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

Since parental authority in South African law is based on German customary law, and not on Roman law, it exists for the protection of the child. Various protective measures exist to ensure that this goal is reached, mainly in the form of judicial interference with parental authority. An example is the termination of parental authority, or some of its incidents, by means of a court order. This takes place either in terms of the common-law authority of the High Court, or in terms of certain statutory provisions. One of the statutory provisions in terms of which the children's court can terminate some of the incidents of parental authority, is the Child Care Act 74 of 1983. If the children's court is of the opinion that a child is in need of care, it can order that the child be returned to the custody of its parents, or that the child be placed in foster care, or in a children's home or school of industries. There is at present no mechanism in the Child Care Act for ensuring legal representation for children. The draft Children's Bill expands the possible orders that the children's court can make and further provides that a child is entitled to legal representation in children's court proceedings, if necessary at state expense. In New Zealand, families participate in decision-making regarding children in need of care by means of the family group conference. In Scotland, children in need of compulsory measures of supervision are dealt with by a lay tribunal known as the children's hearing. The global movement to recognise and protect both the welfare and autonomy rights of children formed the basis of international-law protection of children, and the children's clause contained in section 28 of the Constitution of the Republic of South Africa 108 of 1996. In order to ensure that the protective goal of child law is reached, I propose that a multidisciplinary lay tribunal be instituted in South Africa to deal with children in need of care, and that legal representation for children in children's court proceedings be made compulsory in certain circumstances. / Private Law / LL. D.

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 best interests of the child are paramount in every matter concerning the child. This applies in the case of adoption of a child as well. When an adoption is intercultural, culture is an issue to be taken into account. This study is undertaken to consider the role that culture should play in a decision whether an adoption is in the best interests of the child. In order to determine whether intercultural adoption is a viable option that serves the best interests of the child, interracial adoption also needs to be focused on, as intercultural adoption is often also interracial. The research for this thesis is done from a South African legal perspective, although some interdisciplinary and international research is necessary as well. A brief historical overview of adoption in South Africa is undertaken, as it is important to have some background knowledge about adoption in South Africa in order to understand why race and culture are relevant in the South African adoptive system. The role of the family in the life of the child is investigated. The difference between family care, parental care and alternative care is researched. Thereafter the role of emotional bonding for a child, also known as attachment, is focused on. An important question is whether race and culture is the same thing. This is researched, whereafter the role of race and culture in the adoption process is investigated. The relevant provisions of the Child Care Act 74 of 1983,which regulates adoption in South Africa, are compared to the relevant provisions of the Children’s Act 38 of 2005, which will regulate adoption in South Africa soon. Finally, some conclusions are drawn, shortcomings are highlighted and possible solutions are suggested. The outcome of this thesis should provide some guidance to those involved in the adoption process with regard to the factors that are important in determining the best interests of the child in an intercultural adoption. / Law / LL.D.

Participation in development is not a new concept as over the years, facilitators of development have realized that meaningful development can only be achieved when the people concerned take part in decision making and implementation of activities affecting them. This study was done to examine the extent to which child participation is being achieved in a development programme area, facilitated by World Vision Malawi, a Non Governmental Organization. The study was done in Chata Area development programme (ADP) located in T/A Chimutu in Lilongwe district. Children are defined as any person below the age 18. The study used mixed methods approach in which quantitative and qualitative approaches were used. Through random and purposive sampling, 110 children and 105 adults were interviewed using a questionnaire. Focus group discussions and key informant interviews were also done to supplement information collected through the questionnaires. Analysis of the quantitative data collected was done using Scientific Package for Social Scientists (SPSS) tool while the qualitative data was analyzed manually using common themes that emerged from the findings. The findings of the study show that despite the many development activities in Chata area participation of children has been limited. Adults look down upon children as a minority group which cannot meaningfully participate in development activities. Furthermore, the study found such factors as cultural and traditional practices, gender, level of education and other household characteristics to be the major barriers to children‟s participating in development activities. Surprisingly, the findings further indicate that much as the programme has been engaged in advocacy activities, these have focused more on creating awareness on child protection only rather than child participation. The study argues that if children will have to sustain the development gains in communities such as Chata, then they equally need to participate in the development process to enhance their future capacities in related development activities. On the overall, therefore, the study recommends that there is a need to create awareness on the adults to change attitude when they look at children and begin to create room for children to participate in the development process in an age appropriate manner. There is a need to create systems and structures that will enable children be included in the decision making process while building their capacity and self esteem. / Development Studies / M.A. (Development Studies)

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 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, and International Law / LLM

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)

The advent of ARTs has enabled many individuals to have children and build families. Although ARTs have from the start been designated to serve as alternative way for heterosexual infertile individuals and couples to have genetically related children, ARTs are nowadays widely used by gays and lesbians to have even genetically unrelated children and build their families. This study addresses the well-being of children born as a result of ARTs and growing up in homosexual families in South Africa. South Africa has legalised homosexual unions, granting gays and lesbians several rights, including the right to marry, use ARTs to reproduce, and build families in which they raise their children. South Africa has also provided constitutional and statutory protection of children’s rights and has further required that the child’s best interests be considered as paramount in every matter concerning the child. Although ARTs may have allowed people to have children, they have proven to put the child’s interests at risk. ARTs are associated with several physical and psychological problems for resulting children. The legal protection provided for those children seems to be inadequate in respect of their best interests. Unlike Australian statutes that have provided strong protection for the child’s best interests, South African legislations regulating ARTs are far from protecting ART-born children’s interests. The application of the child’s best interests criterion to ART procedures has revealed that in the USA and Australia efforts of the state, ART providers and parents have been centred on the transfer of the custody of the ART-born child to the commissioning parent(s). Although in South Africa the application of the child’s best interests in the context of surrogacy procedures has revealed the protection of the child’s interests, it should be noted that that protection seems to focus on the child’s post-birth period. This situation leaves ART-born children without any protection, especially before their birth. In order to give effect to section 28 of the Constitution of the Republic of South Africa, 1996 and protect ART-born children’s interests, I make certain proposals for law reform in the final chapter of this thesis. / Private Law / LL. D

Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-11-12T10:57:20Z No. of bitstreams: 1 Rodolfo Santos Pereira.pdf: 2620162 bytes, checksum: a23388865de795b188c375b77743073d (MD5) / Made available in DSpace on 2018-11-12T10:57:20Z (GMT). No. of bitstreams: 1 Rodolfo Santos Pereira.pdf: 2620162 bytes, checksum: a23388865de795b188c375b77743073d (MD5) Previous issue date: 2018-09-21 / Conselho Nacional de Pesquisa e Desenvolvimento Científico e Tecnológico - CNPq / This scientific paper is the result of a personal – that later became professional – journey that aimed at understanding the reason why teeanged boys and girls kept being murdered in poor suburban neighborhoods in the state of São Paulo. As we could not analyze the lethal violence against children and teenagers in the whole state of São Paulo, we narrowed the objective to understand the reasons why the extermination takes place in the city of São Paulo. The dissertation is organized in three chapters. Chapter 1 is aimed at analyzing historically the development of childhood and adolescence in the Brazilian prism. This chapter has shown evidence of how violations of children and adolescente’s rights along with the lack of social policies aimed at this target group can contribute to the murder of these people. There were countless forms of thoughts and interventions in regards to the social vulnerabilities related to Brazilian childhood and adolescence such as Discipline; Coercion; Baby hatching; boarding school; child's code; Universal Declaration of the Rights of Children and Adolescents; Income distribution policies; Philanthropy; Charity; FEBEN; CASA Foundation; Child and Adolescent Statute; SINASE among many others. After having analyzed the data, the second chapter aimed at checking the lethal violence against children and adolescents in the city of São Paulo. This study addressed lethal violence across all age groups and regions of the country, taking into account all existing sides of this problem. Finally, we have analyzed the data from the 2012 to 2014 PPCAAM / SP management, which showed other profiles of children and adolescents to be exterminated in São Paulo. Only this collected data could support the study, however we believe that for a further research development and depth, interviews were carried out with professionals that work in the program as well as adolescents who have already been threatened with death. The interviews have shown that, according to these teenagers, death is nothing but a detail in communities of São Paulo, especially for those involved with some illicit activity. The popularized thought that "the only good indian is a dead indian understood through a cultural prism relating to thieves in Brazil] also affects children and adolescents. Both interviewees said they felt this in their relationship with the population and the police. According to these professionals, management and fund raising issues hinder the development of the Program, and this lethal violence fiercely attacks adolescence / Este estudo científico é fruto de uma jornada pessoal e posteriormente profissional que intrinsecamente despertava compreender porque meninos e meninas adolescentes eram constantemente assassinados nos bairros e periferias do Estado de São Paulo. Como não conseguiríamos analisar a violência letal contra crianças e adolescentes no Estado inteiro, delimitamos compreender os motivos pelos quais o extermínio ocorre no município de São Paulo. A dissertação foi dividida em três capítulos. O capítulo 1º analisou historicamente o desenvolvimento da infância e adolescência no cenário brasileiro. Este trajeto fez com que tivéssemos uma ideia de como as violações dos direitos das crianças e adolescentes, e a escassez de políticas sociais destinadas ao público podem contribuir para o assassinato destes sujeitos. Foram inúmeras formas de pensamentos e intervenções quanto as vulnerabilidades sociais referentes à infância e adolescência brasileiras. Disciplina; Coerção; Roda dos Expostos; Internato; Código do Menor; Declaração Universal dos Direitos das Crianças e Adolescentes; Assistencialismo; Filantropia; Caridade; FEBEM; Fundação CASA; Estatuto da Criança e do Adolescente; SINASE, e tantas outras. Com todo o material pesquisado, o segundo Capítulo analisou a violência letal contra crianças e adolescentes na cidade de São Paulo. Este estudo abordou a violência letal em todas as faixas etárias e regiões do país, levando em consideração todas as facetas existentes. Por fim, analisamos os dados da gestão entre 2012 a 2014 do PPCAAM/SP, que mostrou outros perfis de crianças e adolescentes sob risco de serem exterminados em São Paulo. Estes dados por si só já enriqueceriam o estudo, porém acreditamos que para desenvolvimento da pesquisa, foram realizadas entrevistas com profissionais de atuação no programa, e adolescentes que já estiveram ameaçados de morte. As entrevistas mostraram que segundo os adolescentes a morte chega a ser um “mero detalhe” nas comunidades de São Paulo, principalmente para aqueles envolvidos com alguma atividade ilícita. A ideia popular de que “bandido bom é Bandido morto” também atinge crianças e adolescentes. Ambos entrevistados afirmaram sentir isto na relação com a população e a polícia. Na concepção dos profissionais, questões de gestão e financiamento impedem o desenvolvimento do Programa, e a violência letal ataca ferozmente a adolescência