Children's Amendment Bill [B19B-2006]: Deliberations on public submissions

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
2 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 Children’s Institute

MPs in attendance:
Cheryllyn Dudley
Caroline Makasi
Janet Semple
Hilda Weber
Ma Gumede
Hendrietta Bogopane-Zulu
Louis Nzimande (late)
Winkie Direko (late)

MINUTES
Deliberations on the Children's Amendment Bill
Chair proposed two options for the deliberations. She noted her preference for Option 2:
1. Go through the summary of public submissions
2. Clause by clause comparing B19B version with the recommendations by civil society in the summary of submissions.

Ms Gumede (ANC) supported the proposal by the Chair, Ms Makasi seconded the proposal.

Definitions would be dealt with at the end, therefore the Committee started at Chapter 5, Partial Care

Chapter 5 Partial Care

Clause 76: Partial Care
Ms Ronel van Zyl (South African Law Reform Commission) read the clause in the Bill
Ms Yolisa Nogenga (Parliamentary Researcher) read the summary of submissions

Discussion
Proposal to remove the word ‘medical facility’
Dr Maria Mabetoa: overseas day care centres in hospitals

Ms Ronel van Zyl: must distinguish between day care centres where children receive medical treatment, but include partial care facilities in hospitals that provide day care for children of parents that are receiving treatment.

Ms Bogopane-Zulu (ANC): How does this affect children with disabilities, do they receive physiotherapy in partial care facility?

Decision: Clause must be changed / parked – department to liaise with State Law Advisors and Department of Health.

Clause 77: Strategy concerning partial care
Ms van Zyl (SALRC) read the clause in the Bill

Ms Bogopane-Zulu: Reference to children with disabilities – the concern is that there are not enough partial care facilities to provide for the full range of children with disabilities. 

Ms van Zyl: Obligation must be on government and not individual partial care facility owners.  Facilities exist in urban areas but not in deep rural areas, this is where government will have to step in.  Minister must draft strategy to provide an appropriate spread. 

Public submissions
Childline North West: consultation should be extended
WC-NACOSA-CHAIN (Children’s HIV/AIDS Network): commends reference to s11
Disabled Children’s Action Group (DICAG): retain reference to s11, include Minister of Transport

Discussion
Ms Janet Semple (DA) supported the inclusion of Minister and MEC for Transport.

Ms Ma Gumede (ANC) supported recommendation that children with disabilities need transport.

Ms Bogopane-Zulu: that won’t rock the boat, personally I support the motion.

Ms Gumede: Housing must be part of this consultation also.  So they can allocate land and facilities.

Ms Bogopane-Zulu: agreement to add Department of Transport, open Department of Provincial and Local Government (DPLG) to discussion.

Dr Mabetoa: they must be part of the strategy and their role must be well spelt out. 

Ms van Zyl: Finance need not be consulted on the strategy, but must be consulted on the finance.

Ms Bogopane-Zulu: agree to add DPLG, but don’t agree with removing Finance.  They must be included and need to know what to prioritise.

Committee agreed with the Chair.

Ms Semple: in terms of sub-section 3 what is envisaged by “time to time”?  Why not specific time frame? 

Ms van Zyl: not once, ongoing commitment, provinces have different capacities, therefore cannot expect same standard of delivery.  (Could be prescribed)  Timeframe could be inserted.

Ms Bogopane-Zulu: how long do we give them to get the database in place? And how frequently must this be updated?

Ms Gumede: proposal give them a specific timeframe.

Ms Semple: agree with Ms Gumede. No timeframe lets poor performers off the hook. Flag issue for a response from the department – what is a reasonable timeframe?

Ms Bogopane-Zulu: look at the registration timeframe when considering the response. 

Dr Mabetoa:  full monitoring and IT system in place by 2009, will allow access to information at anytime.  Analysis should be done on an annual basis.

Ms Bogopane-Zulu: we know what happens to annual reports.  Lets flag it and come back to it.

Decision: Finance to be retained in the list of departments that must be consulted on strategy, with DPLG, and the Department of Transport to be added to the list. 

The Department is to come back with a proposal on the timeframe for the database of services.

Clause 78: Provisions of partial care
Ms van Zyl: Justification for the use of “may”: no obligation on the government to provide partial care in the constitution, therefore there must another reason for inserting a “must”.  A concern is that we will have to provide for all children, not necessary to fund partial care for all children. Link with s77 then funding will follow the strategy.

Public submissions
Funding should be mandatory not discretionary
- Childline, Southern Africa Catholic Bishop’s Conference (SACBC), Early Learning Resources Unit (ELRU), South African Congress for Early Childhood Development. Children's Institute recommendations not read out 

Discussion
Ms Gumede: concerned about “may” and “must” – if we say people may come to the meeting in during the recess, then some will not come.  May will open loop hole, people in rural areas will not get the services.  Must fund, may fund it when I like.

Ms Semple: liked Ronel van Zyl’s explanation, please clarify it is still a bit wishy-washy.

Dr Mabetoa:  must fund those who qualify, not everyone. 

Ms van Zyl: can insert a provision similar to s93(4) which requires government to ensure that poor communities are prioritised.

Ms Semple: children in most desperate need must get the funding.

Ms Bogopane-Zulu: I am passionate about children but a responsible person, do not remove the “may”, but qualify it.  We must protect the Constitution and the principle of progressive realisation. 

Ms van Zyl: Qualify the “may”, by inserting the same wording as s93(4) after sub-clause 3. 

Ms Bogopane-Zulu: Asked what the ELRU submission said.

Ms Nogenga (Researcher): summary says that ELRU and South African Congress support “may”.

Mistake in the summary

Ms Bogopane-Zulu: if we use “must” then all the people in rich suburbs will be qualify for funding.  We will qualify the “may” as per Ronel van Zyl’s suggestion.

Decision: insert clause similar to s93(4) targeting resources at poor communities.

Cause 79: Norms and standards for partial care
Ms van Zyl: Gave a synopsis of what the clause contains - What partial care facility must comply with.  A Constitutional Court ruled that there must be an indication of what the norms and standards are in the principle Act.  On the recommendation of DICAG, I have included provisions for the inclusion of children with disabilities.

Public submissions
SACBC transport measures for children with disabilities.
Childline - kinship care grant recommendations read out.
DICAG – training, norms and standards to include (3) (iii) basic therapeutic intervention

Discussion
Ms Bogopane-Zulu: inclusion of therapeutic can be done.  Moving towards the inclusion of children with disabilities, this long list only applies to centres that cater specifically for children with disabilities.  Private facilities should not be able to exclude children with disabilities on the grounds that they do not have the resources to provide for them.

Ms van Zyl: not all partial care facilities can afford to cater for children with disabilities. 

Ms Dudley: do not make it unreasonable for people in rural areas to do what they can.  Requiring all facilities to cater for children with disabilities would prevent some people from starting services.  If private facilities cannot cater for the needs of children with disabilities then government must step in. 

Ms Louis Nzimande (ANC) I would not have been educated if luck was not on my part.  There was a school next door but they would not take me.

Ms Bogopane-Zulu: South Africa belongs to all who live in it, we must not exclude children with disabilities.  In an inclusive society the principle must be that we take steps to accommodate children with disabilities, if a parent wants to send child to a certain facility, then the owner must apply to department to get funding.  Privately owned or government owned must work towards inclusion.

Dr Maria Mabetoa (ANC) personally agree with you, battling with Ronel van Zyl, I was over powered, must concern was that there would be no people with the skills to work with children with disabilities.  Will not take you because we do not have the resources to deal with you.  15% of children with disabilities do not attend school because they are not catered for.  If we do the same children with disabilities will sit at home and not attend early childhood development.

Ms Dudley: do not want the criteria to close down facilities, provide a mechanism so that partial care facilities can access support from government to provide inclusive services.

Ms van Zyl: S79 move towards inclusion but acknowledge need for specialist facilities

Decision: add therapeutic intervention to the norms and standards

Clause 80  Partial care facility to be registered

Discussion
Ms van Zyl: Partial care facilities are provided by government should Department of Social Development and Department of Education be subject to registration.  

Ms Bogopane-Zulu: trust me, government are the worst. 

Ms van Zyl: will remove sub-section 3.

The researcher’s summary was missing the recommendations made by ELRU/ Congress on section 80 dealing with the simplification of the registration process.

Dr Mabetoa:  National, provincial and local all spheres must be included.

Decision: section s80(3) will be deleted, therefore all government facilities will be forced to register

Clause 81: Application for registration and renewal of registration

Public Submissions
ELRU: it was noted that the summary misquoted the submission
CHAIN:  registration documents must be user friendly
Department of Home Affairs (DHA) replace the word regulation with as prescribed

Discussion
Ms van Zyl: DHA made substantive comment on refugee children, others are typos and technical amendments.

Ms Bogopane-Zulu: agree with user-friendly documents.

Ms van Zyl: agree with sentiment but as a separate sub-clause in the same section.

Ms Bogopane-Zulu: add “as far as practical”.

Ms Semple: should cover all the documents not just registration of partial care facilities.

Decision: all registration documents should as far as practical be user friendly

Clause 82: Consideration of application

Ms van Zyl (SALRC) Consideration of applications obligations on provincial Head of Department on how to consider applications.

ELRU – researcher’s summary misquoted submission.

DICAG recommendation:
2 (c) the applicant has the necessary knowledge or training and support to utilize funds
(5) … a provincial head of social development must assist the owner or manager of a partial care centre with the provision of the necessary funds and resources, in order to comply

Ms van Zyl: s82 (5) assistance money, advice, training to meet the conditions for registration.  Dr Mabetoa to advise if people can be assisted to establish facilities.

Dr Mabetoa:  people will be put off if they think they will not qualify for funding until they meet the regulations.

No decision reached.

Human Science Research Council recommendations not included in the summary on the partial care.

Clause 84: Cancellation of registration

Discussion on the meaning of provisional registration

Childline North West proposal considered and rejected. 
ELRU proposal of assistance with a conditional grant committee confused the issue with the may/ must debate.  Did not consider the proposal of a conditional grant.

Decision: no changes to s84

Clause 85: Notice of enforcement

Recommendations in the summary
South Africa Congress - if a partial care facility is closed then alternative arrangements must be made with immediate effect.

Reactions
Ms van Zyl: If a partial care facility is abusing children, department must have guidelines to shut down a facility.  Going to court to shut down a facility costs money, s85(4) allows department to reclaim those costs from the owner.

Ms Bogopane-Zulu: don’t want to interfere with the independence of the Judges.

Ms van Zyl: not interfering, Bill says may grant costs.

Ms Dudley: gap children could be at risk whilst you wait for a court order. 

Ms van Zyl: can bring an urgent application at any time even at 2a.m.

Ms Bogopane-Zulu: What happens to the kids once the partial care facility is closed?

Dr Mabetoa:  consultation with the parents to make a plan about what to do.  Procedures are in the regulations. 

Mr Louis Nzimande (ANC) what is the rational behind the High Court?

Ms Semple: High Court costs too much, doesn’t this issue come up in other submissions?

Ms Gumede: Department of Social Development must instruct people to shut down, and must

Ms van Zyl: State Law Advisors is not here, there are certain issues that must be done in a certain way.  Typos and usage of the singular rather than the plural will be changed. High Court has jurisdiction over everything, not wise to amend the jurisdiction of the courts without consulting DoJCA.  Serious matter to tell someone to stop operating their business, only government that brings these applications. Only urgent applications to the High Court. 

Use of “may” Head of Department has a range of options notice of enforcement is one of the things that can be done, grammatically not correct to use a must.  If a department allows a situation to continue they are failing in their duty.  There are different options if someone is operating an unregistered facility you may want to help them to either register or meet the registration requirements.

Ms Gumede: if someone has been given everything to help them then surely then we MUST stop them.

Dr Mabetoa:  legislation says if you have partial care facility you must register.  Obligation on government to send an unregistered partial care facility a letter telling them to register, first step is to require them to register, final step is closure.

Ms Bogopane-Zulu: both sides have merit – put it on the shelf for the State Law Advisors to give us an opinion. Zola requested to find out why they are not here, and ensure they attend tomorrow.

Ms Dudley: alternative care arrangements for the children should they be in the legislation or the regulations?

Ms Bogopane-Zulu: the principal Act covers this in the principles section.

Ms Hilda Weber (DA) and Ms Gumede agreed that it is covered.

Ms Dudley: ELRU have experience not just a random proposal.

Dr Mabetoa:  it is in the guidelines but not in the law, it does sometimes happen that officials could close down without making alternative arrangements.

Ms Bogopane-Zulu: it is covered in the principal Act.  When the official don’t see it in the document they don’t do it, so we may need to reinforce it.  Flag.

Dr Mabetoa:  Definitely put it under regulations, see if we can put it in the main Act, fits very well in the regulations.

Ms Dudley: have the clause in the principal Act read out to us when we come back to this issue.

Decision: await further advice from the Department.

Clause 86  Appeal against and review of certain decisions
Ms van Zyl: Children’s Court should not be able to reverse a decision made by an MEC.  DoJCA will have to be consulted, they have indicated that a magistrates court is not appropriate. 

Clause 87  Record and inspection of and provision for partial care facility
Recommendations read out from CHAIN and ELRU:
Ensure that services reach all children, and delete s87(c) of delegation of functions to local government.

Concern that services not reaching all categories of people addressed by s78; cannot keep reinforcing everything.  S78 new section that will prioritise funding of services to the poor.

Ms Winkie Direko (ANC) repetition creates confusion.

Dr Mabetoa:  local government not aware of obligations created by the Bill, pull out everything that relates to them.  They have to develop implementation plans just like everyone else

Ms van Zyl: child care is a function of local government in the constitution, cannot be removed. 

Ms Bogopane-Zulu agreement s87 not changed – s78 amendment will address the concerns of Ms Dudley.

Ms van Zyl: suggest cross-reference to s77(2) to avoid confusion on the

Clause 88: Assignment of functions to municipality
Ms van Zyl: Bigger municipalities register child care facilities some municipalities have capacity some do not.  S88 province may assign some of these functions.  Concerns are misplaced, functions will only be delegated where municipalities have capacity.

No comments from civil society.

Ms Dudley: municipality has choice as to whether or no to accept delegation, no question of whether the funding will follow, it is simply an agreement.

Ms Gumede: let us have one thing that will bind all the municipalities, if we say all the municipalities must do this thing, we are speaking of uniformity.  Why don’t you capacitate them so that they can all do it.

Ms Bogopane-Zulu: it is not a life threatening thing, but there is something that I am not happy with.  Thinking about the oversight visits to Johannesburg and Tswane there was a lack of capacity.  Over and above the delegated functions they have the responsibility to implement their own functions.  Civil society no comments therefore they agree with this clause.

Ms Dudley: delegation allows things to be taken care of on the spot.

Dr Mabetoa:  depends on local government can be more efficient, this is a kind of progression.  Later Provinces will delegate all functions to local government.

Ms van Zyl: where local government has capacity the function can be delegated, delegation spreads the burden of service delivery, and improves efficiency but the obligation still lies with provincial government. 

Decision: no change to the clause.

Clause 89: Death, abuse, or serious injury of child in partial care facility
Ms Semple: What happens if it is the person operating the facility is responsible for the death or abuse of the child?

Mr Nzimande: what is it that we are requiring the police to do? We need more clarity.

Ms Bogopane-Zulu: surely parent must be informed first, police second, then provincial Department of Social Development.

Ms van Zyl: not police that decides cause of death.  Medical certificate.  If no cause established, must be a post-mortem investigation must be done. 

Public recommendations
Childline NW - Often the manager that perpetrates abuse, must be any person aware of abuse must report
DICAG – s89(3) insertion 89 (3) If a child is abused or [seriously] injured while in partial care…. the person operating the partial care facility, or a child at the partial care facility or parents of children attending the facility

Ms Dudley: supports any person must report.

Ms Semple: often hear reports on the radio that an accident has happened but the name is not release because the relatives have not been informed.  Clearly the authorities have started to investigate. Is this a courtesy or are you saying that the authorities cannot be informed until the parents have been told.

Ms Bogopane-Zulu: I still think the parents should know first.

Ms van Zyl: s110 covers the mandatory reporting of sexual abuse, physical abuse causing injury, or deliberate neglect.  Obligation on the manager to have the death investigated.  S89 not in as offence, will insert it.  Must be specific about whom the obligation is on.

Ms Bogopane-Zulu: compare with the DVA, reporting is covered there but there is no criminal offence if you do not report.

Ms van Zyl: we could insert employees.

Ms Dudley: not softening the obligation.  Do we need to include others or is it covered elsewhere?

Ms van Zyl: This is slightly different.  Is this a problem at the facility that may cause other children to be hurt, not to establish whether an individual child is a children in need of care and protection. 

Ms Semple: if onus on the manager or the employees, they may hide the abuse.

Ms van Zyl: cannot hide the death of a child.

Ms Dudley: does that cover abuse?

Ms Bogopane-Zulu: what is necessary is to create this as an offence?

Ms van Zyl: an amendment to s305 of the Act.

Ms Gumede: what about accidental death?  Swimming pools, fall from a tree?

Ms Bogopane-Zulu: accident in the playground because the children were unsupervised, the Act would now cover this.

Ms Musa Mbere (DSD): NPO Act facilities like this must have management structures, they should be included in the list?

Ms van Zyl: Accidental deaths would have to be investigated it could be for example that a child falls from a swing because the screws were loose.  SAPS put in a submission requesting that they do not investigate when a child dies of natural causes.

The Committee agreed and discussed the exact wording

Decision: 89(1) add employees and create offence.
89(3) reword into a positive - police must always do an investigation unless they are satisfied that the child died of natural causes, (must be consistent with existing legislation).

Clause 90:  Regulations
Ms van Zyl: Proposed that they add a sub-clause on the procedure to be followed if a facility is closed down.

Public submissions
ELRU – Committee believes that this advice is wrongly cross-referenced.
Department of Education has asked that partial care facilities be prohibited from taking children that should be at school.  Aftercare facilities take children that are of school going age, therefore they cannot be included.

Ms Dudley: onus on partial care facilities to report to Department of Education if they have children that should be in school.  Do not leave children in a vulnerable position. 

Ms Bogopane-Zulu: cannot make it a blanket thing if child has a severe cerebral palsy child might not go to school until they are 9.

Ms Semple: Need a clarity from the Department of Education.

Ms Bogopane-Zulu: not giving them the pleasure.

Ms Dudley: children on the streets are another example, don’t want to make prescriptions.  Obligation to report not more.

Mr Louis Nzimande (ANC) sympathy with Department of Education in my constituency the schools are very far for the children to get to no bridges.  Lack of clarity on the Grade R, at what age should children go to school?  Must be some obligation to make them get to school.  Blanket obligation does not work for children with disabilities.

Ms Bogopane-Zulu: it will be a condition of registration, regulation should be in-line with s11. 

Ms Bogopane-Zulu: there should be no freebies, but there must be ways of putting in exemptions.  General principle checks and balances to ensure that all children can access early childhood development.  Make note of the comments and look at the issue when we consider the

Decision: add a sub-clause on the procedure to be followed if a facility is closed down.

Discussion of whether to continue or break for the day.  Questions arose about progress towards meeting the deadline of finishing the Bill by 12^th October.

Ms van Zyl: some issues are the same almost word for word so some issues have been resolved already e.g. delegation of functions to municipalities.

Chapter 6 - Early Childhood Development

Clause 91(1): Early childhood development
Public Submissions
Childline North West 
SACBC
DICAG
Congress/ ELRU
CHAIN

Ms Bogopane-Zulu: clarity on the general comments.  What should we do with them?

Mr Nzimande: if they clarify the matters we do not need to look at them.  HSRC for example the comment just says the clause must be revisited. Then CWSA acknowledge the role of schools, that is about the prevention chapter, it is in the wrong place. SACC submission questions the rationale for separating chapters 5 and 6 and says that the whole family plays a role.  ECD should be offered up to age 9, taking into account the developmental age.

Ms Bogopane-Zulu: gave a short summary of the issues in the general comments: age, families and the grannies, separating the two chapters, developmental stage, linking the chapter with the prevention and early intervention through co-ordination.  What is going to hold the implementation together.  May versus must.  Home visiting is an essential part of early childhood development in the policy, not accommodated in the legislation.

Reactions from the MPs
Ms Dudley: the age, developmental stage is also an issue s91(1).

Ms van Zyl: developmental stage relates to the programme not the definition of early childhood development. 

Ms Semple: DICAG suggestion to add sensory and communication

Ms van Zyl: Sensory is part of physical and cognitive

Ms Dudley: s91(1) add to the definition of early childhood development  “,appropriate to the child’s age and stage.”

Ms Bogopane-Zulu: three parts definition, the service, and the programme.  Developmental stage covered in the programme content.

Ms Musa Mbere (DSD) must contextualise the development

Mr Nzimande: communication needs to be clarified

Dr Mabetoa:  this is an international definition that has taken into consideration the different capabilities of children, we saw it as all encompassing.  UNICEF supported this definition.

Ms Bogopane-Zulu: UNICEF has admitted that they are not very strong on children with disabilities.  International definition doesn’t include my children.

Ms Semple: is there a problem with inserting communication and sensory.

Ms Dudley: what about a definition of cognitive.

Ms van Zyl: Age 9 comes from the ECD White Paper, school-going age is currently the year in which a child turns 7.  At the moment grade R is not compulsory.  If that changes then the school-going age will change.  This definition will accommodate any such change.

No decision on the definition.