Children's Act, 2005 (Act No. 38 of 2005) Chapter 1 : Interpretation, Objects, Application and Implementation of Act 1. Interpretation

 

 

"abandoned child"

means a child who—

[Definition substituted by section 1(a) of the Children's Amendment Act, 2022, Notice No. 1543, GG47828, dated 5 January 2023 - effective 8 November 2023 per Proclamation 142, GG49615 dated 8 November 2023]

 

"abuse"

in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes—

 

"adopted child"

means a child adopted by a person in terms of any law;

 

"adoption compliance certificate"

 

"adoption registrar"

means the person designated by the Director-General in terms of section 247(1);

 

"adoption service"

includes—

 

"adoption social worker"

means—

[Definition (c) inserted by section 1(a) of Act No. 18 of 2016]

 

"adoption working agreement"

for the purpose of Chapter 16, means a written agreement entered into by a child protection organisation accredited in terms of section 259 in the Republic with an equivalent organisation in another country to facilitate inter-country adoptions between the Republic and the country concerned;

 

"adoptive parent"

means a person who has adopted a child in terms of any law;

 

"after-care"

means the supportive service provided by a social worker or a social service professional to monitor progress with regard to the child’s developmental adjustment as part of—

 

"alternative care"

means care of a child in accordance with section 167;

 

"area"

in relation to—

 

"artificial fertilisation"

means the introduction, by means other than natural means, of a male gamete into the internal reproductive organs of a female person for the purpose of human reproduction, including—

 

"assessment of a child"

means a process of investigating the developmental needs of a child, including his or her family environment or any other circumstances that may have a bearing on the child's need for protection and therapeutic services;

 

"assessment of a programme"

means a process, conducted by a suitably qualified person, of determining whether the provision and the content of a programme complies with prescribed national norms and standards;

 

"authorised officer"

in relation to any specific act, means a person who is authorised in writing by the presiding officer of the children's court to perform that act;

 

"Bill of Rights"

means the Bill of Rights contained in Chapter 2 of the Constitution;

 

"care"

in relation to a child, includes, where appropriate—

 

"care-giver"

means any person other than a parent or guardian, who factually cares for a child and includes—

 

"child"

means a person under the age of 18 years;

 

"child and youth care centre"

means a facility described in section 191(1);

 

"children’s court"

means a children’s court referred to in section 42;

 

"Child Care Act"

means the Child Care Act, 1983 (Act No. 74 of 1983);

 

"child-headed household"

means a household recognized as such in terms of section 137;

 

"child labour"

means work by a child which—

 

"circumcision"

in relation to a female child, means the removal of the clitoris by any means;

 

"clerk of the court"

means clerk of the court of the relevant magistrate’s court, means the person appointed by the Director-General: Justice and Constitutional Development as the clerk of the children's court of the relevant magistrate’s court;

 

"cluster foster care"

means the reception of children in foster care in accordance with a cluster foster care scheme registered by the provincial head of social development;

 

"cluster foster care scheme"

means a scheme providing for the reception of children in foster care, managed and operated by a designated child protection organisation or the provincial department of social development and registered by the provincial head of social development for this purpose;

[Definition substituted by section 1(b) of the Children's Amendment Act, 2022, Notice No. 1543, GG47828, dated 5 January 2023 - effective 8 November 2023 per Proclamation 142, GG49615, dated 8 November 2023]

 

"college"

means college as defined in the Continuing Education and Training Act, 2006 (Act No. 16 of 2006);

[Definition inserted by section 1(b) of Act No. 18 of 2016]

 

"commercial sexual exploitation"

in relation to a child, means the procurement of a child to perform sexual activities for financial or other reward, including acts of prostitution or pornography, irrespective of whether that reward is claimed by, payable to or shared with the procurer, the child, the parent or care-giver of the child, or any other person;

[Definition amended by section 48 of Act No. 7 of 2013]

 

"commissioning parent"

means a person who enters into a surrogate motherhood agreement with a surrogate mother;

 

"Constitution"

means the Constitution of the Republic of South Africa, 1996;

[Definition inserted by section 1(a) of Act No. 17 of 2016]

 

"contact"

in relation to a child, means—

 

"contribution order"

means an order referred to in section 161, and includes a provisional contribution order referred to in section 162(2);

 

"convention country"

means, in accordance with the wording of Article 45 of the Hague Convention on Inter-country Adoption, any country in which the Convention has entered into force, except for a country against whose accession the Republic has raised an objection under Article 44 of the Convention;

 

"delegation"

in relation to a duty, includes an instruction to perform the duty;

 

"Department"

means the national department responsible for the provision of social development services;

 

"designated child protection organization"

means an organization designated in terms of section 107 to perform designated child protection services;

 

"designated child protection service"

means a child protection service referred to in section 105;

 

"designated social worker"

means a social worker in the service of—

 

"Director-General"

means the Director-General of the Department, or where the context indicates the Director-General of another department, that Director-General;

 

"Divorce Act"

means the Divorce Act, 1979 (Act No. 70 of 1979);

 

"divorce court"

means the divorce court established in terms of section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929);

 

"drop-in centre"

means a facility referred to in section 213;

 

"early childhood development programme"

means a programme referred to in section 91(3);

 

"early childhood development services"

means services referred to in section 91(2);

 

"early intervention programme"

means a programme referred to in section 143(2);

 

"exploitation"

in relation to a child, includes—

 

"family advocate"

means a family advocate appointed in terms of the Mediation in Certain Divorce Matters Act;

 

"family member"

in relation to a child, means—

 

"foster care"

means care of a child as described in section 180(1) and includes foster care in a registered cluster foster care scheme;

 

"foster parent"

means a person who has foster care of a child by order of the children's court, and includes an active member of an organization operating a cluster foster care scheme and who has been assigned responsibility for the foster care of a child;

 

"gamete"

means either of the two generative cells essential for human reproduction;

 

"genital mutilation"

in relation to a female child, means the partial or complete removal of any part of the genitals, and includes circumcision of female children;

 

"grade 12"

means grade 12 as defined in section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997);

[Definition inserted by section 1(c) of Act No. 18 of 2016]

 

"guardian"

means a parent or other person who has guardianship of a child;

 

"guardianship"

in relation to a child, means guardianship as contemplated in section 18;

 

"Hague Convention on Inter-country Adoption"

means the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption signed at the Hague on 29 May 1993, a copy of the English text of which is set out in Schedule 1 to this Act;

 

"Hague Convention on International Child Abduction"

means the Hague Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980, a copy of the English text of which is set out in Schedule 2 to this Act;

 

"High Court"

means the High Court contemplated in section 166 of the Constitution;

 

"higher education"

means higher education as defined in section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997);

[Definition inserted by section 1(d) of Act No. 18 of 2016]

 

"in need of care and protection"

in relation to a child, means a child who is in a situation contemplated in section 150(1);

 

"labour inspector"

means a labour inspector appointed under section 63 of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997);

 

"Maintenance Act"

means the Maintenance Act, 1998 (Act No. 99 of 1998);

 

"marriage"

means a marriage—

and any reference to a husband, wife, widower, widow, divorced person, married person or spouse must be construed accordingly;

 

"MEC for social development"

means the member of the Executive Council of a province who is responsible for social development in the province;

 

"Mediation in Certain Divorce Matters Act"

means the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987);

 

"medical practitioner"

means a person registered or deemed to be registered as a medical practitioner under the Health Professions Act, 1974 (Act No. 56 of 1974) and includes a dentist so registered or deemed to be registered;

 

"mental illness"

means mental illness as defined in the Mental Health Care Act, 2002 (Act No. 17 of 2002);

 

"midwife"

means a person registered as a midwife under the Nursing Act, 1978 (Act No. 50 of 1978);

 

"Minister"

means the Cabinet member responsible for social development, or where the context indicates another Minister, that Minister;

 

"municipality"

means a metropolitan, local or district municipality established in terms of section 12 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), but to the extent that a municipality may or must implement a provision of this Act in or in relation to an area which falls within the area of both a local municipality and a district municipality, "municipality" in such a provision means the relevant local municipality;

 

"Municipal Systems Act"

means the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);

 

"National Child Protection Register"

means the register referred to in section 111;

 

"neglect"

in relation to a child, means a failure in the exercise of parental responsibilities to provide for the child’s basic physical, intellectual, emotional or social needs;

 

"nurse"

means a person registered as a nurse under the Nursing Act, 1978 (Act No. 50 of 1978);

 

"organ of state"

means an organ of state as defined in section 239 of the Constitution;

 

"orphan"

means a child whose parent or both parents are deceased;

[Definition substituted by section 1(c) of the Children's Amendment Act, 2022, Notice No. 1543, GG47828, dated 5 January 2023 - effective 8 November 2023 per Proclamation 142, GG49615 dated 8 November 2023]

 

"parent"

in relation to a child, includes the adoptive parent of a child, but excludes—

 

"parental responsibilities and rights"

in relation to a child, means the responsibilities and the rights referred to in section 18;

 

"partial care"

means partial care referred to in section 76;

 

"party"

in relation to a matter before a children's court, means—

 

"permanency plan"

means a documented plan referred to in section 157(1);

 

"person unsuitable to work with children"

means a person listed in Part B of the National Child Protection Register;

 

"police official"

means any member of the South African Police Service or a municipal police service appointed in terms of the South African Police Service Act, 1995 (Act No. 68 of 1995);

 

"prescribed"

means prescribed by regulation;

 

"presiding officer"

means a presiding officer of a children's court designated in terms of section 42;

 

"prevention programme"

means a programme referred to in section 143(1);

 

"provincial department of social development"

means the department within a provincial administration responsible for social development in the province;

 

"provincial head of social development"

means the head of the provincial department of social development;

 

"psychologist"

means a psychologist registered or deemed to be registered as such in terms of the Health Professions Act, 1974 (Act No. 56 of 1974);

 

"Public Service Act"

means the Public Service Act, 1994 (Proclamation No. 103 of 1994);

 

"quality assurance process"

means the process referred to in section 211;

 

"RACAP"

means the Register on Adoptable Children and Prospective Adoptive Parents contemplated in section 232;

 

"regulation"

means a regulation made in terms of this Act;

 

"removal of body parts"

means the removal of any organ or other body part from a living person in contravention of the National Health Act, 2003 (Act No. 61 of 2003);

 

"residential care programme"

means a programme described in section 191(2) which is or must be offered at a child and youth care centre;

 

"respondent"

means any person legally liable to maintain or to contribute towards the maintenance of a child for whose maintenance, treatment or special needs a contribution order is sought or has been made in terms of Chapter 10;

 

"school"

means—

 

"secure care"

means the physical containment in a safe and healthy environment—

 

"serve"

in relation to any notice, document or other process in terms of this Act, means to serve such notice, document or other process in accordance with the procedure provided for the serving of process in terms of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), and the rules applying to the proceedings of magistrates’ courts;

 

"sexual abuse"

in relation to a child, means—

 

"sexual offence"

means sexual offence as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), and any offence of a sexual nature in any other law;

[Definition inserted by section 1(b) of Act No. 17 of 2016]

 

"social service practitioner"

means any person registered in a social service profession or occupation with the South African Council of Social Service Professions as contemplated in the Social Service Professions Act, 1978 (Act No. 110 of 1978), to practise and render a service within the social service sector;

[Definition inserted by section 1(e) of the Children's Amendment Act, 2022, Notice No. 1543, GG47828, dated 5 January 2023 - effective 8 November 2023 per Proclamation 142, GG49615 dated 8 November 2023]

 

"social service professional"

[Definition deleted by section 1(d) of the Children's Amendment Act, 2022, Notice No. 1543, GG47828, dated 5 January 2023 - effective 8 November 2023 per Proclamation 142, GG49615 dated 8 November 2023]

 

"social worker"

means a person who is registered or deemed to be registered as a social worker in terms of the Social Service Professions Act, 1978 (Act No. 110 of 1978);

 

"street child"

means a child who—

 

"surrogate mother"

means an adult woman who enters into a surrogate motherhood agreement with the commissioning parent;

 

"surrogate motherhood agreement"

means an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent;

 

"temporary safe care"

in relation to a child, means care of a child in an approved child and youth care centre, shelter or private home or any other place, where the child can safely be accommodated pending a decision or court order concerning the placement of the child, but excludes care of a child in a prison or police cell;

 

"traditional authority"

means any authority which in terms of indigenous law or any other law administers the affairs of any group of indigenous people or any other persons resident within an area under the control of a traditional leader;

 

"this Act"

includes—

 

"trafficking"

[Definition repealed by section 48 of Act No. 7 of 2013]

 

"UN Protocol to Prevent Trafficking in Persons"

[Definition repealed by section 48 of Act No. 7 of 2013]