Children are protected by various international, regional and local human rights documents. These are some of their major rights. (See Section 28: Children’s Rights)

CHILDREN’S RIGHTS AND THE LAW

The Constitution of South Africa and the United Nations (UN) Convention on the Rights of the Child that South Africa signed and agreed to on 16 June 1995 protect the rights of children. The Constitution sets out the human rights of all people. Children also have these general rights, for example:

• The right to equality and non-discrimination
• The right to privacy and dignity

The Constitution also recognises that children need special protection. Section 28 of the Constitution sets out special rights just for children – these include:

• The right to appropriate care (if they are removed from their parents)
• The right to basic health care services
• The right to basic shelter
• The right to basic social services
• The right to be protected from abuse or bad treatment
• The right to be protected from child labour
• The right to a basic education (Section 29)

THE BEST INTERESTS OF THE CHILD

Whenever a person does something that concerns and affects a child, this must be done in the best interests of the child. The ‘best interests of the child’ is a very important standard that we must use to measure everything that is done for a child. Sometimes it is difficult to decide what a child’s best interests are, as you often have to weigh up different issues carefully.

If a child is identified as being in need of care by the law, then the Children’s Court must hold an enquiry to decide how to protect the child.

Just because a child’s parents or caregivers are living with HIV or AIDS does not mean that the child should be placed in alternative care. It depends on the circumstances.

CASE STUDY – A MOTHER LIVING WITH HIV

In 1999, a mother living with HIV turned to the AIDS Law Project (ALP, now called SECTION27), for help. A social worker had removed her 3 year-old twin children on the grounds that she was a bad mother because she was living with HIV and wasn’t looking after the children properly. The ALP represented the mother in the Children’s Court and showed that she was healthy, was earning money through informal work, and that the children were well cared for. The Department of Social Development made it clear that removing a child should be a last resort. The case shows that when decisions are made about removing a child, discrimination and prejudice about HIV/AIDS should not be a deciding factor.