Sunday, 22 July 2007

Condoms for kids?

Condoms for kids?
Ann Skelton 17 July, 2007

The promulgation of certain sections of the new Children’s Act on July 1 has caught the attention of the public and media. Some have applauded, others have said it is controversial and they are up in arms about it.

Those in favour say the Act deals effectively with the pragmatic concerns of our time -- HIV/Aids, burgeoning numbers of orphans, many children living on the edges of stretched families and some even heading households. Those against, have expressed fear and outrage at the idea of children’s rights being elevated and parental authority being undermined.

So what is it about the provisions of the new Act that has some people in a froth? There are two clauses that have proved to be controversial.

The first is that children now have official access to contraception. The Act provides that no person may refuse to sell condoms to a child over the age of 12 years, or to provide them on request where condoms are provided or distributed free of charge.

Other forms of contraception may be provided to children over the age of 12 without parental consent, but only if proper medical advice is given and a medical examination has been undertaken.

The second clause causing controversy says children of 12 or older can consent to HIV tests without parental assistance -- or even younger than 12 if the child is of sufficient maturity to understand the benefits, risks and social implications of such a test. This is subject to the test being in the child’s best interests and there being pre- and post-test counselling. The test results are confidential, but the child can waive such confidentiality.

The critics of these clauses say that children of 12 years of age should not be having sex, that the age of consent is 16 and, therefore, to provide contraception to children below that age is to encourage illegal sex and promiscuity. They criticise HIV testing on the grounds that children cannot make such decisions without parental assistance.

Child protection is the core goal of the Children’s Act. It is aimed not at children living in families where they receive competent parenting, but rather at children who are at risk -- children on the streets, children living in unofficial alternative care, children living on their own. There are hundreds of thousands of children in such situations.

There are, of course, different ways of advancing child protection.

One is to take an idealistic approach: children’s sexual encounters should be delayed as long as possible. Therefore, we should frame laws that reflect that ideal -- do not provide them with services when they are very young, lest this be misinterpreted as an invitation to have sex.

Another is a practical one: children should not be having sex when they are very young but, unfortunately, some of them -- especially the most vulnerable ones -- are doing so. To protect them from further dangers, such as HIV/Aids and early pregnancies, we need to provide them with services.

To recognise and respond to realities is not to endorse or approve of them. For example, the Act recognises child-headed households. Child-headed households are not a preferred option: children would be much better off living with caring adults in loving families. Such families are not always available, however, and because of practical issues relating to the danger of losing the family home, the reality is recognised in the Act and catered for, so that such children can access services to allow them to get on with their lives.

Giving access to services is behind the controversial clauses too -- any 12-year-old (or even a younger child) can go into a public toilet and grab a handful of condoms. No adult sees this or interacts. The Act requires the condoms to be supplied by an adult -- most probably at a clinic. This gives the child the opportunity to be advised.

Similarly, many children who are HIV-positive are also orphans. Insisting on parental consent to take the test before diagnosing and prescribing treatment might cause untenable delays.

Although the promulgation of the provisions seems to have taken the public by surprise, the Act has been a long time coming. It has, in fact, been a decade in the making. The South African Law Reform Commission started reviewing the Child Care Act in 1997. The commission consulted widely on its recommendations and, when the Bill went to Parliament, there were more public hearings.

It is perfectly healthy that the public continues to debate the new legislation, but we should not allow the discussions to be become distorted by over-reactions to a few sections of a comprehensive Act, taken out of context.

Ann Skelton is an advocate with the Centre for Child Law at the University of Pretoria

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