Children who cross borders (Pretoria News)

South Africa’s progressive Constitution and the Children’s Act protect unaccompanied minors to the same extent as South African children. However, due to challenges at implementation level of child protection mechanisms, foreign unaccompanied minors tend to fall between cracks of mainstream planning for vulnerable children in both civil society and government circles.

 

Two fundamental measures that are necessary for the adequate protection of foreign unaccompanied minors within South African borders are: access to legal documentation; and entry into the country’s care and protection system. Foreign unaccompanied minors need an immigration or refugee permit to legalise their stay in the country and to protect them against arrest and deportation. This permit also enables them to access basic services such as education, healthcare and social assistance. Furthermore, being alone in the country, they are presumed to be in need of care and protection and need structured institutional protection equal to that given to any vulnerable child in need of care and protection in the country. 

 

An inter-departmental framework is currently in place requiring unaccompanied foreign minors, when encountered, to be referred to a social worker from the Department of Social Development for assistance with undergoing Children’s Court processes and obtaining a Children’s Court order setting out the care arrangements for the child. Despite this arrangement, many asylum seeking children are not assisted. The Department of Home Affairs refuses to issue an asylum seeker permit to children who cannot produce such Children’s Court Order and will routinely turn children away.

 

An absence of uniformity or consistency in the way that this process is currently being implemented across the country has created confusion among government officials who have decided to rather do nothing about the situation of any foreign children who may seek assistance at their offices. In some centres like Johannesburg the process works and with a certain amount of cajoling a child will be assisted in a Children’s Court process and eventually be issued with an asylum permit. In centres like Pretoria the process has never worked and officials are resistant to any kind of pressure to change this state of affairs.

 

The two government departments involved tend not to interact with one another in rendering assistance to the children with the result that it is very difficult for foreign children to get documented and enter the care and protection system. This has resulted in cases where children are forced to live on the streets or in inhumane conditions and are unable to attend school or feed themselves. This leaves them in a highly vulnerable situation directly as a result of the state’s inability to provide the necessary care and assistance.

 

Social workers are hesitant to commence Children’s Court processes for unaccompanied foreign minors as they cannot finalise them without an identity document for the child. Yet at the same time, a child cannot acquire an identity document until a Children’s Court process has been finalised and a court order granted. Unaccompanied foreign minors, who are over the age of 15, end up being sent from one official to another between the two departments, each official shifting responsibility to the next. In the mean time, the children consistently live in perpetual fear of arrest by the police for being unable to produce a document proving that they are legally in the country. Furthermore they are excluded from access to education as most public schools refuse to enrol undocumented children. When they fall ill, public hospitals refuse to treat them because they have no identification documents.

 

There is clearly a problem in the system of protection offered to foreign  unaccompanied minors as it does of offer any  protection and instead renders them more vulnerable.  Foreign unaccompanied children are a voiceless, disenfranchised group who need greater intervention from civil society actors and policy makers in order for their plight to be adequately addressed by government officials who should assume this responsibility for these children.