Bullying can be devastating for your child’s confidence and self-esteem, especially in the pre-school and early primary years. If your child is being bullied at school, they will need support at home and at school. But what happens when the bullying escalates? 

Bullying among minor children (under the age of 10) is becoming a larger problem in our schools. It is important to know when it’s time to take legal action against bullying. 

Age and the law

The challenge centres around 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.

In terms of the Act, minor children below the age of 10 cannot be prosecuted. 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. 

For more about cyberbullying and the law, read here

Solving the problem

Where does this then leave the parents? Guidance from the Children’s Court focuses on two routes for a resolution. The first concentrates on the school. Usually, schools make provisions for bullying and there are disciplinary steps in place.

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. This must include a bullying policy, that clearly states that:

  • The parents of the bully are informed, and that feedback must be received from those parents;
  • A social worker or psychologist should be appointed to assess the bully to determine whether there are any psychological problems and/or defects;
  • The school must follow and document any reasonable actions taken against the bully; and
  • Steps to ensure the victim is safe from the bully and will not be harmed again.

Plan B

 If the bullying at preschool doesn’t stop, it’s still safest to work through the school than to take matters into your own hands. Take these steps if you first meeting with the teacher does not resolve the problem. 

  • Keep a record of what happens and when. If the bullying involves physical harm or damage to your child’s property, take photos.
  • Write a letter to the school saying that the bullying has not stopped. Ask for a written response with details of the steps that were taken after the incident was reported.
  • The school must accept accountability and take the necessary steps to protect and keep pupils safe. If the school cannot provide sufficient feedback, you may appoint a social worker to investigate. You do not need a court order to do this. 
  • 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, your family lawyer should contact the parents on your behalf.

Legal advice 

If the situation still does not improve (even after the social worker has been involved) you may need to approach the Children’s Court to declare the bully as “a child in need of care and protection.” The only option may be to take legal action to stop the bullying. 

Section 150 of the Children’s Act provides a list of instances where a child may be in need of care and protection. One (which would apply to bullying) is if he or she displays behaviour that cannot be controlled by the parent or caregiver.

The court will appoint a social worker to investigate the minor child’s environment. The outcome could be to remove the child. However, removing a bully from his or her parents could have far reaching and even more damaging consequences. Consult an experienced family law attorney who can help facilitate an amicable solution.  Taking legal action against bullying should be your last and considered resort. 

Contributed by Isabel Pretorius – Family Law Attorney, Associate at Barnard Incorporated Attorneys