Freedom of Religion South Africa (“FOR SA”) recently submitted its comments on the Western Cape Commissioner for Children Bill (“the Bill”) to the Western Cape Provincial Parliament.

FOR SA is concerned that the Bill does not adequately cater for the Province’s legal responsibility to strengthen the family as the natural unit and basis of society, particularly by including protection for parental authority. The organisation has asked the Provincial Parliament to insert provisions relating to the State’s obligations to protect the family unit and to support the rights of parents as the ones having primary responsibility with regard to their children’s upbringing.

In particular, the Commissioner’s powers to monitor and investigate are concerning, especially to religious parents. This has been highlighted by the international context, where similar powers have led to the removal of children from parents for being “too Christian” in various countries, including Norway and Germany.  The Commissioner’s monitoring powers are not explicitly defined and there is no provision to exclude the monitoring of private homes of children or confining intervention to instances such as physical harm, which would justify such monitoring.

FOR SA strongly objected to fact that the Commissioner is no longer required to obtain a magistrate’s order to search and seizure powers, stating that the Commissioner cannot operate outside the scope of the rule of law.  In this regard, FOR SA has asked the Provincial Parliament to be careful not to give sweeping powers to the Commissioner that may well venture far outside what was intended by the Western Cape Constitution.  In this regard, FOR SA drew attention to the Western Cape Department of Education’s failed Policy on the Registration of a Learner for Education at Home, where, after a huge public outcry against the broad (monitoring and investigative) powers given to the assessors, the Policy was withdrawn.

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