At any one time there are estimated to be between 300 and 500 young people involved in street life in Vancouver. Although between 40 and 50 per cent, leave the street life each year, the overall figure remains much the same. Living on the street increases the chances of the young person being involved in crime, such as prostitution or theft, and of suffering from drug addiction, violent assault or HIV. However, for many young people the street is preferable to what they have left behind. And even when living on the street becomes too difficult, getting off the street often appears impossible. This thesis considers one way of addressing the problems faced by young people on the street: the use of legal rights. In particular, it considers the limits on such young people using rights. First, under the two main theories of rights for children, the content of the rights is decided by adults on behalf of the child. Second, the liberal form of rights further restricts their use by street-involved youth due to the anti-statist and atomistic nature of this version of rights. Third, the dominant discourse of childhood constrains the use of rights by imposing familial structures on young people on the street and ignoring their views. Rather than suggesting new rights for street-involved youth, this thesis concentrates on strategies that might be of use for street-involved youth in overcoming these constraints. These are giving an active voice to young people; insisting that the individual characteristics of street-involved youth are taken fully into account; considering a variety of actions, some of which might seem contradictory, but which allow for maximum flexibility; trusting the decisions of young people on the street; and ensuring that street-involved youth are not seen as an isolated problem, but in the context of a wider picture of other people with similar problems, such as adult street people, lesbian and gay youth, welfare recipients and so on.

The thesis focused on how the advent of children's rights, in particular the Convention on the Rights of the Child (CRC), has impacted on the subject of juvenile justice and embarked on a practical examination of law reform in this regard in an African context. The focus was placed on a number of African countries that have embarked on or completed child law reform in the aftermath of ratification of the CRC. The case studies in this thesis were Ghana (1998-2003), Kenya (1993-2001), Namibia (1994 to date), Lesotho (2003 to date), South Africa (1997 to date) and Uganda (1992-1996).

This study aims at testing the applicability of the universal standard for protection of children, ―the best interests of the child principle‖, to children caught up in armed conflict situations. The study introduces the effects of armed conflict on children by discussing two case studies of conflicts situations, namely Somalia‘s situation under the Al Shabaab and the LRA as it formerly operated in Northern Uganda. Heart-breaking narrations of child victims are given prominence to show the invalidity of ―best interests‖ principle in conflict situations. It acknowledges that the ―best interests‖ principle is a good tool for enforcement of children rights. It analyses the theory of rights in general so as to explain the origin and importance of rights. Since children‘s rights are part and parcel of human rights, the study also looks at the international human rights and the regional and international enforcement mechanisms, though not in details. This study looks at the various theories justifying the existence of children‘s rights, and the dichotomy between rights and interests. It also addresses the protection of children rights and the various discourses advocating for or negating children‘s rights. It explores the age question with regard to enforcement of children‘s rights based on the fact that childhood is a dynamic period. It also critically analyses the ―best interests‖ principle and the various alternative standards that have been advanced. It concludes that despite the various criticisms, the ―best interests‖ principle still obtains the better standard for protection of children‘s rights in peace times subject to being complemented by other rules. The study also focuses on protection of children under the International Humanitarian Law with specific focus on civilian protection during armed conflict. It also focuses on the progress made in international efforts to protect children from the effects of armed conflict. Finally, reasons are advanced as to why the Best Interests Principle is not applicable in armed conflict situations, and an alternative standard proposed. / Public, Constitutional, and International Law / LL.D.

In South Africa children are required to testify under oath or admonition. The shortcomings of the competency test are of particular relevance to children with developmental disabilities, since courts are not equipped to adequately assess the competency of these children to give evidence. One component of testimonial competency, namely the understanding of the concepts truth and lies, is overemphasised and is examined with questions that are developmentally inappropriate for child witnesses in general. For children with cognitive disabilities, such questions create barriers for participation in the truth-seeking process. Consequently, convictions have been set aside on appeal owing to procedural irregularities found in the implementation of this test. In the literature review on testimonial competency, attention was given to restrictions that specific developmental disabilities impose on the perceptual, cognitive, communication and moral development of children. Two of four components – narrative ability and moral capacity – were studied in a sample of 184 children in middle childhood. Participants’ ability to give coherent and detailed accounts of events, their understanding of the concepts truth, lies, promises and the oath, and the Lyon and Saywitz oath-taking competency test, were investigated. Quantitative and qualitative methods were used for data analysis. Three groups were identified: those children with very limited, average or full testimonial competency. Their capacities were found to be related to maturation of cognitive functions and level of intellectual functioning. Participants were better able to demonstrate their understanding of truth and falsity by responding to the oathtaking test than giving verbal descriptions of these concepts. Whereas 1 percent of participants had a conceptual understanding of an oath, 15 percent understood the concept of a promise. Syncretism and confabulation compromised the narrative accounts of a substantial number of participants. Syncretism relates to immature narrative ability: correct details are combined in an illogical fashion. Confabulation refers to filling memory gaps with fabricated information. Guidelines on the competency determination of children with developmental disabilities were compiled. It is suggested that the competency examination be replaced by a formal, pre-trial competency assessment. The court should also receive expert evidence on how to facilitate meaningful participation when a child with sufficient testimonial competence is the witness.

Prior to 1990, very few countries in the world offered special protection to child witnesses interfacing with the justice system. There were no legal provisions permitting testimonial accommodations for children in court. The courtroom experience was significantly traumatic for the children. With the international focus shifting from protecting and upholding the rights of the accused in the courtroom towards a more victim-centred approach, various international and regional instruments have strongly dvocated that children deserve special protection because of their vulnerability. In order for the courts to be able to elicit accurate evidence from the child without further traumatizing the child, research has shown that the child needs assistance. An intermediary may be defined as a person who facilitates communication between the child and the courtroom in a manner that takes into account the child‟s cognitive and developmental limitations. The thesis was prompted by the need to make a contribution to the currently limited body of literature on the intermediary systems in South Africa, Namibia, Zimbabwe and Ethiopia by investigating how the systems can be improved and sustained in a way that helps to protect the child witness in court. Despite the problems the South African courts have had in identifying the appropriate interpretation of its intermediary legislation, the country emerges as a clear leader for the steps it took by creating a positive legal framework within which child protection issues are addressed and introducing the concept of the intermediary. This concept proved to be an inspiration to its neighbours, Namibia and Zimbabwe. The influence of the South African intermediary legislation is evident in the Namibian and Zimbabwean legislation. Although Namibian legislators have drafted laws that permit intermediary assistance in court, there are as yet no intermediaries appointed. In Ethiopia, although there is no discernible intermediary legislation, the country has managed to establish an intermediary system. As a result of the analysis conducted, it is evident that the efficacy of the intermediary system is dependent on the presence of an enabling legislation, its clarity and ease of interpretation, the sensitisation of court role players on child vulnerabilities, the significance of intermediary assistance, and finally a government's commitment towards the implementation process.

The high level of crime in South Africa raises the question about the failures of the criminal justice system on the one hand, and South Africa’s social policies on the other. Young people in South Africa can disproportionately be both victims and perpetrators of crime in the Republic of South Africa. The child accused in conflict with the law is dealt with in much the same way as their adult counterparts, as the criminal justice system was designed by adults for adults. South Africa became a signatory to the United Nations Convention on the Rights of the Child 19891(hereinafter referred to as UNCRC) on 16 June 1995. The UNCRC provides a backdrop to section 28 of the Constitution of the Republic of South Africa Act.2 Article 3(1) of the UNCRC provides as follows: “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be primary consideration.” South Africa is therefore according to article 40(3) of the UNCRC obliged to “establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law”.3 In terms of article 40(1) of the UNCRC “State Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”4 1 Adopted by the General Assembly resolution 44/25 on 20 November 1989. 2 The Constitution of the Republic of South Africa Act, Act 108 of 1996. Hereinafter referred to as the “Constitution”. 3 South Law Reform Commission Discussion Paper 96. 4 United Nations Convention on the Rights of the Child adopted by the General Assembly resolution 44/25 on 20 November 1989. iv Synopsis 2003 states that “the Ratification of the UNCRC by the South African government in 1995 set the scene for broad-reaching policy and legislative change”.5 The Constitution includes a section protecting children’s rights, which includes the statement that children have the right not to be detained except as a measure of last resort and then for the shortest appropriate period of time, separate from adults and in conditions that take account of his/her age. 6 After being off Parliament’s agenda since 2003, the Child Justice Act7 has recently been reintroduced. The Act aims to ensure consistent, fair and appropriate treatment of the child accused in conflict with the law. The question arises whether the South African Criminal Justice system involving the child accused adequately recognises and protects the interests of the child accused, particularly in view of the present international legal position.

This study examines the topic of the interaction of children’s rights, education rights and freedom of religion in South African schools from a legal perspective. It comprises of a discussion on the historical development of religion in South African schools; South Africa’s international obligations with regards to children’s rights, education rights and freedom of religion and the South African substantive law pertaining to children rights, education and freedom of religion as impacting on legal issues pertaining to religion in schools. The study utilises a desktop approach, which comprises of a wide range of legal and other literary sources, international instruments, statutes and case law on children’s rights, education rights and freedom of religion. Importantly, it highlights the integral connection between these aforementioned rights when dealing with issues pertaining to religion in schools. This thesis illustrates that much of the historical development of religion in schools took place without consideration of children’s rights, or more particularly, the best interests of the learners. Instead, (a particular brand of) religious beliefs were promoted in education above other religions and the well-being of school-children. Furthermore, despite the introduction of specific children’s rights into the Constitution, this thesis emphasises that the rights of children have still not been recognised sufficiently in education laws and policies. It is submitted that children’s rights have a paramount and practical role to play in matters pertaining to religion in South African schools. Consequently, it is recommended that children’s rights, more particularly the best interests of the child principle, should be expressly introduced into education legislation and policies. This will create legal obligations for school administrators and SGBs on the inclusion of children’s rights in religious exemption procedures. Furthermore, it is recommended that national guidelines on religious/cultural exemptions (which incorporate children’s rights) be developed which will set legal parameters for the handling of religious/cultural exemption procedures in schools. This thesis also argues against the interpretation that the right to establish private schools includes the right to require religious conformity from non-adherent learners by way of a complete waiver of their religious freedom. Despite the importance of respecting the right of religious communities to protect and preserve their faith in private schools, it is submitted that this right cannot be exercised without regard for the religious freedom, dignity and best interests of non-adherent children. As a result, it is submitted that the waiver of the freedom of religion of non-adherent children is not consistent with the values which South African society reveres and therefore cannot be enforced. This thesis suggests that there is a way for the rights of private schools and the rights of non-adherent children to co-exist in harmony through the application of the reasonable accommodation principle in private schools. Reasonable accommodation of different faiths teaches religious tolerance to leaners in private schools and ensures that they are prepared to grapple with the religious diversity that they will inevitably face outside of the school environment. It is submitted that the enforcement of reasonable accommodation in private schools is to the benefit of all learners in private schools and to South African society in general. Moreover, this study questions and analyses the state’s provision of compulsory religion education in public schools through the National Policy on Religion and Education. A theoretical distinction is made between religion education and religious instruction in the National Policy itself. Religious instruction refers to the teaching of specific religious beliefs. Religion education refers to the teaching about different religions and worldviews from an academic perspective. It is submitted that the National Policy is correct in removing religious instruction from public schools as this would not be in accordance with freedom of religion or equality rights of learners who are not of the majority faith. It is submitted further that, although the provision of compulsory religion education in public schools impacts upon the freedom of religion of learners and their parents, (if taught correctly) it is a reasonable and justifiable limitation on freedom of religion in that it pursues the legitimate state goal of nation-building through the teaching of religious tolerance and “celebrating diversity” in schools. In light of South Africa’s history of religious discrimination, it must be recognised that the current position (although not problem- free) is a significant step forward in the protection of minority religious rights in South African schools. Despite this, it is submitted that there are numerous problems with the implementation of the National Policy that impact upon the dignity, equality and other rights of the learners concerned. These problems cannot be ignored since they impact upon the daily lives of school children. However, many of these problems can be minimised through more effective teacher training in this subject area. Accordingly, this thesis recommends that the current position be maintained as an acceptable compromise between the two extremes of providing religious instruction in one faith and removing religion education from public schools altogether. However, it emphasises that the state has to make a concerted effort to improve teacher training in this subject area in order to ensure that the objectives of the National Policy are carried out as envisaged. Furthermore, this thesis finds that certain provisions of the National Policy contain not only educational goals, but spiritual goals. Also in some instances, it is difficult to determine whether the religion education curriculum borders on being religious or not. In accordance with freedom of religion, it is submitted that the line between religion education and religious instruction must be clearly drawn in law and in practice. Consequently, the state must reconsider the National Policy and the corresponding religion education curriculum to ensure that they are aligned with the objectives of nation-building in all respects, meaning that any provisions or learning outcomes which have purely spiritual goals- must be amended or removed.

The move towards a more multidisciplinary approach to the delivery of child protection services in British Columbia raises concerns about the sharing of confidential case material. Factors associated with the information-sharing practices of social workers with law enforcement agencies were examined in this research. This descriptive study involved surveying forty-one intake child protection social workers employed by the Ministry for Children and Families in Vancouver and Coquitlam, using questionnaires. Knowledge of existing legislation, methods of accessing and sharing information with police, and attitudes about police involvement were examined, as well as workers' experience and participation in training. The analysis identified both contributors and obstacles to effective information-sharing and collaboration between social workers and police officers. Informal methods of accessing information were shown to be the most highly used and successful, but the lack of understanding of legislation and of each other's roles interfered with collaborative practice. The results of this research will be of assistance in future training, as well as the development of interagency protocols. / Arts, Faculty of / Social Work, School of / Graduate

At any one time there are estimated to be between 300 and 500 young people involved in street life in Vancouver. Although between 40 and 50 per cent, leave the street life each year, the overall figure remains much the same. Living on the street increases the chances of the young person being involved in crime, such as prostitution or theft, and of suffering from drug addiction, violent assault or HIV. However, for many young people the street is preferable to what they have left behind. And even when living on the street becomes too difficult, getting off the street often appears impossible. This thesis considers one way of addressing the problems faced by young people on the street: the use of legal rights. In particular, it considers the limits on such young people using rights. First, under the two main theories of rights for children, the content of the rights is decided by adults on behalf of the child. Second, the liberal form of rights further restricts their use by street-involved youth due to the anti-statist and atomistic nature of this version of rights. Third, the dominant discourse of childhood constrains the use of rights by imposing familial structures on young people on the street and ignoring their views. Rather than suggesting new rights for street-involved youth, this thesis concentrates on strategies that might be of use for street-involved youth in overcoming these constraints. These are giving an active voice to young people; insisting that the individual characteristics of street-involved youth are taken fully into account; considering a variety of actions, some of which might seem contradictory, but which allow for maximum flexibility; trusting the decisions of young people on the street; and ensuring that street-involved youth are not seen as an isolated problem, but in the context of a wider picture of other people with similar problems, such as adult street people, lesbian and gay youth, welfare recipients and so on. / Law, Peter A. Allard School of / Graduate

Text in Afrikaans / In hierdie ondersoek word gepoog om 'n regswetenskaplike basis vir "Die Verslag van die Maatskaplike Werker ingevolge artikels 14(4) en 15(1) van die Wet op Kindersorg as 'n Juridies Gefundeerde Hulpmiddel vir die Kinderhof' daar te stel. Die studie fokus onder andere op vroeere wetgewing rakende sekere regte van kinders voor die instelling van kinderhowe in Suid-Afrika, die aard en instelling van die kinderhof, die posisie van kinderhowe binne die hierargie van howe en die kinderhof se handeling. Ooreenkomstig die administratiefreg word die klem veral geplaas op die regsvereistes wat vir alle administratiewe handelinge geld - soos deur Wiechers (1984) gesistematiseer en deur Eckard (1988) op kinderhofondersoeke van toepassing gemaak is. Regswetenskaplike begrippe met inagneming van die relevante gemeneregtelike beginsels, die tussentydse Grondwet, ander relevante wetgewing en regspraak word ontleed ten einde die betekenis en invloed daarvan vir die verslag van die maatskaplike werker duidelik te maak. By implikasie hied hierdie ontleding ook riglyne vir die skryf van die verslag vanuit 'n regsperspektief. Aan die hand van genoemde regsperspektiewe word 'n voorlopige model binne 'n bepaalde struktuur vir die skryf van hierdie verslag voorgestel. Die regsbeginsels wat ontleed is, word doelgerig en planmatig aangewend in 'n poging om uitvoering aan die doelstellings van die kinderhof te verleen en die bewyswaarde van inligting maksimaal te verhoog. Kritiese stellings asook verskeie dilemmas waarmee die maatskaplike werkers in die praktyk te make het, word aangespreek en word nuwe betekenis aan die begrippe "maatskaplike werker" en "verslag" rakende kinderhofaangeleenthede verleen. By wyse van 'n beperkte verkennende empmese ondersoek binne die Christelike Maatskaplike Raad van Noord-Transvaal, word bestaande kritiek betreffende die verslae wat maatskaplike werkers aan kinderhowe lewer asook die maatskaplike werker se beperkinge rakende relevante regskennis bevestig. Spesifieke behoeftes aan kennis word geldentifiseer en 'n hernieude maatskaplikewerkperspektief rakende kinderhofwerk as 'n spesialiteitsgebied binne die maatskaplikewerkterrein word bevestig. Verder word die regsvereistes asook ander relevante vereistes wat op die verslag van toepassing behoort te wees, en soos vanuit die literatuurstudie bepaal is, beaam. Hierdie ondersoek is 'n nuwe bydrae tot die maatskaplikewerkvakliteratuur en baan die weg tot verdere navorsing en ontwikkeling op hierdie terrein. / This investigation attempts to establish a jurisprudential basis for the "The Report of the Social Worker according to articles 14(4) and 15(1) of the Act on Child Welfare as a Juridically Based Aid for the Children's Court". The study focuses inter alia on earlier legislation concerning certain rights of children prior to the establishment of children's courts in South Africa; the nature and institution of children's courts; the position of children's courts within the hierarchy of courts, as well as actions of the children's court. In accordance with Administrative Law the accent falls especially on legal requirements for all administrative actions as systematised by Wiechers (1984) and as applied by Eckard (1988) to examination in such courts. An analysis is made of jurisprudential concepts such as Common Law principles, the Interim Constitution, and other relevant acts of parliament and court verdicts in order to clarify their meaning and influence for this report. By implication this analysis also furnishes guidelines for writing the report within jurisprudential perspectives. With the aid of these perspectives a preliminruy model is presented within a specific structure for the writing of this report. The jurisprudential principles analysed, are purposively and methodically applied in an attempt to satisfy the goals of the children's court and maximise the value of evidence given. Critical statements and several dilemmas confronting social work practice are addressed, and in the court situation new meaning is accorded to concepts such as "social worker" and "report". By means of a limited exploratory empirical investigation within the confines of the Christian Social Services of the Northern Transvaal the present criticism of reports delivered to courts by social workers as well as their jurisprudential limitations have been confirmed. Specific knowledge deficiencies have been identified and a renewed social work perspective on children's courts as specialist field in social work has been established. Legal and other relevant requirements for this report - as found in the literature study - have been confirmed. This investigation constitutes a new contribution to social work literature and opens the way to further research and development in this field. / Private Law / D. Phil. (Social Work)