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Landmark South African children’s rights ruling

Raduvha v Minister of Safety and Security and Another [2016] ZACC 24

The Constitutional Court of South Africa has confirmed that the ‘best interests’ principle, enshrined in Article 3 of the UNCRC and incorporated into South African domestic legislation, is to be paramount when police are considering arresting and detaining a child.

Details

In Raduvha v Minister of Safety and Security and Another [2016] ZACC 24, the eleven judges of the Constitutional Court confirmed that any police officer in a position where they are considering arresting and/or detaining a child (under 18 year olds) must comply with the Bill of Rights and in doing so should give serious thought as to whether such measures are appropriate and only consider such action as a measure of last resort.

Where a child is arrested and/or detained and alternative and less intrusive measures were available, a damages claim can now be instituted on behalf of the child against the relevant police officers.

The ruling followed the case of a 15 year old girl who was held in a police station for 19 hours following her mother’s arrest for the contravention of an order against her husband (the child’s father). The child had sought to prevent the officers from arresting her mother and was detained despite officers being aware of her age. The Constitutional Court observed that if the police officers believed the child acted as an impediment in the execution of their duties they could have left the child with her father, and such steps should have been considered before taking the more intrusive step of coming to a decision as to whether to initiate proceedings against the child. Following the child’s release no proceedings were ever brought by the police against the then 15 year old.

Eight years on, and following a rejection of her damages claim by both the High Court and Appeal Court, the wrongfully detained claimant, known as MR, was successful in her claim against the police in the Constitutional Court. All eleven judges agreed that compensation should be paid by the police considering the treatment of MR.

The judgment detailed how the police must comply with certain duties when making an arrest but had to exercise great caution when it came to children as the constitution placed great importance on the rights of the child. The judgment emphasised that a child should only be detained in exceptional circumstances and only for the shortest possible time. In the case of MR, her detention violated her constitutionally protected right to have her best interests considered.

See the full judgement here (see press coverage here).

Commentary

The case of MR demonstrates that the rights of children are being actively upheld by the Constitutional Court in South Africa. The best interest principle is being used to protect children’s rights by ensuring police officers consider appropriate alternatives to arrest and detention. Violations are being sanctioned with civil claims for damages against offending officers.

The UK, having also ratified the UNCRC, is under a similar obligation to ensure the best interest principle is upheld by police officers when considering whether to arrest or detain children.

In July 2016, Just for Kids Law launched a campaign #nochildincells calling for an end to the widespread practice of detaining children in adult cells in police stations. For more information see here.