Safeguarding the Rights of Children Living in Kinship Care in South Africa

Abstract

By the early 2000s the practice of using the foster care system as a measure to subsidise the income of families who cared for the children of relatives was firmly entrenched in South Africa. This caused a rapid rise in the number of children receiving the foster child grant. By 2010 more than 500 000 foster child grants (FCGs) were in payment. The foster care system could not cope with this pressure, resulting in the lapsing of more than 110 000 foster child grants between April 2009 and March 2011. The High Court intervened at the request of the Centre for Child Law in Pretoria, placing a moratorium on the lapsing of foster care orders and giving the Department of Social Development (DSD) until December 2014 to come up with a "comprehensive legal solution" to solve the foster care crisis. The December 2014 deadline was extended four times, eventually until December 2022. The "comprehensive legal solution" that the North Gauteng High Court tasked the minister with in 2011 required amendments to both the Social Assistance Act 13 of 2004 and the Children's Act 38 of 2005. The first of these amendments, the Social Assistance Amendment Act 16 of 2020, came into effect on 30 May 2022 and the second, the Children's Amendment Act 17 of 2022, on 8 November 2023. This article considers the question whether the department's response to the so-called "foster care crisis" as contained in these Amendment Acts and their regulations complies with South Africa's obligations in terms of international law and the Constitution of the Republic of South Africa, 1996.