THE BEST INTERESTS OF CHILDREN OF PRIMARY CAREGIVERS TO BE SENTENCED: A COMPARATIVE STUDY BS NKOSI (B.Iuris, LLB, (Unin) Cert. in EU Law Vrije Universiteit, (Amsterdam) LLM (Unin) Student Number: 25816438 Thesis submitted for the degree Doctor Legum in Child Law at the Potchefstroom Campus of the North-West University Main Subject: Child Law Ancillary subjects: Family Law Criminal Law and Procedure Promoter: Prof. JA Robinson Co-Promoter: Prof. IA van der Merwe Month and year of submission: June 2020 ACKNOWLEDGEMENTS First and foremost, I am grateful to Alla Subhanwatallah (God of Mercy) for giving me life and health to work on this project. My sincere gratitude goes to Makile Sarah Maseko, my late grandmother. I thank you Ngcamance wa Khubonye waNdlovu for raising me together with my mother Etty Emmah. Even when it appeared I would drop out due to lack of funds, you went all the way out to ensure that I complete my studies. I am grateful to my mother Etty Emmah, I thank you for giving birth to me and for making sure that I grew up properly, in spite of all the challenges. Mkhulu Fuzi Philip Mahlangu,I also express my sincere appreciation. Ngiyathokoza kwamambala.I cannot forget my omamkhulu Belina and late Emily, my late uncles Mhlupheki, Nkede and Koyikoyi for also playing a role in my upbringing. Ngiyabonga boDlamini, nine bekutalwa njengenkhomo. My appreciation extends to all the Nkosi clan, thank you to all of you boDlamini, bosiDlukuladledle Sakalobamba. My appreciation further drizzles out to Mmakudumela Anastacia Molepo. Thank you for your cooperation and understanding. You never complained when I constantly advised you I was studying. Ke a leboga Mohlapa. My beloved daughters Phakamile Makile and Kwekwezi Mamswati. Thank you for propelling me through your love and inspiration. You will always remain my princesses. I am indebted to Prof. Adriaan Anderson for guiding me to get supervision from the North-West University, Potchefstroom campus and to Prof. JA Robinson for agreeing to promote this project and for propelling it to completion. My gratitude is also extended to Prof. Annette van der Merwe for offering her valuable and indispensable expertise in the work. My appreciation also pours out to Ms Lize-Mari Mitchell who edited the structure of the project. My heart further decants out to the management of the University of Limpopo, Human Resource, Research Office and Finance Department, School of Law and Department of Jurisprudence, Legal Pluralism, Criminal Law and Procedure. I am grateful for the fiscal, emotional and other support you have contributed to this project. I am indebted to Mahlodi Sethole, Catherine Mokadi and Lorna Modiba for providing the logistics and material required. I thank you. Martina Ncube, Mr. Phaladi, and Bapela, my informal editor for your support. i DEDICATION I dedicate this project to my beloved princesses PHAKAMILE MAKILE and KWEKWEZI MAMSWATI. ii DECLARATION I, the undersigned Bongani Stanley Nkosi hereby declare that this thesis is my own unaided work in design and content. ___________________ Bongani Stanley Nkosi Student Number: 25816438 iii Abstract Every child has the right to care. The commission of an offence by the child’s primary caregiver and her resultant imprisonment may infringe or place the right of the child to care at risk of infringement. The incarceration of the child’s caregiver may lead to the child being deprived of care as there may be no one to care for the child. International children rights instruments impose the duty to act in the best interests of the child in every matter that concerns the child on the court as well. The sentencing of the child’s primary caregiver is itself a matter that involves the child and that directs the court to consider the right of the child to care when imposing a custodial sentence on the child’s primary caregiver. The prescript of the best interests of the child has altered the traditional approach to sentencing. The court has the obligation to take into account the right of the child to care when imposing a custodial sentence on the child’s caregiver. The landmark dictum of S v M has since established guidelines for the sentencing of a child’s caregiver. The guidelines for the sentencing of the child’s primary caregiver are not always adhered to much so to the detriment of children of caregivers. In some of the cases where the guidelines for the sentencing of the child’s caregiver have been complied with, the placement of the children in appropriate alternative care was often left to the Departments of Social Development or Correctional Services and was without appropriate supervision by the court. The procedure that social workers follow in putting a child in alternative care is unsuitable for the child of a caregiver that stands to be sentenced to a custodial sentence or that is jailed. The placement of children in alternative care without appropriate supervision by the court has the potential of infringing their right to care. The placement of children in appropriate alternative care is often intended, where possible, to avoid confining children with their imprisoned caregivers. The prison environment is at most uncongenial for children. The Children’s Act creates possibilities for the care of the child of an imprisoned caregiver. The child may be cared for by a person or persons that he is familiar with and who is or are able to perpetuate the child’s religion, heritage, language and culture i and such care makes it unnecessary to resort to other forms of alternative care such as institutional care. The placement of the child of an incarcerated caregiver in appropriate alternative care requires that the mandate of the Family Advocate be amended. At present, the Family Advocate operates from the private law sphere. The Family Advocate should be an integral part of the sentencing of the child’s caregiver and must be authorised to assist the child’s primary caregiver to identify and to enter into a parental responsibilities and rights agreement with a person or persons who will care for the child during her term of imprisonment. Keywords: child; best interests of the child; caregiver; court; sentencing; imprisonment South Africa; India; England ii LIST OF ABBREVIATIONS ACRWC African Charter on the Rights and Welfare of the Child CA-Engl Children Act (England) CCA Child Care Act CCPA Child Care and Protection Act CCP Code of Criminal Procedure CorJA Coroners Justice Act CSA Correctional Services Act CStA Children’s Status Act CSAA Correctional Services Amendment Act CRC Convention on the Rights of the Child DCS Department of Correctional Services DSD Department of Social Development ECHR European Convention on Human Rights FLRA Family Law Reform Act GA Guardianship Act GLFAA General Law Further Amendment Act GuA Guardianship Act GWA Guardians and Wards Act HMGA Hindu Minority and Guardianship Act HRA Human Rights Act (England) IMPIYM Infants and Mothers Policy/ Infants and Young Mothers Policy JJCPCA Juvenile Justice (Care and Protection of Children) Act KA KwaZulu Act on the Code of the Zulu KNC KwaZulu Natal Code MA Marriages Act MAA Matrimonial Affairs Act MBU Mother and Baby Unit MCU Mother and Child Unit MPM Model Prison Manual NCCS National Commissioner for Correctional Services iii NFCBOWA Natural Fathers of Children Born Out of Wedlock PSO Prison Service Order SGC Sentencing Guidelines Council UDHR Universal Declaration of Human Rights iv Table of Contents CHAPTER 1 1 1 Introduction 1 1.1 Background to the Study 1 1.2 Sentencing of a Caregiver, the Best Interests of a Child and the Child’s Need of Care 2 1.3 Definitions and Explanations 5 1.4 Comparative Study 7 1.5 Methodology 8 1.6 Research Question 9 1.7 Aims of Research 9 1.8 Hypotheses 9 1.9 Limitation of the Study 10 1.10 Outline of Chapters 10 CHAPTER 2 11 2 The Best Interests of The Child Against the Background of Relevant International Instruments 11 2.1 Introduction 11 2.2 Best interests of the child 11 2.2.1 Convention on the Rights of the Child 11 2.2.2 African Charter of the Rights and Welfare of the Child 12 2.2.3 Nature and application of the best interests of the child 13 2.3 South Africa 14 2.3.1 Constitution 14 2.3.2 Children’s Act 38 of 2005 17 2.4 India 18 2.5 England 19 2.5.1 Children’s Act (1989) 19 i 2.6 Conclusion 23 CHAPTER 3 25 3 The Influence of The Child’s Best Interests on His Care 25 3.1 Introduction 25 3.2 International instruments 28 3.2.1 Convention on the Rights of the Child 28 3.2.1.1 Parental / Family Care 28 3.2.1.2 Alternative Care 30 3.2.2 African Charter of the Welfare of the Child 31 3.2.2.1 Parental / Family Care 31 3.2.2.2 Alternative Care 32 3.2.3 Alternative Care Settings 33 3.2.3.1 Kinship Care 34 3.2.3.2 Foster Care 36 3.2.3.3 Institutional Care 37 3.2.3.4 Kafalah 38 3.2.3.5 Adoption 39 3.3 South Africa 39 3.3.1 Parental / Family Care 39 3.3.1.1 Children’s Act 41 3.3.1.1.2 Alternative Care 41 3.4 Customary law 44 3.5 India 44 3.5.1 Background 44 3.5.2 Child Care and Protection Act of 2005 45 3.5.3 Alternative Care 48 3.5.3.1 Alternative Care Settings 49 3.5.3.1.1 Foster Care 49 3.5.3.1.2 Institutional Care 51 3.6 England 52 3.6.1 Background 52 3.6.2 Parental / Family Care 53 3.6.3 Alternative Care 55 3.6.3.1 Alternative Care Setting 55 3.6.3.1.1 Foster Care 55 3.7 Conclusion 57 ii CHAPTER 4 58 Parental Responsibilities and Rights and The Best Interests of the Child 58 4.1 Introduction 58 4.2 Guardianship 59 4.2.1 South Africa (Guardianship prior to the Children’s Act) 60 4.2.1.1 Children born within marriage 60 4.2.1.2 Child born out of wedlock 63 4.2.1.2.1 Unmarried mother 63 4.2.1.2.2 Unmarried father 63 4.2.2.