This paper highlights the difficulties faced by foreign minors and how the gaps in law leave them undocumented, vulnerable and unable to access social services. This paper also discusses how South Africa’s approach to accompanied and unaccompanied foreign minor children provides no durable long term solutions for these children, effectively leaving them in a legal hole once they reach the age of majority.
Willie and Mfubu note that while there are laws in South Africa that provide child migrants with legal protections, there is a significant lack of coordination between relevant parties to enforce these protections. They also argue that these children are provided with no long term solution from the South African government.
The authors go on to structure a legal framework based on the Convention on the Rights of the Child, the South African Constitution, and the Children’s Act. Based on these laws, Willie and Mfubu contend that there is no difference made between children based on nationality. They argue that care and protection is a right afforded to all children in South Africa regardless of nationality.
Willie and Mfubu then provide a brief overview of the child protection process in South Africa. This process involves: a) an assessment and statutory intervention; b) family tracing; c) reunification or placement; and/or d) alternative care placement.
Willie and Mfubu then discuss the process for accompanied, unaccompanied, and separated foreign minors with refugee claims. They note that one of the biggest hurdles faced by unaccompanied and separated foreign children is the provision of appropriate migrant documentation. Another limitation mentioned is that the law sees them as objects of the law instead of subjects of the law.
The authors note that “The Children’s Court should play a greater role in determining whether the child is in need of care and protection, the court should decide with the assistance of a legal opinion of an expert refugee attorney or UNHCR whether the child appears to have a refugee claim.” They also noted that there should be more coordination of policy and action between departments. They then stated that when assessing the needs of the child, authorities should take in mind what’s in the best interest of the child. Considering best interest will provide the most durable solution.