The protection and care of unaccompanied foreign children came under the spotlight today in the Pretoria High Court. In a precedent-setting judgment, Judge Annemarie de Vos castigated the “apathy” of government officials who had failed to act in accordance with South Africa’s Constitution, statutory law and their own stated policy and were also in breach of international law.
The judgment was delivered in response to an urgent application brought on Wednesday 8 September 2004, by the Centre for Child Law and Isabelle Ellis, the curator ad litem for 13 unaccompanied foreign children. Lawyers for Human Rights-Pretoria Law Clinic acted as the attorneys and counsel for the applicants.
The importance of the judgement is that:
- It removes any doubt that may have existed about the fact that unaccompanied foreign children should be dealt with under the provisions of the Child Care Act.
- Judge de Vos indicated that in her view unaccompanied foreign children should have legal representatives assigned to them by the state in terms of section 28 (1)(h) of the Constitution. She ordered that the Krugersdorp Commissioner for Child Welfare must assign legal representatives for the children if it appears that substantial injustice would otherwise result.
- The judge found that there is a positive duty on government departments to liase with one another to formulate and implement practical arrangements regarding unaccompanied foreign children found in South Africa.
In her judgment, Judge Annemarie de Vos noted that South Africa has recently celebrated the 10th anniversary of the first democratic elections and that we as South Africans are justifiably proud of our democracy and the principles enshrined in our Constitution. She also noted that we have an icon in Nelson Mandela whose love for children is internationally known. However, the lofty ideals set out in our constitution and government policy become “hypocritical nonsense” if they are not translated into action by the people who have been appointed and paid by the government to make them a reality. She noted with deep concern that the children had remained in detention since February, and she said that government’s failure to act in the best interests of the children was shameful.
The order that was handed down on Wednesday 8 September 2004[1] (see copy attached) directed the Department of Social Development to bring the children, presently detained in Dyambu 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 within 15 days. In addition, the order interdicted the departments concerned from bringing or admitting any further unaccompanied foreign children to Lindela, and directed that in future such children should be dealt with in terms of the Child Care Act. Regarding the children who have recently been brought to Lindela the judge said their detention is unlawful and invalid and must cease immediately.
Costs were awarded against the departments.
History of the matter
This application was the fourth in a series of applications that have been brought in relation to these children. On 3 March 2004 the Centre 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 facing 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 Dyambu Youth Centre on 2 April 2004. The reason it is important to hold children’s court inquiries is firstly, to establish the status of the chidren. Some of the children may have legal rights to remain in South Africa – affidavits before the court actually demonstrated that South African children have been found at Lindela on suspicion of being foreign children. Secondly, if unaccompanied foreign children are to be repatriated, international law requires that there must be a proper investigation into whether there is a suitable home for them to return to, and adequate arrangements must be made for their safe reintegration into their communities.
The Department of Home Affairs’ standard practice has been to transport the children by train or truck and dump them without money, food or assistance at the nearest police station on the other side of the border, or at the border itself. During May 2004, the Krugersdorp Commissioner of Child Welfare 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 High Court set aside the Commissioner’s refusal to conduct children’s court proceedings, and ordered him to conduct such inquiries. TThis 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 the responsible 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 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. New children being admitted at Lindela 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, in contravention of the Constitution. 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 13 children. The affidavit by Ann Skelton 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. Contact persons Lawyers for Human Rights Fritz Gaerdes 083 414 8790Adv. Jacob van Garderen 082 820 3960 Centre for Child Law (University of Pretoria) Ann Skelton 082 443 2702Upkaar Mungar 082 828 6775
[1] The judgment that was passed today (13 Sept 2004) gives reasons for the order that was handed down on 8 Sept 2004.
