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Children's Act, 2005 (Act No. 38 of 2005)

Chapter 1 : Interpretation, Objects, Application and Implementation of Act

1. Interpretation

 

(1) In this Act, unless the context indicates otherwise—

 

"abandoned"

in relation to a child, means a child who—

(a) has obviously been deserted by the parent, guardian or care-giver; or
(b) has, for no apparent reason, had no contact with the parent, guardian, or care-giver for a period of at least three months;

 

"abuse"

in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes—

(a) assaulting a child or inflicting any other form of deliberate injury to a child;
(b) sexually abusing a child or allowing a child to be sexually abused;
(c) bullying by another child;
(d) a labour practice that exploits a child; or
(e) exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally;

 

"adopted child"

means a child adopted by a person in terms of any law;

 

"adoption compliance certificate"
(a) in relation to a convention country, means a certificate issued in terms of Article 23 of the Hague Convention on Inter-country Adoption; or
(b) in relation to a non-convention country, means a similar certificate prescribed in the relevant agreement;

 

"adoption registrar"

means the person designated by the Director-General in terms of section 247(1);

 

"adoption service"

includes—

(a) counselling of the parent of the child and, where applicable, the child;
(b) an assessment of a child by an adoption social worker in terms of section 230(2);
(c) an assessment of a prospective adoptive parent by an adoption social worker in terms of section 231(2);
(d) the gathering of information for proposed adoptions as contemplated in section 237; and
(e) a report contemplated in section 239(1)(b);

 

"adoption social worker"

means—

(a) a social worker in private practice—
(i) who has a speciality in adoption services and is registered in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978); and
(ii) who is accredited in terms of section 251 to provide adoption services;
(b) a social worker in the employ of a child protection organisation which is accredited in terms of section 251 to provide adoption services; or
(c) a social worker in the employ of the Department or a provincial department of social development, including a social worker employed as such on a part-time or contract basis, who has a specialty in adoption services and is registered in terms of the Social Services Professions Act, 1978 (Act No. 110 of 1978);

[Definition (c) inserted by section 1(a) of Act No. 18 of 2016]

 

"adoption working agreement"

for the purpose of Chapter 16, means a written agreement entered into by a child protection organisation accredited in terms of section 259 in the Republic with an equivalent organisation in another country to facilitate inter-country adoptions between the Republic and the country concerned;

 

"adoptive parent"

means a person who has adopted a child in terms of any law;

 

"after-care"

means the supportive service provided by a social worker or a social service professional to monitor progress with regard to the child’s developmental adjustment as part of—

(a) family preservation or reunification services;
(b) adoption or placement in alternative care; or
(c) discharge from alternative care;

 

"alternative care"

means care of a child in accordance with section 167;

 

"area"

in relation to—

(a) a metropolitan or local municipality, means the area for which the municipality has been established; and
(b) a district municipality, means those parts of the area for which the municipality has been established which do not fall within the area of a local municipality;

 

"artificial fertilisation"

means the introduction, by means other than natural means, of a male gamete into the internal reproductive organs of a female person for the purpose of human reproduction, including—

(a) the bringing together of a male and female gamete outside the human body with a view to placing the product of a union of such gametes in the womb of a female person; or
(b) the placing of the product of a union of male and female gametes which have been brought together outside the human body, in the womb of a female person;

 

"assessment of a child"

means a process of investigating the developmental needs of a child, including his or her family environment or any other circumstances that may have a bearing on the child's need for protection and therapeutic services;

 

"assessment of a programme"

means a process, conducted by a suitably qualified person, of determining whether the provision and the content of a programme complies with prescribed national norms and standards;

 

"authorised officer"

in relation to any specific act, means a person who is authorised in writing by the presiding officer of the children's court to perform that act;

 

"Bill of Rights"

means the Bill of Rights contained in Chapter 2 of the Constitution;

 

"care"

in relation to a child, includes, where appropriate—

(a) within available means, providing the child with—
(i) a suitable place to live;
(ii) living conditions that are conducive to the child’s health, well-being and development; and
(iii) the necessary financial support;
(b) safeguarding and promoting the well-being of the child;
(c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
(d) respecting, protecting, promoting and securing the fulfilment of, and guarding against any infingement of the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;
(e) guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity and stage of development;
(f) guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;
(g) guiding the behaviour of the child in a humane manner;
(h) maintaining a sound relationship with the child;
(i) accommodating any special needs that the child may have; and
(j) generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child;

 

"care-giver"

means any person other than a parent or guardian, who factually cares for a child and includes—

(a) a foster parent;
(b) a person who cares for a child with the implied or express consent of a parent or guardian of the child;
(c) a person who cares for a child whilst the child is in temporary safe care;
(d) the person at the head of a child and youth care centre where a child has been placed;
(e) the person at the head of a shelter;
(f) a child and youth care worker who cares for a child who is without appropriate family care in the community; and
(g) the child at the head of a child-headed household;

 

"child"

means a person under the age of 18 years;

 

"child and youth care centre"

means a facility described in section 191(1);

 

"children’s court"

means a children’s court referred to in section 42;

 

"Child Care Act"

means the Child Care Act, 1983 (Act No. 74 of 1983);

 

"child-headed household"

means a household recognized as such in terms of section 137;

 

"child labour"

means work by a child which—

(a) is exploitative, hazardous or otherwise inappropriate for a person of that age; and
(b) places at risk the child’s well-being, education, physical or mental health, or spiritual, moral, emotional or social development;

 

"circumcision"

in relation to a female child, means the removal of the clitoris by any means;

 

"clerk of the court"

means clerk of the court of the relevant magistrate’s court, means the person appointed by the Director-General: Justice and Constitutional Development as the clerk of the children's court of the relevant magistrate’s court;

 

"cluster foster care"

means the reception of children in foster care in accordance with a cluster foster care scheme registered by the provincial head of social development;

 

"cluster foster care scheme"

means a scheme providing for the reception of children in foster care, managed by a nonprofit organization and registered by the provincial head of social development for this purpose;

 

"college"

means college as defined in the Continuing Education and Training Act, 2006 (Act No. 16 of 2006);

[Definition inserted by section 1(b) of Act No. 18 of 2016]

 

"commercial sexual exploitation"

in relation to a child, means the procurement of a child to perform sexual activities for financial or other reward, including acts of prostitution or pornography, irrespective of whether that reward is claimed by, payable to or shared with the procurer, the child, the parent or care-giver of the child, or any other person;

[Definition amended by section 48 of Act No. 7 of 2013]

 

"commissioning parent"

means a person who enters into a surrogate motherhood agreement with a surrogate mother;

 

"Constitution"

means the Constitution of the Republic of South Africa, 1996;

[Definition inserted by section 1(a) of Act No. 17 of 2016]

 

"contact"

in relation to a child, means—

(a) maintaining a personal relationship with the child; and
(b) if the child lives with someone else—
(i) communication on a regular basis with the child in person, including—
(aa) visiting the child; or
(bb) being visited by the child; or
(ii) communication on a regular basis with the child in any other manner, including—
(aa) through the post; or
(bb) by telephone or any other form of electronic communication;

 

"contribution order"

means an order referred to in section 161, and includes a provisional contribution order referred to in section 162(2);

 

"convention country"

means, in accordance with the wording of Article 45 of the Hague Convention on Inter-country Adoption, any country in which the Convention has entered into force, except for a country against whose accession the Republic has raised an objection under Article 44 of the Convention;

 

"delegation"

in relation to a duty, includes an instruction to perform the duty;

 

"Department"

means the national department responsible for the provision of social development services;

 

"designated child protection organization"

means an organization designated in terms of section 107 to perform designated child protection services;

 

"designated child protection service"

means a child protection service referred to in section 105;

 

"designated social worker"

means a social worker in the service of—

(a) the Department or a provincial department of social development;
(b) a designated child protection organisation; or
(c) a municipality;

 

"Director-General"

means the Director-General of the Department, or where the context indicates the Director-General of another department, that Director-General;

 

"Divorce Act"

means the Divorce Act, 1979 (Act No. 70 of 1979);

 

"divorce court"

means the divorce court established in terms of section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929);

 

"drop-in centre"

means a facility referred to in section 213;

 

"early childhood development programme"

means a programme referred to in section 91(3);

 

"early childhood development services"

means services referred to in section 91(2);

 

"early intervention programme"

means a programme referred to in section 143(2);

 

"exploitation"

in relation to a child, includes—

(a) all forms of slavery or practices similar to slavery, including debt bondage or forced marriage;
(b) sexual exploitation;
(c) servitude;
(d) forced labour or services;
(e) child labour prohibited in terms of section 141; and
(f) the removal of body parts;

 

"family advocate"

means a family advocate appointed in terms of the Mediation in Certain Divorce Matters Act;

 

"family member"

in relation to a child, means—

(a) a parent of the child;
(b) any other person who has parental responsibilities and rights in respect of the child;
(c) a grandparent, brother, sister, uncle, aunt or cousin of the child; or
(d) any other person with whom the child has developed a significant relationship, based on psychological or emotional attachment, which resembles a family relationship;

 

"foster care"

means care of a child as described in section 180(1) and includes foster care in a registered cluster foster care scheme;

 

"foster parent"

means a person who has foster care of a child by order of the children's court, and includes an active member of an organization operating a cluster foster care scheme and who has been assigned responsibility for the foster care of a child;

 

"gamete"

means either of the two generative cells essential for human reproduction;

 

"genital mutilation"

in relation to a female child, means the partial or complete removal of any part of the genitals, and includes circumcision of female children;

 

"grade 12"

means grade 12 as defined in section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997);

[Definition inserted by section 1(c) of Act No. 18 of 2016]

 

"guardian"

means a parent or other person who has guardianship of a child;

 

"guardianship"

in relation to a child, means guardianship as contemplated in section 18;

 

"Hague Convention on Inter-country Adoption"

means the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption signed at the Hague on 29 May 1993, a copy of the English text of which is set out in Schedule 1 to this Act;

 

"Hague Convention on International Child Abduction"

means the Hague Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980, a copy of the English text of which is set out in Schedule 2 to this Act;

 

"High Court"

means the High Court contemplated in section 166 of the Constitution;

 

"higher education"

means higher education as defined in section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997);

[Definition inserted by section 1(d) of Act No. 18 of 2016]

 

"in need of care and protection"

in relation to a child, means a child who is in a situation contemplated in section 150(1);

 

"labour inspector"

means a labour inspector appointed under section 63 of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);

 

"Maintenance Act"

means the Maintenance Act, 1998 (Act No. 99 of 1998);

 

"marriage"

means a marriage—

(a) recognized in terms of South African law or customary law; or
(b) concluded in accordance with a system of religious law subject to specified procedures

and any reference to a husband, wife, widower, widow, divorced person, married person or spouse must be construed accordingly;

 

"MEC for social development"

means the member of the Executive Council of a province who is responsible for social development in the province;

 

"Mediation in Certain Divorce Matters Act"

means the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987);

 

"medical practitioner"

means a person registered or deemed to be registered as a medical practitioner under the Health Professions Act, 1974 (Act No. 56 of 1974) and includes a dentist so registered or deemed to be registered;

 

"mental illness"

means mental illness as defined in the Mental Health Care Act, 2002 (Act No. 17 of 2002);

 

"midwife"

means a person registered as a midwife under the Nursing Act, 1978 (Act No. 50 of 1978);

 

"Minister"

means the Cabinet member responsible for social development, or where the context indicates another Minister, that Minister;

 

"municipality"

means a metropolitan, local or district municipality established in terms of section 12 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), but to the extent that a municipality may or must implement a provision of this Act in or in relation to an area which falls within the area of both a local municipality and a district municipality, "municipality" in such a provision means the relevant local municipality;

 

"Municipal Systems Act"

means the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);

 

"National Child Protection Register"

means the register referred to in section 111;

 

"neglect"

in relation to a child, means a failure in the exercise of parental responsibilities to provide for the child’s basic physical, intellectual, emotional or social needs;

 

"nurse"

means a person registered as a nurse under the Nursing Act, 1978 (Act No. 50 of 1978);

 

"organ of state"

means an organ of state as defined in section 239 of the Constitution;

 

"orphan"

means a child who has no surviving parent caring for him or her;

 

"parent"

in relation to a child, includes the adoptive parent of a child, but excludes—

(a) the biological father of a child conceived through the rape of or incest with the child’s mother;
(b) any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation; and
(c) a parent whose parental responsibilities and rights in respect of a child have been terminated;

 

"parental responsibilities and rights"

in relation to a child, means the responsibilities and the rights referred to in section 18;

 

"partial care"

means partial care referred to in section 76;

 

"party"

in relation to a matter before a children's court, means—

(a) a child involved in the matter;
(b) a parent;
(c) a person who has parental responsibilities and rights in respect of the child;
(d) a prospective adoptive or foster parent of the child;
(e) the department or the designated child protection organisation managing the case of the child; or
(f) any other person admitted or recognised by the court as a party;

 

"permanency plan"

means a documented plan referred to in section 157(1);

 

"person unsuitable to work with children"

means a person listed in Part B of the National Child Protection Register;

 

"police official"

means any member of the South African Police Service or a municipal police service appointed in terms of the South African Police Service Act, 1995 (Act No. 68 of 1995);

 

"prescribed"

means prescribed by regulation;

 

"presiding officer"

means a presiding officer of a children's court designated in terms of section 42;

 

"prevention programme"

means a programme referred to in section 143(1);

 

"provincial department of social development"

means the department within a provincial administration responsible for social development in the province;

 

"provincial head of social development"

means the head of the provincial department of social development;

 

"psychologist"

means a psychologist registered or deemed to be registered as such in terms of the Health Professions Act, 1974 (Act No. 56 of 1974);

 

"Public Service Act"

means the Public Service Act, 1994 (Proclamation No. 103 of 1994);

 

"quality assurance process"

means the process referred to in section 211;

 

"RACAP"

means the Register on Adoptable Children and Prospective Adoptive Parents contemplated in section 232;

 

"regulation"

means a regulation made in terms of this Act;

 

"removal of body parts"

means the removal of any organ or other body part from a living person in contravention of the National Health Act, 2003 (Act No. 61 of 2003);

 

"residential care programme"

means a programme described in section 191(2) which is or must be offered at a child and youth care centre;

 

"respondent"

means any person legally liable to maintain or to contribute towards the maintenance of a child for whose maintenance, treatment or special needs a contribution order is sought or has been made in terms of Chapter 10;

 

"school"

means—

(a) an independent school registered or deemed to be registered in terms of section 46 of the South African Schools Act, 1996 (Act No. 84 of 1996); or
(b) a public school contemplated in Chapter 3 of the South African Schools Act, 1996 (Act No. 84 of 1996);

 

"secure care"

means the physical containment in a safe and healthy environment—

(a) of children with behavioural and emotional difficulties; and
(b) of children in conflict with the law;

 

"serve"

in relation to any notice, document or other process in terms of this Act, means to serve such notice, document or other process in accordance with the procedure provided for the serving of process in terms of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), and the rules applying to the proceedings of magistrates’ courts;

 

"sexual abuse"

in relation to a child, means—

(a) sexually molesting or assaulting a child or allowing a child to be sexually molested or assaulted;
(b) encouraging, inducing or forcing a child to be used for the sexual gratification of another person;
(c) using a child in or deliberately exposing a child to sexual activities or pornography; or
(d) procuring or allowing a child to be procured for commercial sexual exploitation or in any way participating or assisting in the commercial sexual exploitation of a child;

 

"sexual offence"

means sexual offence as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), and any offence of a sexual nature in any other law;

[Definition inserted by section 1(b) of Act No. 17 of 2016]

 

"social service professional"

includes a probation officer, development worker, child and youth care worker, youth worker, social auxiliary worker and social security worker who are registered as such in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978);

 

"social worker"

means a person who is registered or deemed to be registered as a social worker in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978);

 

"street child"

means a child who—

(a) because of abuse, neglect, poverty, community upheaval or any other reason, has left his or her home, family or community and lives, begs or works on the streets; or
(b) because of inadequate care, begs or works on the streets but returns home at night;

 

"surrogate mother"

means an adult woman who enters into a surrogate motherhood agreement with the commissioning parent;

 

"surrogate motherhood agreement"

means an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent;

 

"temporary safe care"

in relation to a child, means care of a child in an approved child and youth care centre, shelter or private home or any other place, where the child can safely be accommodated pending a decision or court order concerning the placement of the child, but excludes care of a child in a prison or police cell;

 

"traditional authority"

means any authority which in terms of indigenous law or any other law administers the affairs of any group of indigenous people or any other persons resident within an area under the control of a traditional leader;

 

"this Act"

includes—

(a) any regulation made in terms of this Act;
(b) the rules regulating the proceedings of the children’s courts in terms of section 52;

 

"trafficking"

[Definition repealed by section 48 of Act No. 7 of 2013]

 

"UN Protocol to Prevent Trafficking in Persons"

[Definition repealed by section 48 of Act No. 7 of 2013]

 

(2) In addition to the meaning assigned to the terms "custody" and "access" in any law, and the common law, the terms "custody" and "access" in any law must be construed to also mean "care" and "contact" as defined in this Act.

 

(3) In this Act, a word or expression derived from a word or expression defined in subsection (1) has a corresponding meaning unless the context indicates that another meaning is intended.

 

(4) Any proceedings arising out of the application of the Administration Amendment Act, 1929 (Act No. 9 of I929), the Divorce Act, the Maintenance Act, the Domestic Violence Act, 1998 (Act No. 116 of 1998), and the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998), in so far as these Acts relate to children, may not be dealt with in a children's court.