Unaccompanied and Separated Foreign Children in the Care System in the Western Cape – A Socio-Legal Study

Keywords: foreign children, child protection, refugees, asylum seekers, child and youth care centres, children's court

Abstract

This article reports on the findings of a study of foreign children accommodated in the care system in the Western Cape, based on fieldwork conducted in child and youth care centres. The objectives of the study were firstly to map and quantify the number and demographics of foreign children placed in all CYCCs across the Western Cape. Secondly, the study aimed to analyse the reasons for children's migration and the circumstances around their placement in residential care institutions in order to establish whether family reunification was possible or desirable. Thirdly, the study explores the sufficiency of efforts made to trace and reunify the children with their families, whether in South Africa or across borders, as the institutional placement of children should not only be a last resort but it should preferably be temporary whilst family-based solutions are sought. Lastly, the documentation status of the children in the study was examined. Recommendations emanating from the research conclude the study.

Google_Scholar_12020.png        ScienceOpen_Log034314.png

Author Biographies

Julia Sloth-Nielsen, University of the Western Cape

BA LLB (Stel) LLM (Cape Town) LLD (Western Cape). Professor, Faculty of Law, University of the Western Cape.

Marilize Ackermann, Scalabrini Centre, Cape Town.
BA LLB (Stel), LLM (Western Cape). Researcher, Scalabrini Centre, Cape Town.

References

Bibliography

Literature

Anderson et al"Unaccompanied and Unprotected"
Anderson K et al"Unaccompanied and Unprotected: The Systemic
Vulnerability of Unaccompanied Migrant Children in South Africa" (Liefaard
T and Sloth-Nielsen J 25 Years of the UN Convention on the Rights of the
Child: Taking Stock and Looking Forward(Brill Leiden 2016 forthcoming)

Connelly 2015 Int'l J Child Rts
Connelly H Seeking the Relationship between the UNCRC and the Asylum
System Through the Eyes of the Unaccompanied Asylum Seeking
Children and Young People 2015 Int'l J Child Rts 52-77

DSD Guidelines
Department of Social Development Guidelines on Separated and
Unaccompanied Children Outside their Country of Origin in South Africa
(The Department Pretoria 2009)

DSD Standing Operating Procedures
Department of Social Development Standing Operating Procedures for the
Tracing, Reunification or Alternative Care Placements of Unaccompanied
and Separated Children in South Africa (The Department Pretoria 2015)

IOM Addressing Irregular Migration Flows
International Organisation for Migration Addressing Irregular Migration
Flows To South Africa: Profiling Unaccompanied Migrant Children in
Musina, Limpopo Province (unpublished report, 2014, copy on file with the
authors)

Kaime "Protection of Refugee Children"
Kaime T "The Protection of Refugee Children under the African Human
Rights System: Finding Durable Solutions in International Law" in Sloth-
Nielsen J (ed) Children's Rights in Africa: A Legal Perspective (Ashgate
London 2008) 183-197

Southern Hemisphere Consulting Draft Report for System Mapping
Southern Hemisphere Consulting Draft Report for System Mapping of the
Protection of Unaccompanied and Separated Migrant Children in South
Africa (submitted to Save the Children SouthAfrica, 26 February 2016,
copy on file with the authors)

Case law

C v
Department of Health and Social Development Gauteng 2012 2 SA
208 (CC)

Centre for Child Law v Minister of Home Affairs 2005 6 SA 50 (T)

In re Minister of Social Development (North Gauteng High Court)
unreported case number 21726/2011 of 22 June 2011

Mubake v Minister of Home Affairs 2016 2 SA 220 (GP)

Legislation

Births and Deaths Registration Act 51 of 1992

Child Care Act 74 of 1983

Children's Act 38 of 2005

Citizenship Act 88 of 1995

Immigration Act 13 of 2002

Refugees Act 130 of 1998

Refugees Amendment Act 33 of 2008

International instruments

African Charter on the Rights and Welfare of the Child (1990)

Convention on the Rights of the Child (1989)

UN Committee on the Rights of the Child General Comment No 6:
Treatment of Unaccompanied and Separated Children Outside their
Country of Origin (2005)

UN General Assembly Guidelines for the Alternative Care of Children UN
Doc A/RES/64/142 (2010)

UNHCR Guidelines on the Protection and Care of Refugee Children
(1994)

Government publications

Children's Act Amendment Bill B13 of 2015 (published in GG 38703 of 17
April 2015)

Children's Act Second Amendment Bill B14 of 2015 (published in GG 38703 of 17
April 2015)

Regulations to the Refugees Act (Gen N R366 in GG 21075 of 6 April
2000)

Regulations on the Registration of Births and Death (Gen N R128 in GG
21075 of 26 February 2014)

Internet sources

IOM 2013 https://publications.iom.int/books/children-move

International Organisation for Migration 2013 Children on the Move
https://publications.iom.int/books/children-move accessed 10 April 2015
Save the Children UK 2007
http://www.savethechildren.org.uk/en/docs/children-crossing-borders.pdf
Save the Children UK 2007 Children Crossing Borders: Report on
Unaccompanied Minors Who have Travelled to South Africa
http://www.savethechildren.org.uk/en/docs/children-crossing-borders.pdf
accessed 15 November 2015

Schreier 2011
http://www.refugeerights.uct.ac.za/usr/refugee/Working_papers/Working_
Papers_4_of_2011.pdf

Schreier T 2011 Critical Challenges to Protecting Unaccompanied and
Separated Foreign Children in the Western Cape: Lessons Learned at the
UCT Refugee Rights Unit, University of Cape Town Refugee Rights Unit
http://www.refugeerights.uct.ac.za/usr/refugee/Working_papers/Working_
Papers_4_of_2011.pdf accessed 9 March 2015

South African Government 2015 http://www.gov.za/services/child-care-
social-benefits/foster-child-grant

South African Government 2015 Foster Child Grant
http://www.gov.za/services/child-care-social-benefits/foster-child-grant
accessed 27 May 2015
Views
  • Abstract 461
  • PDF 54
  • XML 5
Views and downloads are with effect from 11 January 2018
Published
2017-05-17
Section
Articles