The “Big School” Bullies | Are there legal steps when bullying gets out of hand?



Associate | Attorney

Increasing incidences of bullying taking place at Junior Primary level 

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 lots of love and support, both at home and at school. But what happens when the bullying escalates?

Bullying under minor children (under the age of 10) is gradually becoming a larger problem in our schools and many parents struggle with the real question of whether or not any legal steps can be taken when their child is a victim of a bully at school.

The challenge in this scenario 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. 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.

Where does this then leave the parents? Guidance from the Children’s Court focusses on two routes for a resolution. The first route concentrates on the actions of the school. In this case, parents must ascertain whether or not the school has a formal bullying policy? Usually, schools make provisions for bullying and the disciplinary steps to be taken when a child is a victim of a bully.

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. And in line with this, it is recommended that the code must include a bullying policy, with specific steps that would need to be taken once an incident is reported. The bullying policy should also require 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 must be taken to ensure that the victim is safe from the bully and will not be harmed again.

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. If 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 should be addressed in writing, along with details of the steps that were taken after the incident was reported.
  • The school must accept accountability and take the necessary steps to ensure that their pupils are protected and safe at all cost. But, if the school cannot provide sufficient feedback, then you may appoint a social worker to investigate the matter by attending the school and assessing the situation. You are within your rights to do so as no Court order is required for such an appointment.
  • 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.

However, if the situation still does not improve (even after the social worker has been involved) this is when the second, more severe route comes into play and the Children’s Court is approached.

If a bully persists with his or her behaviour, an application can be made to the Children’s Court to declare the bully as “a child in need of care and protection.” Section 150 of the Children’s Act provides a list of instances where a child is regarded as in need of care and protection. One of the instances (which would apply to bullying) is if he or she displays behaviour that cannot be controlled by the parent or caregiver.

Subsequently, the Court would require that a social worker be appointed to conduct a specific investigation on the minor child’s environment. The social worker can make a recommendation to the court regarding the best approach to ensure that the child’s behaviour improves, and even suggest that the child be removed from his or her current environment (which may include his parents, care givers or guardians).

The effects of a bully’s removal from his or her parents could have far reaching and even more damaging long-term consequences – a punishment for behaviour that is caused by that child’s environment. Therefore, it is recommended that the parties consult an experienced family law attorney who can help facilitate an amicable solution that will protect all parties involved.