SOME FURTHER COMMENTS ON THE NEW CHILDREN’S ACT.
Last year I wrote an article on my website on the shortcomings of the Children’s courts.
Since writing my article I wish to point out more serious shortcomings with regard to the functioning of Children’s courts. It has become apparent to me that Magistrate’s in the Children’s court are not trained or skilled in the Act.
Instead of appointing family court Magistrates and family court Judges as they do in many Western Courts, Magistrates in the Children’s courts, particularly in the rural areas are clueless. In an article in a book entitled ‘Children’s Law in South Africa – Domestic and International Perspectives’ by Lawrence Schäfer, he states at page 315” Are children’s best interests properly served by merely extending the role of advocates into these specialised judicial roles? While this has the benefit of ensuring an ample spread of presiding officers across the country, it does so at the expense of requiring specialist knowledge and training. As Professors Zaal and Matthias have previously observed, only a few presiding officers, usually in large urban centres, have ‘sufficient knowledge in the specialist, multi- disciplinary field of child care; In 1996, for example, it was estimated that more than 90% of all presiding officers were ‘ordinary magistrates who work part- time as Commissioner’. It remains to be seen whether any requirement for specialised training in children’s matters will be introduced: for now, there is none. These concerns, it is submitted, apply now with even greater force, given the substantial increase in the jurisdiction of the children’s courts.”
In the High Court, likewise, the Judges who preside over family matters have no Family training and until such time as there are proper family courts with personnel who are properly trained the whole purpose of the Children’s Act may sadly not yield the advantages that it was originally supposed to do.
Another example of inadequate training of Magistrates is Section 52(2) of the Children’s Act which deals with appropriate questioning techniques for-
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- children in general
- children with intellectual or psychiatric difficulties or with hearing or other physical disabilities which complicate communication:
- traumatised children: and
- very young children
Despite the obvious desirability of these specialised processes for questioning it would appear that no such rules have been made and that Magistrates in the Children’s court have received no formal training in these formal techniques.
Finally, as stated on page 317 of, ‘Children’s Law in South Africa- Domestic and International Perspectives’ by Lawrence Schäfer, until 1992, ‘children’s court assistants’- professional, trained persons, such as social workers- were appointed to assist commissioners of child welfare. The removal of these officers from the courts was roundly criticised. Given the multi- disciplinary nature of proceedings in the children’s courts and the need for a sensitive understanding of children’s issues, these officers could have played a valuable role under the new disposition. Although the Law Reform Commission recommended the resuscitation of this role under a new name, this recommendation was, to widespread regret, not followed by drafters of the 2005 Act.