Towards the Recognition of Child-Headed Households as a Form of Alternative Care for Orphaned Children in South Africa
The dominant idea of the family in South African legislation (in the Child Care Act, Children's Status Act and the Guardianship Act) is that of the traditional western 'nuclear family'. The reality facing South Africa, however, particularly in the context of poverty and the HIV/AIDS pandemic, is very different. The 'extended family' has become the norm and often the primary caregiver in such an extended family is a child (under the age of 18, as defined by the Constitution of the Republic of South Africa). These child-headed households face the same general problems faced by other households, the main problem being poverty, as well as their own unique problems, such as the fact that children in these households do not qualify for the child support grant or the foster care grant, the two main grants which are currently being utilised to alleviate child poverty in South Africa. This can be seen as an infringement of these children's constitutional rights to appropriate social assistance (section 27(1)(c)), social services (section 28(1)(c)) and equality (section 9). It can further be argued to infringe the principle of the best interest of the child being of paramount importance in every matter concerning the child, as enshrined in section 28(2) of the Constitution as well as in international law. This paper will therefore argue for the recognition of child-headed households as a form of alternative care for orphaned children in South Africa (subject to a mentorship scheme as recommended by the South Africa Law Commission), as well as for the extension of social grants to these households. While it is acknowledged that this situation is far from ideal, this paper will attempt to illustrate that, in the South African context, such recognition would be in the best interests of the child.
Keywords: South Africa, Law, Poverty, HIV/AIDS, Child-Headed Households, Social Grants
Ms Debra Anne Horsten
Lecturer, Faculty of Law, North-West University