C and Others v Department of Health and Social Development, Gauteng and Others

Mr C and Ms M were poor parents whose children were removed by social workers on 13 August 2010 pursuant to sections 151 and 152 of the Children's Act. Mr C was repairing shoes at an intersection with his daughter (his partner was hospitalized giving birth). Ms M, a blind woman, was begging with her two daughters. Social workers removed all three children as part of a planned operation targeting people begging with children, without obtaining court orders and without informing the parents where the children were taken. The Centre for Child Law joined as third applicant acting in the public interest. The applicants approached the High Court urgently for the children's return and for a declaration that sections 151 and 152 were unconstitutional for failing to provide automatic judicial review of child removals.

• Whether sections 151 and 152 of the Children's Act 38 of 2005 are unconstitutional for failing to provide for automatic judicial review of child removals
• Whether the removal provisions limit children's rights to family care or parental care under section 28(1)(b) of the Constitution
• Whether the removal provisions limit the paramountcy of children's best interests under section 28(2) of the Constitution
• Whether the removal provisions limit the right of access to courts under section 34 of the Constitution
• If limitations exist, whether they are reasonable and justifiable under section 36(1)
• What remedy is appropriate: reading-in, severance, or suspension of invalidity

The Constitutional Court confirmed the High Court's declaration of constitutional invalidity but varied the remedy. The Court ordered reading-in and severance to cure the defects: (1) A new subsection 151(2A) was read in requiring courts ordering removal to refer matters to designated social workers to place the matter before Children's Court for review before the next court day after removal, with child and parents present unless impracticable. (2) A new paragraph 152(2)(d) was read in imposing the same duties on designated social workers who remove children. (3) Section 152(3)(b) was severed and replaced to require police officials to refer removals to designated social workers within one court day, who must then place the matter before Children's Court for review by the next court day, with child and parents present unless impracticable, and ensure the section 155(2) investigation is conducted. The Ministers for Police and Social Development were ordered to pay costs jointly and severally. Condonation for late filing was granted.

Sections 151 and 152 of the Children's Act 38 of 2005 are unconstitutional to the extent that they fail to provide for automatic judicial review of child removals in the presence of the child and parents/caregivers. The removal of children from family care, even when statutorily authorized for child protection purposes, limits the constitutional rights in section 28(1)(b) (family/parental care), section 28(2) (paramountcy of best interests), and section 34 (access to courts). These limitations cannot be justified under section 36(1) because there is no legitimate purpose for denying families an automatic opportunity to challenge the correctness of removal decisions before a court. The stringent pre-conditions for removal do not eliminate the possibility of incorrect removals. Requiring affected families to initiate their own review applications is too onerous, particularly for poor, illiterate, and marginalized persons. Legislation authorizing state removal of children must simultaneously provide for prompt automatic court review with participation by children and their families. Reading-in is the appropriate remedy to preserve essential child protection mechanisms while curing the procedural deficiency.

Skweyiya J emphasized that the reading-in remedy does not give the judiciary the ultimate word but initiates a conversation between Legislature and courts; Parliament retains power to amend the remedy within constitutional limits and is encouraged to do so given its specialist expertise. Yacoob J noted that while reading-in is most commonly used to remedy under-inclusive statutes that exclude identifiable groups from benefits, it can also narrow provisions that are unduly invasive of protected rights. The Court acknowledged that section 28(1)(b)'s reference to 'appropriate alternative care when removed from the family environment' is a secondary right, not an equivalent alternative to the primary right to family/parental care; otherwise the primary right would be superfluous. The judgment referenced international law principles requiring judicial review before parent-child separation (UNCRC Article 9, ACRWC Article 19). Jafta J observed that international law, even when ratified, cannot override inconsistent domestic legislation and cannot be used as a constitutional standard unless incorporated into the Constitution itself. The Court noted that Form 36 of the Regulations to the Children's Act should be amended to include notice requirements for court review, though this was raised from the bar without supporting documentation.

This case establishes critical procedural safeguards for children removed from family care by the state. It affirms that even when removal may be necessary for child protection, automatic judicial review with participation of children and parents is constitutionally required. The judgment balances child protection imperatives with family integrity rights, recognizing that incorrect removals can cause serious harm. It emphasizes that procedural rights cannot depend on parents' ability to initiate their own applications, acknowledging the realities faced by poor, illiterate, and marginalized families. The case illustrates the Court's remedial flexibility, using reading-in to cure constitutional defects while preserving vital child protection mechanisms. It also demonstrates engagement with international children's rights law (UNCRC and ACRWC) in interpreting section 28. The judgment reflects tension between judicial restraint and rights protection, with the majority choosing immediate remedy over suspension to avoid ongoing rights violations. The dissent presents an important alternative view on the scope of section 28 rights and the state's protection obligations.