On 14 February, scores of children were removed from the care of 2 Môrester Children’s Homes and from the House Mea Children’s Home all located in Kwa-Zulu Natal. The removal took place on the strength of untested allegations of abuse and racism. Officials of the Department of Social Development accompanied by police swooped in and removed the children without a court order. According to the Children’s Act, such removals can only be enacted in emergency situations where the children concerned are in imminent danger.
The Children’s Act also provides for automatic judicial review of removals of children in the absence of a court order, according to which the matter must be brought before the court before the expiry of the next court day. This is a feature derived from the case of C and Others v Department of Health and Social Development, a Constitutional Court case that led to the amendment of the Act. When the Môrester and House Mea matter did eventually come before the court on 20 February, the presiding officer ordered that the children be returned to the Children’s Homes.
Failure to obtain evidence of an emergency situation is thus very serious. Removing children summarily without just cause is patently unconstitutional as it violates the rights of the child in terms of section 28(1) of the Constitution – that a child may not be made subject to abuse and degradation – and section 28(2), that the best interests of the child are of paramount importance in all matters concerning the child.
While this does not address – or serve to prove or disprove - allegations of wrongdoing on the part of the Children’s Homes, what it does mean is that the Department of Social Development’s brazen actions were unfounded and that they could have gone to court prior to effecting the removals. Added to this, the Department could not provide any of the requisite documentation necessary for the removals to occur in the first place. In the view of the South African Federation for Mental Health (SAFMH), this represents a serious transgression in terms of the Constitution as well as the Children’s Act.
The aspect that predominantly concerns our organisation is the mental health of the children concerned and the trauma they must have undergone during the removal process. Children residing in a child and youth care centre are children living outside of the family setting and who have often undergone the distress of a parent passing away, or have experienced abuse. This already renders them more vulnerable than most children and their need for stability is thus increased. Removing the children without following the necessary legal processes and ensuring that the necessary protective mechanisms, which safeguards their emotional well-being, is frankly reckless. The removal of children in this manner is frightening and, reinforces their experience of instability and mistrust of older people who have the power to upend their reality. This can be a catalyst for poor mental health and can even lead to the onset of a mental disorder.
The words of Judge John Murphy are poignant here. In the case of Centre for Child Law v MEC for Education and Others, he stated:
“I have to pause here, perhaps in a moment of exasperation, to ask: What message do we send to the children that they are to be removed from their parents because they deserve better care and then wholly neglect to provide that care? We betray them and we teach them that neither the law nor state institutions can be trusted to protect them. In the process we are in danger of relegating them to a class of outcasts, and in the final analysis we hypocritically renege on the constitutional promise of protection.”
This situation harkens back to the Life Esidimeni tragedy in which the Gauteng Department of Health executed a reckless and dangerous operation of rapidly transferring mental health patients en masse from four psychiatric hospitals to nongovernmental organisations (NGOs). The NGOs were wholly ill-equipped to care for the patients, resulting in the death of 144 individuals from preventable diseases, starvation and overall poor care. The series of decisions taken to enact this process – hailed as “Project Marathon” by the Health Ombudsman – was taken thoughtlessly with dire consequences. It was as though they were taken on impulse without considering what kind of outcomes awaited the individuals concerned. No efforts were made to ensure that facilities were appropriate, that the staff were qualified or that the NGOs were adequately resourced. No heed was paid to the cries of civil society that disastrous results could ensue should the operation be executed.
Indeed, it appears that the state has taken no lessons from Life Esidimeni. There still appears to be a perception within the state that reckless behaviour is acceptable and that government can act on impulse, even outside the Constitutional parameters and those established by enabling legislation. Such were the actions surrounding the Môrester Children’s Homes as well as House Mea Children’s Home.
We presume neither innocence nor guilt on the part of the Children’s Homes. That is the purpose of the investigation that is currently under way. We merely wish to highlight the potential ramifications of the removal, and that the state’s approach in this situation was reckless and ill-considered. After Life Esidimeni, it was the hope of civil society and other stakeholders that the state would begin to approach matters differently. Unfortunately this appears not to be the case. The question arises how many disastrous events have to ensue before the state learns its lesson? How many people have to suffer before government officials see the error of their ways? The short answer appears to be not any time soon.