I am often called on to speak to a variety of sectors on issues of children’s rights in South Africa and do this with great pride. The reason for my proud pronouncements is that I have been a part of the human rights based culture in South Africa that has become such a beacon of hope across the world as we attempt to redress the abuses of the past. We have signed the United Nations Convention on the Rights of the Child as well as the African Charter on the Rights of the Child and have our own Constitution that enshrines these in Article 28. In enacting these rights for children we have recognised that some of these rights are to be granted now and others must be realised progressively. It is at this point that it seems we stray and forget it is us who are raising children and we remain responsible for their well-being. How have we strayed? It seems in two major areas:
1) We constantly talk of the need for children to be responsible as if we merely give them rights, they will become uncontrollable by us, and yet it is us who are raising them. A case in point is the right children have to be protected and not to be abused and we place this responsibility in the hands of children. They must say NO to us, rather than telling adults they must not harm children. While doing this, we in no other way encourage children to say no to either adults or those in positions of power. There are clearly certain rights afforded to our children that are solely the responsibility of adults and should be given now and not progressively. For me the fundamental right under review here is the right to protection. We, as adult and children, all have a negative duty to realise this right for children, ie we do not harm children. However, as adults, and particularly child protection service providers, we have a positive duty ie. To actively protect our children. Protection can take many forms, but its enforcement is in the law. This brings me to my second point. Those mandated by the law to act within this sphere.
2) It appears that as the laws have developed and the statutory social workers and police officials, who have legal authority, have engaged with the law, they have become gatekeepers to the courts and make decisions that are on behalf of the courts. Cases in point are our attempts to present evidence to the Children’s Court to decide whether children are in need of care but the social workers have decided they are not and then when they decide the children are in need of care suddenly the children are not in their mandate. Politics trump professionalism. We then move to children who have managed to access care but are the “released” contrary to, and in contravention, of our laws. All of this in a misguided homage to the less than perfect ideal of “Family Preservation” now acknowledged on our law. We then move to the SAPS who refuse to open sexual abuse cases where the accused is under 18. This is a convenient ploy to decrease their crime statistics, as per their mandate, and use a good piece of legislation that should open services for children at risk ie. The Child Justice Act. Finally, there is just an apparent lack of interest and will as is evident in the child kidnapping case where the Investigating Officer did not present any of the medical evidence on the docket to the prosecutor. This is the evidence for the caregiver who the accused attempted to murder as she tried to protect the child. What is the result of this going to be, even when before court without evidence we cannot have either convictions or appropriate sentences?
The question then becomes, have we legislated ourselves into immobility and in pursuing rights are only paying lip service to children’s rights? Adults still exert a careless and even abusive role in children’s lives. What is even sadder is that those mentioned above are those charged with the active protection of children and their access to justice. Systemic abuse comes from “evil flourishing when good men do nothing” and when they do act do they consider the most fundamental of caregiver codes “first do no harm!”