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THE CHILDREN’S ACT, 2005 (ACT 38 OF 2005)

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The Department of Justice and Constitutional Development receives questions on the Children’s Act, 2005 (Act 38 of 2005), daily. The aim of this Frequently Asked Questions (FAQs) webpage is to answer these questions in a user-friendly manner and to create a better understanding of the Act and how it can work for you.

You can also visit the Department of Social Development's website for more information regarding child protection services, adoptions, foster care, childsupportgrants, etc. or the South African Police Services website for information regarding childabuse, emergency numbers, safety tips, etc.

What is a Children’s Court?

How do I use this webpage to answer my questions on the Children’s Act, 2005?
This webpage includes a range of questions and answers as received from the public and stakeholders. The questions are listed according to categories. You can surf the webpage to see whether your question is included in one of these categories or download the PDF PDF version of the FAQ (published 26 May 2011) or download the
following pamphlets/booklets:

Frequently Asked Questions (FAQs)

When can a child decide where and with whom to live?

In terms of the Children’s Act, Act 38 of 2005, the child’s views on decisions concerning him or her are meant to be taken cognisance of, provided the child is of the age and maturity to understand such circumstances and decisions. However, just because a child expresses a view, the courts may not regard such a view as being in the child’s best interest and may hand down a decision (after gathering such views and hearing any evidence that may be required) which may be contrary to what the child may desire. This is so, because the court will make a decision which it considers to be in the child’s best interests.

Inquiry by Employer to the National Child Protection Register and the National Sex Offenders Register

In terms of section 126 of the Children’s Act, 2005 (Act 38 of 2005) employers offering services which allow for access to children must, before employing a person, establish from the Registrar of the National Child Protection Register whether or not the potential employee’s name is on Part B of the National Child Protection Register. If the potential employee’s name appears on the Register, he or she will not be allowed to work in an environment which allows for access to children, since persons whose names appear on the Register have been found unsuitable to work with children by the court.

In order to establish whether the person’s name appears in Part B of the Child Protection Register, the employer should complete a Form 29, which they can obtain from the Department of Social Development, and send it to CPRenquiries@dsd.gov.za. The contact number for the Registrar is 012 312 7554.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) have similar provisions providing for the National Sex Offenders Register which records the names of persons who have been convicted of  charges of sexual offences committed against a child or a mentally disabled person. These persons are similarly not permitted to work with or have access to children or mentally disabled persons.

The employer should complete a Form 8 (Annexure B of the Regulations), which they can obtain from the Department of Justice and Constitutional Development. Ms Ntombizodwa Matjila is the Registrar of the National Sex Offenders Register and her contact details are as follows: email:  NMatjila@justice.gov.za and telephone number 012 315 1656.

1.1 What is the Children’s Act, 2005 and how can it help me?
1.2 Does it really differ from all the previous legislation governing the rights of children?
1.3 Will this webpage discuss the chapters individually?
1.4 Is the Children’s Act, 2005 only for children?
1.5 I have heard about the Child Justice Act, 2008 (Act 75 of 2008) is this the same as the Children’s Act, 2005?
1.6 Where can I get a copy of the Children’s Act, 2005?

2.1 Who is a child?
2.2 What is sexual abuse in relation to a child?
2.3 How do I know if a child is a " street child"?
2.4 What do people mean when they say that a child is being "trafficked"?
2.5 How do I know if a child has been abandoned?
2.6 What does it mean if a parent neglects a child?

3.1 How does the court know what’s in the best interest of the child?
3.2 I am a child. Will the court allow me to speak and tell my side of the story, or will the grown-ups make all the decisions?
3.3 I am 17 years old and I have been told that I need to be circumcised. Can people force me into circumcision?
3.4 Are people allowed to take my 14-year-old sister for virginity tests?
3.5 Is it possible for children to bring a matter to court on their own, or do they need the permission of their parents or guardian?

4.1 What are parental rights and responsibilities?
4.2 Does a father/mother have any rights when he/she is not paying any maintenance?
4.3 How do grandparents obtain rights to a grandchild?
4.4 Termination, extension, suspension or restriction of parental responsibilities and rights

5.1 Where can I find a children’s court? Is every magistrates’ court in South Africa a children’s court?
5.2 I am afraid to go to the Children’s Court. Will they let me sit with criminals?
5.3 What matters can I take to the Children’s Court?
5.4 I am not the parent or guardian of the child. May I still approach the court if I know that the child is being abused?
5.5 Can anyone attend a Children’s Court proceeding?

6.1 What is partial care?
6.2 My babysitter looks after all three of my children. Does this fall under partial care?
6.3 My child goes to a partial-care facility. I have noticed that medication and other things that can be harmful to my child are not stored away. Does the Act say anything about this?

7.1 What is Early Childhood Development (ECD)?
7.2 My child attends an ECD Programme. Can anyone deliver ECD programmes?

8.1 What is the National Child Protection Register?
8.2 I have been notified that my name has been included on Part B of the Register. What does this mean?
8.3 Is it possible to appeal against the finding that I am unsuitable to work with children?
8.4 Where can I find more information on the submission of details to this register?

9.1 Who can the court order to participate in an early intervention programme?

10.1 How will I know if a child is in need of care and protection?
10.2 What if the child is clearly in danger at the place he/she lives, must the police/social worker always wait to get a court order before they can remove the child to a safer place?
10.3 Is it always the child that will be taken away from the home? Can’t the alleged offender be removed?
10.4 How does the court decide what is in the best interest of my child before it issues an order?
10.5 I am afraid that the court will place my child in a child- and youth-care centre. When will the court use this option?
10.6 What is a Foster Care Order?

11. CHAPTER 10
11.1 What is a Contribution Order?

12. CHAPTER 11
12.1 When someone says a child has been placed in "alternative care", what does this mean?
12.2 I am a foster parent. We would like to go on holiday outside South Africa and take the children to whom we are foster parents, along. Is this possible?

13. CHAPTER 12
13.1 How many children may be placed with me in foster care?
13.2 What is the duration of a foster-care placement?

14. CHAPTER 13
14.1 Can a boarding school also be a child- and youth-care centre?

15. CHAPTER 14
15.1 What is a drop-in centre?

16. CHAPTER 15
16.1 Who may adopt a child?
16.2 I am not a rich person, but I would like to adopt a child. Will this be possible?
16.3 Must a child give permission for his/her own adoption?
16.4 Does the Court take into account the religion of the adoptable child, before issuing an adoption order?

17. CHAPTER 16
17.1 Is it possible for a person from another country to adopt a child from South Africa?
17.2 What is a Convention/Non-Convention country?

18. CHAPTER 17
18.1 I have been given care and contact of my child; my wife has taken my child with her overseas, and said she will not be returning. What recourse do I have?
Also follow thi slink to view the passport requriements from the Department of Home Affairs.

19. CHAPTER 18
19.1 Is it possible for a child to be trafficked within the borders of South Africa?
19.2 What if the child consented to being trafficked?
19.3 I am a doctor. What must I do when I come into contact with a child who has been the victim of trafficking?

20. CHAPTER 19
20.1 What is meant with "surrogate motherhood"?


What do I do if my question is not included in any category on the FAQ webpage?
Ask a QuestionShould a similar question not be included on this webpage, please click on the “Ask a Question” button on the webpage and send (email) us your question. We will then compile an answer and include it as an FAQ.

Are the answers supplied on the webpage, the opinion of an individual?
The answers we give are gathered directly from the Act. We also consult with other stakeholders to make sure you are given the right information.




Chief Directorate: Promotion of the Rights of Vulnerable Groups
Email questions or enquiries to children@justice.gov.za
Legal Aid SA