Mediators and the reporting of child abuse (mandatory or discretionary)

The year 2016 marked a significant milestone in South Africa’s history as the nation released its first nationally representative study on child maltreatment . The study revealed alarming statistics, indicating that more than 40% of young individuals have been subjected to various forms of abuse, including sexual, physical, emotional, and neglectful treatment. This staggering number was based on interviews with 15 to 17-year-olds from all over the country, providing a comprehensive understanding of the prevalence of violence and abuse in South Africa. While the figure may seem shockingly high, it is unfortunately not uncommon. Similar studies have been conducted in twelve other countries, with equally concerning rates reported.

Legal context: the child protection laws in South Africa

Our nation’s Constitution boldly declares the utmost importance of safeguarding the rights and wellbeing of children in South Africa. A fundamental guarantee of this can be found in Section 28 of the Bill of Rights, which specifically proclaims that “every child deserves protection from neglect, maltreatment, abuse, and degradation.” Additionally, the Children’s Act No. 35 of 2005 delves even deeper into the rights of minors, as well as outlining the core principles for their care and protection. Notably, this legislation also highlights the legal responsibility that parents hold in fostering a caring and nurturing environment for their children. In short, the protection of a child’s best interests must always take precedence, and those facilitating mediation sessions must adhere to certain responsibilities when allegations of child abuse arise.

What is child abuse, and what are the types of child maltreatment in South Africa?

Child abuse could be defined as “any interaction or lack of interaction by a parent or caretaker which results in the non- accidental harm to the child’s physical or developmental state”. The fact that most child abuse happens in the home under the pretext of “discipline” makes it difficult to spot, which is a serious issue.

The 5 main types of child abuse in South Africa

■ Emotional abuse
There are various ways in which maltreatment can manifest, causing significant damage. Typically, it involves a parent or caregiver intentionally and repeatedly belittling, humiliating, or mocking a child. Although there may not be physical harm, this abuse can detrimentally impact a child’s growth. They may develop anxiety, hopelessness, and a diminished sense of self-worth.

■ Emotional neglect
Emotional neglect, similarly to other forms of maltreatment, reveals the inadequacies of caregivers or parents in exhibiting love, support, and affection.

■ Physical neglect
Emotional and physical neglect should not be conflated, as they are distinct forms of parental failure. Physical neglect specifically refers to a caregiver’s inability to provide basic necessities for children, such as clothing, food, shelter, and medical care. Other examples of physical neglect may include forcibly removing children from their homes, abandoning them, or withholding education. However, it is important to consider the complexities of the situation, especially in South Africa where socioeconomic barriers may limit parents’ ability to meet these needs. We must be careful not to hastily assign blame in these cases.

■ Physical abuse
Physical abuse occurs when a child experiences physical harm from a parent, caregiver, or outsider, such as burns, scratches, or bruises. Spanking and other mild forms of physical punishment have been commonly used as a means of disciplining children for centuries in many cultures and societies. Due to this widespread practice, there is often a sense of uncertainty when it comes to identifying whether a child’s well-being, growth, or dignity is being violated and therefore constitutes as abuse.

■ Sexual abuse
When it comes to sexual abuse, it can entail any form of sexual assault or exploitation of children by parents, caretakers or strangers. This includes sexually inappropriate and criminal behaviour, such as rape, incest, fondling and exploitation.

Who can and must report child abuse in South Africa?

A couple of legislation deals with either the mandatory or the discretionary reporting of child abuse. Professionals such as attorneys, educators, social workers, physicians, psychologists, and social service providers are required under Section 110 of The Children’s Act to report instances of abuse or neglect of children to the appropriate authorities. It also mandates that these professionals notify a Designated Child Protection Organization (DCPO) in the required form if they have reasonable suspicions of child abuse or neglect. It further states that, although reporting child abuse is not legally required of professionals, anybody who knows of abuse may do so in the same manner. Important for mediators whom are not attorneys, section 110(2) deals with discretionary child abuse reporting. This section provides that any person who on reasonable grounds believes that a child is in need of care and protection may report that belief to the provincial department of social development, a designated child protection organization, or a police official.

Section 54 of the Sexual Offences Act of 2007 provides that any person (including mediators) who has knowledge that a sexual offence has been committed against a child must immediately report this to a police official or any person who has knowledge, belief, or suspicion that a sexual offence has been committed against a person who is mentally disabled must report this to a police official. As is apparent from the aforesaid, the report must be made to the police immediately upon the person becoming aware of the commission of a sexual offence against the child. Failure to report the aforesaid is a criminal offence and a person convicted in terms of this section is liable on conviction to a fine or imprisonment for a period not exceeding five years or to both such fine and imprisonment.

Under Section 2B of the Domestic Violence Amendment Act, it is mandatory for all adults to immediately report to a social worker or the South African Police Services (SAPS) if they have knowledge, belief, or reasonable suspicion that a child, person with a disability, or elderly individual has experienced domestic abuse. This law emphasizes the importance of prompt action in cases of domestic violence.

Next steps for a mediator

When allegations of child abuse arise during a mediation session, the mediator must navigate a delicate balance between maintaining the confidentiality of the mediation process and fulfilling their duty to report suspected abuse. The mediator’s primary responsibility is to ensure the safety and well-being of the child in question.

The mediator should inform the parties involved that they have a legal obligation to report any allegations of child abuse that arise during the mediation session. It is important to handle this communication with sensitivity and clarity to maintain trust and transparency in the mediation process.

In cases where child abuse is alleged, the mediator should suspend the mediation session and report the allegations to the relevant authorities as mandated by the Children’s Act. The safety of the child should always be the top priority, and the mediator must act swiftly and decisively to ensure that appropriate actions are taken to protect the child from harm.

It is essential for the mediator to document all instances where child abuse is alleged during a mediation session, including the specific details provided by the parties and any actions taken in response to the allegations. This documentation is crucial for legal and ethical purposes and may be required in any subsequent investigations or legal proceedings.

Written by Eugene Opperman (B.Proc. LLB.) (LSSA L.E.A.D., ADR Network, FAMAC), a family law legal practitioner and accredited mediator. 24 February 2024.

Some useful contact details that mediators should have on speed-dial for referring matters of child abuse to:

People Opposed to Woman Abuse (Powa)
Powa provides counselling, both over the phone and in person, temporary shelter for and legal help to women who have experienced violence.
Website: http://www.powa.co.za
Tel: 011 642 4345
E-mail: info@powa.co.za

Child Welfare South Africa
Child Welfare South Africa focuses on child protection, child care and family development. Neglect and child abuse can also be reported.
Website: http://childwelfaresa.org.za/
Tel: 074 080 8315
E-mail: info@childwelfaresa.co.za

Tears Foundation
TEARS Foundation provides access to crisis intervention, advocacy, counselling, and prevention education services for those impacted by domestic violence, sexual assault and child sexual abuse.
Website: http://www.tears.co.za/
Free SMS helpline: *134*7355#
Tel: 010 590 5920
Email: info@tears.co.za

Thuthuzela Care Centres
Thuthuzela Care Centres (TCCs) are one-stop facilities that have been introduced as a critical part of South Africa’s anti-rape strategy, aiming to reduce secondary victimisation and to build a case ready for successful prosecution. The website also provides access to information on gender-based violence.
Website: http://www.soulcity.org.za/
Contact details for care centres

Human Trafficking helpline
08000 737 283 (08000 rescue) / 082 455 3664

National Shelter Movement 0800 001 005
SMS, WhatsApp or Please Call Me to 082 057 8600 / 082 058 2215 / 072 230 7147

Childline South Africa
This non-profit organisation helps abused children and their families with a free counselling service. It deals with issues such as physical and sexual abuse, substance abuse, behavioural problems and trafficking, and gives legal advice.
Website: https://www.childlinesa.org.za/
Toll-free helpline: 116
E-mail: olcadmin@childlinesa.org.za

Families South Africa (Famsa)
Famsa provides counselling and education to help improve marriages and families. It helps in cases of domestic violence and trauma, divorces and mediation. There are 27 offices across the country.
Website: http://www.famsaorg.mzansiitsolutions.co.za/
Tel: 011 975 7106/7

The Trauma Centre
The Trauma Centre provides trauma counselling and violence prevention services for people affected by violence
Website: http://www.trauma.org.za/
Tel: 021 465 7373
E-mail: info@trauma.org.za

SAPS Emergency
10111

Gender-Based Violence Command Centre
0800 428 428

STOP Gender Violence Helpline
0800 150 150/ *120*7867#

Halt Elder Abuse Line (Heal) – helpline for elderly people
Helpline: 0800 003 081
E-mail: action@actiononelderabusesa.co.za