DISCRETIONARY CHILD ABUSE REPORTING LAWS: SOUTH AFRICA

South African law makes provision for both mandatory and discretionary reporting of suspicions of child abuse. The mandatory reporting laws are found in both the Children’s Act 38 of 2005 and the Sexual Offences Act of 2007 – these are discussed under a separate heading – whilst discretionary reporting laws are solely found in the Children’s Act.

Section 110(2) is the discretionary child abuse reporting section. This section provides that any person who on reasonable grounds believes that a child is in need of care and protection may report that belief to the provincial department of social development, a designated child protection organization, or a police official. Section 110(3) provides that the person who makes the report must be able to substantiate their conclusion. In other words, using the reasonable person test it is clear that there was/ is sufficient grounds for the Reporter coming to the said conclusion. The sub-section further provides that a person who makes a report in good faith will not be liable to a  claim for a civil action based on that report.

The grounds for determining whether a child is a child in need of care and protection is set out in Section 150(1) of the Children’s Act. This section stipulates that a child is a child in need of care and protection where it : 

• has been abandoned or orphaned and is without any visible means of support;
• displays behaviour which cannot be controlled by the parent or caregiver;
• lives or works on the streets or begs for a living;
• is addicted to a dependence-producing substance and is without any support to obtain treatment for such dependency;
•  has been exploited or lives in circumstances that expose the child to exploitation;
• lives in or is exposed to circumstances which may seriously harm that child’s physical, mental or social well-being;
• may be at risk if returned to the custody of the parent, guardian, or caregiver of the child as there is reason to believe that he or she will live in or be exposed to circumstances which may seriously harm the physical, mental or social well-being of the child;
• is in a state of physical or mental neglect; or
• is being maltreated, abused, deliberately neglected or degraded by a parent, a caregiver, a person who has parental responsibilities and rights or a family member of the child or by a person under whose control the child is.

Discretionary child abuse reporting laws are laudable in that they provide a codification of current morality reinforcing the general supposition that ordinary citizens have a positive duty not to turn a blind eye to a child in need of care as well as providing some measure of protection from civil liability for that citizen who steps out to help a child.