A co-constructed practice model for supporting parents of children in conflict with the law
- Authors: Abdulla, Zurina
- Date: 2019
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc --South Africa , Parent and child -- Research -- South Africa , Social work with youth -- South Africa
- Language: English
- Type: Thesis , Doctoral , DPhil
- Identifier: http://hdl.handle.net/10948/30474 , vital:30949
- Description: The unique historical stressors linked to South Africa’s apartheid legacy, continues to manifest in the form of economic exclusion, social exclusion, inequality and poverty, with parents being subjugated to service users and extenders rather than included as service advocates, particularly in the child justice system. Furthermore, policies and practices do not include, engage and support parents on an intra and interpersonal level. Parents of children in conflict with the law, experience their children’s charge or arrest as well as their subsequent journey through the child justice system as a crisis resulting in their need for emotional, informational, practical and professional support during the child justice process. The similarities and differences between the contexts of child protection and child justice in supporting parents illuminates the existing gaps in child justice legislation, policy and practice resulting in a lack of support for parents during the child justice process. In the Children’s Act 38 of 2005, it is recognised that parents have a legal responsibility towards their children and that in fulfilling this responsibility parents can access support services to assist them when they face challenges in fulfilling this responsibility. In contrast, despite 80 percent of children in conflict with the law being released into parental care and parents expressing the need for support in fulfilling their parental responsibility, in this regard the Child Justice Act 75 of 2008 fails to make provision for parents to access support services. The child justice system’s narrow focus on parents as service extenders contributes to parents’ being excluded from targeted support services resulting in parents’ support needs not being addressed. The lack of programmes and services aimed at supporting parents highlight the need for coordinated services that address the multiple stressors parents are exposed to. To this end, this study was aimed at coconstructing a practice model for supporting parents of children in conflict with the law. The theoretical lenses employed in the current study namely; the Ecological systems model and the Buffering effect model describes the various systems parents need support from and the type of support they need from their family, community and professionals. Guided by a qualitative approach, the present study integrated applied research, in particular intervention design and development with participatory action research as it allowed systematic collaboration during the research process to ensure rigour. This study involved participants from two research sites namely, the Nerina One- Stop Child Justice Centre in Port Elizabeth and the Reception, Assessment and Referral office at the Uitenhage magistrates’ court. Employing a non-probability purposive sampling method, this study facilitated the participation of parents of children in conflict with the law and child justice officials who met the inclusion criteria, in the co-design and development of a practice model for supporting parents of children in conflict with the law. Participants assumed an expert and collaborative role, which enabled the co-construction of knowledge, meaning and innovation of the practice model. Qualitative data collection methods namely, twelve focus groups and thirty two participant observations, were used to explore, co-construct, describe and design a practice model for supporting parents of children in conflict with the law during the child justice process. Thematic analyses was employed to condense the data, search for codes, categories, themes, relationships and patterns in the data. Due to the research approach and design, data analysis was ongoing and informed design and development of the practice model. Based on the thematic analysis and synthesis both descriptive and analytic themes emerged. To ensure trustworthiness, this study employed various strategies to strengthen commitment, rigour, transparency and coherence. In addition, the participative research process, the inclusion of multiple forms of qualitative inquiry and the significance of the study contributed to the validity and quality of the study. Ethical considerations applicable to the study included participants’ voluntary participation, their informed consent and ensuring participants’ privacy or maintaining confidentially. Various strategies were employed to prevent or minimise risk to participants. The findings showed that formal sources of support, in particular, offer opportunities for parents to access individual and family counselling, parenting advice, and peer support. The study also highlighted the importance of recognising parents as a subsystem in the child justice system offers potential opportunities for inclusion of parents as co-facilitators of parenting programmes or support groups, as peer supporters during the child justice process. Parents’ inclusion as a partner in the child justice system is highlighted as an opportunity for parents to be able to vi participate in child justice fora, oversight committees and accreditation committees to influence policy, services and budget allocations for services to support parents of children in conflict with the law. This study’s contribution to the existing body of knowledge is an integrated, multidisciplinary, multi-phase co-constructed practice model that would enable inclusion of, and support for, parents of children in conflict with the law prior to, during and after the child justice. The co-constructed practice model (a) involves a continuum of parent-centred support for and inclusion of parents prior to, during and after the child justice process; (b) advances an inclusive and collaborative child justice system that views parents as important stakeholders in determining the type of services they need and being involved in developing practice; and (c) promotes parents as equal partners in decision making and policy making to influence legislation, policy and practice in the child justice system.
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- Date Issued: 2019
An evaluation of the role of child and youth care centres in the implementation of South Africa’s children’s act
- Authors: Agere, Leonard Munyaradzi
- Date: 2014
- Subjects: South Africa. Children's Act, 2005 , Children's rights -- South Africa , Child care services -- South Africa
- Language: English
- Type: Thesis , Masters , M SW
- Identifier: vital:11770 , http://hdl.handle.net/10353/d1015406 , South Africa. Children's Act, 2005 , Children's rights -- South Africa , Child care services -- South Africa
- Description: The aim of this study was to evaluate the role played by CYCCs to provide support and protection to children who have been found to be in need of care, according to the criteria given in the Children’s Act No. 38/2005 as amended. The study made use of a qualitative approach and the research design was provided by the case study. Data was gathered by means of semi-structured interviews and focus group discussions. The most important findings to emerge from the study were that the factors which affect the operation of CYCCs are either institutional, or else challenges arising from issues pertaining to infrastructure and human resources. However, it was also acknowledged that, despite the challenges which affect their ability to provide their services to young people, the CYCCs had also made progressive steps to halt the suppression of the fundamental rights of children. It has been recommended that the government should apply comprehensive funding to the objectives of the Children’s Act, which would entail increasing the subsidies to CYCCs. It has also been recommended that the Policy on Financial Rewards should call for the same benefits and salary scales to apply for professional staff working in the government and to those working in the CYCCs. The repercussions from failing to adjust to these recommendations will inevitably lead to the employment of a remedial model of care.
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- Date Issued: 2014
Perceptions of learners and teachers on the alternatives to the alternatives to corporal punishment: a case study of two high schools in King William’s Town Education District in the Eastern Cape
- Authors: Kepe Mzukisi Howard
- Date: 2014
- Subjects: Corporal punishment of children -- South Africa , Children's rights -- South Africa , School discipline -- South Africa , Teacher-student relationships -- South Africa
- Language: English
- Type: Thesis , Masters , M Ed
- Identifier: vital:16226 , http://hdl.handle.net/10353/d1019741 , Corporal punishment of children -- South Africa , Children's rights -- South Africa , School discipline -- South Africa , Teacher-student relationships -- South Africa
- Description: The purpose of the study was to examine the perceptions of learners and teachers on the alternatives to ‘Alternatives to Corporal Punishment’ (ATPC) in particular and discipline generally in the King William’s Town Education District in two high schools. The study ascended as a result of the decline of learner’s discipline in high schools. This study is located in the interpretive paradigm and adopted a qualitative research approach using questionnaires, interviews focus groups and field notes in the collection of data. The Data revealed that schools were using different strategies to maintain learner’s discipline such as Code of Conduct, Disciplinary hearing, Safety and Security Committee, Educators, Corporal Punishment, Alternative methods to Corporal Punishment and the role of parents. It further revealed that the Department of Education is not supportive in the maintenance of discipline in the schools under study in King William’s Town District. The conclusion that was arrived at was that all the stakeholders should agree upon and be acquainted with the Code of Conduct and rules that are guiding the schools. The study came up with the proposal that learners should know the consequences of transgressing the Code of Conduct. To address disciplinary problems, the study came up with the key recommendation that all stakeholders must have ownership and to work as a team in the implementation of those policies.
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- Date Issued: 2014
The interaction of children's rights, education rights and freedom of religion in South African schools
- Authors: Chetty, Kasturi
- Date: 2013
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Freedom of religion -- South Africa , School children -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10295 , http://hdl.handle.net/10948/d1020864
- Description: This study examines the topic of the interaction of children’s rights, education rights and freedom of religion in South African schools from a legal perspective. It comprises of a discussion on the historical development of religion in South African schools; South Africa’s international obligations with regards to children’s rights, education rights and freedom of religion and the South African substantive law pertaining to children rights, education and freedom of religion as impacting on legal issues pertaining to religion in schools. The study utilises a desktop approach, which comprises of a wide range of legal and other literary sources, international instruments, statutes and case law on children’s rights, education rights and freedom of religion. Importantly, it highlights the integral connection between these aforementioned rights when dealing with issues pertaining to religion in schools. This thesis illustrates that much of the historical development of religion in schools took place without consideration of children’s rights, or more particularly, the best interests of the learners. Instead, (a particular brand of) religious beliefs were promoted in education above other religions and the well-being of school-children. Furthermore, despite the introduction of specific children’s rights into the Constitution, this thesis emphasises that the rights of children have still not been recognised sufficiently in education laws and policies. It is submitted that children’s rights have a paramount and practical role to play in matters pertaining to religion in South African schools. Consequently, it is recommended that children’s rights, more particularly the best interests of the child principle, should be expressly introduced into education legislation and policies. This will create legal obligations for school administrators and SGBs on the inclusion of children’s rights in religious exemption procedures. Furthermore, it is recommended that national guidelines on religious/cultural exemptions (which incorporate children’s rights) be developed which will set legal parameters for the handling of religious/cultural exemption procedures in schools. This thesis also argues against the interpretation that the right to establish private schools includes the right to require religious conformity from non-adherent learners by way of a complete waiver of their religious freedom. Despite the importance of respecting the right of religious communities to protect and preserve their faith in private schools, it is submitted that this right cannot be exercised without regard for the religious freedom, dignity and best interests of non-adherent children. As a result, it is submitted that the waiver of the freedom of religion of non-adherent children is not consistent with the values which South African society reveres and therefore cannot be enforced. This thesis suggests that there is a way for the rights of private schools and the rights of non-adherent children to co-exist in harmony through the application of the reasonable accommodation principle in private schools. Reasonable accommodation of different faiths teaches religious tolerance to leaners in private schools and ensures that they are prepared to grapple with the religious diversity that they will inevitably face outside of the school environment. It is submitted that the enforcement of reasonable accommodation in private schools is to the benefit of all learners in private schools and to South African society in general. Moreover, this study questions and analyses the state’s provision of compulsory religion education in public schools through the National Policy on Religion and Education. A theoretical distinction is made between religion education and religious instruction in the National Policy itself. Religious instruction refers to the teaching of specific religious beliefs. Religion education refers to the teaching about different religions and worldviews from an academic perspective. It is submitted that the National Policy is correct in removing religious instruction from public schools as this would not be in accordance with freedom of religion or equality rights of learners who are not of the majority faith. It is submitted further that, although the provision of compulsory religion education in public schools impacts upon the freedom of religion of learners and their parents, (if taught correctly) it is a reasonable and justifiable limitation on freedom of religion in that it pursues the legitimate state goal of nation-building through the teaching of religious tolerance and “celebrating diversity” in schools. In light of South Africa’s history of religious discrimination, it must be recognised that the current position (although not problem- free) is a significant step forward in the protection of minority religious rights in South African schools. Despite this, it is submitted that there are numerous problems with the implementation of the National Policy that impact upon the dignity, equality and other rights of the learners concerned. These problems cannot be ignored since they impact upon the daily lives of school children. However, many of these problems can be minimised through more effective teacher training in this subject area. Accordingly, this thesis recommends that the current position be maintained as an acceptable compromise between the two extremes of providing religious instruction in one faith and removing religion education from public schools altogether. However, it emphasises that the state has to make a concerted effort to improve teacher training in this subject area in order to ensure that the objectives of the National Policy are carried out as envisaged. Furthermore, this thesis finds that certain provisions of the National Policy contain not only educational goals, but spiritual goals. Also in some instances, it is difficult to determine whether the religion education curriculum borders on being religious or not. In accordance with freedom of religion, it is submitted that the line between religion education and religious instruction must be clearly drawn in law and in practice. Consequently, the state must reconsider the National Policy and the corresponding religion education curriculum to ensure that they are aligned with the objectives of nation-building in all respects, meaning that any provisions or learning outcomes which have purely spiritual goals- must be amended or removed.
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- Date Issued: 2013
A comparative analysis of the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia
- Authors: Wilkerson, Tendai Marowa
- Date: 2011
- Subjects: Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3698 , http://hdl.handle.net/10962/d1003213 , Juvenile courts -- South Africa , Juvenile courts -- Namibia , Juveline courts -- Zimbabwe , Juvenile courts -- Ethiopia , Children -- Legal status, laws, etc. -- South Africa , Children -- Legal status, laws, etc. -- Namibia , Children -- Legal status, laws, etc. -- Zimbabwe , Children -- Legal status, laws, etc. -- Ethiopia , Child witnesses -- South Africa , Child witnesses -- Namibia , Child witnesses -- Zimbabwe , Child witnesses -- Ethiopia , Mediation -- Law and legislation -- South Africa , Mediation -- Law and legislation -- Namibia , Mediation -- Law and legislation -- Zimbabwe , Mediation -- Law and legislation -- Ethiopia , Children's rights -- South Africa , Children's rights -- Namibia , Children's rights -- Zimbabwe , Children's rights -- Ethiopia
- Description: Prior to 1990, very few countries in the world offered special protection to child witnesses interfacing with the justice system. There were no legal provisions permitting testimonial accommodations for children in court. The courtroom experience was significantly traumatic for the children. With the international focus shifting from protecting and upholding the rights of the accused in the courtroom towards a more victim-centred approach, various international and regional instruments have strongly dvocated that children deserve special protection because of their vulnerability. In order for the courts to be able to elicit accurate evidence from the child without further traumatizing the child, research has shown that the child needs assistance. An intermediary may be defined as a person who facilitates communication between the child and the courtroom in a manner that takes into account the child‟s cognitive and developmental limitations. The thesis was prompted by the need to make a contribution to the currently limited body of literature on the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia by investigating how the systems can be improved and sustained in a way that helps to protect the child witness in court. Despite the problems the South African courts have had in identifying the appropriate interpretation of its intermediary legislation, the country emerges as a clear leader for the steps it took by creating a positive legal framework within which child protection issues are addressed and introducing the concept of the intermediary. This concept proved to be an inspiration to its neighbours, Namibia and Zimbabwe. The influence of the South African intermediary legislation is evident in the Namibian and Zimbabwean legislation. Although Namibian legislators have drafted laws that permit intermediary assistance in court, there are as yet no intermediaries appointed. In Ethiopia, although there is no discernible intermediary legislation, the country has managed to establish an intermediary system. As a result of the analysis conducted, it is evident that the efficacy of the intermediary system is dependent on the presence of an enabling legislation, its clarity and ease of interpretation, the sensitisation of court role players on child vulnerabilities, the significance of intermediary assistance, and finally a government's commitment towards the implementation process.
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- Date Issued: 2011
Balancing the educator's rights to fair labour practices and to strike with the right to education
- Authors: Govender, Mahalingum
- Date: 2011
- Subjects: Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10198 , http://hdl.handle.net/10948/1565 , Right to education -- Law and legislation -- South Africa , Children's rights -- South Africa , Educational law and legislation -- South Africa , Strikes and lockouts -- Teachers -- South Africa , Right to strike -- South Africa
- Description: This treatise investigates the potential for law (including courts and tribunals) to intervene and act as a lever for the protection and advancement of the rights of the child including the right to basic education. The dissertation critically explores the debate on the educator‟s right to strike and fair labour practices and the child‟s right to education, by assessing the rights and liberties, which accrue to educators and the child (learners) in terms of existing law. The South African Constitution has made specific provision for the protection of the rights of children and the rights of educators and these rights are fundamental to the development of a society in transition. The vexed question that arises is whether these rights can co-exist in a society that has inherited a legacy of discrimination and inequality. The consequences of this legacy have resulted in the rights of educators competing with those of learners. The normalisation of the balance of these opposite rights is the challenge that lies ahead and this process will require intervention of all stakeholders rather than purely legislative intervention. This dissertation recommends a consensus-based approach, which is the most appropriate solution to balance the rights of educators with this of the child‟s right to education, as opposed to a declaration of the education sector as an essential service. It further proposes the establishment of a more structured and organised forum / institution and its sole purpose would be to deal with the individual or collective rights of educators that compete with the rights of learners.
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- Date Issued: 2011
The adoption of an inquisitorial model of criminal procedure in court proceedings relating to children
- Authors: Hlophe, Stanley Siphiwe
- Date: 2011
- Subjects: Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10177 , http://hdl.handle.net/10948/1570 , Children -- Law and legislation -- South Africa , Children's rights -- South Africa , Criminal procedure -- South Africa , Procedure (Law) -- South Africa
- Description: In this project the adoption of an inquisitorial model of criminal procedure in court proceedings relating to children is discussed. The traditional characteristics of adversarial and inquisitorial models of criminal procedure, the two models in a South African perspective and problems with the adversarial model are highlighted. That it terrifies and silence young victim and witnesses from giving evidence. The inquisitorial elements present in South African criminal procedure such as in bail proceedings, plea proceedings, powers of the presiding officer to call, recall and examine witnesses, powers of the presiding officer to exclude inadmissible evidence, evidence on sentence, and investigation on unreasonable delay on trials are discussed. The international instruments pertaining to children in conflict with the law and child witnesses are examined, together with their impact in our laws relating to children. The constitutional implications to the rights of children are discussed. The historical background that culminated to the Child Justice Act is highlighted. The Child Justice Act with particular reference to the inquisitorial aspects present in this Act is discussed. The measures that aim to protect child witness present in the Criminal Procedure Act, Criminal law Sexual offences and Related Matters Amendment Act and Children’s Act are highlighted. The conclusion, on the analysis of protective measures protecting children, is that in South African law there is a renewed interest in inquisitorial procedures as an effective means of ensuring justice. The conclusion suggests that adversarial model of criminal procedure is not the best method for our legal system to deal with children.
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- Date Issued: 2011
The child accused in the criminal justice system
- Authors: Brink, Ronelle Bonita
- Date: 2010
- Subjects: Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Children's rights -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10178 , http://hdl.handle.net/10948/1229 , Children's rights -- South Africa , Children -- Legal status, laws, etc -- South Africa , Children's rights -- Law and legislation -- South Africa
- Description: The high level of crime in South Africa raises the question about the failures of the criminal justice system on the one hand, and South Africa’s social policies on the other. Young people in South Africa can disproportionately be both victims and perpetrators of crime in the Republic of South Africa. The child accused in conflict with the law is dealt with in much the same way as their adult counterparts, as the criminal justice system was designed by adults for adults. South Africa became a signatory to the United Nations Convention on the Rights of the Child 19891(hereinafter referred to as UNCRC) on 16 June 1995. The UNCRC provides a backdrop to section 28 of the Constitution of the Republic of South Africa Act.2 Article 3(1) of the UNCRC provides as follows: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be primary consideration.” South Africa is therefore according to article 40(3) of the UNCRC obliged to “establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law”.3 In terms of article 40(1) of the UNCRC “State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”4 1 Adopted by the General Assembly resolution 44/25 on 20 November 1989. 2 The Constitution of the Republic of South Africa Act, Act 108 of 1996. Hereinafter referred to as the “Constitution”. 3 South Law Reform Commission Discussion Paper 96. 4 United Nations Convention on the Rights of the Child adopted by the General Assembly resolution 44/25 on 20 November 1989. iv Synopsis 2003 states that “the Ratification of the UNCRC by the South African government in 1995 set the scene for broad-reaching policy and legislative change”.5 The Constitution includes a section protecting children’s rights, which includes the statement that children have the right not to be detained except as a measure of last resort and then for the shortest appropriate period of time, separate from adults and in conditions that take account of his/her age. 6 After being off Parliament’s agenda since 2003, the Child Justice Act7 has recently been reintroduced. The Act aims to ensure consistent, fair and appropriate treatment of the child accused in conflict with the law. The question arises whether the South African Criminal Justice system involving the child accused adequately recognises and protects the interests of the child accused, particularly in view of the present international legal position.
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- Date Issued: 2010
A phenomenological exploration of adoptive parents' motivation for and experience of transracial adoption in South Africa
- Authors: Attwell, Terry-Anne
- Date: 2004
- Subjects: Interracial adoption -- South Africa , Race awareness in children -- South Africa , Prejudices in children -- South Africa , Adoption -- Law and legislation -- South Africa , Children's rights -- South Africa , South Africa -- Race relations
- Language: English
- Type: Thesis , Masters , MA
- Identifier: vital:2927 , http://hdl.handle.net/10962/d1002436 , Interracial adoption -- South Africa , Race awareness in children -- South Africa , Prejudices in children -- South Africa , Adoption -- Law and legislation -- South Africa , Children's rights -- South Africa , South Africa -- Race relations
- Description: Prior to the democratic elections of 1994, South Africa was daunted by legislation flooded with racial segregation. Adoption across racial lines is, because of South Africa’s racially segregated past, a relatively recent phenomenon in this country. The number of legal adoptions has increased dramatically, especially after its legalization in 1991. Parents may adopt across racial lines for an array of different reasons, from not being able to conceive a baby, to wanting to give a child the best opportunity in life. This study explored the experiences of white parents who have adopted black children, paying particular attention to how they deal with issues of “racial” identity. In-depth interviews were used to generate qualitative data pertaining to the parental perceptions of their motivation for, and experiences of adopting a child transracially in South Africa. The study aimed to explore their motivation for adopting and experiences, as well as issues relating to “racial” identity. Recommendations have been made to assist parents who are interested in adopting transracially. The report presents findings relating to the unique characteristics of the participants who have adopted transracially. These include adopters’ motivation and thought processes before taking the relevant steps to adopt transracially; the support that they have received from others in their decision to adopt transracially; communication patterns; their relevant concerns regarding the future of their adopted child; and issues pertaining to race, culture, heritage, prejudices and stereotypes. The findings suggest that parents were pragmatic, without regrets, in their views about adopting across racial lines. The parents’ motivations for adopting across racial lines were very similar to various perspectives, but were all due to the fact that they were unable to have biological children. Parents were aware of the child’s identity and cultural issues, which may be more perceptible in the future. Their perceptions, views and opinions, and the future concerns of their children were not unrealistic. Due to the children’s young age a follow-up study of these children should be considered.
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- Date Issued: 2004
The legal position of unmarried fathers in the adoption process after Fraser v Children's Court, Pretoria North, and others 1997 (2) SA 261 (CC) : towards a constitutionally-sound adoption statute
- Authors: Schäfer, Lawrence Ivan, 1972-
- Date: 1999
- Subjects: Unmarried fathers -- Legal status, laws, etc. -- South Africa , Unmarried fathers -- Legal status, laws, etc. -- Case studies , Children's rights -- South Africa , Adoption -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3694 , http://hdl.handle.net/10962/d1003209 , Unmarried fathers -- Legal status, laws, etc. -- South Africa , Unmarried fathers -- Legal status, laws, etc. -- Case studies , Children's rights -- South Africa , Adoption -- Law and legislation -- South Africa
- Description: The subject-matter of this thesis is the rule, previously contained in section 18(4)(d) of the Child Care Act 74 of 1983, in terms of which a mother could surrender her child born out of wedlock for adoption without the consent of its father. This section was struck down as unconstitutional by the Constitutional Court in Fraser v Children's Court, Pretoria North and others 1997 (2) SA 261 (CC), on the grounds that it violated an unmarried father’s constitutional rights to equality and non-discrimination. In the light of this judgment, this thesis seeks to articulate the constitutional parameters within which section 18(4)(d) must be amended. The requirements of Fraser are identified and discussed. Regard is also had to other constitutional rights upon which Fraser might have been decided; in particular, an unmarried father’s right to procedural fairness, and his child’s right to family or parental care. Case law from the United States, Canada, Ireland and the European Court of Human Rights is also discussed. The end product of this examination is an exposition of the various constitutional rights which vest in the father of a child born out of wedlock. A separate exposition is given of the distinct rights which vest in all children in the adoption process. The latter set of rights is drawn both from the Constitution of the Republic of South Africa Act 96 of 1996, and the United Nations Convention on the Rights of the Child. The thesis then proceeds to examine the Adoption Matters Amendment Act 56 of 1998, which was enacted in response to Fraser. The consent and notice provisions of adoption statutes in the United States, Canada, Australia, Ireland and England are also examined, and compared to the provisions of the Adoption Matters Amendment Act. The object, here, is two-fold: first, to consider the practical value of this Act; and second, to consider whether it satisfies the constitutional requirements identified earlier in this thesis. The thesis concludes with suggestions for the improvement of this Act.
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- Date Issued: 1999