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CHAPTER TWO Who cares? The changing role of African extended families
Introduction
In many societies, extended families perform various important functions. Often, the extended family network is the first line of defence in times of misfortune. It is a source of financial, emotional and physical security against various difficulties. The strong family network system or kinship network is not only common to African societies, but has also played a role in other societies in Asia, Latin America and Europe.1 Although it is important not to overemphasise or romanticise the role played by the extended family network system, 2 there is no denying that, in Africa, the extended family network is one of the main coping mechanisms where there is a lack of an institutionalised social security system.3 Traditionally, in Africa, family provided the most reliable social security to itsm vulnerable members, such as the poor, children and elderly. 4 The traditional care system was built in complex family systems which ensured the reciprocal care and assistance among generations.5 Partly due to the tradition of informal foster care by extended families, governments in Africa have been slow at intervening in care practices of children who are orphaned, abandoned, or abused in a family setting.6 Such tradition minimised the necessity of government intervention. However, as society changes, the role and structure of the extended families have also changed. Due to poverty, urbanisation, migration, the development of a cash economy, westernisation and labour movements, the kinship network system has been undergoing thorough restructuring and reorganisation. 7 It is true that extended families are still the major provider of social safety nets in various African societies.8 Nevertheless, there has been an over-reliance on the kinship network system, and the HIV epidemic might serve as a last blow to already overstretched extended family resources. 9 Without a speedy and adequate government intervention, traditional „orphan care‟, which relied almost exclusively on extended families, will not be able to sustain itself.10 The chapter explores the changing role and capacity of the kinship network system in African societies and the consequent need for alternative methods of care for children who are deprived of their parental care. The chapter examines the factors leading to the change in traditional kinship relationship and provides a brief overview of the impact of the HIV epidemic on the workings of the traditional family network system. Despite the important role played by the extended family network in Africa, many anthropologists argue that, in Africa, there is no equivalent term to the Western notion of family.11 The family is a much more inclusive notion in the African usage than in Euro-American usage.12 Marks and Rathbone partly attribute the lack of studies on African family history to the problem of definition and argue that in pre-modern Africa, the term „family‟ itself was problematic.13 To understand the African notion of family, one must ask three pertinent questions:14 How was „family‟ understood in the African context? What were its functions? What is it changing into? Following the introductory section, section 2.2 examines the traditional role of the extended family network in various traditional African societies based on anthropological studies on kinship relationships. Section 2.3 examines myriad factors that affect the functions of the traditional extended family network system in modern African societies such as urbanisation, labour migration and the HIV epidemic. Although the section is not expressly divided into pre- and post-AIDS African societies, giving separate consideration is important, as the epidemic has an unprecedented impact on every section of African societies. The section shows how the epidemic affected and changed the African social fabric and created the need for a stronger and different type of governmental intervention in matters relating to the care of children, among others. It is true that the extent of such resilience is different from society to society. For instance, in rural communities, the respect for an extended family network is better preserved compared to more urbanised communities.15 In many communities, the extended family network continues to be the major social security provider to a large extent. However, as illustrated in the section, the extended family network that once epitomised African family life is changing in the face of strings of modern challenges. Section 2.4 is the concluding section of the chapter.
Declaration
Acknowledgements
Summary
Keywords
Opsomming
Abbreviations
Table of contents
Table of cases
Table of selected laws
Table of national Constitutions consulted
Chapter 1. What, why, how and for whom
1.1 Introduction
1.2 Aim of the study and research questions
1.3 Significance of the study
1.4 Overview of the chapters
1.5 Conceptual clarification
1.6 Methodology
1.7 Literature review
1.8 Limitations of the study
1.9 Conclusion
Chapter 2. Who cares? The changing role of African extended families
2.1 Introduction
2.2 Traditional role of African families: an anthropological perspective
2.2.1 Family as an informal social security provider
2.2.2 Foster care by relatives
2.3 Changes in the family structure
2.3.1 Labour migration
2.3.2 Urbanisation
2.3.3 The HIV epidemic
(i) Overview of the impact on the society
(ii) Impact on families and family structure
(iii) Children in times of AIDS
2.3.4 Coping by providing „good enough care‟?
2.4 Conclusion
Chapter 3. Brief introduction to a rights-based approach: children’s rights in global, regional and national frameworks
3.1 Introduction
3.2. International protection of children who are deprived of their family environment
3.2.1 Treaty law
(i) 1989 Convention on the Rights of the Child
(ii) 1990 African Charter on the Rights and Welfare of the Child
(iii) 1993 Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption
3.2.2 Soft law
(i) 1986 UN Declaration on Foster Care and Adoption
(ii) 2003 General Comment and relevant recommendations from General Day of Discussion
(iii) 2005 Council of Europe Recommendation on the Rights of Children living in residential Care
(iv) 2009 UN Guidelines for the Alternative Care of Children
3.3 Articles 20 of the CRC and 25 of the ACRWC: Analysis
3.3.1 Understanding „family‟ and „family environment‟
3.3.2 Children covered by the articles
3.3.3 The relationship between „special protection and assistance‟ and„alternative care‟
3.3.4 Purpose and scope of „special protection and assistance‟
3.3.5 Alternative „family care‟ or „alternative care‟?
3.3.6 A rights-based approach and fundamental principles
3.4 Forms of alternative care
3.4.1 Kinship care
3.4.2 Foster care
3.4.3 Cluster foster care
3.4.4 Kafalah
3.4.5 Residential or institutionalised care
3.4.6 Adoption
3.4.7 Inter-country adoption
3.4.8 Supervised independent living arrangement for children
3.5 Child-headed households: An emerging form of care?
3.5.1 Recognising child-headed households
3.5.2 Recognising and supporting child-headed households in different African states
3.5.3 A child-headed family or a placement of alternative care?
3.5.4 Protection of children in child-headed households: a rights-based approach
3.6 Conclusion
Chapter 4 The case of South Africa
4.1 Introduction
4.2 Status of South African children in the HIV epidemic
4.3 Children‟s rights in South Africa
4.3.1 Children‟s rights in South Africa
4.3.2 Children‟s Act as amended by the Children‟s Amendment Act
(i) Definition of children in need of care
(ii) Possible court orders when the child is found to be in need of care and protection
4.4 Recognising child-headed households
4.4.1 Section 137 of the Children‟s Act
(i) Defining the term „child-headed household‟
(ii) Operation of supervision
4.4.2 Legally recognising child-headed households: Adopting a rights-based approach
(i) Best interests of the child
(ii) Child participation
(iii) Non-discrimination
(iv) Right to survival and development
(v) Monitoring and evaluation
(vi) Accountability and rule of law
4.5 Conclusion: Development and challenges
Chapter 5 Conclusion and recommendations
5.1 Introduction
5.2 Children‟s rights and wellbeing: whose responsibility?
5.2.1 Family as a primary duty-bearer
5.2.2 When children are deprived of their family environment
5.3 Protecting the rights of children in child-headed households
5.4 Recommendations
Bibliography
