The children acts in Scotland, England and Australia: lessons for South Africa in rhetoric and reality

The late 1980s to the mid 1990s was a time of great change for child law in many of the English-speaking jurisdictions. New legislation (collectively referred to hereinafter as 'the Children Acts') came into effect in England,' Scotland and Australia,3 all with similar aims:4 to reorientate the law of parent and child from one of parental right to one of parental responsibility;5 to give legal effect to the proposition that the legal parent-child relationship is unaffected by the breakdown in the parent-parent relationship, except insofar as the court decrees; to replace custody with the much more limited concept of 'residence';6 and, so far as possible, to give statutory effect to the international obligations contained in the United Nations Convention on the Rights of the Child. The mid to late 1990s was also a time of great constitutional change, notably, of course, in South Africa, but also in the United Kingdom. South Africa adopted an interim and a final Constitution which already ranks as one of the world's great declarations of the rights of mankind, while the United Kingdom rather less publicly restructured its own constitution in 1998 by passing the Human Rights Act, the Scotland Act and the Northern Ireland Act, subjecting the laws of the UK to the European Convention on Human Rights (the ECHR), and reconvening the Scottish Parliament, whose laws can be struck down by the courts if they are inconsistent with the European Convention or the jurisprudence of the European Court of Human Rights.