Regulations “a mess” – top child law experts
Government attempts to justify onerous new visa regulations for tourists entering to South Africa as well as local parents with children leaving the country have been trashed by a specialist legal agency working on the rights of children.
Officials have repeatedly stated that the new regulations, which demand the production of a child’s original, unabridged birth certificate among other requirements, are essential to prevent child trafficking and that the decision to implement the regulations is not negotiable.
Now however the Centre for Child Law has issued a statement clarifying the legal situation from which it appears that the government might well be confused.
Legal experts attached to the Centre, based at the University of Pretoria, said that the new regulations were justified by the department of home affairs on the basis that they are necessary “as per directive of the Children’s Act”.
“We are at a loss to understand this statement,” said the Centre’s statement issued today. “Surely, the immigration regulations must flow from the Immigration Act and not the Children’s Act.”
They said a statement from the department’s spokesperson, Mayihlome Tshwete, confused trafficking with international parental child abduction.
Child trafficking involved moving children within the country or across the border for some purpose of exploitation such as child labour or prostitution. If that element is not present, then it would not be trafficking.
Abduction of a child by a parent, on the other hand, would involve one parent unlawfully removing a child from the country of “habitual residence” without the consent of the other parent. For this to be an offence, both parents would have to have guardianship of the child, and the resulting situation would be dealt with under the Hague Convention of the Civil Aspects of International Child Abduction.
The Centre for Child Law said it was important to understand that this (parental abduction) is not a criminal matter and that “abduction” in this context “does not mean criminal abduction (which must have a sexual exploitation element) and is not trafficking.”
“It is concerning to us that the Department of Home Affairs does not distinguish between these two distinct legal concepts which are dealt with under different laws.”
The Centre’s officials said they agreed that it was important to prevent parents abducting children and that the department had an important role to play in preventing this. However, the new regulations relating to parental consent to the removal of children from South Africa was “legally incorrect” and contradicted the Children’s Act.
The Centre identified two problems in particular caused by the department’s misconceptions.
First, an unmarried father might not have guardianship of a child even though his name may be on the child’s birth certificate. The regulations assume that in every case, if a father’s name is on a birth certificate, that father has guardianship and must give consent before the child may leave South Africa.
“That is incorrect and places mothers and their children in an impossible position (if) they have lost contact with the father.”
“The regulation causes considerable difficulty for children with an absent parent who want to leave the country for school, sport or cultural trips and who are prevented from doing so because they cannot obtain parental consent in the form of an affidavit.”
The second problem is that a single mother is forced by the regulations to approach a high court, at enormous expense, to declare that she is the child’s sole legal guardian – despite the fact that this is already true in law.
“The regulation is incorrectly drafted and states that a parent must have a court order declaring that they have ‘full parental responsibilities and rights or legal guardianship.’
“It omits the word ‘sole’ and creates confusion.
“Frankly, the regulation is a mess.”
The Centre’s officials said they were encouraged by the fact that Tshwete distanced himself and the Department from the position that the purpose of the regulation is a response to the numbers of children trafficked and that the Department has “no intention or legitimate ground to put a ‘spin’ on immigration law and regulations”.
“We agree that there is no evidence regarding the number of children trafficked and that wild exaggeration is unhelpful. In any event, we are not convinced that the new immigration regulation will assist in combating the trafficking of children. The nature of trafficking is clandestine and is generally not found in regular border crossings such as children traveling with their parents on vacation.”
This statement, from some of South Africa’s top experts on child law, must surely raise serious questions about whether the new regulations – which are causing great problems for people leaving and entering the country with children, not to mention significant losses in the tourism sector – were properly researched. And, of course, whether there is any proper justification for their continued implementation.