ConCourt decision on Children's Act awaited

The Constitutional Court is expected to rule on Wednesday on the validity of the North Gauteng High Court’s declaration that some sections of the Children’s Act are unconstitutional.

The court heard arguments in August 2011 on the confirmation of an order of constitutional invalidity by the high court.

The high court declared sections 151 and 152 of the Children’s Act 38 of 2005 unconstitutional to the extent that they failed to provide for a child who had been removed from parental care and placed in temporary safe care to be brought before the Children’s Court for a review of the removal.

In terms of section 172(2)(a) of the Constitution, an order of constitutional invalidity by a high court has no force unless it is confirmed by the Constitutional Court.

The case arose from an August 2010 raid in which children were removed from people who were found begging and were placed in temporary safe care.

This was done without a court order by Gauteng health and social development department social workers and City of Tshwane officials.

The children’s parents approached the high court for an order restoring them to their care, which was granted. The order also declared sections 151 and 152 of the Children’s Act constitutionally invalid as they did not provide for a child to be brought before the Children’s Court for a review of the removal and placement in temporary safe care.

The court held that this constituted an infringement of the right of the child to family care or parental care.—Sapa