Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
We live in a world in which elites of every stripe (including many journalists, social workers, police officers, politicians and judges) often assume that poor people are dishonest, irresponsible and lacking in the basic ability to care for others – including their children. There is a deeply ingrained assumption amongst many (but, of course, not all) members of the chattering classes that poor people are to blame for their poverty and that they are prone to be less responsible and less worthy of concern and respect than middle class or rich people.
Meaning well, some often endorse interventions by the state that are aimed at “protecting” poor people from themselves (regardless of what their real needs and wishes might be) and protecting the children of poor people from assumed neglect by their parents. Acting on the questionable assumption that state officials will be better placed than parents to determine what is in the best interest of children, they endorse potentially drastic interventions by state officials to “save” or “protect” children from their poverty stricken parents.
In Australia this kind of paternalistic authoritarianism gave rise to the scandal of the Stolen Generations. Between approximately 1869 and 1969 children of Australian Aboriginal and Torres Strait Islander descent were removed from their families by the Australian Federal and State government agencies and church missions, under acts of their respective parliaments, ostensibly to protect the children and enhance their life chances.
In the South African context, how destructive this can be of the basic dignity of the poor is well illustrated by the facts that gave rise to the various judgments handed down by the Constitutional Court yesterday in the case of C and Others v Department of Health and Social Development, Gauteng and Others.
On Friday 13 August 2010, Mr C was repairing shoes on a street corner – as he does every day – but unlike other days he had his daughter with him because his partner (who normally looked after the child) had been hospitalised to give birth to another child. Ms M, a blind person, was accompanied by her two daughters while begging.
On that day designated social workers removed the children from both Mr C and Ms M and placed them in the Department’s care facilities, without notifying the parents of where they were. The social workers (along with other Tshwane officials) were taking part in a well-planned operation involving the removal of children from people found to be begging while accompanied by children. No court order had been sought for the removal of these children.
Section 152(1) of the Children’s Act empowers a social worker or police official to remove a child and place the child in temporary safe care, without a court order, if it is reasonably believed that: (a) the child is in need of care and protection and needs immediate emergency protection; (b) the delay in obtaining a court order may jeopardise the child’s safety and well-being; and (c) removal is the best way to secure the child’s safety and well-being.
In terms of the Act, a social worker is required to compile a report on whether the child is in need of care and protection in terms of section 152 within 90 days, after which the child must be brought before the children’s court for a determination of whether she or he is indeed in need of care and protection. There is no provision for automatic court review before compilation of the report and if parents are unable to appear in court or get help from an NGO to assist them, chances are that their children would permanently be deprived of the care and love of their parents.
In two separate decisions Skweyiya J (Froneman J concurring) and Yacoob J (Moseneke DCJ, Khampepe J, Nkabinde J and Van der Westhuizen J concurring) both agreed, for slightly different reasons, that the provisions of the Children’s Act that authorised this removal of children from their parents without court supervision were in breach of section 28 and section 34 of the Constitution and that this was not justifiable in terms of the limitations clause.
Although a social worker or police official is empowered by the Act to remove a child from his or her parents only if, in their reasonable belief, immediate emergency protection is so necessary that the delay in obtaining a court order may jeopardise the child’s safety and well-being, and then only if the removal of the child is the best way to secure that child’s safety and well-being, the danger is that a social worker or police officer will exercise this discretion on the basis of prejudicial assumptions about poor people and their ability and willingness to look after their children.
As Justice Yacoob emphasised, the purpose of the impugned provisions is to protect, secure and prevent the violation of the constitutional rights of children. One may well ask (if one takes an overtly formalistic view of constitutional interpretation or if one harbours the deeply paternalistic view that state officials will often be better placed that poor citizens to decide what is in the best interest of their children): how can the legislative provisions here in issue that are palpably designed to protect the constitutional rights of children be inconsistent with section 28 of the Constitution?
The answer is simple: there exists always the possibility that a removal would be wrongly made (because of overzealousness on the part of social workers or police officers or because of the prejudices against the poor harboured by many social workers and police officers. As Yacoob therefore stated:
It is in the interests of children that an incorrect decision by a court made without hearing the child or the parents, or by a designated social worker or police official be susceptible to automatic review by a court, in the ordinary course, in the presence of the child and the parents. It follows from this that sections 151 and 152 [of the Act] do not provide for this and are therefore constitutionally wanting. Sections 151 and 152 of the Act, though their positive provisions are aimed at the best interests of children, fall short of achieving this result. They carry the potential of being counter-productive because they fail to provide for a Children’s Court automatic review in the presence of the child and the parents. In this sense, and to this extent, the laws are not in the best interests of children. They therefore limit the rights contained in section 28(2).
Having found the provisions unconstitutional, the question remained how to correct this problem. If the sections were merely declared invalid, social workers and police officers would have no power to protect children and remove them from parents (even when this was clearly required) until such time as Parliament had remedied the defect. If the order of invalidity was merely suspended and Parliament provided with one or two years to fix the problem, there would be no guarantee that the sections would not be abused.
The majority therefore endorsed a radical remedy of reading a whole new section into the Act, requiring that a social worker place the removal of children before a Children’s Court for review within 48 hours after the removal and must ensure that the child concerned and the parents, guardian or care-giver as the case may be are, unless this is impracticable, present in court for this review.
Both Skweyiya and Yacoob were at pains to say that this reading in of words into the statute by the court should not be seen as an infringement of the separation of powers doctrine because the court is now writing legislation on behalf of the legislature. As Skweyiya eloquently stated:
By making a final order of this kind, however, I do not suggest that the Court has crowded-out Parliament’s role in further investigating how best to serve the interests of children, for whom a removal from the home is necessary, and in enacting appropriate legislation. Indeed, a final order of reading-in does not give the judiciary the ultimate word on pronouncing on the law. Instead it initiates a conversation between the Legislature and the courts, for Parliament’s legislative power to amend the remedy continues to subsist beyond the granting of the relief, and may be exercised within constitutionally permissible limits at any future time. I would therefore encourage the Legislature to exercise its entitlement to alter the remedy, should it see fit to do so, in view of its specialist expertise and, of course, subject to its constitutional mandate.
For Constitutional Court watchers the minority decision in this case might be of much interest. Although the minority decision was authored by Justice Chris Jafta, it was also supported by Chief Justice Mogoeng Mogoeng. To my mind there are two serious problems with the reasoning of the minority. First, the reasoning is extremely formalistic. There is no purposive interpretation of the provisions of the Bill of Rights at all and the impact or effect of the impugned provisions on the best interest of children is never considered. Second, the assumption underlying the minority judgment seems to be that social workers and police officers will always act in the best interest of the child and that their own prejudices and assumptions about poor people will never cloud their judgment.
Thus Jafta focuses on the text of section 28 of the Constitution and notes that it does not include a requirement that any decision to remove children from their parents should automatically be reviewed. Consequently, he argues, it cannot be used as a constitutional standard for determining the validity of legislation.
In the context of section 28(1)(b) read with section 28(1)(d) and section 28(2), the scope of the right to parental care cannot include parental care that is harmful or detrimental to the safety and well-being of a child. It cannot be claimed that section 28(1)(b) entitles a child to parental care that is harmful to its safety and well-being. It follows that the right to parental care envisaged in section 28(1)(b) is limited to parental care that is beneficial to a child. In other words, this section does not protect harmful parental care. Consequently, legislation which authorises a removal of a child from harmful parental care cannot limit the right in section 28(1)(b).
Completely failing to ask how these provisions would be applied and what impact this might have on the rights of the child to parental care, the minority merely focuses on the wording of section 28 – as if the provisions of the Bill of Rights have not been written in broad and general terms and are not in need of interpretation and amplification by the Constitutional Court – and concludes that these provisions do not prohibit Parliament from empowering officials to remove children from their parents, as long as those officials believe that this is warranted.
The possibilities that state officials will be influenced by anti-poor attitudes and will not always know better than the poor parents (who will be “legally” robbed of their children) what is in the best interest of their children, are never considered. This paternalistic attitude is surprising, to say the least and, to my mind, displays the kind of attitude that is difficult to square with a progressive, pro-poor and pro-transformation vision of the Constitution.BACK TO TOP