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Ratification of the United Nations Convention on the Rights of the Child: Some Implications for South African Law
... During the second half of the twentieth century, the international community recognised that the human rights of children were not adequately defined and protected in existing human rights instruments (Sloth-Nielsen, 1995). Therefore, in recognition of the 20th anniversary of adopting the 1959 Declaration on the Rights of the Child, the United Nations proclaimed that 1979 would be the International Year of the Child. ...
... Moreover, it is the first international cooperative step in recognising children's rights. In 1990, the Convention was adopted and is today a significant and legally binding instrument (Sloth-Nielsen, 1995). The Convention is "the most widely ratified international human rights treaty" (Sloth-Nielsen, 2019: 34), and all United Nations member states, save for the United States of America, have ratified it (Akhtar & Nyamutata, 2020). ...
... This text, discussed in 1981, was ultimately adopted with reservations (Freeman, 2007). The text was not discussed until 1988 when it was proposed to replace the word "the" with "a" in qualifying the words "primary consideration" (Sloth-Nielsen, 1995). This proposal was ultimately rejected. ...
When Australia ratified the United Nations Convention on the Rights of the Child (the Convention) in 1990, all children within its borders became entitled to the protection of the rights set out in the Convention. Children, thus, became rights holders. More than just human rights holders, they became children's rights holders . The Convention is the first international instrument to address the protection of children from violence directly. Corporal punishment (CP) is increasingly recognised internationally as physical abuse and a violation of children's rights. However, CP in the home is still legal in all Australian jurisdictions even though it violates several of the rights protected by the Convention. This contribution will examine Articles 2, 3(1), 5, 16, 19(1), 24(3) and 37(a) of the Convention to outline how parental CP undermines the legally binding obligations of the Convention by violating the rights espoused by these provisions. This article then calls for CP to be outlawed by all state and territory governments to adhere to the aim of the Convention that because of children's unique vulnerabilities, all their rights need to be protected, respected and promoted by those who ratified the Convention.
... This process imposes a duty on the Sate Parties to apply the provisions of the UNCRC and protect rights of children as a guardian within their jurisdictions. This will give special protection to children as vulnerable group of society (Sloth-Nielsen, 1995). Article 34 and Article 19 of UNCRC provides children protection from sexual abuse and exploitation. ...
... The Committee takes a detailed review of all the national laws and provides guidance to the member States to assure full compliance with the UNCRC (J. Sloth-Nielsen, 1995). The UNCRC is the outcome of international commitments to safeguard human rights. ...
The United Nations Convention on the Rights of the Child
(UNCRC) is a universally ratified document which specifically
protects children’s rights. The Convention requires from State
Parties to ensure children’s rights and to adopt measures to
transform its laws through legislation in accordance with the
standards set by UNCRC. This paper will discuss the status of the
UNCRC in Pakistan and India to highlight their commitment to
give effect to the UNCRC in their domestic laws to protect children
from sexual abuse. This paper consists of three parts. Part one will
discuss the background, provisions of the UNCRC addressing
protection of children from sexual abuse and implementation of
the UNCRC in Pakistan and India. The second part of the paper
will examine the domestic legal framework in Pakistan in the light
of the UNCRC including constitutional provisions and relevant
statutes protecting children from sexual abuse. Part three of the
paper will discuss the application of the Convention in the
domestic legislative framework addressing Child sexual abuse in
India. The study of the periodical reports submitted to the UNCRC
Committee and the concluding observations of the Committee will
help to examine the application of the UNCRC to protect children
from sexual abuse in Pakistan and India. The conclusion
summarizes the main findings.
... The altered parental expectations and the need to adapt to caring for a child with SID impact the ability to parent. While the inherent value and rights of children with SIDs remain equal to those of other children, including the right to grow up in inclusive, protective family environments, [2] roviding nurturing homes for children with SIDs is not always attainable. Families are burdened with unprecedented challenges, which may include access to quality education, financial constraints, and a lack of access to health facilities [1]. ...
Background: This study investigates the risk factors faced by parents of children with Severe Intellectual Disabilities. Methods: This study used a phenomenological research design within a qualitative research approach. Six parents of children diagnosed with Severe Intellectual Disability at Learners with Special Educational Needs schools were purposively selected to participate in this study. Data were collected through semi-structured interviews and a focus group. Thematic data analysis was used to analyze data. Results: The findings of this study revealed that parents of children with Severe Intellectual Disabilities faced risks that exacerbated negative outcomes. Psychological distress, social exclusion and isolation, financial burdens, and lack of access to formal education were risk factors that hindered their ability to care for and support their children. Conclusions: Based on these findings, the study concluded that parents need access to multidisciplinary teams of healthcare professionals to support them in combatting the risk factors they face.
... As such, these four elements, which are referred to as a collection of rights, which when taken together constitute rights to, in, and through education as detailed in the Convention on the Rights of the Child ([CRC]; Verhellen, 1993). The CRC, which is hailed as the turning point in the history of children, contains the most comprehensive international statement of rights to and in education (Lundy, 2015;Sloth-Nielsen, 1995). Moreover, it is the most ratified human rights instrument with foundational principles that underpin other human rights concerning children. ...
The right to basic education of a child is a requirement of human dignity. South Africa, through its new dispensation and conformity with human rights laws, is expected to transform and be consistent with the provision of the Constitution of 1996 that promotes and protects the best interest of the child. However, the current standards in a majority of South African schools, particularly in impoverished provinces, has clearly demonstrated the urgent need for rapid fundamental changes. This article provides a review of the constitutional right to basic education with reference to the welfare of the learners in South African schools and raises questions as to whether South Africa is out-of-depth in upholding its constitutional obligation with respect to the right to basic education in the eradication of pit latrines in schools. It argues that the lack of adequate resources in the provisioning of sanitation undermines many of the fundamental rights that are entrenched in the Constitution 1996. An overview of the international conventions and human rights treaties to which South Africa is a signatory is given, showing the country’s commitment to protecting and improving the status and welfare of the children. Furthermore, the second section intersects the right to basic education with the best interest of the child as envisaged in South Africa’s legal framework. The final section details how despite legislation in place, the existence of pit latrines in schools violates the right to life, health, and dignity of its learners, particularly the right to basic education. Key words: children, education, human rights and dignity, pit latrines, schools Le droit de l’enfant à l'éducation de base est une exigence de la dignité humaine. L'Afrique du Sud, à travers sa nouvelle dispensation et sa conformité avec les lois sur les droits de l'homme, est censée se transformer et être cohérente avec la disposition de la Constitution de 1996 qui promeut et protège l'intérêt supérieur de l'enfant. Cependant, les normes actuelles dans une majorité d'écoles sud-africaines, en particulier dans les provinces pauvres, ont clairement démontré le besoin urgent de changements fondamentaux rapides. Cet article passe en revue le droit constitutionnel à l'éducation de base en se référant au bien-être des apprenants dans les écoles sud-africaines et soulève la question de savoir si l'Afrique du Sud perd pied quant à son obligation constitutionnelle en ce qui concerne le droit à l'éducation de base dans l'éradication des latrines à fosse dans les écoles. Il affirme que le manque de ressources adéquates pour la fourniture de services d'assainissement porte atteinte à de nombreux droits fondamentaux inscrits dans la Constitution de 1996. On présente un aperçu des conventions internationales et des traités relatifs aux droits de l'homme dont l'Afrique du Sud est signataire, montrant l'engagement du pays à protéger et à améliorer le statut et le bien-être des enfants. En outre, la deuxième section met en relation le droit à l'éducation de base avec l'intérêt supérieur de l'enfant tel qu'il est envisagé dans le cadre juridique sud-africain. La dernière section détaille comment, malgré la législation en place, l'existence de latrines à fosse dans les écoles viole le droit à la vie, à la santé et à la dignité de ses apprenants, en particulier le droit à l'éducation de base. Mots clés: enfants, éducation, droits de l'homme et dignité, latrines à fosse, écoles
... This process imposes a duty on the member States to apply the provisions of the UNCRC and protect rights of children as a guardian within their jurisdictions. This will give special protection to children as vulnerable group of society (Sloth-Nielsen, 1995). Article 28 of the UNCRC imposes a duty on the member States to make primary education compulsory and free to all children while Article 29 (1) provides guidelines and principles for the development of child through education. ...
Children are most important asset of a nation. The growth anddevelopment of a society always depends upon its children. Child sexualabuse (CSA) is becoming devastatingly prominent in schools. CSA iswide spread but largely unrecognized problem in many countries,especially in developing countries. Sexual predators choose employmentin sectors that give them access to children. They choose younger victimsbecause they are not mature witnesses, this fact saves them inprosecution proceedings. These facts make primary schools ideal targetsfor pedophiles. This paper discussed the provisions in the United NationsConvention on the Rights of the Child relating to the right of educationand protection of children from sexual abuse. It also examined thepolicies and laws in Pakistan including constitutional provisions andrelevant statutes protecting children from sexual abuse in early years’education and analysed gaps in the present legislative and policyframework. The conclusion and recommendations were provided on thebasis of consulted documents.
... Section 21 of the UNCRC requires that only competent authorities manage the adoption of a child and that the decisions about the adoptability of a child are made in line with relevant laws and procedures, using all pertinent and reliable information(Louw, 2017;Sloth- Nielsen, 1995). The African Charter on the Rights of theChild (1990) requires that where adoption is recognized, it is carried out in line with relevant laws and procedures and that signatories establish ways to monitor the well-being of the adopted child(Department of Social Development, 2010a; Louw, 2017).Chapter 15 of The Children's Act 38 of 2005 (The Children's Act, 2005) deals with national adoption and mandates the Department of Social Development to manage adoptions with the assistance of the Department of Justice and Constitutional Development. ...
Transracial adoption was legalized in South Africa through legislative reform as South Africa moved into a post‐apartheid era of non‐racialism. Transracial adoption offers one option of placement for Black children in need of alternative care. However, adoption continues to face obstacles to implementation, including cultural obstacles which impact on placement of Black African children. This paper reports on adoption statistics on national adoption in the period 2013–2021 and a documentary analysis of the current legal and policy framework governing transracial adoption. We cover international instruments, local laws, including the Children's Act of 2005, and relevant policy documents designed to facilitate the implementation of adoption. We show that the law is supportive of transracial adoption, but that policy documents offer a somewhat contradictory stance to the practice. The lack of success of transracial adoption as a child protection strategy does not lie within the legal framework but may lie in the difficulties in interpreting and implementing the range of different policies by those implementing these policies. More research into the implementation practice of these bureaucrats is required to understand the underutilization of transracial adoption as a placement option for Black children in South Africa.
... This process imposes a duty on the member States to apply the provisions of the UNCRC and protect rights of children as a guardian within their jurisdictions. This will give special protection to children as vulnerable group of society (Sloth-Nielsen, 1995). Article 28 of the UNCRC imposes a duty on the member States to make primary education compulsory and free to all children while Article 29 (1) provides guidelines and principles for the development of child through education. ...
Children are most important asset of a nation. The growth and development of a society always depends upon its children. Child sexual abuse (CSA) is becoming devastatingly prominent in schools. CSA is wide spread but largely unrecognized problem in many countries, especially in developing countries. Sexual predators choose employment in sectors that give them access to children. They choose younger victims because they are not mature witnesses, this fact saves them in prosecution proceedings. These facts make primary schools ideal targets for pedophiles. This paper discussed the provisions in the United Nations Convention on the Rights of the Child relating to the right of education and protection of children from sexual abuse. It also examined the policies and laws in Pakistan including constitutional provisions and relevant statutes protecting children from sexual abuse in early years’ education and analysed gaps in the present legislative and policy framework. The conclusion and recommendations were provided on the basis of consulted documents.
Climate change poses severe threats to the enjoyment of a wide array of human rights, such as the right to health, survival and development including, in extreme cases, the enjoyment of life itself. Due to their specific physiology, children are highly vulnerable to the impacts of climate change; even more so than adults. Though climate change affects children more than adults, their inclusion in climate action policy and decision-making at local, national and international levels has been limited. Notwithstanding, children have a right to be heard on actions that affect them. States are the primary duty bearers of children's rights and are obliged not only to protect children from current and foreseeable adverse effects due to climate change, but also to ensure that children can exercise their participatory rights meaningfully. Considering this important duty and the global trend by children, including South African children, towards claiming their environmental participation rights, this contribution sets out to explore whether the South African legislative framework provides for children to participate meaningfully and effectively in climate change action. The South African legislative framework is assessed against the backdrop of international documents affording children participatory rights to determine South Africa's compliance with international and regional standards.
Children are human beings below the age of 18 years. They are distinctive and privileged since they are a vulnerable group of human beings. Children have human rights such as the right to education, health and a standard of living. These rights have to be respected and protected. As per the Triple Prong Theory of Protect, Promote and Fulfil, it is the responsibility of the state to ensure that its citizens enjoy their human rights. The ideas that animated children’s right movement developed after the Second World War and the atrocities of The Holocaust. Children are often victims of bad treatment, negative social and cultural practices, sexual abuse and all forms of economic hazardous exploitation. This research exposes child labour as a major infringement of child rights that needs to be eliminated. Children engage in this activity out of desperation or are forced. Although they are coming from poor families, some of them have to work. Others are trafficked and forced to work in plantations while others are in commercial sexual exploitation. It therefore becomes necessary to investigate on activities violating children’s rights and possible mechanisms. This paper makes use of an in-depth analysis of International legal instruments protecting children’s rights at the international level. These international legal instruments are ratified and applied with other national instruments protecting children’s rights, yet, these rights are still violated. It is recommended that measures should be taken to intensify the fight against child labour in the area of education. Cameroon has a good legal framework for the protection of children’s rights. However, child labour which is manifested in its various forms only suggests that more is expected from the government in protecting children’s rights.
The Children's Act 38 of 2005 provides that children over the age of 12 years can consent to their own medical treatment or that of their children, provided they are of sufficient maturity and have the mental capacity to understand the benefits, risks, social and other implications of the treatment (section 129(2)). The predecessor of the Children's Act set the age at which children could consent to medical treatment at 14 years, and no maturity assessment was required (Child Care Act 74 of 1983 section 39(4)). Children over the age of 12 years can consent to the performance of surgical operations on themselves or their children, provided that they have the level of maturity described above and they are duly assisted by their parents or guardians (Children's Act section 129(3)). Before the Children's Act came into operation, the Child Care Act allowed children over the age of 18 to consent to their own operations (section 39(4)). Neither a maturity assessment nor parental assistance was required. (Note that when the Child Care Act was in operation the majority age was still 21 years.) In this article the question is considered if the relaxation of the limitations on children's capacity to consent to medical treatment and surgical operations in the Children's Act recognises the right of children to make independent decisions without the assistance of their parents or guardians or other substitute decision-makers. Firstly the article investigates the theoretical foundations of the protection of children's rights, particularly their autonomy rights. Secondly the meaning of the concept "competence" in medical decision-making and the related concept of "informed consent" are discussed. Thirdly some developmental and neuroscientific research on children's decision-making capacities and how they influence children's competence to give consent valid in law are highlighted. Fourthly possible legal foundations for the protection of children's right to self-determination in medical decision-making are sought in the Constitution and international and regional human rights treaties. Finally the relevant provisions of the Children's Act are examined in order to ascertain whether children's right to self-determination is sufficiently protected in South African law.
This chapter offers critical analysis on the normative basis for articulating children’s environment-related rights as well as the key pathways to expanding the core content and scope for such rights. Recognizing that a healthy environment is a prerequisite to the enjoyment of all rights, it is crucial to focus attention on the environmental dimensions of children’s rights so that the role that children’s rights frameworks can play in managing environmental quality is strengthened. The Convention on the Rights of the Child offers an excellent normative basis for reinforcing our understanding and approaches to children’s environment-related rights because it already contains provisions that make explicit reference to the environment and many others that have strong environmental dimensions. Beyond these normative prescriptions, it is critical to engage with the Convention’s monitoring and enforcement mechanisms, particularly those presided over by the Committee on the Rights of the Child, with a view towards achieving a more systematic and coherent treatment of the environmental dimensions of certain children’s rights. Such an approach, it is argued, will likely result in better articulation of the relationship between children’s rights and the environment and could form the basis for the definition of a children’s right to a healthy environment at international law.
The Child Justice Act 75 of 2008 establishes a criminal justice system for child accused, separate from the criminal justice system which continues to apply for adult accused in South Africa. The Act aims to keep children out of detention and away from the formal criminal justice system, mainly through diversion. When these interventions would be inadequate or unsuccessful, the Act provides for child offenders to the tried and sentenced in child justice courts. Until now there has been little discussion of the details of the provisions dealing with sentencing. Sentencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter. This section effectively amounts to the “jurisdictional” provision of the new child sentencing system: it not only mandates child justice courts to impose their sentences in terms of the Act, but also provides the first set of boundaries (or the first part of the framework) within which sentencing should take place. Despite its brevity, section 68 is not without interpretative challenges. Of course, it has to be interpreted within the context of the entire Act. Explaining this context is the first function of this article. The various aspects of section 68 are further critically explored and discussed.
In a recent ground-breaking case the South African courts were for the first time requested to use their discretion to interfere in the parent-child relationship due to the traditional socio-cultural beliefs of the parents. In what has been described as "every parent's nightmare; the fancy of many teenagers", a 16 year-old schoolgirl from Milerton in the Western Cape asked to be "freed" from her parents to live semi-independently from them because of her unhappiness with the conservative manner in which her parents treated her. After considering the matter the judge assigned to the case granted her request to live semi-independently with a school friend and her family (called by the judge the host family) until she reaches the age of 18 (her majority). Her parents were accorded permission to have limited contact with her. This case represents an example of the difficulties involved when balancing the rights of a teenager against those of the parents in matters of socio-cultural practice and belief. In a multi-cultural society such as South Africa the case raises numerous serious questions for other families. For instance, what standards will a court use to determine if parents are too conservative in bringing up their children and what factors will be taken into account? How much freedom and autonomy should children be given? How will courts prevent children from misusing the system just to get what their friends have, and - the ultimate question - are the rights of children superior to the traditional rights of parents in matters of socio-cultural practice, with specific reference to their upbringing? In this context it is the aim of this contribution to focus primarily on the questions asked above. Possible solutions for striking a balance between the rights of children and their parents are explored. The submission is made that the best interests principle is still the most important factor to be taken into account when balancing or weighing competing rights and interests concerning children. The principle of the best interests of the child, the founding principle of children's rights, however, is anchored in the family, and any break between the two should be carefully considered. It is concluded that in an attempt to resolve disputes between parents and their children the relevant provisions of the Constitution and the Children's Act must be considered and must be balanced and tested in relation to each other for constitutional consistency and compliance. It is also submitted that caution should be taken by the legislative framework not to encourage children to break the parent-child relationship on a mere whim, as an overemphasis of children's rights might result in the dilution of the sense of the value of the family in society.
Step-parent adoption happens where a child is adopted by the spouse or civil union partner of a biological parent. This is a drastic invasion into the life of a child because (except if provided for otherwise) an adoption order terminates all parental responsibilities and rights any person had in respect of a child immediately before the adoption, and confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent. Under specific circumstances an adoption order may also be rescinded, again disrupting the life of the child dramatically. Because of the immense impact on a child, rescission of an adoption order has to be handled with kid gloves.In Turner v Turner two children had been legally adopted by their step-father while the Child Care Act was in operation. After the implementation of the Children’s Act, however, he applied for these adoption orders to be rescinded. The court was faced with a situation where the application had been brought in contravention of the maximum two-year-period as prescribed by the Children’s Act. Although it was argued that non-compliance with this statutory requirement prevented the court from adjudicating this matter, Mokgoatlheng J focused on the best interests of the child, considered the legality of the adoption orders (why?), and ultimately concluded that the supremacy of the best interests of the child meant that he was not precluded from hearing the application. In the end he ordered rescission of the adoption orders. The judgment cannot be supported.
On December 16, 2010, the Grand Chamber of the European Court of Human Rights (“ECtHR”) in A, B & C v. Ireland (“ABC”) found that it was not for the Court to decide on the validity of Ireland‟s legislation which prohibited abortions except in instances where the pregnant woman‟s life is threatened. According to ABC, the „margin of appreciation‟ allows the Court to not take a specific view on matters related to the termination of the unborn. As expected, the ABC ruling received criticism from supporters of a more unlimited choice, allowing for pregnant women to decide to have an abortion. This article is an appraisement of ABC‟s „broad‟ application of the „margin of appreciation,‟ and specifically argues that, against the background of differences and complexities related to the status of the unborn, the ECtHR needs to follow a strictly cautionary approach. In this also lies an argument that regional human rights courts should take a cautionary
approach when dealing with morally inclined human rights matters in general.
International human rights instruments and jurisprudence radiate an understanding of international law as also serving to protect fundamental rights and the interests of the individual. The idea that human rights provide a credible framework for constructing common norms among nations and across cultures is both powerful and attractive. If the protection of being human serves as the common denominator in human rights discussion, and if human rights are deeply inclusive, despite being culturally and historically diverse, then a failure to deliberate on the legal status and protection of the unborn may be seen as a failure to extend respect where it is due. Such deliberation is required, irrespective of the fact that jurisprudential debate on the unborn and on abortion is complex and controversial. The protection of human life, well-being, and dignity are essential aims of the United Nations Charter and the international system created to implement it. Although there have been collective efforts resulting in substantial development in international human rights law, the international community has not approached the legal status and protection of the unborn as a matter of urgency – this, while much has been accomplished regarding women, children, animals and cloning. This article therefore argues for the development of a deliberative framework so as to further the recognition (not necessarily in an absolute sense) of the unborn in international law, bearing in mind that opposition to abortion does not of itself constitute an attack on a woman's right to respect for privacy in her life. The article also sets out what such deliberation on the legal status and protection of the unborn entails, against the background of a procedurally-rational approach.
In a recent ground-breaking case the South African courts were for the first time requested to use their discretion to interfere in the parent-child relationship due to the traditional socio-cultural beliefs of the parents. In what has been described as "every parent's nightmare; the fancy of many teenagers", a 16 year-old schoolgirl from Milerton in the Western Cape asked to be "freed" from her parents to live semi-independently from them because of her unhappiness with the conservative manner in which her parents treated her. After considering the matter the judge assigned to the case granted her request to live semi-independently with a school friend and her family (called by the judge the host family) until she reaches the age of 18 (her majority). Her parents were accorded permission to have limited contact with her. This case represents an example of the difficulties involved when balancing the rights of a teenager against those of the parents in matters of socio-cultural practice and belief. In a multi-cultural society such as South Africa the case raises numerous serious questions for other families. For instance, what standards will a court use to determine if parents are too conservative in bringing up their children and what factors will be taken into account? How much freedom and autonomy should children be given? How will courts prevent children from misusing the system just to get what their friends have, and - the ultimate question - are the rights of children superior to the traditional rights of parents in matters of socio-cultural practice, with specific reference to their upbringing?In this context it is the aim of this contribution to focus primarily on the questions asked above. Possible solutions for striking a balance between the rights of children and their parents are explored. The submission is made that the best interests principle is still the most important factor to be taken into account when balancing or weighing competing rights and interests concerning children. The principle of the best interests of the child, the founding principle of children's rights, however, is anchored in the family, and any break between the two should be carefully considered. It is concluded that in an attempt to resolve disputes between parents and their children the relevant provisions of the Constitution and the Children's Act must be considered and must be balanced and tested in relation to each other for constitutional consistency and compliance. It is also submitted that caution should be taken by the legislative framework not to encourage children to break the parent-child relationship on a mere whim, as an overemphasis of children's rights might result in the dilution of the sense of the value of the family in society.
The Child Justice Act 75 of 2008 establishes a criminal justice system for child accused, separate from the criminal justice system which continues to apply for adult accused in South Africa. The Act aims to keep children out of detention and away from the formal criminal justice system, mainly through diversion. When these interventions would be inadequate or unsuccessful, the Act provides for child offenders to the tried and sentenced in child justice courts. Until now there has been little discussion of the details of the provisions dealing with sentencing. Sentencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter. This section effectively amounts to the "jurisdictional" provision of the new child sentencing system: it not only mandates child justice courts to impose their sentences in terms of the Act, but also provides the first set of boundaries (or the first part of the framework) within which sentencing should take place. Despite its brevity, section 68 is not without interpretative challenges. Of course, it has to be interpreted within the context of the entire Act. Explaining this context is the first function of this article. The various aspects of section 68 are further critically explored and discussed.
The article highlights the lack of resources for both the prevention of abuse and neglect and for the protection of children as a central issue of concern in South Africa, especially in the light of the devastating effect of the HIV/AIDS pandemic. The large number of maternal deaths in particular has led to the emergence of child-headed families. There are some indications that increasing amounts of time and effort to improving the plight of poverty-stricken children in South Africa but a worrying degree of fraud and corruption is still prevalent with inadequate resources reaching poverty-stricken children. The article considers the implications of the South African ratification of the United Nations Convention on the Rights of the Child (CRC), the South African constitutionalisation of children's rights, and South African case law on this point. Families which formerly could have absorbed children without parents into communal life are frequently no longer be relied upon to fulfil that function. The article discusses the present South African judicial maintenance system and the problems of the enforcement of maintenance claims. Constitutionally the South African state is under an obligation to provide the legal and administrative structure necessary to achieve the realisation of children's rights under the Constitution. New approaches towards child maintenance urgently required in South Africa, including the identification of a minimum core of the government's obligations and a policy on the treatment of child-headed households in line with the recommendations of the General Committee of the CRC. The Supreme Court of Appeal has adopted a generous interpretation to section 38 of the Constitution in order to give disadvantaged and poor people
International human rights instruments and jurisprudence radiate an understanding of international law as also serving to protect fundamental rights and the interests of the individual. The idea that human rights provide a credible framework for constructing common norms among nations and across cultures is both powerful and attractive. If the protection of being human serves as the common denominator in human rights discussion, and if human rights are deeply inclusive, despite being culturally and historically diverse, then a failure to deliberate on the legal status and protection of the unborn may be seen as a failure to extend respect where it is due. Such deliberation is required, irrespective of the fact that jurisprudential debate on the unborn and on abortion is complex and controversial. The protection of human life, well-being, and dignity are essential aims of the United Nations Charter and the international system created to implement it. Although there have been collective efforts resulting in substantial development in international human rights law, the international community has not approached the legal status and protection of the unborn as a matter of urgency – this, while much has been accomplished regarding women, children, animals and cloning. This article therefore argues for the development of a deliberative framework so as to further the recognition (not necessarily in an absolute sense) of the unborn in international law, bearing in mind that opposition to abortion does not of itself constitute an attack on a woman's right to respect for privacy in her life. The article also sets out what such deliberation on the legal status and protection of the unborn entails, against the background of a procedurally-rational approach.
Word processed copy. Thesis (D.Litt. et Phil.)--University of South Africa, 2006. Includes bibliographical references (leaves 169-182).
In South Africa the practice of virginity testing is most prevalent in KwaZulu-Natal amongst the Zulu and Xhosa. Proponents of the practice claim that some of the benefits include the prevention of the spread of HIV/Aids as well as teenage pregnancy and the detection of children who are sexually abused by adults, amongst others. In South Africa most black males undergo an initiation when they are approximately 16 years old to mark the transition from boyhood to manhood. Male circumcision is also performed as a religious practice amongst the Jews and Muslims.
A number of human rights groups in South Africa, including the Commission on Gender Equality (CGE) as well as the South African Human Rights Commission (SAHRC) has called for a total ban on the practice of virginity testing on the basis that it discriminates against girls, as the practice is carried out predominantly amongst teenage girls. The CGE and SAHRC are particularly concerned about the potential for human rights violations of virginity testing.
The problem with traditional male circumcisions in South Africa is the number of fatalities resulting from botched circumcisions and the spreading of sexually transmitted diseases through unhygienic procedures and unqualified surgeons. Also of concern are other hardships often accompanied by traditional circumcisions such as starvation, frostbite, gangrene and infection amongst other health related injuries. Thus, according to human rights activists, when carried out in these circumstances, traditional male circumcisions have the potential to violate a number of rights aimed at protecting boys including the right to physical integrity and life, in cases of the death of an initiate.
South Africa has also ratified a number of international treaties aimed at protecting children against harmful cultural practices such as the United Nations Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of the Child and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). As such it has been argued by rights groups that virginity testing as well as male circumcisions carried out in the conditions set out above have the potential to violate a number of provisions contained in international instruments aimed at protecting the dignity of children.
The new South African constitution commits the government to guarantee "basic health services" for every child under 18. Primary health care for pregnant women and children under six and elements of essential primary health care have received priority. At present, there is little analysis of the moral considerations involved in making choices about more advanced or costly health care which may, arguably, also be "basic". This paper illustrates some of the tensions in setting priorities for a just macro-allocation of children's health care, given the realities of need and scarce resources, and the commitment to equality of basic opportunities.
In declaring that children have rights, the United Nations may have been unaware that philosophers and jurists have differed
among themselves over the basis for conceiving that children may have rights. It is suggested in this paper that the problem
is compounded by the practice of framing policy towards children in the form of general duties to promote their welfare. It
is argued that legal relationships of this kind exclude the essential features of rights-based relationships. The paper offers
a theoretical basis on which assertions that children have rights may be grounded and an explanation of the social significance
of making such assertions. It closes by placing the United Nations Convention on the Rights of the Child within this framework.
Those who make decisions about children are increasingly required by law to act in the child's best interests. At the same
time, best interests standards are regarded as indeterminate, or worse. This article explores the indeterminacy argument and
then turns to ways in which, in practice, a degree of predictable operation may still result. It focuses on the role played
by localized conventions on values and understandings of the world.
This article provides a commentary on the United Nations Convention on the Rights of the Child 1989. It examines the substantive rights in the Convention, and its implementation system, in the context of international human rights law and practice. An assessment is made of the importance of the Convention from a series of perspectives and its potential effect. It is submitted that the Convention could, in time, be seen to represent an important milestone in the development of civilization in its recognition of the fundamental importance as a universal concept of the rights of the child.
Best Interest” in Terms of the UN Convention on the Rights of the Child’ in M Freeman and P Veerman (eds) The Ideologies of Children's Rights
- J Wolf
there is no measure in the Convention specifically permitting affirmative action, although the Convention clearly envisages special measures of protection being afforded children who have in the past been subjected to discrimination
- Notably
Children's Rights and Children's Lives’ in Alston et al op cit note 7
- O O ' Neill
This is but a brief synopsis of the fairly detailed provision on access to education and on the aims and content of that education. It is perhaps worthy of note that the Convention does not refer to pre-school education
- Ibid
The UN Convention and the Network of the International Human Rights Protection by the UN’ in M Freeman and P Veerman (eds) The Ideologies of Children's Rights
- H-J Heintze
The Rights of Children in International Law: Guidelines for South Africa’ 1993 (3) Stell LR 289
- B De
Children's Rights and the Law (1992) viii
- P Alston
- S Parker
- J Seymour
- Freeman M