The Children’s Act has undoubtedly made huge improvements to child protection systems in South Africa. Unfortunately, there have been a few unforeseen snags creating barriers to support services to children, one such snag being the legislative regulation of the foster care process. In terms of the Children’s Act, foster care orders must be renewed every two years, failing which they lapse. The renewal of the foster care order requires a social worker’s investigation and report on the matter. This is all fair and well. Unfortunately, where such a renewal process does not take place or is delayed, this would have an unforeseen consequence prejudicing the rights of the foster child receiving a foster care grant; the grant would lapse as well, because the current FCG system permits the payment of the FCG only in the presence of a valid foster care order.

The Centre for Child Law challenged the legality of this situation and succeeded in obtaining a court order in the North Gauteng High Court that prevents the immediate termination of the FCG upon the expiry of the two-year period, pending renewal, of the foster care order.

The Court ordered inter alia that any foster care order that has not yet expired and which was granted prior to April 2010 may be renewed when it is due to expire through the old administrative process in terms of the old Child Care Act as opposed to the new court-based process. This process may be followed until 31 December 2014 or until such time as the Children’s Act 38 of 2005 is amended to provide a more comprehensive legal solution.

All foster care orders that are deemed to have expired since 1 April 2010 are extended for a period of two years from the date of the court order.

The Court specifically requires that MECs for Social Development ensure that social workers proactively identify foster care orders that will expire or have expired and then extend them administratively as provided for in the judgement; social workers are also required to advise the South African Social Security Agency of all such renewals.

WEB LINKS FOR THIS ARTICLE

View a copy of the Court Order in the Government Gazette 20 May 2011.