Removal of children with and without a court order

The below is almost directly from Chapter 9 of the CHILDREN’S ACT 38 OF 2005

(1) A child is in need of care and protection if, the child-
(a)has been abandoned or orphaned and is without any visible means of support;
(b)displays behaviour which cannot be controlled by the parent or care giver;
(c)lives or works on the streets or begs for a living;
(d)is addicted to a dependence-producing substance and is without any support to obtain treatment for such dependency;
(e)has been exploited or lives in circumstances that expose the child to exploitation;
(f)lives in or is exposed to circumstances which may seriously harm that child’s physical, mental or social well-being;
(g)may be at risk if returned to the custody of the parent, guardian or care-giver of the child as there is reason to believe that he or she will live in or be exposed to circumstances which may seriously harm the physical, mental or social well-being of the child;
(h)is in a state of physical or mental neglect; or
(i)is being maltreated, abused, deliberately neglected or degraded by a parent, a care-giver, a person who
has parental responsibilities and rights or a family member of the child or by a person under whose control the child is.

The removal of child to temporary safe care by court order

When, on the evidence given by any person on oath or affirmation before a presiding officer it appears that a child who resides in the area of the children’s court concerned is in need of care and protection, the presiding officer must order that the question of whether the child is in need of care and protection be referred to a designated social worker for an investigation. A presiding officer issuing such an order may also order that the child be placed in temporary safe care if it appears that it is necessary for the safety and well-being of the child. A person authorised by a court order may, either alone or accompanied by a police official enter any premises mentioned in the order and remove the child from the premises.

The person who has removed a child in terms of the court order must without delay but within 24 hours inform the parent, guardian or care-giver of the child of the removal of the child, if that person can
readily be traced and within 24 hours refer the matter to a designated social worker for investigation and report the matter to the relevant provincial department of social development.

Removal of child to temporary safe care without court order

A designated social worker or a police official may remove a child and place the child in temporary safe care without a court order if there are reasonable grounds for believing that the child is in need of care and protection; and needs immediate emergency protection and that the delay in obtaining a court order for the removal of the child and placing the child in temporary safe care may jeopardise the child’s safety and well-being; and that the removal of the child from his or her home environment is the best way to secure that child’s safety and well-being.

The designated social worker or a police official must then without delay but within 24 hours inform the parent, guardian or care-giver of the child of the remova l of the child, if that person can readily be traced; and not later than the next court day inform the relevant clerk of the children’s court of the removal of the child; and report the matter to the relevant provincial department of social development.

Important

Misuse of any power referred to above by a designated social worker in the service of a designated child protection organisation constitutes unprofessional or improper conduct as contemplated in section 27 (1)
(b)of the Social Service Professions Act, 1978 ( Act 110 of 1978 ) by that social worker; and is a ground for an investigation into the possible withdrawal of that organisation’s designation. Misuse of a power referred to in subsection (1) by a police official constitutes grounds for disciplinary proceedings against
such police official as contemplated in section 40 of the South African Police Service Act, 1995 ( Act 68 of 1995 ).

NB!! Any person who removes a child must comply with the prescribed procedure.