You and Your Rights: Foster Care
- Home and proximity to local schools both factor in to the evaluation of foster parent applications
- Foster care typically lasts two year
- Foster parents are required by law to send children to school until the age of 15
- Neither applicant nor foster child is required to be HIV tested
- A foster parent may not deal with the property of his or her foster child
Section 28 of the South African Constitution says that “every child has the right to … family care or parental care, or to appropriate alternative care when removed from the family environment.”
What is foster care
Foster care is when a child in need of care and protection is legally placed in the care and safety of an adult person other than the biological parents.
Children can be removed from their parents if they are abused, neglected or abandoned. Orphaned children may be placed in foster care.
How is an application to foster a child made?
The application is made to the Children’s court in the area where the applicant stays. (The applicant is the adult person who wishes to foster the child.)
What happens during a foster care application?
Social workers will screen the applicant to ensure that they are suitable to be foster parents.
They will consider a number of factors which include:
- The best interest of the child
- The health and income of the applicant
- The religious and cultural beliefs of the applicant
- The home and the closeness to schools
- Whether the applicant is a fit and proper person
The social worker will compile a report and file it with the Children’s Court. The court uses the report to make a decision as whether to award a foster care order.
How long does foster care last?
The foster care order normally lasts for two years, but the court may also order that the child stays with the foster parents until he/she turns 18 years.
Foster parents will continue to be supervised by a social worker.
During fostering the child could either be adopted or re-united with his or her parents, on the advice of the social worker and by order of the court.
What are the duties of a foster parent?
A foster parent must maintain and care for the child, allow reasonable access to the child’s parents, and ensure the child is attending school. School attendance is compulsory up to the age of 15 under the Schools Act.
They also have the right to discipline the child within the parameters of the law and to contribute to the child’s religious and cultural up-bringing.
What may a foster parent not do?
They may not:
- Deal with the property of the child
- Consent to marriage of the child
- Consent to an operation or medical treatment which places the child’s life in danger.
A foster parent may not leave the country with the child unless they have the permission of the MEC or Minister of Social Development.
Fostering and HIV/AIDS
Children do not have to be tested for HIV before they are fostered
Applicants to foster a child do not have to be tested for HIV before a child is placed in their care. Therefore, a person with HIV cannot be denied the opportunity to foster a child.
What financial support is there for a foster parent?
Foster parents may receive maintenance for the child from the biological parents in terms of a contribution order. This order is part of the foster care order.
Along with this the foster parent may receive a social grant for the child under the Social Assistance Act. According to this Act, a Foster Child Grant should be paid by the State to all foster parents. Applications for this grant should be made to SASSA (South African Social Assistance Agency). The foster care court order will be required for the application.
What foster care rights do foreign nationals have?
Until recently, only South Africa citizens and permanent residents were allowed to foster children. This has been extended to include refugees. Following advocacy campaigns and legal cases initiated by the organised refugee community, The South African government changed the 2008 Regulations to the Social Assistance Act of 2004 to specify that refugee adults may also foster children who live in South Africa.
Those who are undocumented and some documented foreign nationals, like migrant workers and asylum seekers, currently may not foster children. All children are nevertheless entitled to receive care and protection, according to the country’s Constitution, the Children’s Act of 2005 and the Social Assistance Act of 2004.
The Department of Social Development
HSRC Building, 134 Pretorius Street,
Private Bag X885, Pretoria, 0001
Tel: 012-312 7636
Fax: 012-325 7071