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The Children’s Act – Time to redress the imbalance

Posted By: Kelly Fraser 0 Comment

Johannesburg, June 2019: Youth Day, on 16 June, is a celebration of our country’s most precious jewels, our children. The Children’s Act (Act 38 of 2005) is the only legislation available to ensure for the care and protection of our children, who are naturally society’s most vulnerable group. 

However, children with disabilities are even more exposed and certainly the most deprived group of children, not only in South Africa, but in the world too. This is an atrocious state of affairs. Although there are mentions made in the Act of children with disabilities, these are brief and inadequate, and hardly in line with the magnitude of their vulnerability. This is why so often, children with disabilities are denied their rights and fall through the cracks when it comes to proper healthcare, early childhood development and education. Sadly, they often remain in this disadvantaged position their entire lives. 

Various sections of the Children’s Act make provision for the Minister of Social Development to develop national strategies for certain children’s categories, such as child protection, subsidies for child and youth care centres, and drop-in centres, among others. Although the care for children with disabilities falls within these categories, no dedicated ministerial strategy is in place for this specific youth group.   This creates a major problem since without a national strategy for the inclusion of children with disabilities, the country will simply not be able to place the spotlight on this group’s heightened vulnerability and further marginalisation. 

According to André Kalis, Specialist: Advocacy, Policy and Children’s Matters at the National Council of & for Persons with Disabilities (NCPD), “As is stands, it is within the Minister’s power to create an appropriate strategy outside the Children’s Act. However, without a direct mandate highlighted in the Act, the Minister is not legally obligated to do so. Why this has not yet happened is troubling. The NCPD therefore calls on the Minister to make provision within the Act to develop a national strategy for the inclusion of our children with disabilities.”

An unfortunate oversight in the Act relates to children with disabilities’ access to education. In South Africa, an overwhelming number of children with disabilities of school-going age (between 500 000 and 600 000) don’t have access to schools. Likewise, younger children in the age group zero to six are not absorbed into early childhood development facilities and programmes. “The question remains: how are these children cared for? Who are their carers? What is the quality of their care? What, if any, educational, developmental and stimulation input do they receive? Anecdotal evidence suggests that these children in general are simply languishing at home, deprived of early childhood development as well as any formal learning”, says Kalis.

The inadequate provision for children with disabilities by the Children’s Act is further illustrated. At a recent meeting of the National Child Care and Protection Forum, the Department of Social Development presented a report on progress made relating to the implementation of the Children’s Act. In the report, various child protection fields and categories of children (such as street children and child labour) were reported on, but nothing whatsoever was said about children with disabilities. This serves as confirmation that on a governmental level, children with disabilities do in fact fall through the cracks of the country’s childcare and protection system.

Without the regulation of strategies that specifically relate to children with disabilities, the Children’s Act remains toothless and ineffective. It leaves organisations, such as the NCPD, with little legal recourse in order to take appropriate steps against the government in their failure to protect children with disabilities.

Kalis adds, “25 years into our democracy, we have reached a point where the Children’s Act still does not reflect the desired progress regarding the integration of children with disabilities into society, and how their rights are legislatively ensconced.” 

“The development of an inclusive national strategy for our children with disabilities is crucial to their livelihood.  Without it, these children will continue to be robbed of their rights, while suffering on the fringes of society,” concludes Kalis. 

Visit @disabilities.sa on Facebook for more information. 

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