Pretoria - Social Development Minister Bathabile Dlamini has welcomed the South Gauteng High Court ruling on an application for a foster care order.
The application for a foster care order, made in terms of Section 150 (1)(a) of the Children’s Act (Act No. 38 of 2005, as amended), was in respect of three minor children who were in the care of their maternal grandmother, the complainant.
On 20 January 2011, the Commissioner of the Children’s Court, M Du Plessis – Krugersdorp District – had pronounced, inter alia that the children were “not in need of care and protection” as envisaged on Section 150 (1)(a) of the Children’s Act on the basis that “they have visible means of support and that they have a caregiver who is able and suitable to care for them”.
Legal Aid South Africa had brought an appeal to the High Court on behalf of the complainant against the ruling of the Commissioner.
This was despite the responsible social worker’s recommendation that the children were in need of care and protection, that the children be placed in the foster care of the complainant and that a foster care grant be paid to the complainant in respect of the three minor children.
The order, issued by the Children’s Commissioner raised concern amongst Non-Profit Organisations that work with children and also grandparents who were primary caregivers to many orphaned and vulnerable children throughout South Africa, that foster care grants in similar situations would be withdrawn.
As a custodian of the Children’s Act, Dlamini had intervened in the court case as a second respondent and supported the appeal brought against the Presiding Officer of the Children’s Court.
Dlamini’s intervention in this appeal was based on a requirement for the proper interpretation and application of the Children’s Act, which is fundamental to creating uniformity in the orders issued by judicial officers in the Children’s Courts.
Welcoming the court ruling on Friday, Dlamini said it was consistent with the Children’s Act, which does not set out a means test to be applied nor does it provide for an investigation of the earnings of foster parents.
“In fact, the Children’s Act provides only that a court determine whether a child is in need of care and protection and after making such a finding, may make an order placing a child in foster care. The Social Assistance Act categorically states that a foster parent qualifies for a foster care grant regardless of his/her income,” said Dlamini.
The High Court ruled that the initial order by the Children’s Commissioner “would exclude children in the care of their grandparents who are found to be abandoned from accessing government source of support.”
It further ruled that the financial position of the caregiver must not determine the foster care order, but rather the best interest of children must be upheld at all times.
The Minister warned that if left unchallenged, the order issued by the Commissioner of the Children’s Court would have jeopardised the lives and future of many children who are presently in the care of their grandparents and receiving a foster care grant.
“The Commissioner’s interpretation of the Children’s Act was completely flawed and failed to adhere to the principle that everything must be done in the best interest of the child,” Dlamini added.
Currently, the South African Social Security Agency issues the foster care grant to over 520 000 recipients in accordance with the provisions of the Children’s Act. Of these, 73 496 are issued to foster parents between the ages of 60-70, 40 728 to ages 70-80, 9 956 to ages 80-90, and 936 to those above 90 years.
Dlamini thanked all senior citizens for continuing to provide the much-needed care and support to orphaned and vulnerable children in communities.
“I also would like to assure them that we will continue to ensure that they receive adequate Government support in nurturing the children in their care.” – SAnews.gov.za
