Research Articles (Centre for Child Law)

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Lack of access to insulin : undermining the rights of the child
(Elsevier, 2024-07) Heller, Olivia; Duperrex, Olivier; Jaffé, Philip D.; Goldhagen, Jeffrey; Abidha, Carol A.; Skelton, Ann, 1961-; Otani, Mikiko; Heller, Yvon; Vassalli, Jean-Dominique; Beran, David
2024 marks the centenary of the League of Nations' Declaration of the Rights of the Child. The Geneva Declaration highlighted the health needs of children and proclaimed the duty of governments to respond to these needs.
Children's rights to access to justice and remedy : recent developments
(Sage, 2024-04) Skelton, Ann, 1961-
No abstract available.
Turning the rights lens inwards' : the case for child rights-consistent strategic litigation practice
(Oxford University Press, 2022-12) Nolan, Aoife; Skelton, Ann, 1961-
The last three decades have seen an explosion of academic, advocacy and policy-maker interest in both the theory and the practice of children’s rights. There is a growing global body of strategic litigation focused on the advancement of those rights through positive legal and/or social change. In this context, child rights have primarily played an ‘outward-facing’ role: used as a schema that should constrain or mandate the actions of external decision-makers that are the targets of litigation. However, children’s rights have not generally been used as a framework by which to assess, and as necessary, critique strategic litigation practice—i.e. as a lens to be turned inwards by litigators to consider the extent to which their practice is consistent with child rights standards. This article considers the case for child rights strategic litigation (CRSL) practice that is child rights-consistent. In doing so, it identifies CRSL-relevant rights under the UN Convention on the Rights of the Child and outlines how such rights arise in the litigation process. It ultimately posits that child rights can serve as a clear, multi-faceted framework that enables litigators to strengthen their existing practice in a legitimate, unified and coherent way.
Renewal and reform : special Issue on ‘realising the rights of children to quality early childhood development in South Africa’
(Routledge, 2022) Ally, Nurina; Ozah, Karabo; Peacock, Tess N,
Access to holistic, quality early childhood development (ECD) services is needed to support the health, nutrition and early learning needs of young children. While South Africa has made some advances in increasing access to ECD services for children in the democratic era, significant gaps and challenges remain. Almost two-thirds of young children live below the poverty line, a majority of the country’s poorest children do not meet learning and physical expectations for their age, and the position of children with disabilities is even more dire.
Giant leaps or baby steps? A preliminary review of the development of children’s rights jurisprudence in Zimbabwe
(Pretoria University Law Press, 2021) Magaya, Isabel E.K.; Fambasayi, Rongedzayi
This contribution provides an overview of children’s rights adjudication in Zimbabwe with a specific focus on emerging jurisprudence under the 2013 Constitution. After a summary of Zimbabwe’s performance in implementing children’s rights under both international and African regional law, the authors examine how Zimbabwean superior courts have dealt with the protection of children's rights. In order to give a fair assessment, we begin by reflecting on the Lancaster House (LH) Constitution (1980) and the resultant jurisprudence thus shedding light on how courts conceptualised children’s rights in the absence of a specific child rights provision in the Constitution. This is followed by an analysis of the emerging jurisprudence under the 2013 Constitution which specifically entrenches children’s rights. We focus specifically on cases decided between 2013-2019. A focus on seminal court judgements and how courts adjudicated children’s rights will guide the authors in ultimately deciding whether or not Zimbabwean courts have made giant leaps or baby steps in the protection and promotion of children’s rights under the 2013 Constitution.
Age of consent : a case for harmonizing laws and policies to advance, promote and protect adolescents’ sexual and reproductive health rights
(Women's Health and Action Research Centre, 2021-04) Tallarico, Renata; Ozah, Ronaldah Lerato Karabo; Orievulu, Kingsley S.
The article assesses the legal and policy frameworks that have an impact on adolescents’ sexual and reproductive health rights (ASRHR) in East and Southern Africa (ESA), confirming the interconnectedness of the ages of consent to sexual activity, marriage, and services and its influence on adolescents’ human rights. It reviews international, continental and national legal instruments used to identify relevant provisions on ASRHR in the ESA region. The region demonstrates substantial disparities between realities of sexual debut among adolescents, national (statutory and customary) laws and policies on ages of consent to sex, marriage and medical services, and international standards around these SRHR issues. These disparities constitute negative consequences: criminalising adolescents, entrenching child marriage, and excluding adolescents from accessing medical services required to secure and promote ASRHR. While some ESA countries lack clear laws and policies on the three issues, cases of internal contradictions and disharmony with international standards abound. This impacts on the full realization of sexual and reproductive health rights of adolescents and young people in the region.
Childhood sexuality in Africa : a child rights perspective
(Pretoria University Law Press, 2020) Kangaude, Godfrey Dalitso; Bhana, Deevia; Skelton, Ann, 1961-; ann.skelton@up.ac.za
It is an undeniable fact that children in Africa face many challenges in their sexual health and development trajectories. One of the challenges that children face is ideological, that is, the social construction of childhood sexuality and the effects of that construction on law and policy and on what information and services children may access regarding sex and sexuality. Adults tend to represent children as sexually innocent and incompetent, and their actions toward children focus on preserving this sexual innocence and averting sexual risks. The article discusses how this ideological positioning of children shapes sexuality education, and the criminalisation of sexual conduct between consenting adolescents. Legal instruments and related interpretive instruments such as court judgments and the General Comments and Recommendations of treaty-monitoring bodies play an important role as they construct meanings of childhood sexuality that align with or contradict dominant representations of childhood as sexual innocence which has effects for children’s sexual rights. The article analyses how General Comments of the Committee on the Rights of the Child and the African Committee of Experts have represented childhood sexuality. It argues for the transformation of views about children toward perceiving children as having sexual agency to the extent of their evolving capacities, as a prerequisite to addressing challenges that children face in Africa relating to sexuality. It recommends that the African Committee of Experts should, in its interpretation of the African Children’s Charter, construct childhood sexuality positively to represent children as sexual agents rather than positioning them as sexually innocent which also implies viewing any sexual activity of the child as inherently harmful or as a mark of deviance or corruption.
Too much of a good thing? Best interests of the child in South African jurisprudence
(Pretoria University Law Press, 2019) Skelton, Ann, 1961-
The South African Constitutional Court is often lauded for its application of best interests in its judgments. This article acknowledges the positive aspects of the Court’s approach, especially in the earlier cases, but also poses a question – does the Court go too far in applying best interests, in situations where an equally or more appropriate right in the Bill of Rights is available – or where a right can be more fully interpreted through recourse to international law? Two recent cases are analysed to demonstrate the concern. It is argued that the most rights-based approach is achieved with the Court pronounces on a clear rights violation, either in the Constitution or the Convention, and then use best interests to either weigh rights, justify a derogation of a right, to fill in any normative gaps where a particular right is not clearly enunciated in the Constitution or international law, or where it is necessary to show that the impact of an impugned provision would impact on children more heavily than on adults. It is concluded that the flexibility of best interests is useful, but it should not be used so ubiquitously that it prevents normative development of children’s rights.
Foreword: “Imagining children constitutionally : 20 years of strategic litigation and advocacy”
(Pretoria University Law Press, 2019) Ozah, Ronaldah Lerato Karabo
In December 2018, the Centre for Child Law hosted a conference under the theme “Imagining children constitutionally: 20 years of strategic litigation and advocacy”.
The law as a tool to guarantee the inclusive education of the Nigerian child
(Educor Holdings, 2018-12) Onuora-Oguno, Azubike; Onuora-Oguno, Blessing
Educating a child with special needs or disability in Nigeria continues to raise concerns of a lack of quality. While education is provided for in the 1999 Constitution of Nigeria, it is seen as more of an obligation than a right by the majority of Nigerians. From the Nigerian child with a hearing impairment to the one with vision or mobility challenges, the question of their rights in education remain violated and neglected. The absence of equal treatment affects the dignity of the Nigerian child. It is on the above premise that the authors adopt a multidisciplinary approach to analysing the education of children with special needs in Nigeria. The study draws from international and national legal frameworks and argues that more needs to be done to ensure quality in education. In addition, the study advances the legal basis for holding governments accountable for failing to meet its obligations in the education of the Nigerian child. The paper is structured in different sections which deal with the legal framework, conceptual clarifications, and the advancement of the basis for demanding equal and quality education for the Nigerian child. Finally, the paper makes some conclusions and recommendations.
(De)criminalizing adolescent sex : a rights-based assessment of age of consent laws in Eastern and Southern Africa
(Sage, 2018-10) Kangaude, Godfrey Dalitso; Skelton, Ann, 1961-
Age of consent criminal laws imposed on African states during colonialism were inherently patriarchal and gender-stereotypic, and continue to influence country approaches toward adolescent consensual sexual conduct. There are two major policy positions: a punitive and a nonpunitive approach. Most countries adopt the punitive approach. Mostly, legislation does not explicitly criminalize consensual sexual conduct between adolescents, and this leaves a gray area to be filled in by social and cultural norms that perceive adolescent sexual conduct negatively. Punitive approaches have been justified as necessary to curb harms to adolescents resulting from sexual conduct, including teenage pregnancies and sexual abuse. Age of consent laws, especially in their original colonial formulation deny adolescents, especially girls, sexual autonomy and agency. States focus more on punishment than on taking measures to address the structural antecedents of harms associated with sexual intercourse. States should reform age of consent laws to decriminalize consensual sex between adolescents in accordance with recognized rights of the child.
Separation of children from parents in situations of migrancy : avoidable trauma
(Sage, 2019-03) Skelton, Ann, 1961-; ann.skelton@up.ac.za
No abstract available.
Separation of children from parents in situations of migrancy : avoidable trauma
(Sage, 2018-08) Skelton, Ann, 1961-
No abstract available.
Schools on fire : criminal justice responses to protests that impede the right to basic education
(Institute for Security Studies, 2017) Skelton, Ann, 1961-; Nsibirwa, Martin; ann.skelton@up.ac.za
In recent years, schools have borne the brunt of protesters’ frustrations with the lack of access to services in South Africa. A 2016 investigative hearing by the South African Human Rights Commission (SAHRC) explored the causes of the protests and examined the failure to prevent the destruction of school property. It found that no one was held accountable for the protest-related damage. This article explores the competing constitutionally protected rights of protest and education. Although the right to protest is central in a democracy, it must be exercised peacefully with minimal disruptions to the right to education. Protest action that causes destruction should be criminally sanctioned; however, action that impedes access to education through threats and intimidation is difficult to deal with in the criminal justice system. This article questions the applicability of section 3(6) of the South African Schools Act, which makes it an offence to stop children attending school, and considers the proposed amendments to the Act in light of these critiques. The article explores possible prosecution relying on the Intimidation Act, and finds that the Act is under constitutional challenge. The article concludes that the focus on prevention as contained in the SAHRC report is not misplaced, given the challenges in holding protesters accountable under criminal law.
Balancing autonomy and protection in children's rights : a South African account
(Temple University School of Law, 2016) Skelton, Ann, 1961-
The good news of Roper v. Simmons1 reached South Africa immediately after the decision was handed down in 2005. Child justice advocates in South Africa read the judgment with great interest and saw the judicial nod of acknowledgment toward neuroscience and its validation of what Americans already instinctively knew and shared with the world more than a century before: that children are different from adults. We joined the virtual celebration with the United States and other juvenile justice advocates around the globe. Capital punishment for those who committed crimes while still under the age of eighteen years was finally dead in the country that sentenced more children to death than any other in the years leading up to Roper.
S v SN unreported, case no. 141114/14 (WCC) : sentencing child offenders after they turn 18
(Institute for Security Studies, 2015-12) Du Toit, Carina; Hansungule, Zita; zita.hansungule@up.ac.za
This case note reflects on the approach that should be adopted by sentencing courts when imposing sentences on child offenders who turn 18 during proceedings. The Western Cape High Court recently considered the application of the sentencing principles in the Child Justice Act and section 28 of the Constitution to child offenders who turn 18 prior to their sentencing. The court confirmed that there is ‘no arbitrary end to childhood for children who have committed offences before they attained the age of adulthood’ and concluded that the sentencing principles in the Child Justice Act are applicable to children who turn 18 prior to sentencing.
S v Williams : a springboard for further debate about corporal punishment
(Juta Law, 2015) Skelton, Ann, 1961-
In an early judgment of the Constitutional Court, S v Williams, Justice Langa found that judicial whippings were unconstitutional because they violated young offenders’ rights to dignity and humane treatment. Former Chief Justice Langa was also a member of the unanimous court that found the law prohibiting corporal punishment in schools to be a reasonable and justifiable infringement of their parents’ right to religious freedom. However, s 12 of the South African Constitution guarantees everyone the right to be protected from all forms of violence, either from public or private sources. This contribution considers how the court might deal with a challenge to the constitutionality of the common-law defence of reasonable chastisement, which permits corporal punishment of children by their parents in their own homes.
Victims’ mitigating views in sentencing decisions : a comparative analysis
(Oxford University Press, 2015-02) Van der Merwe, Annette; Skelton, Ann, 1961-; annette.vandermerwe@up.ac.za
This article explores the arguments for and against victims‟ mitigating opinions on sentence. It describes a recent South African appeal case, compares it with a similar New Zealand appeal court judgment, and then investigates the legal position in England and Wales. It appears that, as a general rule, victims‟ recommendations as to penalty must be avoided. However, unlike in South Africa and New Zealand, the jurisprudence in England and Wales has developed exceptions in this regard when certain categories of victims request a more lenient sentence. Several case studies from England and Wales reveal that, through considering the harms and needs of victims and ameliorating the sentences accordingly, a restorative justice approach is blended with a just deserts requirement for the protection of lower limits in sentencing. This ensures that the principles of proportionality, certainty and consistency are still adhered to. It is concluded that, had the South African court taken proper cognisance of these comparative legal developments, it would, at very least, have created a better precedent by providing guidelines to inform the complex, but important, process of considering victims mitigating opinions in the sentencing process.
Protecting child offenders' rights : testing the constitutionality of the national register for sex offenders
(University of Pretoria, Institute for Strategic Studies, 2014-12) Hansungule, Zita; zita.hansungule@up.ac.za
The Constitutional Court recently declared the Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007 (Act 32 of 2007) unconstitutional in its requirement that the names of child offenders be automatically included on the National Register for Sex Offenders when convicted of a sexual offence against a child or a person with disability. The Court held that automatic inclusion on the Register violated a child’s right in terms of section 28(2) to have their best interests taken into account as the paramount consideration in every matter affecting the child. The Court held that the individual circumstances of children should be taken into account and that they should be given the opportunity to be heard by the sentencing court regarding the placement of their details on the Register. The Court decided that sentencing courts should be given the discretion to decide whether to place a child on the Register or not.
Leveraging funds for school infrastructure : the South African 'mud schools' case study
(Elsevier, 2014-11) Skelton, Ann, 1961-; ann.skelton@up.ac.za
In 2013 there are still thousands of children in South Africa attending dilapidated mud schools, schools lacking sanitation, and schools without electricity. The situation took a positive turn in 2009 when the government was taken to court about the severe infrastructure backlogs in the Eastern Cape province. The case settled out of court, and resulted in a memorandum of agreement which pledged R 8.2 billion over three years. However, the allocation of these and other funds has not immediately translated into tangible results on a broad scale. This is because large infrastructure projects require management capacity that is lacking in Department of Education in South Africa. This paper demonstrates the justiciability of the right to education, and shows that litigation, implementation monitoring and budgetary analysis may be new tools to lever funds for education at the country level, and to hold government accountable for efficient spending. The significance of this to the post-2015 development context is that developing countries must find new methods for ensuring the provision and expenditure of funds from existing budgets within their own countries. In order to achieve this education activists must forge new alliances with partners who have knowledge in budgeting, budgetary analysis and where necessary, litigation.

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