New law to end corporal punishment in South African homes

The Department of Social Development has published the draft Children’s Third Amendment Bill for public comment.

The bill, which will also be discussed at the National Child Care and Protection Forum from 18 – 20 July 2018, proposes a number of amendments to the Children’s Act including addressing inconsistencies within the Act, and introducing new definitions.

The bill is likely to have far reaching impact as it tackles a wide range of topics concerning parenting, children and home life in South Africa.

According to an attached explanation, the bill proposes:

  • To address inconsistencies within the Children’s Act;
  • To introduce new definitions;
  • To remove the common law defence of reasonable chastisement and thus prohibit corporal punishment in the home;
  • To regulate the position of unmarried fathers;
  • To extend the children’s court jurisdiction to hear applications for guardianship;
  • To clarify the conditional registration of partial care facilities;
  • To include different types of early childhood development (ECD) programmes, regulate funding of ECD programmes and other ECD-related amendments;
  • To address partnerships and funding frameworks for prevention and early intervention services;
  • To address the care of abandoned and orphaned children living with family (kinship care);
  • Amendments in relation to adoption;
  • Amendments in relation to surrogate motherhood;

BusinessTech looked at some of the biggest changes in more detail below.

Reasonable chastisement and corporal punishment

The latest amendment officially introduces section 12A, which deals with the ‘positive discipline’ of children at home.

Under this section any person who has care of a child may not treat or punish the child in a cruel, inhuman or degrading way when disciplining them, and must ensure the child’s right to physical
and psychological integrity.

As an extension of this, the common law defence of reasonable chastisement has been abolished.

Upon being reported for violating this section, the parent must be referred to a prevention and early intervention programme.

When prevention and early intervention services have failed, or are deemed to be inappropriate, and the child’s safety and wellbeing is at risk, a designated social worker must assess the child.

The section also notes that the Department of Social Development must take all reasonable steps to implement education and awareness-raising programmes concerning these new rules.

New definitions and other legal changes

The bill introduces and amends a number of formal definitions relating to children and family life in South Africa.

Some of the most notable changes include definitions for genital cutting and mutilation, inter-country adoption, sexual abuse, and social service professionals.

The bill also extend the children’s court jurisdiction to hear applications for guardianship, and addresses the care of abandoned and orphaned children living with family (kinship care).

Unmarried fathers

The bill introduces a number of changes to the rights of unmarried fathers.

Specifically in cases where the the father of a child is unmarried to the child’s mother but is:

  • In a permanent life-partnership
  • Contributing or has attempted in good faith to contribute to the child’s upbringing for a reasonable period;
  • Contributing or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

The family advocate may, in the prescribed manner, issue a certificate confirming that the biological father has automatically acquired full parental responsibilities.

This application must be made by both the mother and father of the child, or after mediation proceedings between the two parents.

The full document is embedded below:

Draft Childrens Amendment Bill by BusinessTech on Scribd

Read: Landmark judgment rules against smacking your child in South Africa

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