Browsing by Author "Sloth-Nielsen, Julia"
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Item 2 + 2 = 5? Exploring the domestication of the CRC in South African jurisprudence (2002-2006)(Brill Academic Publishers, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam DawitSouth Africa commenced transition to a constitutional democracy with the adoption of an interim constitution in 1994, followed by national elections based, for the fi rst time, on universal adult suffrage. A justiciable Bill of Rights, containing some rights accorded to children, was at the core of our new society based on values of dignity, equality and respect for the freedom and security of the person, in sharp contrast to the violence and legalised discrimination that had characterised the apartheid regime. T e two years that followed the adoption of the Interim Constitution were a period of intense negotiations by a multi-party constitutional assembly to fi nalise the text of a fi nal constitution, in accordance with the principles set out in the Interim Constitution. As has previously been pointed out (Sloth-Nielsen, 1996, p.326), there was a high degree of consensus amongst political parties about the children’s rights to be included, to the extent that four of the six party submissions supported the extension of the children’s rights clause, and indeed a number of additional rights were fashioned and ultimately adopted.Item The African charter on the rights and welfare of the child(University of the Western Cape, 2002) Gose, Michael; Sloth-Nielsen, JuliaSo far little is known about the first comprehensive regional children's rights charter, the 1990 OA1J African Charter on the Rights and Welfare of the Child.' Th" Charter has been mentioned occasionally by documents and authors in different contexts. This happens mostly in the form of an addendum in the context of the 1989 UN Convention on the Rights of the Child, the universal children's rights instrument. This limited use of the Charter's provisions has created the impression that it is not, and cannot, be used as a document in its own. The confusion around the Charter is further complicated when it is quoted under a wrong name, ‘when dates and numbers get confused,3 or when it seems to be nearly impossible to get a copy of the original draft of the Charter. The situation gets worse if one tries to find reliable data on dates of ratification, numbers of States Parties and exact date of entry into force of the instrument.5 Only very scarce literature can be found on the subject. Very few authors6 have written (brief) articles on the Charter in legal journals or contributions for books specializing in the field of children's rights. These authors, however, mainly concentrate on selected points of the Charter and its historical background. In fact most of them wrote on the topic before the Charter came into force on 29 November 1999Item The African children’s charter at 30: What implications for child and family law?(Intersentia, 2021) Sloth-Nielsen, JuliaThis chapter examines the progress made and the difficulties encountered in the implementation of the African Charter on the Rights and Welfare of the Child (hereinafter the Charter) in the areas of children's rights and family. This analysis will cover some of the major developments in the rights of the child and the family following the first 30 years of the Charter, including legislative reforms, the development of specialized institutions, domestic violence and other forms of violence, child marriage, international adoption and surrogacy, as well as corporal punishment inflicted by parents.Item Assessing the impact: Mandatory and minimum sentences in South Africa(Institute for Security Studies (ISS), 2005) Sloth-Nielsen, Julia; Ehlers, LouiseThe legislation passed in 1997 that provides for mandatory minimum sentences for serious crimes was recently extended for another two years. At the time, the aim was to reduce serious and violent crime, achieve consistency in sentencing, and satisfy the public that sentences were sufficiently severe. This article argues that the legislation has achieved little or no significant impact with regard to these goals. Instead, many agree that the provisions have exacerbated the problem of overcrowding in South African prisons.Item Benign accommodation? Ukuthwala, ‘forced marriage’ and the South African Children’s Act(Centre for Family Law and Practice, London Metropolitan University, 2011) Mwambene, Lea; Sloth-Nielsen, JuliaIn this article, we evaluate the implications of the Children’s Act 38 of 2005 for ukuthwala. Ukuthwala is a practice whereby, as a preliminary procedure to a customary marriage, a young man forcibly takes a girl to his home. In recent times, the practice has taken on other dimensions, including very young girls being married to older men and charges of abduction being laid. Questions arise relating to the impact of constitutional principles upon this customary law and practice. It is suggested that instead of adopting an a priori prohibitionist stance towards customs that seem to violate human rights norms, benign accommodation of aspects that promote the positive aspects of culture be sought. This approach leads to a conclusion that South African law should recognise those forms of ukuthwala where the requirement of the consent of the ‘bride’ is met. The implications of the prohibition on social and cultural practices detrimental to child well-being in the Children’s Act 38 of 2005 are framed in this context.Item Children's experiences and views on domestic violence(University of the Western Cape, 2012) Ntebe, Ntombenani Primrose; Sloth-Nielsen, JuliaIn a country in which human rights feature prominently in our discourse about who we are, as well as in the South African constitutional and legal framework, so many wrongs continue to be perpetrated on women and children. However, children seem to be particularly affected by domestic violence, either physically, emotionally or socially. In order to adequately address these diverse experiences and understand what children say, an in-depth investigation into how children experience domestic violence, and what their views are, is required. The study will focus on those children who had been affected emotionally and socially in their homes. This study will make an attempt to expand on how children experience domestic violence, what the general reaction of a selected group of children, who have observed domestic violence, is and what their views of domestic violence are. Attention was given to the relevant literature as well to legislative and policy frameworks. The study employed a qualitative research method in order to obtain in-depth data from the children. Children were selected from three schools in a small Northern Cape town, which participated in the study and the schools were grouped as follows: one school from each area, which are Nonzwakazi, Sunrise and De Aar (town). Each high school had five participants. The participants‟ ages were between 12 and 17. All the participants reside at De Aar which is situated in Prixley kaSeme District about 300 kilometres from Kimberley, Northern Cape Province. Data was coded according to the themes that emerged from the study and were analysed. The results indicated that children are able to share their experiences when given the opportunity. It is further shown in the results that children view domestic violence as a wrong and that men are the sole abusers. It further indicated that children do not have confidence in the courts; they are of the view that the courts are being too lenient on the abusers and they further said that more protection orders should be issued in order to prevent domestic violence. They blame this on non-responsiveness of the police when they are called and the kind of punishments the courts impose when the abuser is brought before court.The majority of children expressed their wish to see justice being done. The study found that children are of the view that there is little support from the police and the courts. The study concluded that children, acting voluntarily and with appropriate ethical safeguards, can make a significant contribution to both describing their experiences of domestic violence, and to indicating the standard of services and other interventions that they can trust and use.Item Children’s rights and parental authority: African perspectives(Routledge, 2021) Sloth-Nielsen, JuliaTraditionally, children in African societies were raised communally, with extended family members playing a vital role in child rearing and care. Social reality is playing a formative role in relation to family law and policy, including in respect of children’s rights. Most African children still grow up under conditions of extreme poverty, which is exacerbated by urbanization, conflict, adverse climatic conditions and economic disparity which leaves large numbers of people unemployed or underemployed. Characteristic of the African human rights conception is a unique provision for the responsibilities of the child. Children’s rights feature prominently in African constitutions, and commonly include protection for the family, education rights and rights relating to special protection.Item Cluster foster care: a panacea for the care of children in the era of HIV/Aids or an MCQ?(Stellenbosch University (SUNJournals), 2010) Gallinetti, Jacqui; Sloth-Nielsen, JuliaThe ravages wrought by HIV/AIDS on child-care arrangements in the African context are well documented (Richter & Sherr, 2009; Sloth-Nielsen & Mezmur, 2008; Tsegaye, 2007; sources cited there). Notably, these constitute the breakdown of traditional kinship structures which would ordinarily have accommodated orphans and other vulnerable children, a decrease in the capacity of existing extended family structures to care for the numbers of children requiring alternative care, and the emergence of child-headed households. The topic of child-headed households, too, has emerged as a key concept in international child rights law (Couzens & Zaal, 2009; Sloth-Nielsen, 2004; Sloth-Nielsen in Skelton & Davel, 2010; UN Committee on the Rights of the Child (UNCROC), General Comment No. 3 on HIV/ AIDS and the rights of the child, 2003), and this phenomenon has been directly related to the onset of the pandemic.Item The constitutional family: developments in South African family law and jurisprudence under the 1996 Constitution(Oxford University Press, 2003) Sloth-Nielsen, Julia; Van Heerden, BelindaThe article reviews the process of liberalization of child and family law that has occurred since the adoption of South Africa's 1996 Constitution. Although the Constitution does not expressly protect the right to family life, the principles of dignity, equality and concern for the vulnerability of marginalized groups in society have heralded a wide‐ranging revision of the legal meaning of family, of how the law should protect family members, and is reshaping the understanding of relationships between family members (including children). Developments in areas such as domestic violence, custody allocation upon divorce, the growing recognition of same sex partnerships, religious and customary marriages, and the rights and status of illegitimate children in both civil and customary law are discussed. The article suggests that these piecemeal judicial and statutory reforms may result in a potentially dangerous proliferation of legally recognized family forms. At the same time, the difficulties of multiculturalism and religious diversity in the family law arena in South Africa are highlighted.Item Deprivation of children's liberty 'as last resort' and 'for the shortest period of time': how far have we come? And can we do better?(Juta Law, 2013) Sloth-Nielsen, JuliaCommencing with a brief historical overview of detention of children in South Africa, and legislative attempts to curb its use, this article reviews all forms of deprivation of liberty under the Child Justice Act 75 of 2008 and attempts to assess at a practical level whether - or not - progress is being made in the quest for the minimal use of deprivation of liberty.Item The determinants of the child’s best interests in relocation disputes(University of the Western Cape, 2015) Boyd, Miche Theresa; Sloth-Nielsen, Julia; Albertus, LatiefaThis thesis explores the factors that our courts take into account in determining what would constitute the best interests of the child in granting or refusing relocation applications. This study deals with the formulation and interpretation of the best interests standard by South African courts in relocation cases. The courts are considering reported cases to determine which issues to take into account in determining the best interests of the child, due to the fact that the Children’s Act does not have a set list of criteria. Therefore I will focus on case law in determining what factors are taken into account in order to determine what would be in the best interests of the child with regard to the relocation application. The aim is to determine whether there is any consistent principle or policy which can act as a guideline to practitioners and our courts to direct jurisprudence in this area. The objective is to determine whether the Children’s Act provides sufficient guidelines to assist the court in determining relocation disputes. Furthermore the thesis examines what the approach of our courts is and what constitutional dimensions may arise in relocation disputes. The research aims to explore whether relocation applications (and parenting roles) are disadvantaging women (primary-caregivers). The research investigates whether the courts are gender neutral and acutely sensitive to gender in relocation applications.Item A developing dialogue – children’s rights, children’s law and economics: surveying experiences from Southern and Eastern African law reform processes(Tilburg University Schoordijk Institute, 2008) Sloth-Nielsen, JuliaLaw reform in southern and eastern African countries to domesticate the UN Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC), to synthesize common, civil and customary laws, and to modernise and codify a myriad of outdated statutes affecting children that were inherited from the colonial era has been an ongoing project in numerous states in the region since the first comprehensive Children’s Act, that of Uganda, in 1996. These law reform processes are, in many instances, still ongoing.Item Does the differential criterion for vesting parental rights and responsibilities of unmarried parents violate international law? A legislative and social study of three African countries(Cambridge University Press, 2011) Sloth-Nielsen, Julia; Wakefield, Lorenzo; Murungi, Nkatha L.The right to non-discrimination for all children is established in international human rights law. International children's rights law further provides for the common responsibility of parents for the maintenance of their children. African customary law and common law have always made a distinction between children born in and out of wedlock so far as the duty to maintain them is concerned. The resilience of this customary and common law approach is evident in statutory provisions of the countries discussed in this article. This is despite international obligations under children's rights treaties ratified by these countries. On the face of it, the distinction of responsibility based on marital status seems harmless. However, in view of gender inequities and resource distribution between men and women in society, such a distinction has serious implications for the rights of affected children.Item A dutiful child: the implications of Article 31 of the African Children's Charter(Cambridge University Press, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam DawitEach right has a corresponding duty. The African Children's Charter, under article 31, imposes a range of duties on children. Understandably, it could become contentious when an instrument on the rights and welfare of children expressly imposes duties on them. After setting the platform for discussion by highlighting international experiences and outlining the African concept of human rights, this article critically examines and attempts to clarify the precise meaning, content, conditions of compliance and application of those duties for children- By way of conclusion, it suggests that article 31 represents a valuable addition to the international human rights agenda, and that a purposeful interpretation of its constituent parts reveals that children should be required to play a role at family, community, national and continental levels, in accordance with their age and maturity as they grow up, as part and parcel of their heritage, empowerment and developing citizenship.Item A foreskin too far? Religious, medical or customary circumcision and the Children's Act 38 of 2005 in the context of HIV/AIDS(University of the Western Cape, 2012) Sloth-Nielsen, JuliaThis article analyses the legal framework surrounding male circumcision (infant and youth) in South Africa, having explained the requirements of international human rights law. Provincial legislation regulating traditional circumcision is detailed, followed by an explanation and analysis of the relevant provisions of the Children's Act 38 of 2005 and its accompanying Regulations. Thereafter the recently changed context, as evidenced by the current campaign for mass male circumcision as a means of preventing HIV/AIDS, is considered. The implications for the narrow circumstances in which circumcision is legalised by the Children's Act are then explored, and further potential results - in the longer term - for traditional circumcision practices are predicted.Item An ice-breaker: state party reports and the 11th Session of the African Committee of Experts on the Rights and Welfare of the Child: recent developments(Juta Law, 2008) Sloth-Nielsen, Julia; Mezmur, Benyam DawitDuring its 11th session, the African Committee of Experts on the Rights and Welfare of the Child held its first Pre-Session for the consideration of state party reports. This update highlights the work of the Committee during this session. While little attention is paid to the proceedings of the 11th session, partly as a result of the fact that the session was short-lived (only three days, composed of open and closed sessions), the procedures for the Pre-Session, as well as the substance of the four reports that were discussed during the Pre-Session, occupy centre stage. In conclusion, it is argued that the whole exercise of the Pre-Session was an ice-breaker, and represents progress in its own right. In looking forward, the importance for the African Children's Committee to draw the necessary lessons from the four state party reports and to chart ways of strengthening the reporting regime is underscored. A number of tentative recommendations are made in this regard.Item (Illicit) transfer by De Gree(University of Western Cape, 2007) Sloth-Nielsen, Julia; Mezmur, Benyam DawitThe decision of the Supreme Court of Appeal (SCA) in De Gree v Webb [2007] SCA 87 (RSA) is worthy of consideration for a number of reasons, reasons which do not include the prominent (emotive) media attention devoted to the facts both before the appeal, and the ongoing publicity which occurred in diverse press and radio reports after judgment was handed down. This matter is reportedly further being considered for an appeal to the Constitutional Court. This, too, indicates both the public concern with, and vested interests in, the outcome of what was widely agreed, ultimately, to be an international adoption.Item Incy wincy spider went climbing up again – prospects for constitutional (re)interpretation of section 28(1)(c) of the South African Constitution in the next decade of democracy(Nelson R Mandela School of Law, University of Fort Hare, 2007) Sloth-Nielsen, Julia; Mbazira, ChristopherINTRODUCTION: This article reviews the first decade of jurisprudence concerning interpretation of the rights enumerated in s 28(1)(c) of the Constitution of South Africa (the Constitution), commonly referred to as the children’s socio-economic rights clause. Three broad trends are identified, which in the main have resulted in a far more limited scope of application of these rights than was originally anticipated. In addition, affirming existing jurisprudence in relation to socio-economic rights generally, dicta of the Constitutional Court signal clearly that the Court is not going to be persuaded to accept or define a minimum core content to elaborate the scope of individual socio-economic rights a d the concomitant extent of the State obligations in respect thereof .Item Inter-country adoption from a Southern and Eastern African perspective(Washington & Lee Law School, Virginia, 2010) Sloth-Nielsen, Julia; Mezmur, Benyam Dawit; Van Heerden, BelindaThis paper reviews recent developments pertinent to inter-country adoption in Southern and Eastern Africa. In particular, it focuses on the tripartite roles of governments, the judiciary and the international community, including the international media. It argues that a concerted effort towards awareness-raising is required in order to harmonise the respective roles of the above players, and in order to better regulate the practice.Item Islamic kafalah as an alternative care option for children deprived of a family environment(Juta Law, 2014) Sloth-Nielsen, Julia; Assim, Usang MariaThe inclusion of kafalah of Islamic law in the United Nations Convention on the Rights of the Child is the first time an exclusively Islamic concept is recognised in a binding international instrument. The drafting of CRC was set against the background of compromise as it relates to the provision of alternative care for children deprived of a family environment. Islamic kafalah represents one of such compromises in an attempt to accommodate the differences of the various state parties to CRC. However, many scholarly works on children’s rights refer to Islamic kafalah only within the context of its ‘discovery’ during the drafting process of CRC and, as such, the meaning, extent and practice of kafalah, as an alternative care option for children deprived of parental care, has not been the subject of much study. This is unlike the case with other forms of alternative childcare like foster care and adoption. Other studies more focused on Islam and human rights refer to kafalah only within the broader context of discussing the links and divergences between Islamic law and human rights, or children’s rights more specifically. This article specifically focuses on kafalah as an alternative care option for children deprived of a family environment in comparison with other forms of alternative childcare. The extent to which kafalah is internationally recognised and practised is also addressed. A number of themes are analysed in the article, including what the concept of kafalah entails, what its legal implications are, what factors distinguish it from other forms of alternative care, and what the international dimensions to kafalah are in relation to the subject of intercountry adoption. In light of all these questions, an understanding of kafalah will contribute to international children’s rights jurisprudence in the context of child care and protection.
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