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The child’s best interest principle exists in terms of the Children’s Act 38 of 2005 (the Children’s Act). Children and their rights are significant for the security of society and the preservation of humanity. This article explores the conviction surrounding the best interests of the child and the limitations on the principle.
South Africa (SA) ratified the United Nations Convention on the Rights of the Child (resolution 44/25 of 20 November 1989) (CRC) on 16 June 1995. The CRC was the first international treaty ratified by democratic SA. The preamble of the CRC states that by reason of a child’s physical and mental immaturity, children must be safeguarded and provided with legal protection prior to and after birth. This is in agreement with the provisions of the Constitution, particularly the rights to human equality, dignity, life, citizenship, education and the rights of the child as stipulated in s 28.
A child, according to art 1 of the CRC is ‘every human being below the age of eighteen years unless … majority is attained earlier’. This is confirmed by the Organisation of African Unity (OAU) African Charter on the Rights and Welfare of the Child 11 July 1990 (the African Charter on the Rights and Welfare of the Child) and it is in line with the premises within the preamble of the CRC to safeguard and provide appropriate legal protection for children before and after birth.
Personhood, child registration and adoption are matters at the heart of the welfare of a child. Conviction around the principle of the best interests of the child is weighed against practice and application of the three. The aim of this article is to explore whether the best interests of the child are reflected and also whether there is any discrimination and/or expression of the child’s rights in these three instances. Appreciation and recognition of a child as a human being with rights determines the distance to which the law will stretch to protect the child. The registration of a child at birth regulates the security of the child’s future and the alternative of adoption permits children who would otherwise not have the opportunity to flourish in a safe and loving environment.
The African Charter on the Rights and Welfare of the Child art 3 advocates for non-discrimination against children on the basis of parentage, language, birth, nationality and social origin. Article 4 calls for the best interests of the child to be the paramount consideration to the point of allowing the child to find expression directly or through a representative. Mhlantla J in Nandutu and Others v Minister of Home Affairs and Others 2019 (5) SA 325 (CC) held that although s 28(2) of the Constitution provides that a child’s best interests are paramount, jurisprudence provides that the rights of the child do not supersede other rights as rights can be limited. However, the point of the child’s best interest principle is to ensure that in the application of s 36 limitation clause the interests of the child are not just considered but prioritised.
Personhood is highly debated in philosophy, religion and culture. Legal perspective provides that to become a legal subject and as such a bearer of rights and responsibilities (CJ Davel and RA Jordaan Law of Persons 4ed (Cape Town: Juta 2005) at p 3) one must first be born because legal subjectivity begins at birth (A Skelton and K Hannaretha (eds) The Law of Persons in South Africa 2 ed (Oxford University Press, 2018)).. Every human being in SA is recognised, but not every human being has legal capacity. The child’s best interests principle essentially applies where persons with legal capacity exercise choice to pursue the best interests of the unborn child. The unborn child only exists in law as far as an individual with legal capacity is willing to give them legal recognition and ordinarily that would be the expectant mother. A legal limitation exists in respect of the unborn child’s rights in that the unborn child’s rights begin and end with the parents’ rights. The Choice on Termination of Pregnancy Act 92 of 1996 as amended does not consider or speak of adoption as an alternative or in the best interests of the child. Perhaps this is justifiable as the legislation enables and or empowers the right to choice. It cannot be ignored that choice in this instance is one sided in favour of those with legal capacity only even where there is no risk to life in continuing with the pregnancy.
The Births and Deaths Registration Amendment Act 18 of 2010 and the South African Citizenship Amendment Act 17 of 2010 have been amended so that it permits only children who can prove citizenship by immediate origin registration and acknowledgement as a South African citizen. A child cannot acquire citizenship in SA by birth alone and certainly not based on either parents’ permanent residency status. In terms of s 2(3) of the South African Citizenship Act 88 of 1995 the child of a permanent resident may qualify as South African by birth if they live within the country from the date of birth to the date on which they become majors and if their birth is registered in accordance with the Births and Deaths Registration Act 51 of 1992. Citizenship by birth is denied and not guaranteed until they reach the age of majority. These children and their parents endure a long process that involves a series of applications, financial cost and administration before being acknowledged as South African. This process compelled by law creates secondary citizens born and bred in SA but not belonging. In spite of art 6(2) and (3) of the African Charter on the Rights and Welfare of the Child, which provides that every child shall be registered immediately after birth and every child has the right to acquire nationality. The discrimination of children who are South African by birth alone prevents the fulfilment of art 6(2) and (3).
Daily Dispatch (an East London newspaper) reported on the deportation of 90 children in April (S Maliti ‘90 children, from age 5, face deportation’ DispatchLive 2 April 2019). These children were reported to be from Lesotho and were said to be undocumented. Looking at the changes in law and practice where birth no longer grants citizenship, the question is whether removing minors from the protective umbrella of the child’s best interests is justified by the government goal being pursued. The Constitution clearly stipulates under the Bill of Rights that no citizen may be deprived of citizenship. It does not discriminate a citizen by birth from a citizen by descent nor prefer the latter from the former. Promoting, protecting and applying the best interest of the child without a doubt calls for the law to fall in line with the spirit and purport of the Constitution in respect of children and citizenship.
Nthakoana Ngatane reported for Eye Witness News in April 2019 that the Minister of the Department of Education, Angie Motshekga, issued a directive that schools should not send away migrant learners without documents (N Ngatane ‘Motshekga: Schools shouldn’t turn away migrant learners without proper documents’ EWN 9 April 2019). It was noted in the same report that it was not only migrant children that were undocumented, but also native South African children. In view of this, how is it that children born in SA are entitled to education but not entitled to recognition as a South African citizen by way of birth? Is there any rational in compelling these children to register citizenship with the country of parental origin and later to apply for residency and subsequently citizenship in the country of their birth to an overwhelmed Home Affairs Office? It would be in the best interests of the child to acknowledge and register children born and descendant in SA alike as opposed to segregating South Africans by birth from South Africans by descent. Parental descent cannot be used to discriminate citizenship by birth because parents may have South African roots.
Adoption is a progressive route for providing stable families for children who would otherwise be deprived. It is an option where the rights to equality, dignity and life of parties concerned are preserved without discriminating based on legal capacity. More importantly adoption is in the best interests of the displaced child who more often than not has no real legal voice of their own to express themselves. The Children’s Amendment Bill 2019 proposes changes to the Children’s Act in respect of adoptions. The proposed changes would result in no fees being paid and a restriction on professionals that can provide services in facilitating the adoption processes. Excluding the private sector in adoptions, is likely to slow the process, increase the chances of children being placed in impermanent homes and ultimately not finding stable homes. It is not in the best interest of children to assume all displaced children will be reunited with their families. Diligence is in preparing for the worst outcome and assisting the process of adoption to continue existing more efficiently.
Article 3 of the CRC requires that private social welfare, courts and legislative bodies consider the best interests of the child as paramount. This is not the case where the unborn child’s rights are dependent on the rights the mother wishes to invoke, it is not the case where citizenship by birth is inferior to citizenship by so called parental origin and it certainly is not the case where the process of adoption in SA is limited to the government. In some instances, South African children who cannot be reunited with their families are also unregistered because they cannot prove that they are South African by descent and so are destined to be in limbo. Limiting the adoption process to government also goes against art 4 of the African Charter on the Rights and Welfare of the Child, which requires all appropriate legislative and administrative measures to be taken to the maximum extent for the child’s best interests.
Article 8 of the CRC requires that a child’s identity including nationality and family relations are preserved. A child born in SA is compelled to register as a citizen of another country if they have no immediate parent to claim descent from. Apart from descent being a loose term that could easily refer to birth and origin by virtue of a different generation, it has been argued that this allows the child to follow the citizenship of the parent. However, the place of birth, ordinary residence and in some cases the status of the parent as a permanent resident indicate that naturalisation is the goal. In the Nandutu case Mhlantla J held that compelling spouses and children to separate from their immediate families on grounds of applications for a change of status or conditions attached to a temporary visa created an onerous burden on families that directly encroached on their right to dignity. Surely compelling families to register children as citizens of other countries and give up or hold in abeyance citizenship to SA by birth till the age of majority also creates an onerous burden directly encroaching on the right to dignity.
Article 9 of the CRC requires that state parties ensure children are not separated from their parents against their will. This touches on the deportation of children by the Department of Home Affairs on grounds that they are undocumented a result created by mandates from Home Affairs disregarding citizenship by birth. The African Charter on the Rights and Welfare of the Child provides that the promotion and welfare of the child’s rights implies performance of duties on the part of everyone.
It is apparent that the best interests of the child are lacking in gestation, at birth and childhood. It is understood that no right is absolute, but the problem is children are discriminated against in favour of subjective rights without fully securing and exploring alternative measures.
Nokuthula Ndlovu LLB MA (Human Rights) Fort Hare is a non-practising legal practitioner and Disciplinary Coordinator at the University of Fort Hare in East London.
This article was first published in De Rebus in 2020 (Jan/Feb) DR 14.
