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Legal capacity and family status in child-headed households: Challenges to legal paradigms and concepts

Published online by Cambridge University Press:  25 February 2010

Elsje Bonthuys
Elsje Bonthuys*
Affiliation:
School of Law, University of the Witwatersrand, South AfricaE-mail: [email protected]
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Abstract

In its 2005 Household Survey, Statistics South Africa counted 143,167 children living in child-headed households. The increased numbers of such households is usually ascribed to the death of parents from AIDS, and researchers expect them to increase further in the future. Similar household formations are also found in other Southern African countries such as Zimbabwe, Botswana, Uganda, Lesotho and Tanzania. Although the research indicates that children living in child-headed households usually experience emotional trauma, poverty and problems with accessing education, health care and social welfare grants, the consensus amongst children’s advocates and academics is that placing all such children in institutions, foster homes or adoption is not currently a viable or an optimal solution. The existence of child-headed households and the urgent need to assist children living in them exposes the inadequacy of several common law legal concepts and paradigms. This paper explores some practical and conceptual arguments for assigning family status to child-headed households and for awarding legal capacity to the minors who head these households.

Type
Research Article
Information
International Journal of Law in Context , Volume 6 , Issue 1 , March 2010 , pp. 45 - 62
Copyright
Copyright © Cambridge University Press 2010

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References

Anderson, Barbara A. and Phillips, Heston E. (2006) Trends in the Percentage of Children who are Orphaned in South Africa: 1995–2005. Statistics South Africa Report No 03-09-06. Pretoria: Statistics South Africa.Google Scholar
Archard, David (1993) Children: Rights and Childhood. London: Routledge.Google Scholar
Bainham, Andrew (2006) ‘Status Anxiety? The Rush for Family Recognition’ in Ebtehaj, Fatemeh, Lindley, Bridget and Richards, Martin (eds) Kinship Matters. Oxford: Hart, 47–65.Google Scholar
Bala, Nicholas and Bromwich, Rebecca Jaremko (2002) ‘Context and Inclusivity in Canada’s Evolving Definition of the Family’, International Journal of Law, Policy and the Family 16: 145–180.CrossRefGoogle Scholar
Barnett, Tony (2005) ‘HIV/AIDS, Childhood and Governance: Sundering the Bonds of Human Society’, African Journal of AIDS Research 4: 139–145.CrossRefGoogle ScholarPubMed
Bray, Rachel (2003) ‘Predicting the Social Consequences of Orphanhood in South Africa’, African Journal of AIDS Research 2: 39–55.Google Scholar
Bray, Rachel and Brandt, René (2007) ‘Child Care and Poverty in South Africa: An Ethnographic Challenge to Conventional Interpretations’, Journal of Children & Poverty 13: 1–19.Google Scholar
Burman, Sandra (2003) ‘The Best Interests of the South African Child’, International Journal of Law, Policy and the Family 17: 28–40.Google Scholar
Christiansen, Catrine (2005) ‘Positioning Children and Institutions of Childcare in Contemporary Uganda’, African Journal of AIDS Research 4: 173–182.Google Scholar
Clark, Brigitte (1989) ‘History of the Roman-Dutch Law of Marriage from a Socio-Economic Perspective’ in Visser, D. P. (ed.) Essays on the History of Law. Cape Town: Juta, 159–212.Google Scholar
Cluver, L. and Gardiner, F. (2007) ‘Risk and Protective Factors for Psychological Well-being of children Orphaned by AIDS in Cape Town: A Qualitative Study of Children and Caregivers’ Perspectives’, AIDS Care 19: 318–25.CrossRefGoogle Scholar
Crewe, Mary (2001) ‘Others will not Save Us’, AIDS Orphans in Africa: Building an Urban Response: Edited proceedings of a Forum held in Johannesburg, July 2001. Johannesburg: Centre for Policy Studies, 9–18.Google Scholar
Desmond, Chris, Gow, Jeff, Loening-Voysey, Heidi, Wilson, Theresa and Stirling, Bridget (2002) ‘Approaches to Caring: Essential Elements for a Quality Service and Cost-Effectiveness in South Africa’, Evaluation and Program Planning 25: 447–58.CrossRefGoogle Scholar
Dewar, John (2000) ‘Family Law and its Discontents’ International Journal of Law, Policy and the Family 14: 59–85.Google Scholar
Diduck, Alison (2001) ‘A Family by any other Name…or StarbucksTM comes to England’, Journal of Law & Society 28: 290–310.Google Scholar
Donald, David and Clacherty, Glynis (2005) ‘Developmental Vulnerabilities and Strengths of Children Living in Child-Headed Households: A Comparison with Children in Adult-Headed Households in Equivalent Impoverished Communities’, African Journal of AIDS Research 4: 21–28.CrossRefGoogle ScholarPubMed
Dwyer, James G. (2006) The Relationship Rights of Children. Cambridge: Cambridge University Press.Google Scholar
Eekelaar, John (1994) ‘The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determinism’, International Journal of Law and the Family 8: 42–61.CrossRefGoogle Scholar
Eloff, Irma, Ebersöhn, Liesel and Viljoen, Jeandré (2007) ‘Reconceptualising Vulnerable Children by Acknowledging their Assets’, African Journal of AIDS Research 6: 79–86.Google Scholar
Fineman, Martha (1995) The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies. New York: Routledge.Google Scholar
Fineman, Martha (2000) ‘Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency’, American University Journal of Gender, Social Policy & the Law 8: 13–29.Google Scholar
Fonseca, Claudia (2002) ‘Inequality Near and Far: Adoption as Seen from the Brazilian Favelas’, Law & Society Review 36: 397–431.CrossRefGoogle Scholar
Foster, G. and Makufa, B. C. (1996) ‘Supporting Children in Need through a Community-Based Orphan Visiting Programme’, AIDS Care 8: 389–404.Google Scholar
Freeman, Michael (1997) ‘Family Values and Family Justice’, Current Legal Problems 50: 315–58.Google Scholar
Fuszara, Molgorzata and Kurczewski, Jacek (2005) ‘Family Values, Friendship Values: Opposition or Continuity?’ in Maclean, Mavis, (ed.) Family Law and Family Values. Oxford: Hart, 45–48.Google Scholar
Giese, S., Meintjes, S., Croke, R. and Chamberlain, R. (2003) Health and Social Services to Address the Needs of Orphans and Other Vulnerable Children in the Context of HIV/AIDS, Research Report and Recommendations. Cape Town: Children’s Institute, University of Cape Town and National Department of Health, Pretoria.Google Scholar
Glennon, Lisa (2005) ‘Targeting the Exclusionary Impact of Family Law’ in Maclean, Mavis, (ed.) Family Law and Family Values. Oxford: Hart, 157–80.Google Scholar
Goldblatt, Beth and Liebenberg, Sandy (2004) ‘Giving Money to Children: The State’s Constitutional Obligation to Provide Child Support Grants to Child Headed Households’ South African Journal on Human Rights 20: 151–64.Google Scholar
Howard, Brian, Matinhure, Nelia, Mccurdy, Sheryl A. and Johnson, Cary Alan (2006) ‘Psychosocial Disadvantage: Preparation, Grieving, Remembrance and Recovery for Orphans in Eastern Zimbabwe’, African Journal of AIDS Research 5: 71–83.CrossRefGoogle ScholarPubMed
Hunt, Joan (2006) ‘Substitute Care of Children by Members of their Extended Families and Social Networks: An Overview’ in Fatemeh, Ebtehaj, Lindley, Bridget and Richards, Martin (eds) Kinship Matters. Oxford: Hart, 115–34.Google Scholar
Jones, Lynne (2005) ‘Childcare in Poor Urban Settlements in Swaziland in an Era of HIV/AIDS’, African Journal of AIDS Research 4: 161–171.Google Scholar
Jones, Melinda and Basser Marks, Lee Ann (1994) ‘The Dynamic Developmental Model of the Rights of the Child: A Feminist Approach to Rights and Sterilization’, International Journal of Children’s Rights 2: 265–91.Google Scholar
Jooste, Sean, Managa, Azwifaneli and Simbayi, Leickness (2006) A Census Report of Orphaned and Vulnerable Children in Two South African Communities. Cape Town: HSRC Press.Google Scholar
Khumalo, Jacqui (2003) ‘Context for Child Headed Households’ in Rosa, Solange and Lehnert, Wieland (eds) Report on a Workshop held by the Children’s Institute of the University of Cape Town and the Alliance for Children’s Entitlement to Social Security on 20–21 August 2003, Children without Adult Caregivers and Access to Social Security, 42–45.Google Scholar
Kuhanen, Jan, Shemeikka, Riika, Notkola, Veijo and Nghixulifwa, Margareth (2008) ‘Junior-Headed Households as a Possible Strategy for Coping with the Growing Orphan Crisis in Northern Namibia’, African Journal of AIDS Research 7: 123–32.Google Scholar
Leat, Annie and ROSA, Solange (eds) (2005) Towards a Means to Live: Targeting Poverty Alleviation to Make Children’s Rights Real. Cape Town: Children’s Institute, University of Cape Town.Google Scholar
Lewis, Jane (2005) ‘The Changing Context for the Obligation to Care and to Earn’ in Maclean, Mavis (ed.) Family Law and Family Values. Oxford: Hart, 59–77.Google Scholar
Loening-Voysey, H. (2002) ‘HIV/AIDS in South Africa: Caring for Vulnerable Children’, African Journal of AIDS Research 1: 103–110.Google Scholar
Manamela, Tukish (2004) ‘Children of Poverty and Child Benefits in South Africa’, South African Public Law 19: 161–79.Google Scholar
Masson, Judith (2008) ‘The State as Parent: The Reluctant Parent? The Problems of Parents of Last Resort’, Journal of Law & Society 35: 52–74.CrossRefGoogle Scholar
Masson, Judith and Lindley, Bridget (2006) ‘Recognising Carers for What They Do: Legal Problems and Solutions for the Kinship Care of Children’ in Ebtehaj, Fatemeh, Lindley, Bridget and Richards, Martin (eds) Kinship Matters. Oxford: Hart, 135–54.Google Scholar
Meintjes, Helen, Moses, Sue, Berry, Lizette and Mampane, Ruth (2007) Home Truths: The Phenomenon of Residential Care for Children in a Time of AIDS. Cape Town: Children’s Institute, University of Cape Town and Centre for the Study of AIDS, University of Pretoria.Google Scholar
Miller, Candace Marie, Gruskin, Sofia, Subramanian, S. V. and Heymann, Jody (2007) ‘Emerging Health Disparities in Botswana: Examining the Situation of Orphans during the AIDS Epidemic’, Social Science & Medicine 64: 2476–86.Google Scholar
Minow, Martha (1985) ‘“Forming underneath Everything that Grows”: Toward a History of Family Law’, Wisconsin Law Review 819–98.Google Scholar
Naffine, Ngaire (2003) ‘Who are Law’s Persons? From Cheshire Cats to Responsible Subjects’, Modern Law Review 66: 347–67.Google Scholar
Oleke, Christopher, Blystad, Astrid and Rekdal, Ole Bjørn (2005) ‘“When the Obvious Brother is not there”: Political and Cultural Contexts of the Orphan Challenge in Northern Uganda’, Social Science & Medicine 61: 2628–38.CrossRefGoogle ScholarPubMed
Parkinson, Patrick (2003) ‘Child Protection, Permanency Planning and Children’s Right to Family Life’, International Journal of Law, Policy and the Family 17: 147–72.Google Scholar
Roalkvam, Sidsel (2005) ‘The Children Left to Stand Alone’, African Journal of AIDS Research 4: 211–18.CrossRefGoogle ScholarPubMed
Rosa, Solange (2004) Counting on Children: Realising the Right to Social Assistance for Child-Headed Households in South Africa, Children’s Institute Working Paper, University of Cape Town [Accessed 2 June 2009 at www.ci.org.za/depts/ci/pubs/pdf/rights/facts/CHH%20working%20paper.pdf].Google Scholar
Russel, Margo (2003) ‘Understanding Black Households: The Problem’, Social Dynamics 29: 5–47.CrossRefGoogle Scholar
Sloth-Nielsen, Julia (2003) ‘Too Little? Too Late? The Implications of the Grootboom Case for State Responses to Child Headed Households’, Law, Democracy & Development 7: 113–36.Google Scholar
Sloth-Nielsen, Julia (2005) ‘Of Newborns and Nubiles: Some Critical Challenges to Children’s Rights in Africa in the Era of HIV/AIDS’, International Journal of Children’s Rights 13: 73–85.CrossRefGoogle Scholar
Smart, Carol (2003) ‘Children and the Transformation of Family Law’ in Dewar, John and Parker, Stephen (eds) Family Law: Processes, Practices, Pressures. Oxford: Hart, 223–40.Google Scholar
Subbarao, Kalanidhi and COURY, Diane (2004) Reaching out to Africa’s Orphans: A Framework for Public Action. Washington: World Bank.Google Scholar
Tapp, Pauline, Taylor, Nicola and Henaghan, Mark (2003) ‘Agents or Dependants: Children and the Family Law System’ in Dewar, John and Parker, Stephen (eds) Family Law: Processes, Practices, Pressures. Oxford: Hart, 303–319.Google Scholar
Van Heerden, Belinda, Cockrell, Alfred, Keightley, Raylene, Heaton, Jacqueline, Clark, Brigitte, Sinclair, June and Mosikatsana, Tshepo (1999) Boberg’s Law of Persons and the Family, 2nd edn (first published 1977). Cape Town: Juta.Google Scholar
Voegli, Wolfgang (2005) ‘Basic Values and Family Law in Recent Judgments of the Federal Constitutional Court in Germany’ in Maclean, Mavis, (ed.) Family Law and Family Values. Oxford: Hart, 27–43.Google Scholar
Ziehl, Susan C. (2002) ‘Baby Headed Households: Media (Mis)representations and “the AIDS Debate”’, Society in Transition 33: 432–44.Google Scholar