Using the courts to promote children’s rights: Case notes from the South African Constitutional Court
Dr. Ann Skelton
Centre for Child Law, University of Pretoria
Professor Ann Skelton graduated with a BA LLB (UKZN) in 1985 and LLD (University of Pretoria) in 2005. She has worked as a human rights lawyer in South Africa for 25 years, specialising in children’s rights. She was at the forefront of child law reform through her involvement with the South African Law Reform Commission, where she chaired the committee that drafted the Child Justice Act and was a member of the committee that drafted that Children’s Act. Ann is currently the Director of the Centre for Child Law, University of Pretoria. She often appears in the superior courts arguing children’s rights issues in a wide range of public interest law matters. She regularly attends expert meetings of UN bodies, and in 2012 she was awarded the Honourary Worlds’ Children’s Prize, presented in Sweden. She is an established researcher and has published widely in the fields of child law, family law, constitutional law, criminal justice and restorative justice. In 2016 Dr. Skelton was elected to the UN Committee on the Rights of the Child.
Abstract
Using the law to promote children’s rights is not a new idea but most child rights advocates tend to think of legislative reform as the only way to do it. Litigation – taking cases to court- is another way in which the law... [ view full abstract ]
Using the law to promote children’s rights is not a new idea but most child rights advocates tend to think of legislative reform as the only way to do it. Litigation – taking cases to court- is another way in which the law can be used to protect and promote children’s rights. This paper considers several judgments of the South African Constitutional Court which have made important pronouncements on children’s rights. After giving a brief overview of some landmark judgments the paper will move on to consider two recent judgments in detail. The first of these, Teddy Bear Clinic v Minister of Justice, deals with the decriminalisation of consensual sex between teenagers. The Constitutional Court upheld the privacy, dignity and autonomy of adolescents in finding that the law that criminalised their normative behaviour was unconstitutional. The second case J v National Director of Public Prosecutions. This matter dealt with a new law that required the automatic placement of the details of every convicted sex offender on a sex offenders’ register – including sex offenders who were themselves children. The law found that this was at odds with the aims of a child justice system that promotes individualisation, rehabilitation and reintegration of child offenders, and went against the consideration of their best interests. The law was therefore found to be unconstitutional and was replaced with a system that, as a general rule, does not place child offenders on the register, but where the prosecution indicates an intention to apply for such inclusion, notice is to be given and a proper assessment is to be done. These findings of South Africa’s Constitutional Court give life to international and regional child rights standards and set precedents that can be considered by other countries, particularly those with a common law tradition.
Session
KN-04 » Keynote (11:15 - Monday, 29th August)
