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Article by listed attorney: Fawzia Khan

The rights of minor children in South Africa and the laws created to ensure the promotion and protection of those rights remains one of the hallmarks of our  democracy. Due to their lack of maturity and consequent vulnerability, minor children will always remain in need of such protection. Parents have the responsibility of ensuring that their children are provided with shelter, food, clothing, education, financial support and so on and much of those rights of children can be found in the Maintenance Act. Of all the legislation involving children’s rights, the Children’s Act and the Constitution Act of South Africa Act are the most notable.

The High Court of South Africa is the upper guardian of all minor children, and when circumstances necessitate, even superseding the rights of the biological parents or legal guardians. This means that if a parent places a child in danger or causes some harm or neglects a child, the High Court can, as the upper guardian, step in and deprive the defaulting guardian or parent/s of their rights Both parents and children have rights and responsibilities towards each other. Every child has the right not to be physically, sexually or emotionally abused or neglected.

Explaining those rights and responsibilities to the children themselves so that they understand can be tricky. The Department of Social Development South Africa, in conjunction with Unicef, [Unite for Children], has produced a useful booklet aimed at 11-15 year olds, in which leading South African law academics have set about explaining the Children’s Act to children themselves. The foreword in the booklet says that in explaining the Children’s Act to a child “the age, the gender and the background of the child and whether the child has any disability, illness or any special needs” are issues which must be considered with care, but “if a child is in need and faces the possible threat of physical or emotional harm then the child needs to be helped quickly, without exposing the child to any more harm”. The concepts of the ‘best interests of a child’ and ‘due consideration given to the child’, are also explained. A child has the right to voice his opinion in matters involving him. This issue usually comes into play during a divorce when primary residency of the children is to be decided. Many other aspects affecting children are also covered. These include the rights of unwed biological mothers and fathers, adoption and parental rights and responsibilities.

The Children’s Act is divided into various chapters. Each chapter is explained in such a way that it makes it easy for a child of that age group to read and comprehend it. The booklet is also recommended for the older child and adults as well and can be found the webpage

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