Removal of children without automatic judicial review held to be a breach of children’s rights

C and Others v Department of Health and Social Development, Gauteng and Others [2012] ZACC 1 (11 January 2012)

Summary

South Africa’s Constitutional Court has overturned legislation that enabled state officials to remove children from family care without requiring prompt and automatic judicial review. The majority of the Constitutional Court held that prompt judicial review of decisions to remove children from their families is in the ‘best interests’ of children and is necessary to safeguard the right to access to justice. Therefore, the Children’s Act was held to be inconsistent with section 28 (rights of the child) and section 34 (access to justice) of South Africa’s Bill of Rights.

Facts

The first applicant, Mr C, was repairing shoes on a street corner. He had his three year old daughter with him because his partner, who usually cared for the child, had been hospitalized. Ms M, a blind woman, was accompanied by her two daughters, aged one and four, while begging. Social workers removed these children from their parents’ care in accordance the Children’s Act, which enabled authorised persons to remove children deemed to be ‘in need of care and protection’.

Pursuant to the Children’s Act, the removal decisions were to be reviewed by a children’s court after 90 days, during which time the social workers were required to investigate and compile a report. The legislation did not require automatic judicial review before the end of the 90-day period.

With the assistance of human rights lawyers, the parents challenged these decisions in the High Court. The High Court ordered that Mr C’s child be returned to his care, although Ms M’s daughters were ordered to remain in state care. In reaching its decision, the High Court also held that provisions of the Children’s Act authorizing the removals were unconstitutional.

The Constitutional Court was called on to confirm the High Court’s declaration of unconstitutionality.

Decision

Majority decision

The majority of Yacoob J (Khampepe, Nkabinde and Van der Westhuizen JJ concurring) said that, although the law was designed to protect the safety and wellbeing of children, “there exists always the possibility that a removal would be wrongly made”. The case of Mr C demonstrated this. Although Mr C was technically able to challenge the removal before the expiry of the 90-day period, it was unlikely that he would have been able to sustain the application to the High Court but for the help of human rights lawyers. Without that assistance, he would have remained wrongfully separated from his daughter for 90 days.

Noting that there may be many others in the same position at Mr C, the majority said:

It is in the interests of children that an incorrect decision by a court made without hearing the child or the parents, or by a designated social worker or police official be susceptible to automatic review by a court, in the ordinary course, in the presence of the child and the parents. It follows from this that sections 151 and 152 [of the Children’s Act] do not provide for this and are therefore constitutionally wanting… In this sense, and to this extent, the laws are not in the best interests of children. They therefore limit the rights contained in section 28(2).

The majority evaluated these rights against the requirements of section 34 of the Constitution, which guarantees access to justice in respect of “any dispute that can be resolved by the application of law”. The majority found that this right was also limited by the Children’s Act because neither parents nor children had any real and practical opportunity to argue against the removal during the initial 90-day period.

The majority found that there was no reasonable and justifiable basis for these limitations on human rights. Therefore, the High Court’s declaration of unconstitutionality was confirmed.

The ‘reading-in’ remedy granted by the Constitutional Court required the Children’s Act to be read in such a way that necessitated prompt and automatic judicial review of removal decisions (i.e. before the expiry of the next court day after the removal is first authorised).

Concurring decision

The concurring judgment of Skweyiya J (Froneman J concurring) ultimately came to the same conclusion, although focused more squarely on children’s rights to ‘family or parental care’, protected by 28(1)(b) of the Constitution. The minority also agreed that the 90-day time frame for judicial review constituted an unjustifiable delay which impaired access to justice.

Dissenting judgment

The dissenting judgment of Jafta J (Mogengo J concurring) held that the impugned provisions of the Children’s Act were not inconsistent with the rights of the child under section 28 of the Constitution. They noted that the requirement for judicial review set out in the UN Convention on the Rights of the Child is not reflected in the Bill of Rights and cannot be implied as a matter of law. Moreover, they held that the impugned provisions of the Children’s Act were designed to protect children’s best interests. They also declined to consider access to justice issues because the applicants did not rely on section 34 in the High Court case.

The decision can be found online at: http://www.saflii.org/za/cases/ZACC/2012/1.html

Emma Purdue is on secondment to the Human Rights Law Centre from Lander & Rogers