treaty which forms part of the Human Rights Treaties of
the United Nations. These Treaties were drafted and signed by the
United Nations States and then opened for ratification. If a state
ratifies, it is considered bound, and should implement the Treaty
through laws, policies, programs etc. Compliance with the Treaties is
monitored by Treaty Bodies – each treaty has a treaty body – a
committee made up of independent experts, who are voted in for
terms of office by the States parties to the Convention.
Ratification and reservations
The CRC is the most ratified treaty in the world – the only state that
has not ratified it is the United States of America. Within two years, 33
African states had ratified the CRC, 16 in Asia 27 in Latin America and
20 in Global North. However, several States set reservations when they
ratified, which means they do not consider themselves bound by all the
provisions.
Committee on the rights of the child
Each UN Convention/Covenant has a monitoring body, sit in Geneva
three times a year – called Treaty Bodies, fall under the Office of the
High Commissioner for Human Rights. UNCRC has 18 members, from
different nations but independent experts (term 4 years). Members are
put forward by states and elected by all the states that have ratified.
Monitoring state compliance with CRC through reporting – give
concluding observations (recommendations), issues authoritative
interpretations (General Comments), receives ‘communications.
General Principles
The Committee on the Rights of the Child has raised four provisions to
the status of ‘principles’
  Art 2 Nondiscrimination
 Art 3 Best interests of the child
 Art 6 Right to life, survival and development
 Art 12 Right to express views and have them taken into account.
Recognition of the position of parents and extended family and
evolving capacity
Art 5: ‘States parties shall respect the responsibilities, rights and duties
of parents, or where applicable, the extended family or community…to
provide, in a manner consistent with the evolving capacities of the
child, appropriate direction and guidance in the exercise of the rights
recognized in the present Convention’
Optional protocols
1st Optional Protocol: Optional Protocol to the Convention on the Rights
of the Child on the sale of children, child prostitution and child
pornography (OPSC) 18 Jan 2002.
2nd Optional Protocol: Optional Protocol to the Convention on the Rights
of the Child on the involvement of children in armed conflict (OPAC) 12
Feb 2002.
3rd Optional protocol: Optional protocol to the Convention on the Rights
of the Child on a Communications Procedure (OPIC) 14 April 2014:
 Individual communications
 Interim measures, admissibility, friendly settlement,
consideration, views.
 Follow-up
 Inquiry procedure for grave or systematic violations
 CRC has carried out only one inquiry so far, against Chile
 The admissibility requirements are lower, but the cooperation of
the state is required.
General comments
The Committee makes recommendations on any issue relating to
children to which it believes the State parties should devote more
attention. As of September 2021, the Committee has adopted 25
general comments. The full list of final general comments is available
on the database. Most recent GC 26 is on Climate Justice and the
Environment. The next one will be on Access to Justice for Children.
Regional child rights frameworks
The African Charter on the Rights and Welfare of the Child
CRC was adopted in November 1989. Only a few months later on 11
July 1990 the ACRWC was adopted by the (then) OAU. It took several
years to come into operation because it required 10 signatures (c/f
ratification of CRC by African states) South Africa ratified it in January
2000. Current ratifications of 55 states, 50 have ratified: Morocco,
Sahrawi Arab Democratic Republic, Somalia, South Sudan and Tunisia.
Political and legal reasons for adoption of ACRWC
1. African involvement in drafting CRC was limited
2. Situation of children living under apartheid
3. Female children’s disadvantage not highlighted
4. FGM + other harmful cultural practices not outlawed
5. Socio-economic conditions insufficiently addressed
6. Community’s inability to engage in planning and management of
programmes
7. African conception of community responsibilities neglected
8. Child soldiers
9. The role of family (including extended) not sufficient
Many similarities but some differences
 Protection against harmful practices (also marriage 18 for both
boys and girls).
 all forms of recruitment into armed forces below 18 prohibited.
 pregnant girls should continue with education.
 children of imprisoned mothers.
 Responsibilities
General Comments
The Committee has issued 6 General Comments
 General Comment on Sexual Exploitation
 General Comment on Children of Imprisoned Parents
  General Comment on Name and Nationality
 Joint General Comment with ACHPR on Ending Child Marriage
 General Comment on Responsibilities of the Child
 General Comment on Art 1 SP Obligations and system
strengthening
 General Comment on Art 22 Children in Armed Conflict
 General Comment on the Right to Education
Communications procedure
Built in communications procedure: So far dealt with cases against:
 Uganda (reintegration of children affected by war).
 Kenya (Nubian children).
 Senegal (Talibes children).
 Malawi (age of criminal responsibility -settled).
 Sudan (discrimination, nationality, education)
 Cameroon (measures of implementation, child (sexual) abuse)
 Mauritania (slavery).
Inter-American system of hr
American Convention on Human Rights is general in nature, 2 child
specific provisions:
Art 17 ensuring children’s protections solely on basis of best interests
Art 19 every minor has special protection
Protocol of San Salvador includes the rights of children to grow up
under parental protection, to be separated from their mothers only in
exceptional circumstances, and to have access to free and compulsory
education (at least at elementary stage).
European system of hr re children
European Convention on Human Rights contains two articles re
children:
Art 5 detention of children only in specified circumstances
Art 6 limits public access to judicial proceedings involving children
European Social Charter
Art 7 protects children against economic exploitation,
Art 17 provides children with the right to care, assistance, education
and protection from violence

Europe – other treaties and soft law

Council of Europe has adopted:
 European Convention on the Exercise of Children’s Rights (1996)
 European Convention on Cybercrime (2001)
 Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse (2007).
Asia
There is no binding Convention or Charter specific to the Asia region
Association of Southeast Asian Nations (ASEAN) has adopted the:
 ASEAN Human Rights Declaration (2012)
 Declaration against Trafficking in Persons
 In 2019 Realizing the rights of every child in ASEAN 10
recommendations were adopted.
The Hague Convention of the Civil Aspects of International Child
Abduction-Chapter 17 of the Children’s Act

South Africa ratified the Convention in 1996 and it came into operation on 1
October 1997. The Convention's main object is to enforce rights of custody
over a child(ren) who has been wrongfully removed to or kept in a foreign
country in breach of those rights and to secure the prompt return of the
child(ren) to South Africa. Nation for the return of a child, or access to a child
to the Central Authority.

The role of the Central Authority

A contracting state is bound to set up an administrative body known as the

“Central Authority”, which has the duty of tracing the child and taking steps
to secure the child’s return. In South Africa the Chief Family Advocate is
designated as Central Authority. The Central Authority assists in both
“outgoing” cases (when a child has been wrongfully taken from South Africa
to a foreign country or retained in a foreign country, as well as “incoming”
cases (when a child has been wrongfully brought to or retained in South
Africa). A party may submit an application for the return of a child, or access
to a child to the Central Authority.

The Hague Convention on the Protection of Children and Co-

operation in respect of Inter-country Adoption

The Hague Convention of 29 May 1993 on the Protection of Children and Co-
operation in respect of Inter-country Adoption being. Chapter 16 of the
Children’s Act 38 of 2005 is the domestic legislation governing inter-country
adoptions in South Africa. implemented as South Africa acceded to the
Hague Convention on 1 December 2003 in order to regulate inter-country
adoption according to internationally accepted standards.

The Director- General of the Department of Social Development is the

Central Authority on inter-country adoptions and he has appointed
competent team of personnel including professional social workers with
working experience in child care and adoption.

The role of SACA is to:

 regulate and monitor inter-country adoption.

 accredit child protection organizations to provide inter-country
adoption services.
 approves adoption working agreements with foreign countries.
 prevent improper financial gain by service providers

Relevance of international and regional standards for SA Law

Our laws have mostly been brought in line with the CRC – e.g. the Children’s
Act and the Child Justice Act – but sometimes there are problems of
interpretation or gaps, or government does not deliver on the promise of the
law

Law reform is an ongoing exercise

Constitution: The courts must consider international law and must prefer an
interpretation that is consistent with it.

Study unit theme 2 Constitutional framework

SA CONSTITUTION DRAFTING PROCESS
South Africa went through a consultative Constitution drafting process.
There was an Interim Constitution (1993) and then a Constitutional
Assembly which received submissions from civil society – submissions
by child rights organizations. This was expanded somewhat in the 1996
constitution.
• (See Proudlock and Skelton Chapter 1 in Davel and Skelton (eds) for
more info on the history).
(ALMOST) ALL RIGHTS IN THE CONSTITUTION APPLY TO
CHILDREN
It is important to appreciate that all rights in the Constitution are
applicable to children, and that section 28 is in addition to, not instead
of, those rights. The only rights that are not applicable are those where
the word ‘adult’ is used, see for example section 19(3) ‘Every adult
citizen has the right to vote…and to stand for public office…’. Does this
mean equal treatment for children with adults? Remember the concept
of evolving capacity.
CASES THAT HAVE APPLIED GENERAL RIGHTS OF THE
CONSTITUTION TO CHILDREN
The right to equality was applied in the case of Bhe v Khayalitsha
Magistrate [2004] ZACC 17: court held that customary law barring girls
and children born out of wedlock from inheriting was unconstitutional.
Dignity and privacy: These 2 rights have frequently been applied in
child rights cases, including some we will discuss in this course. Teddy
Bear Clinic vs Minister of Justice.
SECTION 28 – ONE OF THE MOST EXPANSIVE CHILD RIGHTS
CONSTITUTIONAL CLAUSES IN THE WORLD
Children, section 28.
(1) Every child has the right—
(a) to a name and a nationality from birth.
(b) to family care or parental care, or to appropriate
alternative care when removed from the family
environment.
 (c)to basic nutrition, shelter, basic health care services and
social services.
ABUSE AND EXPLOITATION
(d) to be protected from maltreatment, neglect, abuse or
degradation.
(e) to be protected from exploitative labour practices.
(f) not to be required or permitted to perform work or provide
services that—
(i) are inappropriate for a person of that child’s age; or
(ii) place at risk the child’s well-being, education, physical or
mental health or spiritual, moral or social development.
DEPRIVATION OF LIBERTY
(g) not to be detained except as a measure of last resort,
in which case, in addition to the rights a child enjoys under
sections 12 and 35, the child may be detained only for the
shortest appropriate period of time, and has the right to be
(i) kept separately from detained persons over the age of 18
years; and (ii) treated in a manner, and kept in
conditions, that take account of the child’s age.
LEGAL PRACTITIONER, BEST INTERESTS, DEFINITION
(h) to have a legal practitioner assigned to the child by the state, and
at state expense, in civil proceedings affecting the child, if substantial
injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in
times of armed conflict
(2) A child’s best interests are of paramount importance in every
matter concerning the child.
(3) In this section “child” means a person under the age of 18 years.
SOCIO-ECONOMIC RIGHTS
All socio-economic rights also apply to children, but in Grootboom the
Constitutional court decided that children who were living with their
families could not cause their families to jump the queue to get
housing – children must look first to their parents (despite s 28(1)(c)
seeming to be immediate. The approach of the courts is different
where children are living separately from their parents – then right to
shelter etc is immediate.
NEW CASE AFFIRMED RIGHT TO BASIC NUTRITION –
IMMEDIATELY REALISABLE
A case brought during 2020 related to COVID pandemic in the High
Court Gauteng Division, Pretoria affirmed that the right to basic
nutrition is immediately realizable. Equal Education v Minister of Basic
Education.
OTHER FEATURES OF THE CONSTITUTION THAT GIVE CHILDREN
ACCESS TO JUSTICE
34 Access to courts
Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a court or,
where appropriate, another independent and impartial tribunal or
forum.
S 38 ENFORCEMENT OF RIGHTS
Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has been infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach a court are—
 (a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act
in their own name;
(c)anyone acting as a member of, or in the interest of, a group or
class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.

Paramountcy of the best interests of the child

Domestic legal framework
South African Constitution
• Section 28(2) of the Constitution
 “A child’s best interests are of paramount importance in every
matter concerning the child”
• First established in South African law in the 1940s – used in family
law and welfare proceedings in which children were involved e.g
care, contact & maintenance.
• Constitutional dispensation – expanded the meaning and
application of best interests.
The Children’s Act 38 of 2005
• Section 9
“In all matters concerning the care, protection and well-being of a child
the standard that the child’s best interests are of paramount
importance, must be applied”
• Section 7 – best interests of the child standard. Provides for factors to
be considered when the standard is applied.
International law & Regional Law Instruments
UN CONVENTION ON RIGHTS OF THE CHILD
Article 3: In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration.
AFRICAN CHARTER ON THE RIGHTS & WELFARE OF THE CHILD
Article 4: In all actions concerning the child undertaken by any person
or authority the best interests of the child shall be the primary
consideration.
A conceptual approach
UN CONVENTION ON RIGHT OF THE CHILD – GENERAL COMMENT #14
(a) A substantive right: The right of the child to have his or her best
interests assessed and taken as a primary consideration when different
interests are being considered in order to reach a decision on the issue
at stake, and the guarantee that this right will be implemented
whenever a decision is to be made concerning a child, a group of
identified or unidentified children or children in general.
(b) A fundamental, interpretative legal principle: If a legal provision is
open to more than one interpretation, the interpretation which most
effectively serves the child’s best interests should be chosen. The
rights enshrined in the Convention and its Optional Protocols provide
the framework for interpretation.
(c) A rule of procedure: Whenever a decision is to be made that will
affect a specific child, an identified group of children or children in
general, the decision-making process must include an evaluation of the
possible impact (positive or negative) of the decision on the child or
children concerned. Assessing and determining the best interests of
the child requires procedural guarantees.
Case law
S v M 2008
• Constitutional Court discussed meaning of “best interests”
Background
• M was the primary caregiver of 3 children.
• M had been found guilty on multiple counts of fraud & theft (R19
158, 69) and sentenced to a period of imprisonment prior to
possible release on correctional supervision by the Western Cape
High Court.
 • M appealed the sentence to the SCA – appeal denied
• M then appealed to the Constitutional Court – focused on the
duties that a court has when it is sentencing a primary caregiver
of a child (children) considering section 28(2) which calls for the
best interests of the child to be of paramount importance in all
matters concerning the child.
Questions posed by the Constitutional Court
1. What are the duties of the sentencing court considering section
28(2) of the Constitution and any relevant statutory provisions when
the person being sentenced is the primary caregiver of minor children?
2. Were these duties observed in this case?
3. If the Constitutional Court held that the duties were not observed,
what order should the court make, if any?
• The judgment, written by Sachs J, made important pronouncements
on children’s rights and explained the way section 28(2) of the
Constitution should be interpreted considering broader constitutional
principles and practices.
Findings of the Constitutional Court
• Acknowledged that “Zinn triad” is departure point of sentencing –
crime, criminal, interests of society. Must be considered considering
Constitution incl. section 28(2).
• Section 28(2) – self-standing (enforceable) right that creates
obligations on the State and other duty bearers, also a guideline for
the balancing of other rights.
• How should the enforceable right created by sect 28(2) be applied:
“…just as law enforcement must always be gender-sensitive, so must it
always be child sensitive; … statutes must be interpreted and the
common law developed in a manner which favors protecting and
advancing the interests of children … courts must function in a manner
which at all times shows due respect for children’s rights”
• Section 28(2) requires sentencing courts to give separate and
specific consideration to the impact that a sentence will have on the
children of a primary caregiver.

The courts have four responsibilities:

• To establish whether there will be an impact on the child.
• To consider independently the child’s best interests.
• To attach appropriate weight to those interests.
• To ensure that the child will be taken care of if the primary
caregiver is sent to prison.
• The Court found that:
“…focused and informed attention needs to be given to the interests of
children at appropriate moments in the sentencing process. The
objective is to ensure that the sentencing court is in a position
adequately to balance all the varied interests involved, including those
of the children placed at risk. This should become a standard
preoccupation of all sentencing courts.”
• Sentencing courts must, in each case, give specific attention to the
impact the sentence will have on the child/children of a primary
caregiver.
• The choice of sentencing must be least damaging to the interests of
children concerned and must be “within the legitimate range of choices
in the circumstances available to the court”:
• Range of sentencing options – non-custodial sentence must be
preferred.
• If it is not reasonable to consider non-custodial sentence, then
custodial sentence can be given.
• Court must then apply its mind to whether it is necessary to
ensure that children will be adequately cared for while caregiver
is incarcerated.
The Court overturned M’s sentence:

• Remainder of sentence suspended on various conditions.

 • Put on correctional supervision for three years: confined to home when
not working and required to do 10 hours of community service per
week.
• Repay victims of crimes the money of which they were defrauded.

Precedent set by the S v M judgement

Meaning of paramount importance:

Acknowledged that “paramountcy principle” is often criticized as being

indeterminate in nature/broad. This is a good thing if used properly.

Flexibility allows courts to take on a truly child centered approach & adopt a
“close and individualized examination of the precise real-life situation of the
particular child involved.”

The law/application of the law cannot completely protect children from life’s
hard knocks but can create conditions to protect them from abuse and/or
neglect.

Best interests will not override all other considerations in every case in which
children are involved:

• Subject to reasonable limitations.

• Fact that children’s best interests are paramount does not mean they
are absolute.

Child’s rights separate from adult’s rights

The Con-Court stressed the point that the case was not about allowing
parents to use their children to escape consequences of their crimes:

“The issue is not whether parents should be allowed to use their children as
a pretext for escaping the otherwise just consequences of their own
misconduct.”

The matter was about children’s right to family and parental care, and their
right to have their best interests given appropriate weight. This focus on
child’s rights separate from the caregiver’s rights signaled a subtle shift in
the Constitutional Court’s child rights jurisprudence. Children were (and are)
seen by the Constitutional Court as human beings with their own distinct
rights as rights bearers.

De Villiers v S

Background
De Villiers was convicted of 31 counts of fraud and one count related to a
contravention of the Prevention of Organized Crime Act. She was sentenced
to eight years’ imprisonment by the trial court, three years of which was
suspended on condition. She was the primary caregiver of two children. The
sentence was confirmed by a full bench of the High Court, Johannesburg. An
appeal was heard by the Supreme Court of Appeal.

SCA – trial court and full bench failed to have regards to the best interests of
the children concerned:

Did not consider expert evidence e.g psychologist report. The sentence
imposed was unjustified. Did not consider alternatives: house arrest,
community service, imprisonment and thereafter correctional supervision
after having served a certain period.

The SCA considered the decision made by the Con-Court in

SvM

It acknowledged the following:

Section 28(2) creates a self-standing right.

Children’s rights are paramount but capable of reasonable limitation.

A sentencing court must acknowledge the Zinn Triad and the purpose of
punishment (deterrence, prevention and rehabilitation). Must also consider
the best interests of the child as a constitutional injunction. If a custodial
sentence of a primary caregiver is necessary, then the court must apply its
mind to whether it is necessary to ensure that children will receive
appropriate care.

The SCA applying the principles to the facts before it:

The interests of the children must be examined independently – the trial

court and full bench failed to do this: did not examine evidence placed before
it and did not call for a proper investigation into their circumstances. Noted
that De Villiers supports the children financially and is their primary
caregiver. No relatives that can provide the care she provided.

SCA decision:

Whether a sentence involving imprisonment is required in the circumstances.

De Villiers committed the offences over a short period of time.

The amount that she took was substantial – she defrauded her employer of
R1 409 000

She paid back whatever she had personally gained and had shown remorse

She committed the offences while under the negative influence of her
husband and his father.

She recognized that the offences committed were morally wrong and
criminal. Accepted that she must be punished for her wrongdoing.

Argued for non-custodial sentences considering the interests of her children.

SCA found:

Accepted the fact that the offences were serious; a significant sum of money
was at issue; De Villiers needed to be punished to deter and prevent other
people from committing the same crime.

The fraud committed by De Villiers, when she was in a position of trust,

called for a custodial sentence. Considering the interests of her children – the
period of imprisonment should not be lengthy. She should be given the
opportunity to plan for the care and support of her children.

Sentenced to 3 years’ imprisonment for which she may be placed under

correctional supervision at the discretion of the Commissioner of Correctional
Services or parole board.

Further case law

J v National Director of Public Prosecutions

• Children on NRSO, 2014:

• Con Court - Section 28(2) is the correct framework for analyzing the
child offender’s rights
• Referred to S v M findings

MR v Minister of Safety and Security, 2016:

• Arresting children
• ConCourt – when police officer considering arresting children, they
must take cognizance of the child’s best interests.
• Referring to S v M findings

Van Der Burg and Another v National Director of Public Prosecutions

• Parents running illegal shebeen in house that their children were
staying in.
• Best interests of children to be taken into consideration in asset
forfeiture cases
• NDPP engaged social workers to investigate circumstances of children