Strategic Impact Litigation for Children's Rights:
Centre for Child Law Report on selected cases from 2004 - 2011
Strategic impact litigation involves more than bringing a case before a court. People involved in strategic litigation select and bring cases before the courts with the aim to effect broader changes in society and to leave a lasting mark.
The goals of strategic litigation include bringing about legal and social change and also holding
duty bearers accountable and ensuring action.
The Centre for Child Law (The Centre), through its Children’s Litigation Project, makes use of strategic impact litigation to promote and advance the rights of children in South Africa. The Centre has over the years been involved in cases that have been heard in the Constitutional Court, the Supreme Court of Appeal, the High Courts, the Children’s Courts and the Magistrates
Courts. These judgments especially those given by the superior courts have set precedents that have brought about changes in the law, government activities and the broader society.
The Centre’s objectives in using strategic impact litigation in both civil and criminal law are:
- To push forward boundaries of the law relating to children
- To establish the content of legal rights and protection of children
- To set precedents, and in doing so change the attitudes of the courts
- To hold persons or bodies accountable on their responsibilities towards children
- To build experience and knowledge in children’s litigation
The above objectives are achieved and supported through the carrying out of the following core activities:
- Strengthening and maintaining a network to identify suitable cases for litigation and supporting litigation efforts
- Undertaking litigation on child law matters
- Carrying out and being involved in advocacy, research and information sharing on child related litigation
- Building child law capacity of practicing legal professionals and law students
When the Centre is involved in litigation it does so in numerous ways. The Centre has litigated in its own name in the public interest, represented individual children or children’s organizations as parties, and has brought applications, civil actions, appeals and reviews.
It has frequently entered into matters as amicus curiae. The term amicus curiae literally means ‘friend of the court’ and is a person or organization that has an interest in the case before a court. The amicus provides factual information and legal arguments to the court.
This information and argument must be useful to the court and must be different from what has been provided by the other parties to the case. The Centre has also been appointed by the courts to act as curator ad litem for a child (or children) to a case. A curator ad litem protects and advances the interests of persons involved in or affected by a legal dispute who are unable
to protect their own interests or who lack capacity to act legally.
Child law is a broad field, cutting across classical legal divisions such as private law and public law. Impact litigation inevitably requires a thorough understanding of constitutional law. The cases described in this document relate to criminal law, civil law, family law, care and protection law, private international law and public international law. The cases engage both civil and political rights, as well as socio-economic rights.
South Africa has made progressive advancements in its protection of children through the law. It has ratified the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. It has also made provision for children’s rights in its national Constitution. South Africa has recently put into operation the Children’s Act, the Criminal Law (Sexual Offences and Related Matters) Amendment Act and the Child Justice Act. With these advancements come statutory and constitutional obligations on government to realize and protect the rights guaranteed to children.
However these obligations are not always fulfilled. The Centre aims to hold the government responsible in areas where it has neglected or reneged on its obligations.
In this way the Centre carries out good governance work. The Centre does this by identifying and
taking on matters in which children’s rights have been violated or unjustly limited. South Africa follows a system of separation of powers between the legislature, judiciary and executive. Good governance work ensures that there is a balance of powers amongst these different branches, with the courts being called up to exercise the role of the judicial arm in relation to the executive and the legislature.