ENSURING SOUTH AFRICAN CHILD LAW EFFECTIVELY PROTECTS CHILDREN FROM HARMFUL CONTENT(MAY 2021)
We Must Act Now to Protect Our Children from Harmful Content
The Children’s Act is South Africa’s premier piece of child protection legislation. Its purpose includes giving “effect to certain rights of children as contained in the Constitution” and setting out “principles relating to the care and protection of children”.
Legislation is reviewed from time to time to ensure it remains current, fit for its purpose and meets stakeholder needs. The Department of Social Development (DSD) is responsible for the administration and implementation of the Children’s Act. During 2018, it produced two draft Bills and initiated an extensive public consultation process that has culminated in the publication of the Children’s Amendment Bill, 2020. The Bill is now being considered by Parliament’s Portfolio Committee on Social Development.
Between September 2018 and November 2020, human rights and public interest organisation, Cause For Justice (CFJ), delivered substantive written submissions in respect of the previous draft versions and current version of the Children’s Amendment Bill. In May 2021, CFJ also delivered oral representations to Parliament.
In respect of the most recent version of the Bill, CFJ focused its contribution on the re-inclusion of a certain provision – ‘section 6B’ – which concerns ‘children and the media’. DSD proposed the inclusion of the new section 6B in its first draft version of the Bill, but omitted it from later versions.
A ‘POSITIVE OBLIGATION’ TO PROTECT CHILDREN FROM HARMFUL CONTENT
The harmful impact of exposure to sexual and violent content on children, especially pornography, is well-researched and documented by wide range of academics, researchers, international experts and child protection organisations. 
It is necessary to re-include section 6B (or even better – an improved version of it) because it creates a positive obligation – i.e. it sets out what people are legally required to do – for the media, parents, caregivers and guardians to “protect children from exposure to potentially disturbing or harmful materials and from premature exposure to adult experiences”. Other pieces that contain similar provision, such as the Film and Publications Act, 1996 for example, contains negative obligations (what people may NOT do), but very few positive obligations (what people MUST do).
Reasoning from the Constitutional principle that “a child’s best interests are of paramount importance in every matter concerning the child,”  CFJ implored the Portfolio Committee to seize this opportunity to re-insert an improved version of section 6B in the Bill.
ENSURING PROTECTIVE PROVISION IS CLEAR, IMPLEMENTABLE AND ENFORCEABLE
CFJ explained that for the sake of legal certainty, and to make the provision implementable and enforceable, the original version of section 6B needed to be improved by:
- Clarifying the meaning of key terms and phrases like ‘the media’, ‘potentially disturbing and harmful materials’, and ‘premature exposure to adult experiences’;
- Expanding the legal duty created by the provision beyond the media, parents, caregivers and guardians to include certain ‘accountable persons’ already recognised by the Children’s Act, 2005 as having a higher duty to protect children;
- Linking the legal duty to protect children to an objectively measurable and specified standard for compliance; and
- Providing an enforcement mechanism and consequences (sanction) for non-compliance with the provision.
WE MUST ACT NOW TO PROTECT OUR CHILDREN FROM HARMFUL CONTENT
We cannot afford to fail our children by neglecting to insert a legislative provision that will impose a duty to protect them from harmful content. The stakes and the costs are too high!
The reviewing of the Children’s Act provides us with a critical opportunity ensure South African child law provides the best and most effective legal protection possible to safeguard children against the harmful impact of exposure to sexual and violent content.
It is vitally important for us to act now to make sure our child protection legislation contains a clear, implementable and enforceable ‘positive obligation’ (i.e. setting out what people MUST do) to protect children – and what this legal duty should look like.
THE LEGISLATIVE ROAD AHEAD
The Portfolio Committee must now consider all the public comments it received to decide what amendments need to be made to the current version of the Children’s Amendment Bill. There will also be more public engagement opportunities – in the form of provincial consultations – during July and August 2021.
Cause For Justice will closely follow the progress of the law-making process and participate in further public engagement opportunities to advocate for legal reforms that effectively protect the children of South Africa. Together – we can keep our children safe!
 See section 28(2) of the Constitution.