The Case For Legal Action Against Bullying

Sometimes going back to school isn’t cool. Bullying can ruin a child’s school experience as well as damage their confidence and self-esteem, so knowing when to take legal action against bullying is important.

A bullied child requires support – from the school and their family. But, do you know if and when you can take legal action against bullying?

Advice from an expert

Isabel van den Ende, senior associate at Barnard Incorporated Attorneys, offers the following explanations and advice.

Read our article on understanding children’s behaviour to get perspective on bullying.

Age and the law

The Children’s Act promotes problem-solving solutions as it is important to follow the approach that would be in the best interest of the minor child.

What the act stipulates

Section 6(4)(a) of the Children’s Act stipulates the following:

Section 6(4) In any matter concerning a child-

An approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided.

The challenge

A non-confrontational approach is mediation. Mediation aims to seeks a solution to the conflict together. It requires a meeting between the parents of the “victim”, the parents of the “bully”, and the school. Mediation is a without prejudice, completely confidential and safe space.

The challenge in this scenario centres around the age of the child committing the offence – specifically “the bully”.

Usually, the Child Justice Act should be followed when a minor child (under the age of 18) has allegedly committed a crime, but the act is actually only applicable to children between the ages of 10 and 18. Minor children below the age of 10 cannot be prosecuted in terms of the act.

Section 9 of the Child Justice Act provides remedies for police officials who believe that a child (under the age of 10) has allegedly committed a criminal offence. The steps to be taken are inter alia to refer the matter to a Children’s Court.

Two routes for resolution

Where does this leave the parents? Guidance from the Children’s Court focuses on two routes for a resolution.

Route 1: approach the school

The first route concentrates on the school’s actions. In this case, parents must ascertain whether or not the school has a formal bullying policy.

The bullying policy

According to The South African Schools Act 84 of 1996 (SASA), governing bodies of public schools must adopt a code of conduct for the learners. A bullying policy with specific steps to be taken when an incident is reported should be included.

The policy should also require:

informing the parents of the bully;
feedback from those parents;
the appointment of a social worker to assess the bully to determine whether there are any psychological problems and/or defects;
that the school follow and document any reasonable actions taken against the bully; and
that the victim is safe from further harm.

next steps

If the bullying doesn’t stop and your first meeting with the teacher hasn’t solved the problem, here are the next steps to try:

Keep a record of what happens and when. If the bullying involves physical harm or damage to your child’s property, you could also take photos.
Write a letter to the school saying that the bullying has not stopped. Request that your concern is addressed in writing and ask for the details of the steps taken after the incident was reported.
If the school cannot provide sufficient feedback and the bullying escalates, then you may approach a social worker to investigate the matter.
If the school fails to protect the victim, you can contact the parents of the bully to discuss the matter. In cases where there is a long history of bullying, it’s better if a family law expert contacts the parents on your behalf.

Route 2: legal action

Once the social worker has been involved and the situation isn’t improving, the second, more severe route comes into play.

If a bully persists with his or her behaviour, an application can be made to the Children’s Court to investigate the matter and determine if it is necessary to declare the bully “a child in need of care and protection.”

The court will appoint a social worker to investigate the minor child’s environment. The social worker can recommend to the Court( in severe cases) that the child be removed from his or her current environment.

However, removing a bully from his or her parents could have far-reaching and even more damaging consequences. It is advisable to consult an experienced family law attorney to help facilitate an amicable solution.