The legal recognition of child-headed households: Is our focus where it should be?
| Jurisdiction | South Africa |
| Author | Hanneretha Kruger |
| Date | 16 August 2019 |
| Pages | 126-142 |
| Citation | (2014) 25 Stell LR 126 |
| Published date | 16 August 2019 |
126
THE LEGAL RECOGNITION OF CHILD-HEADED
HOUSEHOLDS: IS OUR FOCUS WHERE IT
SHOULD BE?
Hanneretha Kruger
B Iur LLB (UFS) LLD (Unisa)
Professor of Private Law, University of South Africa
1 Introduction
Child-headed or child-only households are commonly dened as households
where all members of the household are younger tha n eighteen years.1 South
Africa was the r st c ountry in Africa to legally recognise ch ild-headed
households as a protective measure.2 A few othe r African count ries have
followed in South Africa’s footsteps, or are in the process of establish ing legal
recognition for child-he aded households.3
The South Africa n Children’s Act 38 of 2005 formally recognises child-
headed households as an indepe ndent family form, provided that this is in the
best interests of all the ch ildren living in the household.4
The legal recognition of child-heade d households in South Africa was hailed
as “groundbreaki ng” and “pioneering” by leadi ng authors, as it challenged
deep-rooted views about acc eptable family forms.5 Th is bold step taken
by South Africa was also severely cr iticised. Sloth-Nielsen warned of “acute
marginalisat ion”, involvement of children heading households i n exploitative
forms of child labour, and the loss of their child hood.6
Couzens and Zaa l highlighted the d ifculties faced by ch ildren heading
households: diminish ing nancial r esources, neglecte d education, bir th
registration difculties, poor a ccess to health ca re and other so cial services,
exploitative labour practices, and psycho- social problems resulting from t he
illness and loss of their par ents. They conclude that endorsing child-he aded
households by giving them formal re cognition contravenes child ren’s right
to survival and development, a nd their right not to be discr iminated agai nst,
1 L Berry, L Bierst eker, A Dawes, L Lake & C Smit h South Afric an Child Gauge (2013) 89 (“2013
Child Gauge”) C Phillip s Child-headed Househo lds: A Feasible Way Forward, or an Infr ingement of
Children’s Right to Altern ative Care? (2011) 159-163 charlotte phillips org/eBook%20
Child-head ed%20Households pdf > (accessed 28-11-2013) points out that def initions of child-hea ded
households var y widely She advocates a un iversal definit ion of child-headed hou seholds (273-274)
2 Phillips Chil d-headed House holds 238
3 238 An example is th e envisaged Namibia n Child Care and Pro tection Bill (2011)
4 S 137 of the Children’s Act
5 M Couzens & FN Z aal “Legal Recogn ition of Child-heade d Households: An Evaluatio n of the Emerging
South Afri can Framework” (2009) 17 Int’l J of Ch ildren’s Rights 299 300
6 J Sloth-Nielsen “Of Ne wborns and Nubiles: Some Cr itical Challenges to Ch ildren’s Rights in Afric a in
the Era of HIV/Aids” (2005) 13 Int’ l J of Children’s Rights 73 7 7-78
7 Convention on the R ights of the Child (1989) UN Doc A /44/49 Ratified by Sout h Africa on 16 June 1995
(2014) 25 Stell LR 126
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the African Ch arter on the Right s and Welfare of the Child 1990.8 Furt her,
in their view recogn ition is not in line with the best i nterests of the child
principle.9 Relying heavi ly on the UNICEF data,10 they c onclude that the
“decision to provide legal recognition for child-headed households … is
certain ly appropriate, given the rapidly incr easing numbers of orphan s and
insufciency of alter native placement options”.11
Couzens and Zaal’s declaration t hat the legal recognition of child-hea ded
households is appropriate in spite of their u nease with a governmental policy
that endorsed child-heade d households can be understood if one t akes into
account the alar ming projections at the time of the nu mber of children who
were expected to be orpha ned as a result of the AIDS epidem ic. One such
estimate predict ed that by 2013 4.6 million children in South Af rica under the
age of eighteen would have lost one or both parents. Of these, 2.3 mil lion under
eighteen were expected to be mat ernally orpha ned, 3.4 paternally orph aned,
and 1 million childre n were expected to be double orpha ns (children who had
lost both their mother and f ather).12
In 2006, Meintjies and Giese published a n article13 based on data collected
from a qualit ative research project, i n which they question the singula r focus
on orphanhood i n HIV/AIDS discourse (despite an internat ional move to the
more inclusive term of “orphans and v ulnerable children”, or “OVC”) and
the resultant one- dimensional view of the real impac t of the AIDS pandemic
on children. They show how the singu lar focus on orphan hood informs
government policy and pract ice, and obscures the tr ue vulnerabil ities of
children in general , particularly children l iving in poverty. Meintjies and Giese
illus trate, by way of ex amples, how que stionable appl ications of re search dat a
compound this problem. At the ti me that the Meintjies and Giese ar ticle was
written, t heir ndings were conrmed by larger-scale qua ntitative studies.14
The aim of this a rticle is to discuss and highlight t he important ndings of
Meintjies and Giese, to determine whether more rec ent quantitative studies
conrm their qualitat ive ndi ngs, and to re-examine t he appropriateness of
government policy that formal ly recognises child-heade d households as an
independent fami ly form.
8 African C harter on the Rig hts and Welfare of the Child (1990) OAU Doc CAB/L EG/24 9/49 Rat ified by
South Afri ca on 7 January 200 0
9 Couzens & Za al (2009) Int’l J of Children’s Rights 3 01-302
10 They main ly refer to UNICEF Chil d Protection and Chi ldren Affected by AI DS: A Companion Paper for
The Framewo rk for the Protection, Ca re and Support of Orpha ns and Vulnerable Children Li ving in a
World with HIV and AI DS (2006) (Couzens & Za al (2009) Int’l J of Children’s Rights 32 0)
11 Couzens & Z aal (2009) Int’l J of Childr en’s Rights 317
12 H Meintjies & S Gies e “Spinning t he Epidemic: The Ma king of Mytholog ies of Orphan hood in the
Context of AIDS” (20 06) 13 Childhood 407 indicate that these e stimates are based on t he ASSA2002
model of the Actua rial Society of Sout h Africa
13 Meintjies & Gies e (2006) Childhood 407-430
14 The Stats SA Ge neral Household Sur vey (2004) in particu lar (see Meintjies & Giese (2006 ) Childhood
413- 415)
THE LEGAL RECOGNITION OF CHILD-HEADED HOUSEHOLDS 127
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