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Unlawful detention of foreign children

An urgent application will be brought before the Pretoria High Court today by the Centre for Child Law and the court-appointed curator ad litem for 13 unaccompanied foreign children. The main purpose of the application is get a court order to force the Department of Social Development’s bring the children, presently detained in Dyambo Youth Centre, before the Krugersdorp Children’s Court in order for inquiries to be opened for them in terms of the provisions of section 12(2)(c) of the Child Care Act 74 of 1983 (“the Child Care Act”)

  

This application is the fourth in a series of applications that have been brought in relation to these children. On 3 March 2004 the Center for Child Law brought an urgent application on behalf of a number of unaccompanied foreign children who were detained at Lindela Repatriation Centre

 

 

 At the time of that application the detained children were being held together with adults also detained at Lindela. They were ffacing imminent and unlawful deportation. The Court granted an interdict preventing the Minister of Home Affairs from proceeding with the deportation of the children and also appointed Advocate Isabelle Ellis as curator ad litem for the children. The curator’s powers and duties included, amongst others, to investigate the circumstances of the children in detention, to make recommendations to the Court regarding their future treatment and to institute legal proceedings in enforcement of their rights.  

 

The curator recommended that the children be moved immediately to a place of safety known as Dyambu, and that children’s court inquiries would be held in respect of each of them. The children were moved from Lindela to Dyambo Youth Centre on 2 April 2004.

  

During May 2004, the Commissioner refused to conduct Children’s Court inquiries in respect of these children, because in his view foreign children fell outside of the ambit of the Child Care Act.

 

 

  On 21 May 2004 the curator ad litem brought a successful application to set aside the Commissioner’s refusal to conduct children’s court proceedings and to compel him to do so.   This having been ordered, the next step fell to the Department of Social Development, as it is the task of social workers to open the inquiries. This did not happen, despite repeated attempts by the applicants to get action through  telephone calls, meetings and correspondence.  Lawyers for Human Rights attorney Fritz Gaerdes wrote to a Chief Director in the Department of Social Development in early August, warning that the matter would have to go back to court if the children’s court inquiries were not opened by a specified date. No reply to the letter was received. The inaction on the part of the Department of Social Development has necessitated this urgent application.   

 

The children have been in detention since February, and they are now becoming very frustrated with the process. Ann Skelton of the Centre for Child Law saw the children on Monday, 23 August 2004 and found that their anxiety about their continued detention had reached crisis proportions. She said that the children believe that they are being “punished” for no reason and they object to the fact that they are currently being held at a facility which houses children awaiting trial.  

 

A second aspect of this application deals with a further problem, namely that whilst the Departments have been unable to effectively deal with the first group of children dealt with by this application which was initially brought in March this year, more unaccompanied foreign children are being arrested and detained at Lindela Repatriation Centre. The affidavits before the court indicate that on 4 August this year employees of Lawyers for Human Rights, the Centre for Child Law and the Human Rights Commission saw and interviewed. The affidavit by Ann Skelton of the Centre for Child Law further points out that this practice is in conflict with the Department of Home Affairs own policy as set out in passport instruction no 1 of 2004.  

 

Today Advocate Jacob van Garderen will ask for an order to compel the Department of Social Development to ensure that the children’s court inquiries are opened and that the reports by social workers are filed within 15 days. He will also ask that the South African Police Service be interdicted from bringing any further children to Lindela Repatriation Centre. In future unaccompanied foreign children should be taken to the nearest place of safety pending the finalisation of a children’s court inquiry.   

 

Contact persons Lawyers for Human Rights   Fritz Gaerdes 0834148790Jacob van Garderen 0828203960 Centre for Child Law (University of Pretoria)                                                            Ann Skelton 0824432702Upkaar Mungar 0828286775