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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
4 October 2007
CHILDREN'S AMENDMENT BILL: DELIBERATIONS ON PUBLIC SUBMISSIONS
Acting Chairperson: Ms Hendrietta Bogopane-Zulu (ANC)
Documents handed out:
Summary of public submissions heard in August 2007
Children’s Amendment Bill [B19B-2006]
PMG Note: These minutes were provided by the Children’s Institute
MPs in attendance:
Ms Cheryllyn Dudley (ACDP)
Ms Caroline Makasi (ANC)
Ms Janet Semple (DA)
Ms Hilda Weber (DA)
Ms M Gumede (ANC)
Ms Hendrietta Bogopane-Zulu (ANC)
Mr Louis Nzimande (ANC) (late)
Ms Winkie Direko (ANC)
Deliberations on the Children's Amendment Bill
The Committee continued from the beginning of Chapter 7 where they had left off the day before. Dr Maria Mabetoa of the Department of Social Development (DSD) and the legal drafter, Ms Ronel van Zyl of the South African Law Reform Commission (SALRC), were present.
Chapter 7: Protection of Children
Part 1: Child Protection System
Clause 104: Strategy concerning child protection
Community Law Centre (CLC), University of the Western Cape (UWC)
Childline North West (NW)
Department of Home Affairs (DHA)
Ms Bogopane-Zulu (ANC): reactions to request to add Correctional Services?
Clause 105: Provision for child protection services
Commission for Gender Equality (CGE) – local government should be delivering child protection
Ms Semple (DA): on a point of order noted that the CGE withdrew their whole submission
Ms Gumede (ANC): agree that the MEC must fund the services, but what services are we talking about?
Ms van Zyl (SALRC): The word designated should be inserted, the designated child protection services are listed in 105(5). If we insert the word “designated” in (1) and (2) that will clarify the services we are talking about.
We also need to make another technical amendment to (3). It needs to be the same as (2) (b) after ‘section 106’ insert “and such other requirements as may be prescribed.”
Ms Dudley (ACDP): can we put municipalities into the Bill?
Ms Bogopane-Zulu: yes, some services can be delegated to the municipality.
Dr Maria Mabetoa (DSD) keep it as is. It may be difficult for municipalities to deliver statutory services. It would require a complete reorganisation of the structure of social services. We would have to specify the services they could deliver. For example prevention and early intervention are doable, but municipalities cannot do children’s court inquiries. May be later when we are confident that Municipalities can deliver services we can amend the Act.
Ms Bogopane-Zulu: worried about inconsistencies. Local government has designated social workers. Can they not do statutory work?
Dr Mabetoa: statutory work needs supervision e.g. placement in alternative care. If it had been discussed earlier we could have put structures in place, not ready to implement.
Ms Bogopane-Zulu: we have heard you, now we must use our muscle as legislators. Can change the structure of services delivered to children.
Ms van Zyl: think about the nature of the services that are being assigned. The registration of partial care facility is an administrative function. This is statutory work - protection cannot be divested. Breaching a person’s right to bring up their own family is serious. Cannot put it in the Bill when we are not ready. This would be a total shift not just minor amendment. It is not costed, we would have to stop the whole process and wait for a costing report. Remember that this is an NCOP bill, we are just making amendments.
Ms Bogopane-Zulu: motivations make sense, but local government is part of government. We want a new way of delivering services, and municipalities are key part of that plan.
Ms van Zyl: again we have to look at the Constitution, it outlines the functions of each sphere of government. Schedule Four covers welfare services in part A – matters of concurrent national and provincial competence. Child care services are listed in part B – local government competencies.
Ms Bogopane-Zulu: prevention and early intervention is not statutory?
Ms van Zyl: prevention and early intervention is to avoid statutory services.
Ms Bogopane-Zulu: the list is lumped together prevention and early intervention is in the same list as statutory services therefore we are preventing them from being delegated.
Ms Dudley: Designated child protection organisation is not in the Constitution, can we designate the local authority as a child protection organistion?
Mr Nzimande (ANC): must bear in mind that this comes from the NCOP and this is a money bill, and not costed therefore DPLG came and made a mess they did not consider these issues. Don’t include them at this stage. Rural municipalities there is no stuff it is just not going to happen.
Ms Musa Mbere (DSD): local government don’t have fully fledged departments, and they would need social workers.
Ms Bogopane-Zulu: concerned about prevention and early intervention not statutory services.
Ms van Zyl: could be dealt with in the prevention and early intervention chapter. More appropriate to do it there.
Ms Direko (ANC): to entrust the welfare of children to municipalities defeats the object of the Bill. For the good of the child go along with the department.
Decision: Technical amendments.
Insert “designated” before child protection services in (1) and (2)
105. (1) The MEC for social development of a province must, from money appropriated by the relevant provincial legislature, provide and fund designated child protection services for that province.
(2) Such designated child protection services—
Insert “, and such other requirements as may be prescribed” at the end of (3)
(3) Designated child protection services provided by an organ of state or a designated child protection organisation only qualify for funding from money appropriated by a provincial legislature if it complies with the norms and standards mentioned in section 106, and such other requirements as may be prescribed.
Clause 106: Norms and standards concerning child protection
Ms van Zyl: there is a spelling error in (3) “comply” should read “complies”
CHAIN (Children’s HIV/AIDS Network)
Southern African Catholic Bishop’s Conference
Child Welfare SA
Disabled Children’s Action Group (DICAG) submission missing
In response to CSWA recommendation to change inserted persons to civil society:
Ms Bogopane-Zulu: not all civil society, surely just designated child protection organisations.
Ms Dudley: complaints from civil society not consulted about policy. Must not dismiss lightly, this is a major gripe.
Ms Direko: at every level government bends over backwards to consult, if we take hearings we gave them every opportunity, and then some NGOs don’t do that and they complain that they have not been consulted.
Ms van Zyl: NGOs cannot complain about the level of consultation. “Interested persons” is a legal term used in legislation, interpretation of statute never interpret without context. Designated child protection organisations must be consulted because they will be regarded as interested parties. DFL complained that the procedure was flawed they won the case. Insertion of civil society will not help. They have been consulted.
Ms Dudley: these are the people that are delivering the services they should be consulted.
Ms Bogopane-Zulu: ”designated” would cover the proper people, right?
Ms Semple: “identification” how does that fit?
Ms Bogopane-Zulu: it doesn’t. Did we deal with the statutory procedures matter?
Dr Mabetoa: the list describes all of the statutory services therefore no need to add to the list.
Decision: change (3) “comply” to “complies”
Clause 107 Designation of child protection organisation
No public submissions
Ms van Zyl: “Delegate” in (3) line 55 should be “assign” to check with State Law Advisor (SLA).
107(4) cross-references are incorrect.
SLA submit that we should rather go with assign
Decision: change “delegate” in (3) line 55 to “assign”
Clause 108 Existing child welfare organisation
No public submissions
Ms Dudley: does this limit organisations capacity to perform services?
Ms van Zyl: No, existing designations stand, if they want additional powers they can apply for new designation.
Decision: no changes
Clause 109 Withdrawal of designation
No public submissions
Ms van Zyl: There is a typo in (2) line 24 “emply”.
There was uncertainty about what the correct replacement should be.
Decision: the drafter should correct the typo in (2) line 24 (emply), by inserting a suitable alternative.
Clause 110: Reporting of abused or neglected child
Ms van Zyl: With the current Child Care Act (CCA), people get scared of prosecution so they report everything. This clause attempts to narrow down. Try to focus on the key issue. Suspicions can be reported, but you will not be prosecuted, if you do not report a suspicion.
SAPS recommend that police official must be added as person to whom one can report.
(2) if we leave out abuse, sexual abuse, or deliberate neglect , it broadens it out to cover all children in need of care and protection
Ms Bogopane-Zulu: what is the best interest of the child? How is that applied? Who decides? How?
Ms van Zyl: the clause is there to protect the duty of confidentiality of certain professionals. If an attorney is approached by a child, and if that child does not want the case to be taken forward there comes a point where that wish or duty of confidentiality must be set aside in the best interest of the child.
Ms Bogopane-Zulu: then we get into discretions. Then there is plea bargaining, it becomes open to abuse. Abuse is about power.
Ms Dudley: too discretionary. Once it is reported then Department of Social Development will decide on the best interest of the child.
Ms van Zyl: “police official” removed from the list, add as people who receive reports.
Ms Bogopane-Zulu: they are number one offenders too.
Ms Makasi: women and children cannot report because they are afraid that they will lose the breadwinner.
Mr Nzimande: Ms van Zyl’s explanation is not coming out in the clause. We do need to have the best interest of the child as the standard, maybe we have to reword.
Ms Dudley: It could happen that abuse takes place in-front of a policeman, he could easily not report, so they do need to report as well.
Ms Gumede: this 12 year-old thing where a child has got to take conclusions on her own the confidentiality that you are referring to here is the same.
Ms Bogopane-Zulu: confidentiality in terms of health matters is different to the confidentiality with regards to abuse.
Dr Mabetoa: department wants to take this out, best interest of the child is covered in the General Principles clause. The other issues around confidentiality between lawyers and their clients is covered in other legislation.
Ms van Zyl: (4)(a) 24 hours is in the wrong place, it should be at the start of (b).
Ms Dudley: immediately should be inserted so that children do not get left in police stations.
Ms van Zyl: ensure implies immediate or at least action must be taken a the appropriate time. Might not require immediate action e.g. report made on Saturday of child being abused at school. Action not required until Monday.
Dr Mabetoa: police need to be sure of when to take action. Police need to use discretion that requires training.
Ms Dudley: that seems to be leaving the child a little bit less protected.
Ms Semple: insert something like with due regard to urgency of the situation.
Ms van Zyl: the question is, are the police going to use their discretion properly. Extra words do not help. Second discretion is the child’s well-being at risk. Training is the answer.
Ms Bogopane-Zulu: experience of the Domestic Violence Act (DVA) the obligation for immediate action. Police do not deliver.
Ms Dudley: 110(2) what is “reasonable” grounds, people need to understand the bill.
Ms van Zyl: there has to be a reason otherwise you get malicious reports.
Ms Dudley: any need to put an onus on a service provider other than the Department of Social Development?
Ms van Zyl: designated child protection organisations must report.
Ms Dudley: do child protection organisations have sufficient funds to perform these functions?
Public submissions (see the research summary)
Childline North West
Child Welfare South Africa
Child and Family Welfare Society of Pietermaritzburg (CFWSA PMB)
DICAG incorrectly read out by the researcher – DICAG supports concludes, recommendation on subsection(4) not read out.
Ms Semple: The people performing terminations are medical professionals, are they covered?
Ms van Zyl: covered in (1) nurses, midwives must report, unnecessary to include an additional clause forcing them to report when children ask for a termination. They would have to report anyway, also when the girl is pregnant.
Ms Bogopane-Zulu: when you exercise your right to choice, you must get counselling. Termination is the last resort after one has been offered adoption etc. This is a service delivery issue. Are we creating a new offence?
Ms van Zyl: duty to report in the CCA, this is trying to improve that. Current provision is too wide so it does not work. If you become aware of sexual abuse as a doctor, you must report.
Ms Bogopane-Zulu: will this cover statutory rape?
Ms van Zyl: does not compel reporting of a 13 year-old who had consensual sex with her 14 year-old boyfriend as this is not classified as statutory rape. The Department of Justice has asked us not to dabble with sexual offence definitions.
Ms Bogopane-Zulu: can we not cross-reference with the Sexual Offences Bill?
Ms van Zyl: we will look at the reporting section.
Ms van Zyl: read out the reporting section from the Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B50B- 2003]:
Clause 54 Obligation to report commission of sexual offences against children or persons who are mentally disabled
54. (1) (a) A person who has knowledge that a sexual offence has been committed against a child must report such knowledge immediately to a police official.
(b) A person who fails to report such knowledge as contemplated in paragraph (a), is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.
(2) (a) A person who has knowledge, reasonable belief or suspicion that a sexual offence has been committed against a person who is mentally disabled must report such knowledge, reasonable belief or suspicion immediately to a police official.
Ms Dudley: previous draft that dealt with the reporting on CTOP, can we read the clause.
Ms Dudley: counselling is not compulsory. Statutory rape is not covered here and mainly the confidentiality around the Choice on Termination of Pregnancy Act (CTOPA) is what protects abusers.
Ms Bogopane-Zulu: all in agreement
Ms Bogopane-Zulu: reasonable suspicion – this is dealt with.
Ms Dudley: we understand that “concludes” narrows the obligation.
Ms Bogopane-Zulu: support “immigration officer” be added to the list of professionals who must report on children in need of care and protection.
S110(1) add “immigration official” to the list of professionals who must report
s110(1) line 35 remove “if it is in the best interest of the child concerned”, s110(1) line 37 add “or a police official” as person to whom a report can be made.
S110(4) insert an obligation on police officer who observes abuse to report; and add cross-reference to (1)
S110(4) (a) delete “within 24 hours”
S110(4) (b) insert “within 24 hours”
(4) A police official* to whom a report has been made in terms of subsection (1) or (2) must—
(a) ensure the safety and well-being of the child concerned if the child’s safety or well-being is at risk; and
(b) within 24 hours notify the provincial department of social development or a designated child protection organisation of the report and any steps that have been taken with regard to the child.
S110(5) re-order the sub-clauses so that (c) is last in the list
Flag the issue of reporting statutory rape
*the wording will be supplied by the drafter
Ms van Zyl: Department of Labour (DoL) wanted a definition of exploitation to be inserted in Clause 110. Definition read out.
Ms Semple: support the Department of Social Development recommendation. Do not accommodate DoL.
Ms Bogopane-Zulu: We must make a ruling on the submissions that are missing. If not recorded at this point. We did open up the opportunity to submit where submissions were not part of the record.
Ms Direko: If we break the rules, we will get into problems.
Ms Yolisa Nogenga (Researcher): we have their other input.
Ms Bogopane-Zulu: additional submission not entertained, go back to the one that is on the official records.
Ms Nogenga: what should we cover just the chapters that we have covered or the whole bill.
Ms Bogopane-Zulu: only the chapters that we have done.
Ms Nogenga: just the Children's Institute on the “may”s and the “must”s.
(ELRU Congress submissions not read out).
Clause 135: Application to terminate or suspend parental responsibilities or rights
Public submission: Child Welfare
Ms Hilda Weber (DA) asked a question of clarity.
Decision: no changes
Clause 136: Child headed households
Ms Bogopane-Zulu: why are we referring to NGOs, should it not be designated child protection organisations?
Ms Weber: have a problem with 15 years as we have children who are 13 who are heading child-headed household.
Ms Bogopane-Zulu: yes, that is a reality.
Dr Mabetoa: we could use cluster foster care here, have an adult looking after. Or place them in the foster care, but then what happens to the house.
Ms Bogopane-Zulu: have the Master’s Office been consulted? My will says you do not remove the children from the home. My children should not being given foster care, children with wealth should not get the foster care grant. Need to classify the children we are putting on foster care.
Ms Semple: how did we get to 15?
Ms van Zyl: the Basic Conditions of Employment Act prohibits work, and the South African Schools Act makes schooling compulsory until 15. Cannot take on extra responsibilities of looking after siblings.
Dr Mabetoa: there is a gap, children who come from vulnerable and poor families. Children whose parents have left funds, Masters Office will appoint a guardian who will look after them until eldest child turns 18.
Ms van Zyl: inheritance goes into the Guardian’s Fund; there can be an application to the Fund for maintenance. High Court must be approached if it is not appointed in the will. This section caters for children who do not have a guardian. This clause is not about the money, it is about the support.
There was an uproar because some people believe that there should not be child-headed households. All children in this situation should be in alternative care, but not enough places available.
Ms van Zyl: Recommend add “guardian” to 136(a).
Ms Gumede: are children whose parents have left wills covered in by this clause?
Ms Bogopane-Zulu: this is just the definition.
Looking at Clause 136(3), Ms Bogopane-Zulu: how did we get to 12? One parent cannot look after 12 children.
Dr Mabetoa: this is based on the pilot, that is, the Isibindi model the adult does not do the work they just supervise, they visit one household to check they have had breakfast, then move to the next house.
Ms Gumede: what if one family has 14 children?
Mr Nzimande: take Dr Mabetoa’s point that it is just supervision.
Ms Semple: the supervising adult would they have been checked to make sure that they are fit and proper?
Ms van Zyl: we can insert a clause similar to the early childhood development clause.
Ms Gumede: what happens if the adult does not get on with the children?
Ms van Zyl: a care giver can collect the grant money, therefore either the child at the head if they are over 16 or the supervising adult can collect the grant. It will be the child support grant.
Recommend remove 136(5) it is superfluous, the child or the adult can access the grant in 136(4)
Ms Weber: (3)(b) can a child of 16 with an ID book access the foster care grant? What grants will they get?
Ms van Zyl: if they are in a cluster foster care scheme they will get foster care grant, but then they are not a child-headed household. The court has to appoint foster parents.
Ms Gumede: what happens if the children are misusing the grant? If the eldest child is abusing the other children.
Dr Mabetoa: then that is a child in need of care and protection.
Ms Dudley: do we need 136(5) so that the department can apply for the foster care grant?
Ms Semple: these children only get the child support grant, whereas the social worker could get the foster care grant. There is a big difference in the amount.
Ms Bogopane-Zulu: there are people who are making money out of children.
Mr Nzimande: let’s hear the experts – we are brainstorming around a foreign concept.
Ms van Zyl: If social workers are accessing foster care grant on behalf of the children, they are doing it via the Social Assistance Act not the Children's Act.
Ms Semple: referring to the child “as if that child was an adult care-giver” should be removed.
Ms Dudley: what if you have an abusive child heading the household, are there provisions for them to lose their rights?
Ms Bogopane-Zulu: appropriate checking adding the guardian will keep siblings together.
Dr Mabetoa: number of children because do not want the NGOs to determine the number of children, could end up with one person looking after 100 people.
Ms Bogopane-Zulu: is 12 an appropriate ceiling? Can this be flexible?
Ms van Zyl: more flexibility through the regulations where the responsibilities and functions of the adult are described.
Ms Bogopane-Zulu: number can be in the regulations.
Ms Makasi: need a ceiling in the Act. People not looking after the children properly, 12 is too much.
Ms Gumede: on the 12 you will have to be monitored if you take more.
Ms Dudley: put in regulations so that it can be changed easily. Then there is more flexibility.
Ms van Zyl: number can be put in the regulations legally can be done either way.
Dr Mabetoa: put it in the regulations.
Ms Gumede: we are saying that the state is going to appoint a care-giver, who is paying them and how? Do they get money for every child or do they get a salary.
Ms van Zyl: the supervising adult does not get paid. They are usually volunteers.
Ms Weber: limit of number of children should be determined by the age of the children.
Ms Bogopane-Zulu: proposal that the Committee start with child-headed household at next meeting on 9 October. Given the discussions, the drafter should look at relevance of 136(5), is the Social Assistance Act covering what is in (5)Do we want a limit on the number in the Act or regulations? Added “guardian” already.