Deportation of foreign unaccompanied children from SA

At the end of 2004 the Strategic Litigation Unit successfully entrenched the principle that government departments could not without due process detain and deport unaccompanied foreign children from South Africa. Pursuant to an application brought by Lawyers for Human Rights, the Pretoria High Court handed down a judgment which held that the legal mechanisms for the protection of South African children, found in the Constitution and the Child Care Act of 1983, apply equally to unaccompanied foreign children present within South Africa’s borders. Thus, whenever a foreign child is found in need of care, such child must be placed in a place of safety, his or her personal circumstances investigated by a social worker and a Children’s Court inquiry opened, conducted and finalized. This is the same procedure that applies to South African children. The judgment was reported in the South African law reports during November 2005 and is cited as Centre for Child Law v Minister of Home Affairs 2005 (6) SA 50(T). However, the matter as a whole is not yet finalized. Before the judgment was handed down, many unaccompanied foreign children were simply dropped off at the borders of Mozambique, Zimbabwe and other bordering countries without any attempt being made to reunite these children with their families or to reintegrate them into society. Although the Pretoria High Court’s judgment held that this practice was unlawful, there still appears to be no proper government policy or procedure providing for the lawful and dignified deportation of children from South Africa. For this reason, the second objective of the case is to ensure that the South African government formulates legal and humane policies for the deportation of foreign unaccompanied children from South Africa. Lawyers for Human Rights hope to achieve this through a negotiated settlement in the near future. To this end, we have met with the Government’s lawyers recently to discuss the adoption of a policy circular that would set out a procedure and safeguards to be followed before unaccompanied children are deported from South Africa.