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South
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NATIONAL LEGISLATION OVERVIEWS
NATIONAL LEGISLATION OVERVIEWS
Children’s Act,
No. 38
of 2005
Long title
To give effect to certain rights of children as contained in the Constitution; to set out principles relating to the care and protection of children; to define parental responsibilities and rights; to make further provision regarding children's courts; to provide for partial care of children; to provide for early childhood development; to provide for the issuing of contribution orders; to provide for prevention and early intervention; to provide for children in alternative care; to provide for foster care; to provide for child and youth care centres and drop-in centres; to make new provision for the adoption of children; to provide for inter-country adoption; to give effect to the Hague Convention on Inter-country Adoption; to prohibit child abduction and to give effect to the Hague Convention on International Child Abduction; to provide for surrogate motherhood; to create certain new offences relating to children; and to provide for matters connected therewith.
Table of contents
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Legislation Text Access Point
Long title
To give effect to certain rights of children as contained in the Constitution; to set out principles relating to the care and protection of children; to define parental responsibilities and rights; to make further provision regarding children's courts; to provide for partial care of children; to provide for early childhood development; to provide for the issuing of contribution orders; to provide for prevention and early intervention; to provide for children in alternative care; to provide for foster care; to provide for child and youth care centres and drop-in centres; to make new provision for the adoption of children; to provide for inter-country adoption; to give effect to the Hague Convention on Inter-country Adoption; to prohibit child abduction and to give effect to the Hague Convention on International Child Abduction; to provide for surrogate motherhood; to create certain new offences relating to children; and to provide for matters connected therewith.
Table of contents
| SECTION | TITLE |
| PREAMBLE | |
| TABLE OF CONTENTS | |
| CHAPTER 1. INTERPRETATION, OBJECTS, APPLICATION AND IMPLEMENTATION OF ACT | |
| 1. | Interpretation |
| 2. | Objects of Act |
| 3. | Conflicts with other legislation |
| 4. | Implementation of Act |
| 5. | Inter-sectoral implementation of Act |
| CHAPTER 2. GENERAL PRINCIPLES | |
| 6. | General principles |
| 7. | Best interests of child standard |
| 8. | Application |
| 9. | Best interests of child paramount |
| 10. | Child participation |
| 11. | Children with disability or chronic illness |
| 12. | Social, cultural and religious practices |
| 13. | Information on health care |
| 14. | Access to court |
| 15. | Enforcement of rights |
| 16. | Responsibilities of children |
| 17. | Age of majority |
| CHAPTER 3. PARENTAL RESPONSIBILITIES AND RIGHTS | |
| Part 1. Acquisition and loss of parental responsibilities and rights | |
| 18. | Parental responsibilities and rights |
| 19. | Parental responsibilities and rights of mothers |
| 20. | Parental responsibilities and rights of married fathers |
| 21. | Parental responsibilities and rights of unmarried fathers |
| 22. | Parental responsibilities and rights agreements |
| 23. | Assignment of contact and care to interested person by order of court |
| 24. | Assignment of guardianship by order of court |
| 25. | Certain applications regarded as inter-country adoption |
| 26. | Person claiming paternity |
| 27. | Assignment of guardianship and care |
| 28. | Termination, extension, suspension or restriction of parental responsibilities and rights |
| 29. | Court proceedings |
| Part 2. Co-exercise of parental responsibilities and rights | |
| 30. | Co-holders of parental responsibilities and rights |
| 31. | Major decisions involving child |
| 32. | Care of child by person not holding parental responsibilities and rights |
| Part 3. Parenting plans | |
| 33. | Contents of parenting plans |
| 34. | Formalities |
| 35. | Refusal of access or refusal to exercise parental responsibilities and rights |
| Part 4. Miscellaneous | |
| 36. | Presumption of paternity in respect of child born out of wedlock |
| 37. | Refusal to submit to taking of blood samples |
| 38. | Effect of subsequent marriage of parents on child |
| 39. | Rights of child born of voidable marriage |
| 40. | Rights of child conceived by artificial fertilisation |
| 41. | Access to biographical and medical information concerning genetic parents |
| CHAPTER 4. CHILDREN'S COURTS | |
| Part I. Establishment, status and jurisdiction | |
| 42. | Children's courts and presiding officers |
| 43. | Status |
| 44. | Geographical area of jurisdiction of children's court |
| 45. | Matters children's court may adjudicate |
| 46. | Orders children's court may make |
| 47. | Referral of children by other court for investigation |
| 48. | Additional powers |
| 49. | Lay-forum hearings |
| 50. | Investigations |
| 51. | Appeals |
| Part 2. Court proceedings | |
| 52. | Rules and court proceedings |
| 53. | Who may approach court |
| 54. | Legal representation |
| 55. | Legal representation of children |
| 56. | Attendance at proceedings |
| 57. | Compulsory attendance of persons involved in proceedings |
| 58. | Rights of persons to adduce evidence, question witnesses and produce argument |
| 59. | Witnesses |
| 60. | Conduct of proceedings |
| 61. | Participation of children |
| 62. | Professional reports ordered by court |
| 63. | Evidence |
| 64. | Adjournments |
| 65. | Monitoring of court orders |
| 66. | Protection of court case records |
| 67. | Appointment or designation of clerks of children’s courts |
| 68. | Referral of matters by clerk of children’s court |
| Part 3. Pre-hearing conferences, family group conferences, other lay-forums and settling matters out of court | |
| 69. | Prehearing conferences |
| 70. | Family group conferences |
| 71. | Other lay-forums |
| 72. | Settling of matters out of court |
| 73. | Other functions |
| Part 4. Miscellaneous matters | |
| 74. | Publication of information relating to proceedings |
| 75. | Regulations |
| CHAPTER 5. PARENTAL CARE | |
| 76. | Partial care [...inserted by Act 2007_041_004] |
| 77. | Strategy concerning partial care[...inserted by Act 2007_041_004] |
| 78. | Provision of partial care [...inserted by Act 2007_041_004] |
| 79. | National norms and standards for partial care [...inserted by Act 2007_041_004] |
| 80. | Partial care facility to be registered [...inserted by Act 2007_041_004] |
| 81. | Application for registration and renewal of registration [...inserted by Act 2007_041_004] |
| 82. | Consideration of application [...inserted by Act 2007_041_004] |
| 83. | Conditional registration [...inserted by Act 2007_041_004] |
| 84. | Cancellation of registration [...inserted by Act 2007_041_004] |
| 85. | Notice of enforcement [...inserted by Act 2007_041_004] |
| 86. | Appeal against and review of certain decisions [...inserted by Act 2007_041_004] |
| 87. | Record and inspection of and provision of partial care facility [...inserted by Act 2007_041_004] |
| 88. | Assignment of functions to municipalities [...inserted by Act 2007_041_004] |
| 89. | Serious injury, abuse or death of child in partial care facility [...inserted by Act 2007_041_004] |
| 90. | Regulations [...inserted by Act 2007_041_004] |
| CHAPTER 6. EARLY CHILDHOOD DEVELOPMENT | |
| 91. | Early childhood development [...inserted by Act 2007_041_004] |
| 92. | Strategy concerning early childhood development [...inserted by Act 2007_041_004] |
| 93. | Provision of early childhood development programmes [...inserted by Act 2007_041_004] |
| 94. | National norms and standards for early childhood development programmes [...inserted by Act 2007_041_004] |
| 95. | Early childhood development programmes to be registered [...inserted by Act 2007_041_004] |
| 96. | Application of registration and renewal of registration [...inserted by Act 2007_041_004] |
| 97. | Consideration of application [...inserted by Act 2007_041_004] |
| 98. | Conditional registration [...inserted by Act 2007_041_004] |
| 99. | Cancellation of registration [...inserted by Act 2007_041_004] |
| 100. | Notice of enforcement [...inserted by Act 2007_041_004] |
| SECTION | TITLE |
| 101. | Appeal against and review of certain decisions [...inserted by Act 2007_041_004] |
| 102. | Assignment of functions to municipality [...inserted by Act 2007_041_004] |
| 103. | Regulations [...inserted by Act 2007_041_004] |
| CHAPTER 7. PROTECTION OF CHILDREN | |
| Part 1. Child protection system | |
| 104. | Strategy concerning child protection [...inserted by Act 2007_041_004] |
| 105. | Provision of designated child protection services [...inserted by Act 2007_041_004] |
| 106. | National norms and standards for child protection [...inserted by Act 2007_041_004] |
| 107. | Designation of child protection organisation [...inserted by Act 2007_041_004] |
| 108. | Existing child welfare organisation [...inserted by Act 2007_041_004] |
| 109. | Withdrawal of designation [...inserted by Act 2007_041_004] |
| 110. | Reporting of abused or neglected child and child in need of care and protection [...inserted by Act 2007_041_004] |
| Part 2. National Child Protection Register | |
| 111. | Keeping of National Child Protection Register |
| 112. | Confidentiality of National Child Protection Register |
| Part A of Register | |
| 113. | Purpose of Part A of Register |
| 114. | Contents of Part A of Register |
| 115. | Access to Part A of Register |
| 116. | Disclosure of information in Part A of Register |
| 117. | Inquiries on information in Part A of Register |
| Part B of Register | |
| 118. | Purpose of Part B of Register |
| 119. | Contents of Part B of Register |
| 120. | Finding persons unsuitable to work with children |
| 121. | Disputes concerning findings |
| 122. | Findings to be reported to Director-General |
| 123. | Consequences of entry of name in Part B of Register |
| 124. | Disclosure of entry of name in Part B of Register |
| 125. | Access to Part B of Register |
| 126. | Establishment of information in Part B of Register |
| 127. | Disclosure of names in Part B of Register prohibited |
| 128. | Removal of name from Register |
| 128A. | Enquiries for purposes of expungement applications in terms of Criminal Procedure Act [...inserted by Act 2013_042_030_20140122] |
| Part 3. Protective measures relating to health of children | |
| 129. | Consent to medical treatment and surgical operation |
| 130. | HIV-testing |
| 131. | HIV-testing for foster care or adoption purposes |
| 132. | Counselling before and after HIV-testing |
| 133. | Confidentiality of information on HIV/AIDS status of children |
| 134. | Access to contraceptives |
| Part 4. Other protective measures | |
| 135. | Application to terminate or suspend parental responsibilities and rights [...inserted by Act 2007_041_005] |
| 136. | Consideration of application to terminate or suspend parental responsibilities and rights [...inserted by Act 2007_041_005] |
| 137. | Child-headed household [...inserted by Act 2007_041_005] |
| 138. | Unlawful removal or detention of child [...inserted by Act 2007_041_005] |
| 139. | Unlawful taking or sending of child out of Republic [...inserted by Act 2007_041_005] |
| 140. | Child safety at place of entertainment [...inserted by Act 2007_041_005] |
| 141. | Child labour and exploitation of children [...inserted by Act 2007_041_005] |
| 142. | Regulations |
| CHAPTER 8. PREVENTION AND EARLY INTERVENTION | |
| 143. | Prevention and early intervention programmes [...inserted by Act 2007_041_007] |
| 144. | Purposes of prevention and early intervention programmes [...inserted by Act 2007_041_007] |
| 145. | Strategy for securing prevention and early intervention programmes [...inserted by Act 2007_041_007] |
| 146. | Provision of prevention and early intervention programmes [...inserted by Act 2007_041_007] |
| 147. | National norms and standards for prevention and early intervention programmes [...inserted by Act 2007_041_007] |
| 148. | Court may order early intervention programme [...inserted by Act 2007_041_007] |
| 149. | Report to include summary of prevention and early intervention programmes [...inserted by Act 2007_041_007] |
| CHAPTER 9. CHILD IN NEED OF CARE AND PROTECTION | |
| Part 1. Identification of child in need of care and protection | |
| 150. | Child in need of care and protection care by court order |
| 151. | Removal of child to temporary safe |
| 152. | Removal of child to temporary safe care without court order |
| 152A. | Review of decision to remove child without court order [...inserted by Act 2016_017_006_20170119] |
| 153. | Written notice to alleged offender |
| 154. | Other children in need of care and protection |
| Part 2. Children’s court processes | |
| 155. | Decision of question whether child is in need of care and protection |
| 156. | Orders when child is found to be in need of care and protection |
| 157. | Court orders to be aimed at securing stability in child’s life |
| 158. | Placement of child in child and youth care centre |
| 159. | Duration and extension of orders |
| 160. | Regulations |
| CHAPTER 10. CONTRIBUTION ORDER | |
| 161. | Issue of contribution order |
| 162. | Jurisdiction |
| 163. | Effect of contribution order |
| 164. | Payments to be made to person determined by court |
| 165. | Attachment of wages of respondent |
| 166. | Change of residence or work by respondent |
| CHAPTER 11. ALTERNATIVE CARE | |
| 167. | Alternative care [...inserted by Act 2007_041_010] |
| 168. | Leave of absence [...inserted by Act 2007_041_010] |
| 169. | Child in alternative care prohibited from leaving Republic [...inserted by Act 2007_041_010] |
| 170. | Child absconding from alternative care [...inserted by Act 2007_041_010] |
| 171. | Transfer of child in alternative care [...inserted by Act 2007_041_010] |
| 172. | Change in residential care programme [...inserted by Act 2007_041_010] |
| 173. | Removal of child already in alternative care [...inserted by Act 2007_041_010] |
| 174. | Provisional transfer from alternative care [...inserted by Act 2007_041_010] |
| 175. | Discharge from alternative care [...inserted by Act 2007_041_010] |
| 176. | Remaining in alternative care beyond age of 18 years [...inserted by Act 2007_041_010] |
| 177. | Appeal against and review of certain decisions [...inserted by Act 2007_041_010] |
| 178. | Serious injury, abuse or death of child in alternative care [...inserted by Act 2007_041_010] |
| 179. | Regulations [...inserted by Act 2007_041_010] |
| CHAPTER 12. FOSTER CARE | |
| 180. | Foster care [...inserted by Act 2007_041_010] |
| 181. | Purposes of foster care [...inserted by Act 2007_041_010] |
| 182. | Prospective foster parents [...inserted by Act 2007_041_010] |
| 183. | Cluster foster care [...inserted by Act 2007_041_010] |
| 184. | Determination of placement of child in foster care [...inserted by Act 2007_041_010] |
| 185. | Number of children to be placed in foster care per household [...inserted by Act 2007_041_010] |
| 186. | Duration of foster care placement [...inserted by Act 2007_041_010] |
| 187. | Reunification of child with biological parent [...inserted by Act 2007_041_010] |
| 188. | Responsibilities and rights of foster parent [...inserted by Act 2007_041_010] |
| 189. | Termination of foster care [...inserted by Act 2007_041_010] |
| 190. | Regulations [...inserted by Act 2007_041_010] |
| CHAPTER 13. CHILD AND YOUTH CARE CENTRES | |
| 191. | Child and youth care centres [...inserted by Act 2007_041_010] |
| 192. | Strategy to ensure sufficient provision of child and youth care centres [...inserted by Act 2007_041_010] |
| 193. | Protection of child and youth care centres [...inserted by Act 2007_041_010] |
| 194. | National norms and standards for child and youth care centres [...inserted by Act 2007_041_010] |
| Part 1. Establishment and registration of child and youth care centres [...inserted by Act 2007_041_010] | |
| 195. | Establishment of child and youth care centre by organ of state [...inserted by Act 2007_041_010] |
| 196. | Existing government children's home, place of safety, secure care facility, school of industry and reform school [...inserted by Act 2007_041_010] |
| 197. | Establishment of child and youth care centre [...inserted by Act 2007_041_010] |
| 198. | Existing registered children's home and registered shelter [...inserted by Act 2007_041_010] |
| 199. | Application for registration or renewal of registration [...inserted by Act 2007_041_010] |
| 200. | Consideration of application [...inserted by Act 2007_041_010] |
| 201. | Conditional registration [...inserted by Act 2007_041_010] |
| 202. | Amendment of registration [...inserted by Act 2007_041_010] |
| 203. | Cancellation of registration [...inserted by Act 2007_041_010] |
| 204. | Notice of enforcement [...inserted by Act 2007_041_010] |
| 205. | Voluntary closure of child and youth care centre [...inserted by Act 2007_041_010] |
| 206. | Child in child and youth care centre to be closed [...inserted by Act 2007_041_010] |
| 207. | Appeal against and review of certain decisions [...inserted by Act 2007_041_010] |
| Part 2. Operation and management of child and youth care centre | |
| 208. | Management board [...inserted by Act 2007_041_010] |
| 209. | Manager and staff of child and youth care centre [...inserted by Act 2007_041_010] |
| 210. | Management system [...inserted by Act 2007_041_010] |
| 211. | Quality assurance process [...inserted by Act 2007_041_010] |
| Part 3. Miscellaneous | |
| 212 | Regulations [...inserted by Act 2007_041_010] |
| CHAPTER 14. DROP-IN CENTRES | |
| 213 | Drop-in centres [...inserted by Act 2007_041_010] |
| 214 | Strategy concerning drop-in centres [...inserted by Act 2007_041_010] |
| 215 | Provision of drop-of centres [...inserted by Act 2007_041_010] |
| 216 | National norms and standards for drop-in centres [...inserted by Act 2007_041_010] |
| 217 | Drop-in centres to be registered [...inserted by Act 2007_041_010] |
| 218 | Application for registration and renewal of registration [...inserted by Act 2007_041_010] |
| 219 | Consideration of application [...inserted by Act 2007_041_010] |
| 220 | Conditional registration [...inserted by Act 2007_041_010] |
| 221 | Cancellation of registration |
| 222 | Notice of enforcement [...inserted by Act 2007_041_010] |
| 223 | Appeal against and review of certain decisions [...inserted by Act 2007_041_010] |
| 224 | Record and inspection of and provision for drop-in centres [...inserted by Act 2007_041_010] |
| 225 | Assignment of functions to municipality [...inserted by Act 2007_041_010] |
| 226 | Serious injury, abuse or death of child in drop-in centre [...inserted by Act 2007_041_010] |
| 227 | Regulations [...inserted by Act 2007_041_010] |
| CHAPTER 15. ADOPTION | |
| 228. | Adoption |
| 229. | Purposes of adoption |
| 230. | Child who may be adopted |
| 231. | Persons who may adopt child |
| 232. | Register on Adoptable Children and Prospective Adoptive Parents |
| 233. | Consent to adoption |
| 234. | Post adoption agreements |
| 235. | Freeing Orders |
| 236. | When consent not required |
| 237. | Gathering of information for proposed adoption |
| 238. | Notice to be given of proposed adoption |
| 239. | Application for adoption order |
| 240. | Consideration of adoption application |
| 241. | Unreasonable withholding of consent |
| 242. | Effect of adoption order |
| 243. | Rescission of adoption order |
| 244. | Effect of rescission |
| 245. | Recording of adoption in births register |
| 246. | Registration of birth and recording of adoption of child born outside Republic |
| 247. | Adoption register |
| 248. | Access to adoption register |
| 249. | No consideration in respect of adoption |
| 250. | Only certain persons allowed to provide adoption service |
| 251. | Accreditation to provide adoption service |
| 252. | Advertising |
| 252A. | Review of decision to remove child without court order [...inserted by Act 2016_017_006_20170119] |
| CHAPTER 16. INTER-COUNTRY ADOPTION | |
| 254. | Purposes of Chapter |
| 255. | International co-operation |
| 256. | Hague Convention on Inter-country Adoption to have force of law |
| 257. | Central Authority |
| 258. | Performance of functions |
| 259. | Accreditation to provide inter-country adoption services |
| 260. | Entering into adoption working agreement |
| 261. | Adoption of child from Republic by person in convention country |
| 262. | Adoption of child from Republic by person in non-convention country |
| 263. | Issue of adoption compliance certificate |
| 264. | Adoption of child from convention country by person in Republic |
| 265. | Adoption of child from non-convention country by person in Republic |
| 266. | Recognition of inter-country adoption of child from convention country |
| 267. | Evidentiary value of adoption compliance certificate of convention country |
| 268. | Recognition of inter-country adoption of child from non-convention country |
| 269. | Effect of recognition of inter-country adoption |
| 270. | Refusal to recognise inter-country adoption or Article 27 decision |
| 271. | Application to children’s court for inter-country adoption of child |
| 272. | Access to information |
| 273. | Processing or facilitating inter-country adoption |
| CHAPTER 17. CHILD ABDUCTION | |
| 274. | Purposes of Chapter |
| 275. | Hague Convention on International Child Abduction to have force of law |
| 276. | Central Authority |
| 277. | Delegation of powers and duties |
| 278. | Powers of court |
| 279. | Legal representation |
| 280. | Regulations |
| CHAPTER 18. TRAFFICKING IN CHILDREN | |
| 281. | [...repealed by Act 2013_007_048 Sch - was entitled "Purposes of Chapter"] |
| 282. | [...repealed by Act 2013_007_048 Sch - was entitled "UN Protocol to Prevent Trafficking in Persons to have force of law"] |
| 283. | [...repealed by Act 2013_007_048 Sch - was entitled "International co-operation"] |
| 284. | [...repealed by Act 2013_007_048 Sch - was entitled "Trafficking in children prohibited"] |
| 285. | [...repealed by Act 2013_007_048 Sch - was entitled "Behaviour facilitating trafficking in children prohibited"] |
| 286. | [...repealed by Act 2013_007_048 Sch - was entitled "Assistance to child who is victim of trafficking"] |
| 287. | [...repealed by Act 2013_007_048 Sch - was entitled "Trafficking of child by parent, guardian or other person who has parental responsibilities and rights in respect of child"] |
| 288. | [...repealed by Act 2013_007_048 Sch - was entitled "Reporting of child who is victim of trafficking"] |
| 289. | [...repealed by Act 2013_007_048 Sch - was entitled "Child who is victim of trafficking found in Republic"] |
| 290. | [...repealed by Act 2013_007_048 Sch - was entitled "Repatriation of child who is victim of trafficking"] |
| 291. | [...repealed by Act 2013_007_048 Sch - was entitled "Extra-territorial jurisdiction"] |
| CHAPTER 19. SURROGATE MOTHERHOOD | |
| 292. | Surrogate motherhood agreement must be in writing and confirmed by High Court |
| 293. | Consent of husband, wife or partner |
| 294. | Genetic origin of child |
| 295. | Confirmation by court |
| 296. | Artificial fertilisation of surrogate mother |
| 297. | Effect of surrogate motherhood agreement on status of child |
| 298. | Termination of surrogate motherhood agreement |
| 299. | Effect of termination of surrogate motherhood agreement |
| 300. | Termination of pregnancy |
| SECTION | TITLE |
| 301. | Payments in respect of surrogacy prohibited |
| 302. | Identity of parties |
| 303. | Prohibition of certain acts |
| 304. | Inspection of child and youth care centre, partial care facility, shelter and drop-in centre |
| 305. | Offences |
| CHAPTER 21. ADMINISTRATION OF ACT | |
| 306. | Regulations |
| 307. | Delegation of powers and duties by Minister |
| 308. | Assignment of powers and duties by Minister |
| 309. | Delegation of powers and duties by MECs for social development |
| 310. | Delegation of powers and duties by Director-General |
| 311. | Delegation of powers and duties by provincial heads of social development |
| 312. | Agency agreements |
| CHAPTER 22. MISCELLANEOUS MATTERS | |
| 313. | Amendment of laws |
| 314. | Transitional matters |
| 315. | Short title and commencement |
| Sch. 1. | SCHEDULE 1. HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION (29 May 93) [s1] |
| Sch. 2. | SCHEDULE 2. HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION [s1] |
| Sch. 3. | SCHEDULE 3. TEXT OF THE UN PROTOCOL TO PREVENT TRAFFICKING IN PERSONS [s1] [...repealed by Act 2013_007_048_20130729 Sch] |
| Sch. 4. | SCHEDULE 4. [s313] |
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