n Stellenbosch Law Review = Stellenbosch Regstydskrif - Urgent care removals and access to children's courts : an analysis of the implications of

Volume 24, Issue 1
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



Children living in high risk domestic situations sometimes require urgent removals into interim alternative care. These are provided for in the Children's Act 38 of 2005 under the concept of temporary safe care placements. Internationally, it is known that emergency removal decision-making tends to require a complex balancing of countervailing considerations. Severe psychological harm results if children are suddenly and inappropriately removed from parents. Therefore, prompt and independent reviews of emergency removals are essential. Unfortunately, the drafters of the Children's Act failed to provide for such reviews. This led to the High Court finding certain sections of the Act unconstitutional and reading in additional wording requiring reviews by children's courts in 2011 3 All SA 625 (GNP). The High Court findings subsequently came before the Constitutional Court for evaluation in terms of section 167(5) of the Constitution of the Republic of South Africa, 1996. The latter court handed down three differing judgments. This article explains and critically analyses these judgments. We show that there are some important lessons for future applicants approaching courts to address legislative incompleteness. We also contend that, while most of the judges in the Constitutional Court supported the best interests of children by confirming a reading in of urgent removal reviews, the law governing such reviews remains incomplete. Without guidance on procedures or substantive aspects, persons undertaking removals are at risk of legal liability. Children's courts have been left in the dark and may resort to meaningless rubberstamping of removal decision-making. We provide some recommendations on how the law should now be further developed as a matter of urgency.

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