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The Children’s Act 2005

The most significant provision of this Act is the setting of the age of consent to medical and surgical treatment at 12 years. It also includes important provisions covering HIV testing, virginity tests and circumcision. Implementation of the Act is governed by the General Regulations Regarding Children (Regulation 261).

Section 129

This section lowers the age at which the law considers a child should be able to consent to treatment. Specifically, it makes the following provisions:

Children aged 12 or more - Provided they have the maturity “to understand the benefits, risks, social and other implications of the treatment”, children of this age may consent to medical treatment on their own behalf. If the proposed treatment involves a surgical procedure, a sufficiently mature child may still consent, if he or she is “duly assisted by his or her parent or guardian”.

Minors of 12 or over who are themselves parents (“child parents”) may also, if they possess the maturity to do so, consent to medical examinations and treatment for their child. They may also consent to surgical treatment for their child, but only with the assistance of someone who has parental responsibility for them.

Children under 12 or over 12 but lacking the maturity to make an informed decision - A parent, guardian or care-giver* of the child may consent on behalf of the child to medical treatment.

A parent or guardian may consent to surgical treatment on the child’s behalf (see Box 4).

Section 130: HIV tests

Consent for an HIV test may be given by a child of 12 or older without parental consent. A child under the age of 12 may also consent to an HIV test if he or she is mature enough to understand its benefits, risks and social implications.

If a child under the age of 12 lacks the maturity to consent, a parent, the provincial head of social development, a designated child protection organisation, or the superintendent of a hospital may consent on the child's behalf. If an HIV test is considered necessary and the child lacks capacity or unreasonably withholds consent, application can be made to a children's court.

Furthermore, the Act empowers the superintendent of a hospital (in the absence of a parent, guardian or care-giver) to consent, in an emergency, to a child’s medical or surgical treatment if it is necessary to preserve the child’s life or “to save the child from serious or lasting physical injury or disability”.

In the event of either a legally competent child or a child’s parent or guardian “unreasonably refusing to consent” to treatment, either the Minister or the High Court may overrule the refusal. The Minister may also be applied to for consent to treat a child when the person with parental responsibility cannot be traced, is deceased, or lacks the decisional capacity to give consent.

Written consent for surgery

The Regulations specify that consent for surgery must be given in writing on Form 34.

The consent form must be completed in writing either by the person performing the operation or by the hospital/clinic and it must be signed by the child.

The person with parental responsibility assisting the child must assent to the operation in writing.

If the parent consenting to surgical treatment for a child is a child parent, the consent form must include written assent by the child parent’s parent or guardian. The appropriate form is Form 35.

Section 12

Section 12 of the Children’s Act deals mostly with virginity tests and circumcision, but the first paragraph has wider implications. It states that “Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being”.11 This would, therefore, include the issue of blood transfusions for children of Jehovah’s Witnesses, for example.

Virginity tests

Virginity testing of children under the age of 16 is prohibited, and may only be performed on children over 16 with their consent, obtained after proper counselling. Moreover, the results of a virginity test may not be disclosed without the child’s consent. The signed consent of the child and assent of a parent or guardian must be madeon Form 1.

Circumcision

Female circumcision of children is prohibited.

Male circumcision is prohibited under the age of 16, unless it conforms to prescribed religious practices or is medically necessary. Circumcision of boys of 16 and over must be carried out in a prescribed manner and only with the boy’s consent, given after appropriate counselling. The Act further states that “Taking into consideration the child’s age, maturity and stage of development, every male child has the right to refuse circumcision”.12

Circumcision for religious or medical purposes must only be carried out after Form 2 has been signed by a parent or guardian. Circumcision on a boy aged 16 or over for social and cultural reasons requires both the boy and his parents to sign Form 3.

Box 4: Parental responsibility

Mothers

The biological mother of a child automatically has full parental responsibilities and rights, regardless of her marital status. If she herself is a minor (a child parent) and neither she nor the child’s biological father has guardianship of the child, her own guardian is also considered a guardian of her child.

Fathers

A child’s biological father has full parental responsibilities and rights if any of the following apply:

  • He is married to the child’s mother.
  • He was married to her when the child was conceived or born.
  • He was married to her at any time between the child’s conception and birth.
  • He was living with the mother in a permanent life partnership when the child was born.
  • He has consented to be identified as the child’s father and contributes to its upkeep.
  • He has had full parental responsibilities conferred on him by a court order.

Guardians

A child’s legal guardian has full parental rights and responsibilities.

Parental rights and responsibilities agreement

A person with full rights and responsibilities for a child can enter into an agreement with another person who has an interest in the child’s care, wellbeing and development to confer parental rights and responsibilities on that person. The agreement must be made formally and registered with a family advocate.

Caregivers

Section 32 of the Children's Act* allows a person who cares for a child on a voluntary basis without formal parental responsibilities, to consent to medical (but not surgical) examination and treatment on that child's behalf.

* The Act gives a broad definition of “care-giver”. Section 31 describes such a person as “A person who has no parental responsibilities and rights in respect of a child but who voluntarily cares for the child either indefinitely, temporarily or partially”. This section expands slightly on the provision in section 129 by stating that a care-giver has the right “to consent to any medical examination or treatment of the child if such consent cannot reasonably be obtained from the parent or guardian” (emphasis added).