n South African Journal on Human Rights - Intrusive care and protection assessments : when should children have a right to say 'no'?




In care and protection cases state representatives frequently require children to undergo physical, psychological or other examination. The purpose is usually to assess likelihood of future harm from causes such as abuse or neglect. Such assessments may derive useful evidence, and this may be particularly valuable where children's court litigation is envisaged. However, from a children's rights perspective there are some difficulties that have not been sufficiently addressed in South Africa. Children may in some cases experience assessment processes as highly demeaning and invasive forms of secondary systemic abuse. The international evidence also shows that inadequate or inappropriate forms of assessment are often utilised. Particularly where children are without proper legal representation, incorrect assessments may carry undue weight in court. We show that current South African legislation in the form of the Children's Act 38 of 2005 and regulations falls far short of what is required when measured against a children's rights standard. We recommend amendments that will support children's ability to participate meaningfully in decision-making about care and protection assessments.


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