Urgent Care Removals and Access to Children’s Courts: An Analysis of the Implications of C v Department of Health and Social Development, Gauteng
| Jurisdiction | South Africa |
| Date | 16 August 2019 |
| Published date | 16 August 2019 |
| Citation | (2013) 24 Stell LR 107 |
| Author | F Noel Zaal |
| Pages | 107-123 |
107
URGENT CARE REMOVALS AND ACCESS
TO CHILDREN’S COURTS: AN ANALYSIS OF
THE IMPLICATIONS OF C v DePARTMeNT
of HeALTH AND SoCiAL DeveLoPMeNT,
GAUTeNG
F Noel Zaal
BA LLB LLM PhD
Professor of Private Law, University of KwaZulu-Natal
Carmel R Matthias
BA (SW) Hons MA(SW) PhD
Associate Professor of Social Work, University of KwaZulu-Natal
1 Introduction
Because of the well-known known ha rmful effect s, removals of children
from their fami lies into alternative care ne ed to be treated as a d rastic last
resort and should be caref ully reviewed.1 In particular, sudden e mergency
removals of children carr ied out by care and protect ion workers or the police
need to be subject to prompt and rigorous sc rutiny. Decisions to undert ake
such removals tend to require weigh ing up countervailing considerations , and
are often made in d ifcult circumstance s. It also needs to be borne in mind
that police and social workers work under press ure because of heavy caseloads
and may lack sufcient specialist t raining in child care and protection. In
light of subsequent dispassionate recon sideration, urgent removal decisions
frequently tur n out to be mistaken.2 W hen the Children’s Act 38 of 2005
(“CA”) was promulgated as a replace ment for the Child Care Act 74 of 1983
it was pointed out by commentat ors that the new Act was seriously awed by
comparison with the ea rlier one in not providing for independent rev iews of
removals into temporar y safe care.3 Unfortun ately, the legislature failed to
respond to these crit icisms. This was despite the fact t hat South Africa, li ke
some other jurisdict ions, had a histor y of social workers misusing emergency
removal provisions in order to reduce ad ministrative work.4
With the legislature having fa iled to provide for emergency removal
reviews, it has fallen to the cour ts to do so. Two parents of children who
1 United Nations U N Guidelines for th e Alternative Car e of Children (2009) art 14
2 J Gilliatt “ The Interim Remova l of Children from th eir Parents Update d: Emergency Protect ion Orders,
Interim C are Orders, Re L and the Baby P Effe ct” (2008) Family Law Week 1
co uk> (accessed 04-0 5-2012); P Chill “Bur den of Proof Begone: The Perniciou s Effect of Emergency
Removal in Child P rotective Proce edings” (2004) 42 Family Cou rt Review 540 541
3 FN Zaal “Im periling Chi ldren and Social Worke rs? Prelimina ry Care Removals u nder the Child ren’s Act
38/2005” (2008) 20 Social Work Practitioner-Researcher 290 294; J Gallinetti “T he Wisdom of Solomon:
Removal of Childr en as Part of the Child P rotection System in t he Children’s Act 38 of 2005” (2009) 23
Speculum Ju ris 54 64- 65
4 Gallinetti (20 09) Specu lum Juris 56
(2013) 24 Stell LR 107
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were subjected to unprepa red removals in Pretoria in Aug ust 2010 decided to
approach the High Cour t for relief. The matter was subsequently re ported as
Chirindza v Gauteng De partment of Health and Social Welfare5 (“Chirindza”).
In giving judgment, Fabricius J felt compelled to de clare sections 151 and 152
of the CA unconstitut ional. This was the rst time that any part of the CA
had been subject to such a nding. Sect ion 167(5) of the Con stitution of the
Republic of South Africa, 1996 (“t he Constitution”) req uires any nd ing of
legislative u nconstitutionality to be conrmed by the Con stitutional Cour t.
The conrmation proceedings were subsequently reported a s C v Gauteng
Department of Health an d Social Development6 (“C”). The diver sity of
opinions within t he court was such that th ree different judgment s were
handed down.
We provide a critical evaluation of these three judg ments. We conclude
that the majority of the cour t certain ly advanced children’s best interests in
conrmi ng that sections 151 and 152 of the CA were indeed uncon stitutional,
and in reading i n a requirement for prompt tempora ry safe care removal
reviews by children’s courts. We further conte nd, however, that in simply
conrmi ng the need for reviews the Constitutional Cour t took only the
rst step along a path of urgently needed furthe r development for the law
on temporar y safe care removal reviews. In the nal part of our analysis we
therefore offer some recommendation s on how children’s courts must now be
properly directed i n the wake of the C decision.
2 Historical background and the current legislation
The concept of courts i ndependently reviewing urgent i nterim care removals
is not new in South Africa n law. Three years after Union, Parliame nt passed
the rst nationally applicable child care legislation. The Child ren’s Protection
Act 25 of 1913 was inuenced by the English Childr en Act of 1908. Notable
among the aspects imp orted was that of “places of safety” i n which children
found in high risk situ ations could immediately be “ temporarily” lodged ,7
pending conr mation of the placement by a magistrate afterwa rds.8 The child
could then remain in t he place of safety until there had b een time for a full
care investigation and cour t hearing.9 The 1913 Act was eventually replaced
by the Children’s Act 31 of 1937. The latter is h istorically import ant for its
establishment of a network of children’s courts specia lising entirely in care
and protection matte rs. However, it was only in 1944 that these courts were
expressly authorised to asses s the correctness of urgent prelimina ry removals
into places of safety.10 The test which magistrates wer e now to apply was
whether the child was “in nee d of care”. This was somewhat broad and was
5 2011 3 All SA 625 (GNP)
7 The Childr en’s Protection Act 25 of 1913: s 2 read with s 10(1)
8 S 10(2)
9 S 10(2)
10 S 29(3) of the Children’s Act 31 of 1937 as added by s 10(a) of the Childre n’s Act Amend ment Act 25 of
1944 See TH van Ree nen Handbook on the Chi ldren’s Act (1953) 188
108 STELL LR 2013 1
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