SECTIONS of the Children's Act that allow social workers or police officers to take away children from their parents are unconstitutional.

In a majority judgment, the Constitutional Court yesterday confirmed a Pretoria High Court ruling, handed down in 2010, declaring that sections 151 and 152 of the Children's Act were in conflict with the Constitution.

Section 151 (1) empowers the Children's Court to order that a social worker investigate the matter and report back within 90 days.

The section further allows a court to order that a child be removed from its parents' care before it receives the report. Section 152 empowers a social worker or police officer to remove and place a child in temporary safe care, without a court order if there is a need for emergency protection.

The high court and Constitutional Court action stems from an action launched by two parents who had their children taken away from them in 2010.

In August 2010, officials from the City of Tshwane and the Gauteng health and social development department conducted a raid targeting children whose parents had brought them along while begging in the streets. This was done without a court order.

The parents successfully challenged the raid, having the high court return their children to their care.

In handing down judgment, Judge Zak Yacoob held that the two sections failed to account for those instances in which a social worker or a police officer incorrectly removed children from their parents' care or where the Children's Court made an order on incorrect evidence.

The Constitutional Court further ordered that amendments be made to the Act, making it compulsory that all removals be automatically reviewed by the Children's Court shortly after they had taken place.

In a separate minority judgment, Justices Thembile Skweyiya and Johan Froneman, although agreeing with the majority judgement, argued that provisions empowering authorities to remove children were the source of the problem.

"The removal measures would be much less restrictive of the rights concerned if they were subject to automatic judicial review within a reasonable time. An appearance in the Children's Court soon after the removal would allow the family, including the child, to make representations, and would allow the court to consider whether the removal is in the best interests of the child."

However, in a dissenting judgment Chief Justice Mogoeng Mogoeng and Judge Chris Jafta found that "the applicants have failed to prove that the impugned provisions are inconsistent with the Constitution".

Justices Jafta and Mogoeng further found that the section on children's rights in the Constitution could not be interpreted to include parental care that was harmful or detrimental to the safety and wellbeing of a child and that, based on this, "the impugned provisions are consistent with the Constitution".