Criteria for law reform on comprehensive sexuality education for children with disabilities in South Africa’

3.1 The CRPD

As a relatively new disability-specific instrument, the assumption is that the drafters of the CRPD would have anticipated the acute need for carefully crafted tools to address the stigma and exclusions faced by persons with disabilities, including children, from exercising their SRHR on an equal basis with others, by inserting a provision on CSE. Detractors of a human rights approach identify that a concrete and explicit right to CSE is not stated in international law.34 However, such a right can be inferred from the broad provisions of other rights that appear in international and regional instruments, as the following analysis shows.

In relation to SRHR, the CRPD enumerates several rights, including the rights to health; liberty and security of person; freedom from exploitation, violence, and abuse; and respect for home and the family.35 Yet, the CRPD does not mention sex access.36 This means that while ‘issues of gender and violence are recognised, broader issues related to sexuality and sexual rights’ such as ‘diversity of sexual identity, positive sexual expression, sexual health and sexuality education’ (issues which are particularly contentious in Africa), are not.37 According to the CRPD Committee, the denial of legal capacity to persons with disabilities leads to the deprivation of many of their fundamental rights, including the right to marry and found a family, reproductive rights, parental rights, the right to give consent for intimate relationships and medical treatment.38 The CRPD obligates states to ‘abolish denials of legal capacity that are discriminatory on the basis of disability in purpose or effect’, and recognises that though at times support may be necessary, the ultimate goal is ‘to build the confidence and skills of persons with disabilities so that they can exercise their legal capacity with less support in the future if they so wish’.39

The CRPD requires that state parties take steps to ‘ensure that reasonable accommodation is provided’ in terms of their measures to promote equality and eliminate discrimination.40 Article 2 of the CRPD defines reasonable accommodation as:

[N]ecessary and appropriate modification and adjustments not imposing a disproportionate or undue burden where needed in a particular case to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.41

The concept of reasonable accommodation (which is what would necessitate adaptations) derives from the broader concept of substantive equality and complements the social model of disability.42 It requires allowing for individual differences and undertaking reasonable alterations to ensure equal opportunities.43

The CRPD also includes accessibility as a general principle and a self-standing obligation.44 The principle of accessibility requires a universal design of curriculum to be drafted and implemented to equalise participation for all persons with disabilities, and reasonable accommodation is required for specific needs that some persons with disabilities may have.

This means that the provision of reasonable accommodations is a duty. This is demonstrated by the fact that the CRPD regards the denial of reasonable accommodations as discrimination.45 However, despite the provision of reasonable accommodations being a duty of states and a right of persons with disabilities, this duty is not without limits. State parties are only required to provide accommodations where doing so does not cause a ‘disproportionate or undue burden’.46 This means that in the context of a right to education, reasonable accommodation acts as both a sword and a shield because the claimant must prove that the needed accommodation is reasonable, while the onus is on the education provider (particularly the state) to prove the unreasonableness, disproportion or undue burden of the required measure.47

3.2 The African Disability Protocol

African soft-law instruments direct states towards their duty to implement CSE including for children and youth with disabilities (not only in schools) and require children and youth’s ‘inclusive and effective’ participation.48 States’ progress in meeting this obligation has been slow.49 The Protocol to the African Charter on Human and People’s Rights (Maputo Protocol)50 and the General Comments,51 despite providing insightful interpretive guidance on SRHR of women, and mentioning prohibition of discrimination on the basis of disability, fail to:

[D]edicatedly consider the challenges that women with disabilities face in the exercise of their sexual and reproductive health and rights, despite recognition of the unique vulnerability, diminishes its potential to address disability specific challenges.52

The African Disability Protocol then offers more hope for a disability-specific context. This treaty, once in force, will require states to provide sexuality education to youth with disabilities.53 The primary purpose of this instrument is to provide an Africanised perspective of disability rights that takes ‘into account the lived realities of persons with disabilities while maintaining the core values and principles on disability as set out in the CRPD’.54 A key difference is that the African Disability Protocol unlike the CRPD has different provisions for girls/women, children and youth with disabilities, and so actively addresses the long-standing issue of intersectional discrimination that has been highlighted a number of times by TMBs.

Moreover, this instrument actively calls for the promotion of ‘sexual and reproductive health education for youth with disabilities’ through state measures, whether policy, legislative, administrative or otherwise, to promote the rights of youth with disabilities.55 The provision is ground-breaking because for the first time a right to CSE is not being inferred from the broad reading of provisions nor is it alluded to by way of general comments and recommendations. Instead, CSE is explicitly listed in a regional instrument. Reception of the instrument has so far been positive, with the Special Rapporteur on the Rights of Persons with Disabilities welcoming this trailblazing instrument in the belief that it will

trigger a much greater inclusion of the concerns of people with disabilities in laws, policies and budgets because it ensures increased accountability and closer oversight of how states implement their human rights obligations.56

However, Viljoen and Biegon caution that:

Although the articulation of more regionalised and localised understanding of these (disability) rights in the form of a distinct treaty may raise greater awareness and assist states in the process of crafting appropriate domestic laws and policies, autochthonous standard setting should not be fetishized. ‘Just as the adoption of the Maputo Protocol did not see immediate benefits accruing to women ... an African-specific treaty would in itself (not) guarantee an improvement in the plight of persons with disabilities’.57

They argue that ‘without a clear rationale identifying substantive weaknesses or omissions (within the CRPD) the drafting and adopting of an African pendant would amount to an exercise in “reinventing the wheel”’.58

The Protocol’s provisions in relation to accessibility and reasonable accommodation should be interpreted, once it comes into force, together with the provisions on sexuality education, education and the right to health including SRHR,59 to create enforceable duties on states to adapt the CSE curriculum and modes of communication where relevant for diverse persons with disabilities - going further than the CRPD. This is to make the information and education received under CSE accessible and accommodating to the diverse needs of children and youth with disabilities. The Protocol’s clear statement supporting sexuality education should chart the way forward for CSE on the continent in addressing some of the attendant harms that face children and youth with disabilities such as GBV and inaccessible SRHR services, realigning ‘the wheel’, as it were. However, Viljoen & Biegon’s warning should be heeded, and immediate evidence-based measures should be formulated to meet state obligations.

3.3 UNESCO

UNESCO’s comprehensive and updated Technical Guidance60 is the most up-to-date articulation of the scope and content of CSE. It specifies that CSE should be age and developmentally appropriate, scientifically accurate, incremental, and based on a human rights approach.61 Scientific accuracy refers to curriculum content based on ‘facts and evidence related to sexual reproductive health, sexuality and behaviours’.62 CSE’s incremental nature identifies that it is not a once-off process but a continuing process commencing at an early age, ‘where new information builds upon previous learning, using a spiral-curriculum approach’.63 The evolving capacity of children is recognised in the recommended age and developmentally appropriate nature of CSE. Furthermore, such appropriateness refers to the fitting time (age-related) and development. The technical guidance further states that CSE should be comprehensive and curriculum based; it should also encourage gender equality whilst also being culturally relevant and context-appropriate, transformative and finally capable of developing the life skills needed to support healthy choices.

‘Comprehensive’ refers to the ‘breadth and depth of content’ according to the guidance CSE should

encourage discussions on sexual and reproductive health issues, including, but not limited to: sexual and reproductive anatomy and physiology; puberty and menstruation; reproduction, modern contraception, pregnancy and childbirth; and STIs, including HIV and AIDS.

Additionally, drafters and educators of CSE are encouraged not to shy away from content that may be ‘challenging in some social and cultural contexts’.64 ‘Curriculum based’ speaks to

the presentation of concepts, and the delivery of clear key messages that guide educators’ efforts to support students learning in a structured way both in school or out of- school settings.65

CSE, according to UNESCO, contributes to gender equality by ‘building awareness of the centrality and diversity of gender in people’s lives; examining gender norms shaped by cultural, social and biological differences and similarities’.66 Cultural and context appropriateness would examine the ways in which cultural structures, norms and behaviours affect people’s choices and relationships within a specific setting.67 The transformative aspect, UNESCO puts forward, would ensure that CSE ‘empowers young people to take responsibility for their own decisions and behaviours, and the ways in which they may affect others’ moreover building ‘the skills and attitudes that enable young people to treat others with respect, acceptance, tolerance and empathy, regardless of their disability status’.68 Collectively, the criteria would thus enable all recipients of CSE to ‘develop the life skills needed to support the making of healthy choices’.69

The UNESCO Guidance curiously refers to adaptations necessary ‘when cognitive and emotional development is delayed’.70 The provision of necessary ‘adaptations’ for persons with intellectual and/or developmental and psycho-social disabilities, as the Guidance prescribes, unduly limits this anti-discrimination measure to only some persons with specific disabilities. For Kallehauge, the question of whether a burden is undue or disproportionate in the proposed provision of reasonable accommodation turns upon the identity of the duty holder. He asserts that if it is the government or public authority who bears the duty to accommodate, then ‘the burden will have to be extremely heavy before it can be considered disproportionate or undue’.71 As such the traditional parameters of reasonable accommodation in the UNESCO Guidance need to be adapted.

CSE should be included in a ‘written curriculum’.72 Adaptations to content should therefore explicitly include principles such as universal instructional design, accessibility and reasonable accommodation. Therefore, a broader definition of disability such as that of the CRPD is preferred to ensure no discrimination or exclusions of some disabilities from an overly strict interpretation of these categories and these principles should be explicitly mentioned and explained.

UNESCO recognises that children and young people with disabilities

are all sexual beings and have the same right to enjoy their sexuality within the highest attainable standard of health, including pleasurable and safe sexual experiences that are free of coercion and violence; and to access quality sexuality education and SRH services.73

Recognition of the vital role of sustainable development goals (SDG)74 in strengthening the links between education, health, gender equality and human rights is encapsulated in the Guidance.75 However, tracking states’ progress in providing CSE remains ‘aspirational’.76

The Guidance, and similar initiatives to promote CSE in Global South countries, have been criticised for focusing on a CSE approach rather than a holistic sexuality education approach which focuses on positive sexuality and is offered in some parts of Western Europe.77 The lack of emphasis on the decolonial intersection with disabled sexuality in CSE which seeks to dismantle institutional oppression of the disabled is another relevant criticism.78 Some of those shortcomings, however, could be remedied with due consideration and adaptations to relevant contexts.

3.4 The UN Special Rapporteur on the Rights of Persons with Disabilities

The Special Rapporteur on the Rights of Persons with Disabilities articulates the steps that states need to take to ensure their legislative and policy frameworks align with the CRPD to ensure CSE is ‘inclusive and accessible’.79 CSE should be offered in accessible formats and alternative languages, including sign language, Braille, alternative script, easy-to-read formats, and alternative and augmentative modes of communication.80 Information and awareness of parents and caregivers of children and youth with disabilities are identified as a means of combating stigma, stereotypes and exclusions that these children face in exercising their SRHR.81

3.5 CSE indicators inclusive of children with disabilities?

An interpretation of the mutually interdependent nature of rights recognises that the rights to respect for the home and family, health and freedom from exploitation, violence and abuse, read together, underscore the need for information that persons (including those with disabilities) require in order to make decisions about their sexual reproductive health and relationships - in other words, CSE.82 CSE is therefore the tool that gives effect to the respect, fulfilment, protection and promotion of attendant rights. The lack of explicit mention of CSE in treaties, therefore, is not fatal.

TMBs persistently call for states to provide CSE in a non-discriminatory manner and stress the need for accessibility to children and youth with disabilities.83 However, a lack of an express obligatory provision in international law militates against explicit state provision for CSE and, accordingly, negatively affects monitoring the extent to which children with disabilities access relevant SRHR information and services. Sufficient guidelines, however, are provided by international actors such as the UNESCO and the Special Rapporteur, together with TMB’s interpretive guidance in general comments, to identify to states the necessary indicators - including the requirement of provision of CSE that is inclusive, accessible and that provides reasonable accommodation. That being said, the main guiding document, UNESCO’s Technical Guidance, is silent on accessibility and reasonable accommodation of children with disabilities and this should be remedied in future revisions.

4.1 The recognition of SRHR and bodily integrity

SRHR of all persons are protected under section 12(2) of the Constitution of the Republic of South Africa, 1996 which recognises at a minimum that ‘each physical body is of equal worth and is entitled to equal respect’.84 This section imposes ‘a duty on the state to ensure that everyone is able to participate fully in society’.85 The Constitution explicitly mentions the right to ‘make decisions concerning reproduction’. Woolman and Bishop assert that this is probably because the drafters ‘recognised that some of the most devastating and socially entrenched forms of physical (and psychological) oppression and exploitation relate to reproduction and sexuality’.86

Bodily integrity has the potential to apply to a wide range of human rights violations, which also affect children’s rights.87 This is because the right to bodily integrity ensures that all persons including children have the right to autonomy and self-determination over their own body and considers any unconsented physical intrusion a human rights violation. Persons with disabilities (particularly woman and girls) are vulnerable to sexual abuse due to a number of myths, including asexuality, and consequently are vulnerable to HIV/Aids, among other risks.88 CSE could be introduced as a preventative intervention that not only helps children identify signs of sexual abuse early on, but also encourages them to report the abuse before it escalates. This is necessary because most of the current legislative interventions are helpful only after the fact of sexual abuse which often goes unreported for a long period of time.

The educational realities of persons with disabilities distinctly demonstrate that disability ‘remains a concept linked to exclusion, inequality and dependency due to lack of or impaired access to essential resources and services’, as revealed in Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa.89 The High Court found that the educational policy in question implied that children with severe and profound intellectual disabilities were ineducable.90 This case demonstrates that arbitrary differentiation between children with and without disabilities cannot be countenanced. In the same vein, the CSE curriculum must not only be accessible but also reflective of the experiences of children with disabilities - even if it incurs additional budgetary planning and costs.

SRHR of children were relevant in Teddy Bear Clinic for Abused Children and Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) v Minister of Justice and Constitutional Development (Teddy Bear Clinic).91 The applicants challenged certain provisions of the Sexual Offences & Related Matters Amendment Act,92 which criminalised consensual sexual activity between two consenting minors. The court of the first instance described the provisions as ‘irrational, overbroad and harmful’, noting that they violated a number of constitutionally enshrined rights.93 The provisions were subsequently declared unconstitutional. The matter was referred to the Constitutional Court for confirmation, where the Court addressed all but one of the violated constitutional provisions identified by the court a quo - namely the constitutional right to bodily integrity. The Court’s silence on the matter was a missed opportunity to provide interpretive jurisprudence on the importance of adolescent SRHR and the role of educational interventions such as CSE in this regard, especially since the Court recognised that:

During adolescence children ordinarily engage in some form of sexual activity, ranging from kissing to masturbation to intercourse. Exploration of at least some of these activities is potentially healthy if conducted in ways for which the individual is emotionally and physically ready and willing.94

This landmark judgment implies a right to CSE because it recognises that consensual sexual conduct between children can be considered normal developmental behaviour. CSE, therefore, presents itself as an appropriate educational tool to ensure that all children (including children with disabilities) are able to explore not only their sexuality but also exercise the SRHR associated therewith. The South African jurisprudence promotes the promotion, respect, protection and fulfilment of SRHR as encapsulated in the Constitution and existing legislation yet the courts have not yet grappled with legal issues around disabled sexuality.

4.2 Accessibility and reasonable accommodation of the needs of children

The concepts of accessibility and reasonable accommodation as it pertains to children, as well as children with disabilities have been accepted into our jurisprudence, both in the Equality and Constitutional Courts.95 The Promotion of Equality and Prohibition of Unfair Discrimination Act 4 of 2000 (the Equality Act) prohibits discrimination on the basis of disability96 and requires a reasonable accommodation in the form of sector-specific codes.97 The South African legal landscape is therefore no stranger to the notion of reasonable accommodation and accessibility, but it lacks disability-specific legislation that entrenches these two concepts as general principles or legal duties across sectors. The current provision in the Equality Act has not brought about the systemic change for persons with disabilities that is necessary.

Before analysing the legislative provision for CSE (or absence thereof), the provision for CSE in policy is discussed to illustrate the widespread invisibility of the needs of persons with disabilities to accessibility, universal design and reasonable accommodation.

5.1 White Paper 6

White Paper 6, though not speaking directly to SRHR, acknowledges that ‘inclusive education entails accepting that all children have learning needs ... and can learn if given support’.122 The policy also concedes that the curriculum could potentially be a learning barrier.123 However, the policy’s overly-broad strategies and lack of specificity regarding implementation suggests that this policy was enacted for political symbolism rather than practicality.124

5.2 WPRPD

The WPRPD, aims to reflect the already established fundamental values of the CRPD in policy. To do this it proposes a collaborative, multi-sectoral approach involving all relevant stakeholders to effect the necessary changes needed to transform the life experiences of persons with disabilities.125 The policy calls for the provision of ‘family planning, sexuality/sex education programmes’. Regrettably, this intervention is only mentioned in the context of HIV/AIDS prevention.126 The WPRPD further suggests using the school curriculum to address negative attitudes and stereotypes relating to disability while simultaneously promoting a disability rights awareness discourse.127 Beyond encapsulating the rights of persons with disabilities, this policy emphasises important issues such as supported decision-making and self-representation.128

Although the WPRPD is yet to reach authoritative legislative status, its contribution to the disability rights movement cannot be denied; to avoid following the steps of White Paper 6, more needs to be done to expedite the process of concretising this policy into enforceable legislation. The South African Law Reform Commission (SALRC) is currently embarking on law reform to domesticate the CRPD, and this process is an apt vehicle for the incorporation of CSE into enforceable domestic obligations.129 The policy mentions the possibility of sexual and intimacy assistance,130 but this is simply a throwaway line as there is no interpretive guidance as to what it means.

The absence of a provision explicitly mandating the provision of CSE (outside of the HIV/AIDS context) to children with disabilities in the WPRPWD is a correctable flaw because of the importance placed on the state’s obligations to fulfil SRHR domestically and internationally.131 An explicit provision would have been preferred however to mitigate ameliorating social norms against SRHR and CSE.132 This policy could have been clearer as a coordinating framework to ensure a better alignment of existing and future policies on SRHR and specifically CSE, in line with South Africa’s international law obligations.

Three DBE specific policies are discussed next.

5.3 The Strategy

The National Adolescent Sexual and Reproductive Health and Rights Framework Strategy 2014-2019 (the Strategy) recognises a need to ‘create and/or strengthen a responsive policy’ in order to meet the SRHR needs of all adolescents, especially those whom society has deemed most vulnerable, such as children with disabilities. It calls for:

The development of an inclusive agenda that intends to promote ... the right to exercise sexuality free of violence and coercion; the right to seek pleasure with respect for other people’s rights; the right to protect fertility; and the right to access modern techniques for the prevention, diagnosis and treatment of sexually transmitted infections.133

Although the Strategy recognises a number of disabilities, it does not mention how it plans to make SRHR available and accessible to such children.134 The Strategy seems to use disability as a device to claim inclusivity. As part of the implementation of this policy, the DBE is currently piloting the roll-out of a revised CSE curriculum in selected schools.135 This Strategy is a good start but does not meet the call by UNESCO that states develop national policies on CSE, which are explicitly linked to education-sector plans and the country’s national policy.

5.4 The National Policy

The National Policy expressly recognises CSE as a game-changing ‘preventative gambit’ by stating that:

Every person in the Basic Education Sector has the right to access relevant and factual comprehensive sexuality education ... appropriate to their age, gender, culture, language and context, in order that they can make informed decisions about their personal health and safety.136

This policy inadequately addresses the needs of vulnerable groups such as children with disabilities by providing very little guidance on how they will be represented in the CSE curriculum. It thus risks becoming an idealised theoretical document.

5.5 NCS

The NCS specifies policy on curriculum and assessment and undertakes to provide knowledge, skills and values in learning at South African schools.137 Its principal purpose is to equip learners,

irrespective of their socioeconomic background, race, gender, physical ability or intellectual ability with the knowledge, skills and values necessary for self-fulfilment and meaningful participation in society as citizens of a free country.138

While the NCS claims to be sensitive to issues such as disability, there is no mention of children with disabilities (or their sexuality) in the curriculum. Instead, disability is addressed from an anti-discrimination perspective - but there is no mention of the exercise of sexuality by children with disabilities who are affected in comparison to their non-disabled peers.139

5.6 CSE indicators in the policies

The CSE indicators are generally not provided in South African policy. While many of these policies assert a rights-based approach to SRHR, including gender equality, few link this approach with the provision of CSE to persons with disabilities which may require accessibility, universal design and reasonable accommodation (aside from the NSP). Of great concern is the absence of the following indicators in the policies: CSE that is developmentally appropriate, scientifically accurate, incremental, culturally relevant and context-appropriate, transformative, and enables children to develop life skills needed to support healthy choices.

Policy reform is needed in all sectors, including education, justice, health and social services, to strengthen the provision of SRHR to children with disabilities, including CSE in and outside of schools. The existing policies and potentially policies drafted in the future may remain fragmented and incoherent, we submit, without enabling a legislative provision that identifies the criteria for CSE, including for children/youth with disabilities, and the requirement for multi-sectoral alignment, budgeting and data disaggregation to inform better future practice.

6.1 SASA

SASA requires that all public schools ‘admit learners and serve their educational requirements in a non-discriminatory manner’.140 Public schools are required to be ‘accessible and able to provide relevant educational support services’ to learners with disabilities, whenever it is ‘reasonably practicable’ to do so.141 The drafting of this provision is problematic as it does not refer to reasonable accommodation of children’s needs, and introduces the defence of ‘reasonably practicable’.142 Children with disabilities, however, are not afforded compulsory schooling outside of ordinary public schools as the age of commencement has not been promulgated.143

6.2 NEPA

NEPA empowers the Minister of Basic Education to determine a national educational policy, which should be directed towards ‘[t]he advancement and protection of the fundamental rights of every person guaranteed in terms of the Constitution, and in terms of international conventions’.144 Moreover it is stated that educational policy should contribute ‘to the full personal development of each student ... including the advancement of democracy and human rights’.145 The Act specifically precludes an education policy from denying children their right to education on account of their physical disabilities.146 It is unclear why the Act specifically mentions physical disabilities to the exclusion of other disabilities.147

6.3 The Children’s Act

The constitutional dispensation and the ratification of prominent international instruments paved the way for acknowledging that children are also bearers of human rights and not merely vulnerable and voiceless.148 The Children’s Act is the primary legal framework for the realisation of every child’s constitutional rights. In relation to children with disabilities, it was agreed from the outset of the South African Law Commission’s endeavours to develop a children’s code that mentioned had to be made of this category of children.149 Section 11 of the Act does exactly that by extending opportunities to children with disabilities (and chronic illnesses) to ‘participate in amongst other things “educational activities” in a manner that is cognisant of any needs they may have’.150 The section further states that it is equally important to provide such children with ‘conditions that ensure dignity, promote self-reliance and facilitate active participation in the community’.151 Section 13 of the Children’s Act grants children the right to ‘access information related to health promotion and the prevention and treatment of ill-health and disease, sexuality and reproduction’.152 The section also recognises the importance of accessibility of such information by emphasising cognisance of any special needs a child may have.153

Other relevant sections of the Act include section 2 (objectives), section 6 (general obligations) and section 7 (best interests of the child.) These sections use similar terminology to that which is mentioned in the UNESCO Guidance. According to section 2, the Children’s Act’s objectives include: ‘make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children’;154 to ‘strengthen and develop community structures which can assist in providing care and protection for children’;155 to ‘protect children from discrimination, exploitation and any other physical, emotional or moral harm or hazards’;156 and to ‘promote the protection, development and well-being of children’.157 It is submitted that all these provisions could be used to strengthen not only the argument for the provision of CSE but for provision beyond the school environment.

Section 6, in line with child legislation in many other jurisdictions, provides central principles underpinning how decisions should be made in regard to children in domestic legislation and guides the implementation, proceedings, actions and decisions in relation to children.158 It establishes a child-centred approach in respect of all legislation, proceedings and state actions regarding children.159According to section 6(e), all proceedings, actions or decisions in a matter concerning a child must: recognise a child’s need for development ... appropriate to the child’s age. Section 6(5) further states that

a child, having regard to his or her age, maturity and stage of development ... where appropriate, must be informed of any action or decision taken in a matter concerning the child which significantly affects the child.

This subsection acknowledges the fact that the child himself or herself (irrespective of their disability) must be informed of actions or decisions which significantly affect him or her. The age, maturity and stage of development of the particular child will be crucial in determining whether the child will benefit from this knowledge. 160

Before the Children’s Act was enacted, South African legislation did not have a list of factors to be applied when a court has to deal with a child’s best interests. This lacuna was often criticised because of the fact that subjective opinions could easily impede objective judgement in a specific case. The factors that follow (as stipulated in the Children’s Act) may be used to argue for the provision of CSE especially in relation to the indicators set out in the UNESCO Guidance:

• ‘the child’s age, maturity and stage of development’;161
• ‘any other relevant characteristics of the child’;162 and
• ‘the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development’.163

Furthermore, the Act extends the right not to be subjected to detrimental social, cultural and religious practices to all children, as well as the right to access information on health promotion and prevention and treatment of ill-health and disease, sexuality and reproduction.164 The Act explicitly mandates that information on healthcare should be provided ‘in a format accessible to children, giving due consideration to the needs of children with disabilities’.165 Therefore, health information should be both child-friendly and accessible to children with disabilities.

The question of precisely what a child’s best interests are, is a factual question that has to be determined according to the circumstances of each individual case. It should be properly contextualised and as such the inherent flexibility of this principle should be seen as a strength.166 Moreover law enforcement must always be ‘child-sensitive; (meaning) that statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interests of children’.167

Every child has his or her own dignity. If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents ... The unusually comprehensive and emancipatory character of section 28 presupposes that in our new dispensation the sins and traumas of fathers and mothers should not be visited on their children. 168

Strode and Essack explain South Africa’s approach to separate legislation for different health interventions such as HIV testing and termination of pregnancy.169 The legislative framework in place, however, only recognises the SRHR of children over the age of 12 (except for access to abortion), which while aligned with domestic criminal law, poses problems inter alia for medical research involving children.170 That criticism notwithstanding, the nuanced and differing consent requirements for these health interventions are lauded.171 The authors, caution against South Africa’s ‘divergent’ approach to the evolving capacity of children (and adolescents) and call for the drafting of specific guidance for service providers on how to assess that capacity.172 Unfortunately, the relevance of the CRPD’s recognition of equal legal capacity and its implication for assessing children’s capacity to consent including in accessing SRHR is not considered in the South African literature.

6.4 The gaps in the legislation and the way forward

Some of the UNESCO CSE indicators are evident in the legislation. For example, developmental appropriateness is contained in the Children’s Act.173 While a human rights approach is not directly listed, a children’s rights approach is encapsulated by all three laws - the South African Schools Act, the National Education Policy Act and, particularly section 6(2) of the Children’s Act. Accessibility or reasonable accommodation as principles or duties are generally not included, aside from the provision for health information in accessible formats for children with disabilities, as well as the general prohibition of discrimination on the basis of disability in the Children’s Act.174 Cultural relevance and context appropriateness could be inferred from the mention of cultural development and traditions in the Children’s Act in relation to factors to determine the best interests of the child.175 Notably absent is scientific accuracy.

Explicit provision of CSE to all children is absent in the current legislative provisions but would be congruent with the aims of these three statutes. Compliance with the CRPD’s requirement of measures to eliminate discrimination against persons with disabilities, including girls and women with disabilities, ‘requires more from a state party than inclusion in existing statutes by implication’.176 Accordingly, it is submitted that an amendment to the Children’s Act would be the best option for explicit inclusion of CSE in the legislative offering because the Children’s Act is applicable to all children and extends beyond the context of education. Such an amendment would obligate the state to provide CSE not only in schools, but also in juvenile correction centres, hospitals, clinics and in other relevant public service facilities that cater for children - as well as in community-based fora.

The Children’s Act currently regulates numerous SRHR and associated aspects such as access to contraceptives, virginity testing and male circumcision. Explicitly recognising a right to CSE in the Act would give effect to the SRHR of children with disabilities. It is submitted that section 13 of the Children’s Act should be amended to include the relevant indicators developed at the international and regional levels, as follows:

Information on health care -