Legal information that every practitioner working with children should be aware of

The therapeutic relationship between a counsellor, social worker, therapist or psychologist and their child-client; can be such a mutually rewarding experience. Facilitating positive change and growth in a child’s life is one of the highest privileges bestowed on us in the helping profession, yet it is not without its challenges.

In this article, we answer some pressing questions with regards to what the law says about various child-related issues that may pop up in your practice. We also, very briefly touch on how to safeguard yourself when it comes to payments of your sessions.

As professionals working with children, we are often confronted with the question as to whether or not parents need to give consent for therapy, counselling or evaluations, either within a school setting or in the private sector. The fact is that there is no specific Act stating when children can give consent to psychological/emotional assistance. People are often under the impression that children above the age of 12 can give consent to therapy or counselling and that they can personally decide where they want to stay in the case of separated or divorced parents. This is not true. This common misconception is related to the fact that, from the age of 12; children can give consent to medical procedures, but it’s important to understand that this does not apply to counselling or therapy.

This issue has sparked quite a debate amongst professionals. Some reason that; if a child can give permission to medical procedures (such as abortions) at the age of 12, then surely they can give consent to therapy, or counselling?! The question of “best interest of the child” often pops up, as parents not wanting to consent to counselling or therapy, while the child has a very definite need for it; also raises many questions!

Unfortunately, as things stand at the moment – regardless of the good intentions of many professionals;  if a child receives therapy from a professional without the consent of the parents, that professional might be at risk for unethical behaviour, with the exception of a court order. If a court orders that a child should receive therapeutic assistance or should be involved in an emotional evaluation, parental consent is not needed. Another exception is that a social worker or professional working at a designated child protection organisation has the statutory powers to see a child without the parents’ consent, if allegations of abuse or neglect is being investigated.

Parental consent is also known as the in loco parentis principle (“in the place of the parent”).

The responsibility known as the ‘in loco parentis’ principle, tasks teachers to act in the place of a parent by carrying out legal responsibilities and functions in line with the Fundamental Rights of children in the Constitution of the Republic of South Africa (CRSA) of 1996.

In loco parentis fundamentally transforms the way teachers should understand and practice their rights and responsibilities. It has raised awareness of teachers’ educational tasks that are compounded by the in loco parentis principle. Despite various laws put in place to protect both learners and teacher, physical and psychological threat to both teacher and learner, is still a possibility.

In light of the teacher acting in his/her role as “parent”, the possibility exists that a teacher could do harm to a learner through wrongful actions; such as for example physical, psychological and or sexual abuse, neglecting to act in cases where the child needs help and or referring to wrong/incapable therapists. Possible harm could come to the teacher, seeing as not all parents would necessarily accept the in loco parentis principle and might act out towards the teacher in a variety of manners. In other words, although there are laws in place to protect both teachers and learners, it does not rule out any immediate risks to either parties.

Parental consent is still required up until the age of majority, which means 18 years of age. When therapy takes place during school hours, both parents’ consent, where possible would still be required, regardless of the in loco parentis principle.

It is important to note that every school has their own governing body with their own code of conduct, therefore schools may differ on this view. Some schools request the consent of parents in the application form by requesting the parents’ consent beforehand while other schools only asks the parents’ consent once there is a need for therapy.

Both parents need to give consent for therapy, regardless of whether they are divorced or not; as divorced parents still have full rights and responsibilities with regards to a child. It is important to know that being the parent with primary residence does not imply that the other parent does not have rights towards the child.

Confidentiality is extremely important when working with any person of any age in a counselling setting. Uncertainty with regards to confidentiality, could lead to clients being too afraid to open up and share completely with the counsellor and this may hinder the progress and success of the process. However, confidentiality has its limitations and it is of the utmost importance to discuss these limitations with your client before the counselling process starts, as well as to gently remind your client of the limitations on a regular basis.

Section 110 of the Children’s Amendment Act provides details of the right to protection that children are afforded in terms of Section 28 of the Constitution. This Section compels certain professional sectors and in specific teachers, therapists, counsellors, social workers and psychologists to report any child abuse, neglect or maltreatment that is suspected on reasonable grounds to a designated child protection organisation, the provincial department of social development or a police official. Cases are investigated by organisations that operate within the physical areas where the child resides. Therefore, the person who is reporting the suspected abuse, should contact the organisation or police station closest to where the child physically lives.

In addition, Section 54 of the Sexual Offences and Related Matters Amendment Act 32 of 2007 obliges a person who knows or who has a ‘reasonable belief or suspicion’ that a sexual offence has been committed against a child or mentally disabled individual, to immediately report it to a police official. If such reporting is done in good faith, the person reporting cannot be held liable in criminal or civil proceedings. A person who fails to report such knowledge, reasonable believe or suspicion is guilty of an offence and may be convicted.

In dealing with confidentiality In the context of children (i.e. persons under the age of 18 years) one must bear in mind Section 54 of the Sexual Offences and Related Matters Amendment Act 32 of 2007, which obliges a person who has knowledge that a sexual offence has been committed against a child to report such knowledge immediately. If a child thus makes a disclosure of abuse to a teacher or any other person, that person is not allowed to keep the suspected abuse confidential. The advice we always give teachers or counsellors is to never promise a child that what they tell you is confidential. When a child thus approaches you and asks you if they can tell you something; but you are not allowed to tell anyone, do not promise them that. That will only result in breaking their trust in you.

In terms of legislation a legal representative should be appointed for a child in instances such as where there are allegations of physical, sexual of psychological abuse. This right will not be constrained by a need to obtain the consent of the parents or guardian of such child. The court, usually the Children’s court; will appoint a lawyer for the respective children.

Working with children can be an extremely rewarding job, but it also has its challenges. It is advisable to have a written agreement with the parents; firstly with regards to parental consent, but also with regards to who is responsible for the payment of the services. In order to safeguard payment for services rendered, it would be advised that the therapist obtain a written mandate from specifically the person/parent liable for payment regardless of whether the parents are divorced or not. The person who signed the agreement is then liable for the payments.

We would also advise that you add a specific section to your agreement form, where you state very clearly what the limitations of confidentiality are when it comes to you working with their child/children. Also remember to discuss these limitations with your child-client as well.

A very special thank you to DU PREEZ STRYDOM INC. who so graciously assisted us with all these questions.

For any family law related issues, please don’t hesitate to contact them. They are situated in the Brooklyn Bridge Office Park; Fehrsen Str, Building 2 on Floor 3, in Pretoria and you can contact them on 012 433 6515.