The rights of refugee children in South Africa

Abstract

Refugee children are a specific vulnerable group in the South African society. In terms of the South African Constitution, refugee children are equally entitled to the right to basic nutrition, shelter, basic health care services, and social services in section 28(1)(c) and basic education in section 29(1)(a). It is unclear from jurisprudence whether indigent children under parental or family care have a direct entitlement to these rights. In Government of the Republic of South Africa v Grootboom (2001 1 SA 46 (CC)), the Court only indirectly addressed children’s rights, whereby it reasoned that the parents and/or family of the child bear the primary duty to care for children and the socio–economic rights contained in section 28(1)(c), in so far as it overlapped with the socio–economic rights of parents, cannot be interpreted as giving children an immediate right on demand. In Minister of Health v Treatment Action Campaign and Others (2000 5 SA 703 (CC)), the duty of the state to provide socio–economic rights to children without parents was extended to children not only when they are physically separated from their parents but also when the “implementation of the right to parental or family care is lacking” due to the poverty of the parent. The Court did not conclude that indigent children have a direct, immediate claim to socio–economic rights in terms of section 28(1)(c). In Centre for Child Law and Another v Minister of Home Affairs and Others (2005 6 SA 50 (T)), the Court decided that the state has an “active duty” to provide the basic socio–economic rights to foreign unaccompanied children. The question whether indigent refugee children under parental or family care has a direct, immediate claim to socioeconomic rights remain unclear and the aim of this study is to determine the nature and scope of the socio–economic rights of refugee children under parental care in South Africa. Related to this question is the further problem presented in the context of refugee children, that although refugee children have constitutional rights and these entitlements has been concretised in legislation and policies, the improper execution of most of these legislation and policies, the continued discrimination and exclusion from education and social assistance grants, remains problematic areas that need urgent attention.