Grandparents' foster grants in jeopardy
Children’s Institute says High Court ruling could affect the care of about 350,000 orphans
A MAJOR legal victory for relatives looking after orphaned and abandoned children has turned into a potential nightmare for grandparents whose foster grants are in jeopardy following a watershed ruling by the South Gauteng High Court in Johannesburg.
About 5.5 million children are cared for by relatives even if their mother is still alive, according to the Children’s Institute. Of these, 1.5 million are orphans.
The Children’s Act is, however, unclear on who qualifies for a child grant and the government has not issued guidelines on the issue.
Before the Aids pandemic in South Africa caused the number of orphans to spike, about 40,000 foster care grants were given each year. This has now risen to about 550,000.
Before the high court ruling, there had been vastly different rulings by magistrates on the issue, with some saying that it had become a way for families to “substitute their income”.
According to the Children’s institute, most of the children who will be affected by the ruling are being cared for by grandparents.
A large percentage of them are from the Eastern Cape.
The case, brought by the great-aunt and great-uncle of an Eastern Cape orphan was the first opportunity the high court had to decide on foster grants in terms of the Children’s Act.
The couple were initially refused a foster care grant by the Krugersdorp Children’s Court.
But in a watershed judgment last week, the high court overturned the ruling, saying that relatives taking care of orphaned or abandoned children did qualify for a foster grant.
It was the first time in South Africa that a high court had the opportunity to interpret the Children’s Act and define who could apply for foster grants and when a child qualified to be fostered.
The 12-year-old boy was taken from the Eastern Cape in 2002 to live with his great-aunt and great-uncle in Krugersdorp.
After his mother died in June 2007, the couple applied to become the boy’s foster parents.
The Children’s Court in Krugersdorp dismissed their application, saying that the boy was not a child in need of care and protection as he already had caregivers.
The couple appealed against the ruling. They were joined by the Minister of Social Development whose legal team argued that a proper interpretation and application of the Children’s Act was fundamental to create uniformity in the orders of judicial officers in the Children’s Courts.
The Children’s Institute joined the proceedings as a friend of the court.
The high court last week dismissed the finding by the Children’s Court that the main reason the couple wanted to apply for the grant was to “alleviate their financial position”.
The foster care grant is about R500 more than a child care grant.
In their judgment, Judge Halima Salduker and acting judge Reenen Potgieter said the foster grant was intended to provide financial support to those who voluntarily took care of children even though they had no parental responsibility towards the child.
However, they found that grandparents and siblings also had a duty to support children – which disqualifies thousands of grandparents from foster care grants.
In papers filed with the Constitutional Court by the Children’s Institute, the high court ruling could affect the care of about 350,000 orphans in South Africa.
The University of Cape Town institute’s child programme manager Paula Proudlock said a foster care grant was substantially more generous than the child support grant of R280 awarded in respect of many other poor children.
She said the high court judgment would bind magistrate’s courts across the country.
“[The judgment] has the potential to affect the rights to social assistance, nutrition, care, protection, social services and the best interests of hundreds of thousands of ... orphans living with family members; and a significant number of children who have been abused and exploited,” she said.
The Children’s Institute wants the court to hear an application for leave to appeal against a ruling which barred them from leading evidence during the appeal.
“There was no proper evidence before the high court regarding the number of orphaned children who might be affected, or any evidence concerning other vulnerable children ... who might be affected,” Proudlock said.