C and Others v Department of Health and Social Development, Gauteng, and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Yacoob J and Van der Westhuizen J
• Judgment Date: 11 January 2012
• Citation: 2012 (2) SA 208 (CC)
• Docket Number: CCT 55/11 [2012] ZACC 1
• Hearing Date: 16 August 2011
• Counsel: AM Skelton for the applicants. SK Hassim (with MPD Chabedi) for the first, sixth and seventh respondents.
• Court: Constitutional Court

Skweyiya J (Froneman J concurring):

Introduction

[1] This case concerns the confirmation of a declaration of constitutional C invalidity of ss 151 and 152 of the Children's Act. [1] The North Gauteng High Court, Pretoria (High Court), declared these sections unconstitutional to the extent that they provide for a child to be removed from family care by State officials and placed in temporary safe care, but do not provide for the child to be brought before the Children's Court for D automatic review of that removal. [2] In terms of s 172(2)(a) of the Constitution, an order of constitutional invalidity by a High Court must be referred to this court for confirmation, without which it will have no force. [3] More precisely, therefore, this case concerns the constitutionality of the statutory framework for the removal of children from their family environment and their placement in temporary safe care at the instance E of the State.

Statutory framework

[2] It is necessary first to set out the current statutory framework for the F removal of children from family care by State officials. Chapter 9 of the Children's Act regulates the treatment of children deemed to be in need of care and protection. [4] This chapter contemplates two routes for the removal of these children to temporary safe care: s 151 provides for G

Skweyiya J (Froneman J concurring)

A removal by court order, while s 152 provides for removal without a court order in certain circumstances.

[3] Section 151(1) empowers the Children's Court, if it appears from testimony before it that a child is in need of care and protection, to order B that a social worker investigate the matter and report back within 90 days. [5] Section 151(2) further empowers the court, before receiving the report, to order that the child be removed and placed in temporary safe care, if this appears necessary for the safety and well-being of the child. [6] Section 151(3) preserves the court's general powers in respect of C investigations. [7] Section 151(4) requires a removal order to identify the

Skweyiya J (Froneman J concurring)

child in sufficient detail for the order to be executed. [8] Section 151(5) and (6) A affords authorised people and accompanying police officials extensive powers to effect the removal of a child. [9] Section 151(7) requires the person who has removed a child to give notice of that fact to the child's parent, guardian or care-giver and the provincial department of social development. [10] Section 151(8) requires the court to consider all relevant B

Skweyiya J (Froneman J concurring)

A facts, with the best interests of the child being the determining factor in any decision regarding removal. [11]

[4] Section 152(1) empowers a social worker or police official to remove a child and place the child in temporary safe care, without a court order, B if it is reasonably believed that: (a) the child is in need of care and protection and needs immediate emergency protection; (b) the delay in obtaining a court order may jeopardise the child's safety and well-being; and (c) removal is the best way to secure the child's safety and well-being. [12] Thereafter notice of that removal must be given to the child's parent, guardian or care-giver, the clerk of the Children's Court C and the provincial department of social development. [13] Section 152(4) requires the removing authority to consider all relevant facts, with the

Skweyiya J (Froneman J concurring)

best interests of the child being the determining factor. [14] Section 152(5), A (6) and (7) imposes serious penalties for misuse of the power to remove a child without a court order, [15] and s 152(8) requires compliance with a prescribed procedure. [16]

[5] Section 155(1) requires that the Children's Court must decide B whether a child, who was removed in terms of s 151 or s 152, is in need

Skweyiya J (Froneman J concurring)

A of care and protection. [17] Section 155(2) provides that a social worker must investigate and compile a report on the matter within 90 days, before the child is brought before the Children's Court. [18] Section 155(6), (7) and (8) enumerates the orders the Children's Court may B make once the child has been brought before it. [19]

[6] In summary, the current statutory framework for the removal of children from their families at the instance of the State contemplates two procedural routes for removal. Firstly, a person may testify to the Children's Court that a particular child is in need of care and protection, C and the court may order the immediate removal of the child if this appears necessary for the child's safety and well-being. [20] Secondly, a designated social worker or police official may remove a child without a court order, if there is reason to believe that this is required urgently. [21]

Skweyiya J (Froneman J concurring)

In both cases, a social worker will be required to compile a report on A whether the child is in need of care and protection, within 90 days, after which the child must be brought before the Children's Court for a determination of whether she or he is indeed in need of care and protection. [22] There is no provision for automatic court review before compilation of the report. B

Factual background

[7] The first and second applicants are, respectively, Mr C, father of a girl aged three, and Ms M, mother of two girls aged one and four. The third applicant is the Centre for Child Law, a law clinic established by C the University of Pretoria, participating in this matter as an institutional applicant, in the public interest and in the interests of children in similar circumstances to the children of Mr C and Ms M. [23]

[8] The first respondent is the Department of Health and Social Development, Gauteng (Department). The second respondent is the D City of Tshwane Metropolitan Municipality (City). The third, fourth and fifth respondents are, respectively, Itereleng Residential Facility for the Disabled, Desmond Tutu Place of Safety and Pabalelo Place of Safety, which are care facilities under the direction of the Department. They play no part in these proceedings. The sixth respondent is the Minister for Police and the seventh respondent is the Minister for Social E Development, who is responsible for the administration of the Children's Act. The first, sixth and seventh respondents have jointly made submissions in these proceedings and are referred to collectively as the State.

[9] On Friday 13 August 2010 Mr C was conducting his trade of F repairing shoes at a prominent intersection in Pretoria, as he does daily, but he was accompanied on that day by his daughter. His partner, who usually looked after her during the day, was in hospital giving birth. Ms M, who begs for her living, was present at the same intersection that day, accompanied by an assistant, as she is blind, and by her two daughters. G

[10] Social workers employed by the Department, together with officials from the City, had planned, for that day, an operation involving the removal of children from people found to be begging while accompanied by children. This operation was well planned and publicised, but no H

Skweyiya J (Froneman J concurring)

A court order had been sought for the removal of these children. In execution of the operation, social workers removed Mr C's and Ms M's children from their care, and placed them in the Department's care facilities, without notifying the parents of where they were.

Proceedings in the High Court B

[11] Mr C and Ms M, together with the Centre for Child Law, promptly approached the High Court with a two-part application. In Part 1 they applied, on an urgent basis, for an order to restore their children to their care. On 24 August 2010 the High Court (per Preller J) ordered that C Mr C's daughter be returned immediately to his care and that Ms M's children remain at the place of safety for five weeks, pending an investigation into whether they needed alternative care. [24] By order of the Children's Court, they have since been returned to Ms M's care, under the supervision of a social worker. [25]

D [12] In Part 2 the applicants sought, among other things: (a) a declaratory order in relation to the conduct of the social workers; and (b) a declaration of constitutional invalidity of ss 151 and 152 of the Children's Act, to the extent that they fail to provide for judicial review of removal and placement decisions made by social workers or police. This E relief was initially opposed by the State, but subsequently was the subject of agreement between the parties, resulting in a draft order handed up to the High Court on 20 January 2011. Nevertheless, written argument was filed and oral argument was heard on 13 May 2011.

[13] On 27 May 2011 the High Court (per Fabricius J) observed that, if F a child is removed in terms of s 152 of the Children's Act, the matter will be heard for the first time by the Children's Court after the 90 days within which the social worker is required to investigate and compile a report. [26] In contrast, its predecessor, s 12 of the repealed Child Care Act, [27] required that a child removed without a warrant had to be brought before a court within 48 hours for a formal determination of whether that G removal was justified, which would also allow a parent to appear and to challenge the removal. [28] The High Court found that although s 152 does require the person conducting a removal to notify the parent, guardian or care-giver of the child, as well as the clerk of the Children's Court, this does not amount to a notice to appear in court, as was required under the H repealed Child Care Act. [29]

[14] The High Court held that this clearly does not create an opportunity for automatic review of the removal within a reasonable timeframe, and that the lacuna...