Court/Judicial body: Constitutional Court of South Africa
Date: January 11, 2012 CRC
Provisions: Article 7: Name and Nationality Article 8: Preservation of Identity Article 9: Separation from Parents
Other international provisions:African Charter on the Rights and Welfare of the Child ( Article 19)
Domestic provisions: Children’s Act (Chapter 9; Sections 50, 150, 151, 152 and 155) Constitution (Sections 28(1)(b), 36(1) and 39(1)(b))
Background: Two parents had their children removed from their care during a government operation where social workers took into their custody children accompanying people found to be begging. Joined by the Centre for Child Law, an organisation working in the public interest, the parents applied to the High Court to have their children returned and challenged provisions of the Children’s Act that allowed for social workers and police officers to remove and place children for periods of up to 90 days without judicial review. The children were subsequently returned to their parents, and the High Court ruled that the provisions of the Children’s Act in question were unconstitutional and read in a requirement that any decision resulting in the emergency removal of a child be brought before a children’s court within 48 to 72 hours. Issues and resolution: Child protection; placement outside the home. The Court agreed that the provisions in question for removal of children from their parents’ care were unconstitutional in their failure to provide for adequate and automatic judicial review.
Court reasoning: The Court found that the family involved, in particular the child concerned, must be given an opportunity to share their views on the child’s best interests. Viewing the gravity of removing a child from his or her home for up to 90 days on an emergency basis, the Court held that it would be a necessary safeguard for the family and the child’s rights to have a children’s court review any such decision within a reasonably short period of time. In reaching this decision, the Court looked not only to the South African Constitution, but also to children’s right to be cared for their parents and the requirement that any decision to separate a child from his or her parents against their will be subject to judicial review under the CRC.
Excerpt citing CRC and other relevant human rights  … The African Charter on the Rights and Welfare of the Child (ACRWC) provides that “[e]very child shall be end to the enjoyment of parental care and protection and shall, whenever possible, have the right to reside with his or her parents”, while the United Nations Convention of the Rights of the Child (UNCRC) guarantees every child’s right “to know and be cared for by his or her parents”, and “to preserve his or her identity, including . . . family relations as recognized by law without unlawful interference”. …  In determining the appropriate relationship between the limitation and its important purpose, it is helpful to consider the applicable international law. Article 19(1) of the ACRWC provides that “[n]o child shall be separated from his parents against his will, except when a judicial authority determines in accordance with the appropriate law that such separation is in the best interest of the child.” Furthermore, Article 9 of the UNCRC sets specific requirements in respect of the removal of children from their families: “(1) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. . . . (2) In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. . . .”  In S v M, this Court considered the interpretive influence of the UNCRC on section 28 of the Constitution: “[S]ection 28 must be seen as responding in an expansive way to our international obligations as a State party to the [UNCRC]. Section 28 has its origins in the international instruments of the United Nations. Thus, since its introduction the [UNCRC] has become the international standard against which to measure legislation and policies”.  The right to parental care or family care requires that the removal of children from the family environment must be mitigated in the manner described in the UNCRC, in order to satisfy the standard set for the limitation of rights in section 36(1) of the Constitution. The requirements that the removal be subject to automatic review and that all interested parties, including the child concerned, be given an opportunity to be heard, in my view, stand as essential safeguards of the best interests of the child.
Notes: The Centre for Child Law has published a case review with more information concerning the implications of this case for children’s rights in South African law, available at http://www.centreforchildlaw.co.za/images/files/ourcases/c%20case%20article.pdf.
CRIN comments: CRIN believes that this decision is consistent with the CRC. Children have the right to know and be cared for by their parents as far as possible under Article 7 of the Convention, and, as noted and discussed by the Court, any decision to remove a child from his or her parents may only be made subject to stringent safeguards to ensure that this decision would be in the best interests of the child. Here, as ordered by the Court and mandated under Article 9 of the CRC, the emergency removal of a child even on a temporary basis would need to be reviewed by a court with consideration of the input of any persons affected.
Citation:  ZACC 1
Link to full judgement: http://www.saflii.org/za/cases/ZACC/2012/1.html