Posted By: Annetjie van Rooyen on 24 January 2012
In the first significant decision of 2012, the Constitutional Court has ruled in favour of family ties, writes Legalbrief. It ruled that parents of children who have been removed from their care by the state will now have access to an automatic review of that decision.
A Mail & Guardian Online report notes child rights advocates say this will help fill a gap in the Children’s Act that has made it difficult for disenfranchised families to challenge state officials who have wrongfully removed their children.
Judge Zakeria Yacoob found sections 151 and 152 of the Children’s Act, which govern the conditions under which a child may be removed from his or her parents and the procedure for doing so, to be ‘constitutionally wanting’ as they limited the rights contained in section 28(2) of the Constitution. Section 28 states that every child has the right to family or parental care. The old Child Care Act, which was in place before 2005, required that children removed from their parents be brought before a court within 48 hours, but this was not the case with the Children’s Act, which allows social workers 90 days after the removal of the child to investigate the situation and compile a report; it was only after that time that the case would be brought before a court.
To rectify this, a ‘reading-in’ remedy will be applied. This amendment will ensure that any removal by the state will be reviewed by the Children’s Court before the end of the next court day after the removal and that, as far as possible, the child and parents concerned will be present in the court for this review.