FOSTERING BY CAREGIVERS WITH NO COMMON-LAW DUTY OF SUPPORT: AT LAST, SOME CLARITY IN THE LAW SS v Presiding Officer, Children’s Court, Krugersdorp 2012 (6) SA 45 (GSJ)

Abstract

Some serious shortcomings in foster care law which adversely affected large numbers of children have been addressed recently in SS v Presiding Officer, Children’s Court, Krugersdorp (2012 (6) SA 45 (GSJ), hereinafter SS) and Manana v Presiding Officer, Children’s Court, Krugersdorp (SAFLI I (A3075/2011) [2013] ZAGPJHC 64 (12 April 2013), hereinafter Manana). For reasons of scope, and because the issues were somewhat different, the discussion below primarily offers an analysis of the former judgment. As will be seen, SS provided the first reported solutions to some severe problems affecting numerous children and is thus worthy of consideration in its own right. By way of background, one consequence of the AIDS pandemic in South Africa is that many children are left to be nurtured by extended family members or non-relatives, rather than by biological parents. Substitute caregivers often have limited financial means and apply to children’s courts to be designated as foster parents. Where they are successful they become eligible for monthly fostercare grants paid by the state. The best available legal ground for many foster-parent applications is contained in section 150(1)(a) of the Children’s Act 38 of 2005 (the “Act”). Unfortunately, this provision has proved difficult for children’s courts to interpret. It sets as a ground for a child being “in need of care and protection” and thus eligible for foster care: “if, the child has been abandoned or orphaned and is without any visible means of support”. One uncertainty has been whether a child can be found to be abandoned in terms of this provision if currently receiving substitute care volunteered by a caregiver who has already replaced a parent. The phrase “without any visible means of support” has also been difficult to
interpret. It is unfortunate that in selecting this phrase the legislature relied on a vague, centuries-old description by English vagrancy law. Children’s court magistrates have understandably varied in their interpretations of section 150(1)(a). This has led to discrepancies in its application. A negative consequence has been that impoverished carers whose nurturing skills render them suitable parent substitutes sometimes fail in attempts to achieve foster-parent status. Vulnerable abandoned and orphaned children are then left with neither foster-care grants nor caregivers who can properly exercise parental responsibilities. This unfortunate situation, which is obviously not in
the best interests of children, has been a major concern for the department of social development. In SS, Saldulker J provided the first reported interpretation of section 150(1)(a). It will be shown that, although some issues were insufficiently dealt with, the judgment has brought much-needed clarity on several crucial aspects of foster-grant eligibility. It has also provided guidelines for eligibility
of foster-parent applicants who do not have a maintenance obligation in respect of the child. It has additionally provided directions for practitioners (particularly children's court magistrates and social workers) on evidence requirements and stages of proceedings in foster-care applications.