The Right of a Child to Care and the Involvement of the Family Advocate in the Sentencing of a Child’s Primary Caregiver

Abstract

The landmark dictum in S v M has set a precedent that the sentencing of a child’s caregiver must consider his or her caregiving responsibilities. Amongst others, the guidelines require the court to take into account the care of the child in the event it imposes a custodial sentence on the child’s primary caregiver. One of the options available to the court is to place the child in alternative care. While caregiving responsibilities of the caregiver is mostly considered in sentencing, it appears that the court often assigns the care of the child, post-sentencing, to the Department of Social Development. Such an assignment has the potential of infringing the right of the child to alternative care. In the event that social welfare agencies have to put a child of an imprisoned caregiver in alternative care, the procedure is uncongenial for such a child. There is currently no established procedure for placing a child in alternative care. While the Children’s Act makes provision for alternative care, it does not make any specific stipulation regarding the placement of the child in alternative care. The survey of the orders made in some of the cases covered in this contribution shows that the care of the children involved was allocated to the Department of Social Development and none of the children were placed in alternative care. This contribution argues that the sentencing of a child’s caregiver still does not consider options available for the care of the child created by the Children’s Act adequately.