Text in Afrikaans / In this dissertation the legal position with regard to children as victims of sexual crimes is examined in South Africa, England, Canada, Australia and New Zealand. Sexual crimes with children are a serious and widespread international problem. The purpose of this study is to identify deficiencies / gaps in the South African law. Children are not only the victims of the sexual crimes, but they are exposed to further trauma whilst giving evidence. Their best interests are also often not taken into proper consideration during the sentencing phase. In is in the interest of justice that children=s interests must be taken into account the whole time. In terms of international conventions and charters State parties are required to protect children against all forms of discrimination, violence, abuse and exploitation. Children may not be exposed to any sexual crimes, because these activities violate their right to bodily (and psychological) integrity, human dignity and privacy. In order to acknowledge the importance of children=s best interest, priority must be given to all cases in which children are the victims and their unique characteristics, age and development must be taken into consideration. This will ensure that they are not further victimized during the trial. Deficiencies in the Criminal Law are addressed by proposing new definitions, for instance for rape and incest. Shortcomings in the Procedural Law are identified and recommendations are made especially with regard to the alternative measures by which children can testify. Guidelines are also suggested for admissible cross-examination. New sentencing options are recommended and possible aggravating circumstances which ought to play a role during the consideration of a suitable and just sentence for sexual crimes with children are suggested. / Criminal & Procedural Law / LL.D.

This dissertation looks at the position of the unmarried father in South Africa with regard to obtaining access to his illegitimate child. The writer has focused on three distinct eras in South African family law: the position of unmarried fathers in terms of: the common law; Natural Fathers of Children Born out of Wedlock Act; and the Children's Act. The writer has further focused on a case study. This is to emphasis the difficulty which unmarried fathers have when attempting to go through the courts to have access to his child. In terms of South African common law, fathers of illegitimate children did not have any form of parental authority over the child. The mothers of illegitimate children have full parental authority over such children. Access in terms of South African common-law is seen as an incident of parental authority. Unmarried fathers nevertheless had the right to approach the high court to obtain access to their children, if the mother of the child refuses to allow the father to have such access. In the late 1980's and early 1990's, there was an overwhelming amount of applications brought by unmarried fathers in the high courts so as to obtain access to their illegitimate children. The case of Van Erk v Holmer 1992 (2) SA 636 (W) sparked victory for unmarried fathers when the learned judge held that all unmarried fathers of children have an inherent right of access to their children. This victory was short-lived. Subsequent case law and in particular the case of B v S 1995 (3) SA 571 (A) enforced the common law and held that unmarried fathers do not have an automatic right to their illegitimate children and that such fathers will have to apply to the high court for such access. Due to the increase in litigation in the late 1980's and early 1990's regarding a father's access to his child born out of wedlock the Natural Fathers of Children Born out of Wedlock Act commenced on 4 September 1998. The South African legislature adopted the approach taken in the case of B v S 1995 (3) SA 571 (A) and rejected the approach taken in the case of Van Erk v Holmer 1992 (2) SA 636 (W) ie the common law continued to remain the approach taken in South Africa. Legislators recognised that the approach taken in the Natural Fathers of Children Born out of Wedlock Act does not conform to the provisions of the African Charter of the Rights and the Welfare of the Child, the United Nations Convention on the Rights of the Child and equality and dignity provisions of the Constitution of the Republic of South Africa. On 19 June 2006, the Children's Act was effected and will commence once promulgated in the Government Gazette. The writer then determines whether the Children's Act has in practice changed the position of the unmarried father. / JURISPRUDENCE / LLM

In this project the various International Instruments, namely the United Nations Convention of the Rights of the Child, 1989, the Beijing Rules and the African Charter, relating to the protection of the rights of children were discussed focusing on the rights of children in conflict with the law. The important guidelines regarding the establishment of a minimum age for criminal capacity, detention, legal representation, diversion, sentencing, pre-sentence reports, child justice Courts and the confidentiality of children’s Court hearings were highlighted. The current positions in South African law with regard to these issues were discussed and the proposed provisions in the Child Justice Bill, 49 of 2002 were furnished. The research included all the magistrates in Gauteng that were in service during February 2003 and March 2003. Throughout the project the important role that forensic criminologists can and should play in a juvenile justice system was highlighted. / Criminology / M.A.

This dissertation examines the legal position relating to the participation of children in research, especially in HIV preventive clinical research in South Africa. HIV/AIDS presents a real threat to humanity and particularly to the welfare of children. The participation of children in this type of trials is therefore vital. Children, as vulnerable participants, must also be protected from harm resulting from research. The study also considers the nature of HIV preventive clinical research, pointing to the inconsistencies in the legislation governing children’s participation in HIV preventive vaccine trials. The dissertation concludes that the question of the participation of children in HIV preventive clinical research poses many challenges, as the position in the South African law and relevant ethical guidelines are inconsistent and contradictory. The study recommends in the final instance that the relevant statutory provisions and ethical guidelines be harmonised in order to clear up the inconsistencies. / Jurisprudence / LL.M. (Legal Aspects of HIV/AIDS)

The researcher wanted to explore the experiences of children who removal by a social worker either to an institution or to foster homes. The researcher wanted to find out if the behaviour of absconding could be explained by using systems theory, contructivism, cybernetics and person- centered theory. The researcher hypothesized that children abscond from alternative care as a means of communicating with the social worker involved as well as any other person significant in their lives. The study wanted to explore how these children perceived their involvement in the decision making process of their removal. The researcher only interviewed children who had absconded from the alternative care placements. The study found that all the children interviewed perceived that they were not involved in any way in the process of removal. They all saw their removal as a form of punishment for something they did wrong, but they did not get an opportunity to discuss with their parents or significant others. They also perceived their absconding as an effort to rectify the situation. A lot of anger and suspicion towards social workers was encountered during the study. In terms of the theories mentioned above, these perceptions are the children’s own reality, which might differ from the realities as created or perceived by social workers. It is hypothesized that social workers who use the Child Care Act 74/83 and its regulations in the removal of children, do it to protect the children from risky situations as their job responsibility requires. This study indicates that the children did not experience removal as protection. Instead of children feeling protected in the alternative care, they felt blamed, judged and unhappy about their removal and excluded from the process. The researcher made a few suggestions that could be considered when social workers removing children to alternative care. It is recommended that social workers involve the children and their parents or significant others in the entire process of deciding the future of any children in their (parents’) care. However, if removal is deemed necessary, just telling or informing children that they will be removed for their own safety is not enough. Children might not perceive the situation as dangerous. Instead, they might see the social worker as posing a danger to them and their families and thus try to shut the social worker and what s/he says out of their minds. Findings safe ways to involve children and families in the decisions about their future may require of social workers to revive their academically acquired knowledge in this respect. / Social Work / M.A. (Social Sciences (Mental Health))

Text in Afrikaans / The Convention on the Rights of the Child was adopted by the United Nations General Assembly on 29 November 1989. Included in the inherent rights set out in the Convention is the right to the highest attainable standard of health. In implementing the Convention states parties must refer to the requirements of article 2 of the Convention, which places them under a duty to respect and ensure the rights in the Convention to each child. The term “respect” implies a duty of good faith to refrain from actions which would breach the Convention. The “duty to ensure”, however, requires states parties to take whatever measures are necessary in order to enable children to enjoy their rights. A state party must also review its legislation in order to ensure that domestic law is consistent with the Convention. South Africa showed commitment to protecting and promoting children’s health when it ratified the United Nations Convention on the Rights of the Child in 1995 and subsequently adopted the Constitution of the Republic of South Africa, 1996, which includes provisions guaranteeing the health rights of children. South Africa also showed commitment to give legislative effect to the protection and promotion of children’s health by reviewing the Health Act 63 of 1977 (reviewed as the National Health Act 61 of 2003) and the Child Care Act 74 of 1983 (reviewed as the Children’s Act 38 of 2005). The review of the Child Care Act 74 of 1983 revealed that the act is virtually silent on the issue of child health. This led to the decision to identify and evaluate existing policy and legislation, as well as pending relevant law reform and policy affecting child health in order to assess how well South African legislation addresses the issue. The research showed that although much legislation exists, none provides comprehensively for child health rights. The legislation that does exist contains obvious gaps. Most importantly, there is no reference to the core minimum requirements for the state in providing for the health of children, particularly in the way of health services and nutrition. Further, there is a complete lack of legislation which protects the health needs of disabled children. A comparative study was also undertaken. Legislation of India and Canada were evaluated in order to make recommendations as to how the gaps in South African legislation can be rectified. However, the research showed that South Africa has made far more significant progress in promoting a rightsbased approach to children’s health in legislation. In order to ensure that the health rights of children are protected and promoted, I propose more comprehensive legislative protection. / Private Law / LL.D.

The study is about how to work with and create community structures for effective and sustainable social reintegration of Children Associated with Armed Forces and Armed Groups (CAAFAG), also called child soldiers in Liberia. It analyses the community structures which were engaged in the Disarmament, Demobilisation, Rehabilitation and Reintegration processes and questions whether these were premised on community values and norms. The study challenges some of the existing practices of working with community structures in reintegration programmes. The Structural-functionalist perspective is used as theoretical framework of the study based on the notion that social events, like DDRR programmes can best be explained in terms of the functions they perform or the contributions they make towards stability and continuity of societies where child soldiers are to be reintegrated. The study adopts a qualitative methodology to investigate community structures to reintegrate child soldiers in an effective, sustainable way. Different related research techniques, or triangulation, are used referring to a combination of mainly qualitative methods of data collection and analyses. Focus group discussions, in-depth interviews and documentary sources have different complementary strengths which are more comprehensive when used together. The findings indicated that children of all ages were “recruited” by armed groups and forces for diverse reasons. The findings confirmed children going through difficult experiences as they participated and supervised over violence. The war disoriented children‟s socialization processes. In some situations they returned to dysfunctional communities, without adequate support systems. The humanitarian led community approaches delivered results, however, these were short-lived. The engagement of the community structures was not based on clear community analysis. The intended manifest functions of the DDRR programmes and reintegration objectives for sustainability were eventually dysfunctional in most cases. The study‟s major recommendation is that a careful analysis of existing community structures, identification and engagement of positive community networks be made and that comprehensive capacity building programmes, built on societal values and norms nested within a National Planning Policy framework, will deliver durable and sustainable social reintegration of child soldiers in Liberia. / Sociology / D.Litt. et Phil. (Sociology)

Although a child's right to parental care and family life is constitutionally entrenched, many South African children are deprived of this right. Transcultural adoption could serve their need but historically this has been prohibited or discouraged by racist policies. Whether this is in keeping with the now non-racial South African society is questionable. In adoption the best interests of the child is paramount and in determining this, courts should balance children's constitutional rights to their culture of origin against their constitutional rights to non-discrimination. After considering arguments for and against transcultural adoption and the position in the United States and the United Kingdom, the writer suggests that further interdisciplinary research into the question is necessary in South Africa; inter-country adoption should be considered and law reform and governmental policy should facilitate these. / Private Law / LL. M. (Law)

Annexure E: Criminal Capacity Check List (pages 61-62) is in English. The Afrikaans or Xhosa version of this document is also available on request / The aim of this explorative and descriptive study was to establish if criminologists could assist in the criminal capacity assessment of children in conflict with the law. A qualitative approach was utilised in order to obtain an in-depth understanding of the current criminal capacity assessment process and the role players involved in the process. Data were collected by means of a semi-structured interview schedule. Individual and focus group interviews were conducted with child justice practitioners. Purposive sampling was employed and data were analysed according to the methods of Rabiee as well as Morse and Field. The findings of this study indicate that the current one-dimensional medico-legal assessment approach is not in the best interest of the child. A shortage of human resources, ineffective assessment tools, inadequate training of role players, and operational problems in the criminal capacity assessment process, are all factors that hamper a successful child-centred approach. A multi-disciplinary approach was found to be the most suitable approach to assess children in conflict with the law. It was concluded that professionals from disciplines such as social work, criminology, probation work, psychology and psychiatry should form part of the multi-disciplinary criminal capacity assessment team. The important role that criminologists can play as part of this team was acknowledged in this study. It was furthermore established that the role and function of criminologists, as well as the study field of criminology, are still unfamiliar to various practitioners in the human sciences professions. Criminologists are also still regarded as crime researchers with limited practical applications in areas of the Criminal Justice System. / Criminology and Security Science / M.A. (Criminology)

The law governing children’s rights is part of international human rights law and therefore plays an important role in the protection of human rights. However, the effectiveness of the protection of children’s rights depends on a State’s compliance with children’s rights instruments and the implementation mechanisms within a given State. There are implementation mechanisms for the protection of children’s rights at the national, regional and international levels. The protection of children’s rights at these three levels is provided for by children’s rights instruments. The monitoring of particular implementation mechanisms with regard to children’s rights is effected by reporting processes through State Parties to domestic institutions, regional, and international organisations. The reports provided by States Parties must contain relevant information with regard to measures that States Parties have taken to implement children’s rights instruments. Inadequate implementation mechanisms for the protection of children’s rights have emerged as the greatest threat to the realisation of children’s rights. This means that the adoption of children’s rights instruments may yield results only when effective implementation steps are taken by the respective States Parties. There are four “cornerstone” principles that underpin the protection of children’s rights.1 These are: non-discrimination; the best interest of the child; the right to life, survival and development; and respect for the views of the child.2 This study will evaluate the right to education and the best interests of the child principle as covered in children’s rights instruments at regional and international levels.Education is a powerful tool in ensuring the protection and enjoyment of children’s rights. Therefore, ineffective implementation of the right to education may have adverse consequences for society. The best interest of the child principle is the guiding principle in all matters concerning children’s rights.3 Therefore, the application and effectiveness of the best interests of the child principle will ensure adequate protection of children’s rights. Further, the study will examine the right to education and the best interest of the child in order to demonstrate how the United Nations (UN) and regional human rights instruments have provided for their implementation. Ratification of children’s rights instruments is a symbolic gesture on the part of States Parties to the recognition and significance of protection of children’s rights. The compliance with children rights instruments or treaty obligations is crucial to ensure adequate protection of children’s rights. Thus, non-compliance with treaty obligations will have a negative impact on the protection of children’s rights. The evaluation of the right to education and the best interests of the child principle will be undertaken against the backdrop of children’s rights instruments. The children’s rights instruments are provided for by the United Nations (UN) and regional human rights systems. The dissertation will evaluate the right to education and the best interests of the child principle within three regional systems, namely, the European Union (EU), the Organisation of American States (OAS), and the African Union (AU). It will also examine pertinent case law within the three regional systems. Finally, the efficacy of implementation mechanisms for the enforcement of children’s rights will be assessed. / Public, Constitutional, & International Law / LLM