Indiana University-Purdue University Indianapolis (IUPUI) / Children's and adolescents' capacity to provide valid informed consent is one of the key ethical concerns in pediatric research, and the focus of this project. The original contribution to knowledge is the advancement of both conceptual and empirical bioethical approaches to research with vulnerable populations. First, a review of adolescent vulnerability is presented to highlight the complex interplay between capacity and other forms of vulnerability. This review is offered as an interdisciplinary analysis to better understand why the study of vulnerable populations is critical to the ethical advancement of clinical research. Results from this analysis suggest the need for enhanced screening techniques as well as the utilization of specialized staff to identify and reduce the impact of different forms of vulnerability. The primary tasks of the empirical portion of the dissertation were to: (1) Adapt a validated adult competency assessment tool for clinical research, the MacArthur Competency Assessment Tool for Clinical Research, to assess the capacity of children and adolescents to consent to clinical research; (2) Identify predictors that impact children and adolescents’ capacity to provide consent to clinical research; and (3) assess differences and similarities in capacity between healthy and chronically ill children and adolescents. Overall results suggest adolescent capacity to consent to research was similar to adults, and most strongly associated with their family's socioeconomic status as well as their level of health literacy. These findings contrast starkly with the age-based criterion for providing consent currently utilized in assent and consent determinations. These findings also provide insights into ways to ethically involve youth in complex biomedical research.

Children are the most vulnerable group. Their protection should be a priority for society. In particular, those who are accused of committing crime need to be protected from entering the criminal justice system and measures should be put in place to prevent the stigmatisation associated with having a criminal record. Such protection is endorsed by section 28 of the Constitution of the Republic of South Africa (1996).This study outlines the role played by a probation officer in the diversion process. This was achieved by examining international and national instruments that promote the protection of children in conflict with the law. The Child Justice Act No. 75 of 2008 forms part of national instruments. It provides guidelines for probation officers and other stake holders in the justice system on how to deal with children who are accused of committing crimes. Recommendations on the identified challenges and gaps are made. / Corrections Management / M.A. (Corrections Management)

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 guidelines of the establishment of a minimum age for criminal capacity are furnished. The developments regarding the issue of criminal capacity since 1998 in Australia, the United Kingdom and Hong Kong are highlighted. The historical position and the current position in South African law with regard to the issue of criminal capacity are discussed as well as the implementation thereof by our courts. The statistics on children under 14 years in prison over the past five years are furnished. The introduction of the Child Justice Bill, 2002 by Parliament and the deliberations following the introduction, focusing on the issue of criminal capacity is highlighted. The proposed provisions of the Child Justice Bill, 49 of 2002 codifying the present common law presumptions and the raising of the minimum age for criminal capacity are furnished. The evaluation of criminal capacity and the important factors to be assessed are discussed as provided for in the Child Justice Bill, 49 of 2002. A practical illustration of a case where the criminal capacity of a child offender was considered by the court is, discussed and other important developmental factors that should also be taken into consideration by the court are identified and discussed. Important issues relating to criminal capacity, namely, time and number of assessments, testimonial competency of the child offender, evolving capacities and age determination are discussed and possible problems identified and some solutions offered. The research included an 11-question questionnaire to various professionals working in field of child justice regarding the issue of criminal capacity and the evaluation thereof. / Criminal and Procedural law / D.Litt. et Phil. (Criminology)

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.

In this study focus is placed on the Impact of the Namibian judiciary system on the sexually-abused child witness and recommendations were made to criminal justice professionals. A literature study was undertaken to establish a grounded theoretical perspective. A single case study was done to evaluate how the Gestalt Play Therapy Process can be applied to mitigate some of the negative effects the judicial system has on the child witness. An empirical study was done and a qualitative approach was utilised. Semi-structured interviews were conducted with children, their parents and criminal justice professionals. Major findings of this study are that the Namibian criminal justice system leads to further traumatization of the sexually-abused child witness and that the Gestalt Play Therapy approach can be applied to make the court proceedings less traumatic and even therapeutic for the child witness. Recommendations were formulated for criminal justice professionals / In hierdie verhandeling is gefokus op die impak van die Namibiese regstelsel op die seksueel-misbruikte kindergetuie en daar word aanbevelings gedoen aan professionele persone in die kriminele regstelsel. 'n Literatuurstudie is gedoen om 'n grondige toeretiese perspektief daar te stel. 'n Enkele gevallestudie is uitgevoer om te evalueer hoe die Gestalt Spelterapieproses toegepas kan word om die hofverrigtinge vir die kind minder traumaties te maak. 'n Empiriese studie is gedoen en 'n kwalitatiewe benadering is gebruik. Semi-gestruktureerde onderhoude is gevoer met kinders, hulle ouers en professionele persone wat met seksueel-misbruikte kindergetuies werk. In die studie is bevind dat die Namibiese regstelsel addisionele trauma veroorsaak vir die kindergetuie en dat die Getaltspelterapiebenadering gebruik kan word om die hofervaring minder traumaties en selfs terapeuties te kan maak vir die kindergetuie. Aanbevelings is gedoen aan professionele persone wat met kindergetuies werk. / Social work / M.Diac. (Play Therapy)

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.

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.