Children need parental care - ConCourt

No child may be removed from the care of his or her parents without a court order, the Constitutional Court ruled yesterday.

The court affirmed an order of unconstitutional invalidity made by the Pretoria High Court in May last year, which declared sections 151 and 152 of the Children's Act unconstitutional as they failed to provide for a child who has been removed from his or her parents and placed in temporary safe care.

The court ruled that a child's case should be brought before a children's court for a review within 24 hours of the court order before being removed. The case arose after children were removed from street beggars during raids in Pretoria in August last year.

Two parents - a street shoemaker, who is the father to a three-year-old girl; and a blind mother, who begs for a living with her two daughters, aged one and four - took the Tshwane Department of Health and Social Development, City of Tshwane, Police Minister Nathi Mthethwa and Social Development Minister Edna Molewa to court after the children were removed from their care.

Before the sections were declared unconstitutional, a child removed from its parents' care could be separated for up to 90 days while a social worker prepared a report before the matter could be heard by a children's court.

Yesterday, the judges held that by removing a child from a family environment, one took away his or her right to parental care.

In handing down the judgment, Justice Thembile Skweyiya said a court ordering the removal of children from parental care must simultaneously refer the matter to a social worker to ensure the removal was placed before a children's court for review before the next court date.

Chief Justice Mogoeng Mogoeng and Justice Chris Jafta wrote a dissenting judgment. In it they disagreed with the finding of constitutional invalidity and criticised the high court judgment for failing to reveal the section of the constitution the impugned provisions were found to be inconsistent with.

Skweyiya ordered Mthethwa and Molewa to pay the costs.