The whole Children’s Act 38 of 2010 (as amended by Act 41 of 2007) came into operation on 1 April 2010. The regulations (and forms) also came into operation on the same day.
Amendments to the Children's Act
The reason for two bills relates to the Constitution’s prescribed processes for passing legislation. When the national Parliament deals with a bill that will be implemented by national government departments, the National Assembly and the National Council of Provinces are the only bodies that deal with the bill. However, when a bill deals with matters that the provinces must implement, then the provincial legislatures have a right to participate in the process of developing the legislation alongside the national bodies.
The Children's Act contains competencies that must be implemented by both national and provincial departments; therefore the amendment bill – just like the original Act – was split into two parts. Although they will be processed separately, the two amendment bills should be read together.
The summaries of the bills were published in the Government Gazette in April 2015, and the bills were officially tabled in May 2015. The Portfolio Committee on Social Development will start work on the bills sometime after the parliamentary recess (ends 22 July 2015); however, they could call for public comments at any time.
Controversially, the Children’s Amendment Bill seeks to change the definition of a child in need of care and protection so that it includes any child who has been orphaned or abandoned who “does not ostensibly have the ability to support himself or herself”. The new phrasing aims to clarify that relatives caring for orphaned and abandoned children can become foster parents. Other amendments include:
- A mandatory requirement to conduct a judicial review of emergency removals.
- An expanded definition of persons unsuitable to work with children.
- Stopping the automatic inclusion of child offenders names on the National Child Protection Register.
- Changes to the adoption provisions.
- New definitions to ensure that young people can stay in alternative care until they complete any form of education.
- Powers for provincial Heads of Social Development to transfer children between different forms of alternative care.
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Read about the history of the Childen's Bill law-making process.