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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
13 June 2007
CHILDREN’S AMENDMENT BILL
Acting Chairperson: Adv M Masutha (ANC)
Children’s Amendment Bill [B19B-2006]
Audio Recording of the Meeting
The Committee had received a briefing on the Children’s Amendment Bill at its last meeting. The State Law Advisors and the Department of Social Development answered some of the Committee’s concerns. These related to the tagging of the Bill. The Department indicated that it was quite satisfied that this Bill had been correctly tagged as a Section 76 Bill. The Committee considered whether it was necessary to hold further public hearings and concluded that this would be necessary as there had been amendments since the last hearings. Members raised specific concerns on parents’ rights, aspects relating to corporal punishments, funding of Early Childhood Development and whether the provinces were obliged to set funding aside for this issue. The question was raised whether the wording of the Bill should reflect “may” or “must” and whether the funding should not perhaps be couched in the form of a conditional grant. The intention of the Department was that provinces should prioritise the rights of children but the use of the phrase “availability of resources” was problematic. It was decided that National Treasury needed to indicate what the situation was. It was further decided that there was a need to consult with other Departments, including the Department of Home Affairs, to see how they addressed child issues, and, after discussion, the Committee resolved to pay visits to the various departments and homes or centres to find out the situation, rather than having them address the Committee. Concerns were raised around street children, whether they merited special mention in the Bill, as they did not fit well within the category of “in need of care”, whether the issue of a subculture had been properly addressed and the fact that returning them to their homes was ineffective. It was decided that a separate discussion on street children was necessary. There was also a need to try to create synergy between this Bill and other laws. Further questions were raised around Child Headed Households and the status of older siblings as caregivers
Adv M Masutha was nominated to act as Chairperson for the meeting.
Adv Masutha (ANC) reminded the Committee that the Department had concluded its briefing on the Bill during the last meeting. The questions that needed to be considered were whether there would be public hearings, and whether the Department of Social Development (DSD) or its legal advisors needed to address the Committee on relevant issues of the Bill.
Ms M Ncgobo-Mbere, Director: Children, Department of Social Development, was present and informed the Committee that the State Law Advisor, Ms Ayesha Johaar, was also present to answer questions.
Ms Ayesha Johaar, State Law Advisor, Office of the Chief State Law Adviser, informed the Committee that the child labour and corporal punishment components of the Bill were originally thought to be Section 76 components, hence the amendment of those clauses. She also referred the committee to Section 76(2) of the Constitution which empowered the Committee to pass the Bill in the current format. She informed the Committee that the Joint Tagging Mechanism did rule that the original bill was mixed and hence should be split into a Section 75 and a Section 76 Bill.
Ms S Rajbally (MF) advised that the Committee should really look into the problem areas of the Bill and see if these problem areas contained vital components. If not, then they should be deleted. Only the most important issues were needed in this Bill for the sake of protection of children. Peripheral issues could be decided later.
The Acting Chairperson reminded the Committee that the question of whether to hold public hearings was another issue that needed consideration.
The State Law Adviser informed the Committee that there was no procedure that said that there should be public hearings for every Bill, other than the general provision of the Constitution which referred to public involvement. Thus the Committee could decide whether to hold public hearings or not.
Mr L Ndzimande (ANC) believed that there needed to be public hearings and the Committee needed to concretise this.
Ms C Dudley (ACDP) urged the committee to consider the costs of not having public hearings.
Mr M Waters (DA) thought that there should only be public hearings on those matters amended since the last set of public hearings, as the other matters had already been debated in such hearings.
The Acting Chairperson sought the advice of the State Law Adviser on matters of corporal punishment, as some Members of the Committee were not completely happy that it should be banned under all circumstances.
Ms Dudley also urged for the consideration of parents’ rights.
Mr Ndzimande raised that though there were explanations given the week before, the legality of the discussions around corporal punishments needed some investigations.
The Acting Chairperson informed the committee that corporal punishment was unconstitutional and therefore could not be imposed.
Ms Ncgobo-Mbere of the National Department of Social Development reminded the Members that the Department had concluded with its presentation of the Bill. She requested the State Law Adviser to advise the Committee on Clause 93, Early Childhood Development and Funding.
The Acting Chairperson requested an explanation on the legal implications of imposing financial obligations on the State.
The State Law Adviser referred to the stipulation of funding on the basis of availability and priority by national government, and pointed out that it was therefore not mandatory for MECs to fund. The use of the word ‘may’ in relation to the funding gave an indication that National Government was not wanting to impose obligations on Provincial Government about the direction of its funding.
Mr B Mkongi (ANC) expressed that he had problems with the word ‘may’ and how it did not put obligations on MECs. The problem with this was that Provincial Government sometimes did not want to do things National Government regarded as a priority. He urged the Committee to find a stronger way to check that the rights of children were being adequately protected, and that there should be an obligation imposed to find funding for such services.
Mr Waters concurred with Mr Mkongi that by giving the MEC a choice whether he “may” fund, this amounted also to giving him an option to place child welfare matters at the bottom of the list, and that the children would always be the ones who would lose out.
Ms Dudley suggested that ‘must’ could be linked to available resources.
Ms M Gumede (ANC) informed the committee that the Bill must be uniform in the use of such words.
The Acting Chairperson summarised the sentiment from the Committee that ‘may’ was ambiguous and gave MEC the choice to fund or not to fund. However, he noted that the use of the word “must” should be used with caution.
The State Law Adviser argued that ‘must’ and ‘may’ were overarching principles of drafting.. She referred the Committee to Section 40 of the Constitution, pointing out that the National Government could not prescribe to Provinces what and how they should spend.
The Acting Chairperson disagreed. He said that the Committee was not legislating for the Provincial Legislature and there was therefore no suggestion in relation to provincial funding. He thought that it the MECs were told what to do, this would create a legal obligation. He reiterated that the Committee was saying that the word ‘may’ softened the obligations and created a sense of ambiguity, portraying that the MECs might have discretion and choice as to whether to implement certain provisions of the Bill.
Mr Mkongi argued that from his experience, Councillors were not too anxious to adopt responsibility and therefore legislation was necessary to force them to do things. The notion that the Bill should not prescribe to MECs was problematic, as all issues were concerns around the children. The use of the wording of ‘may’ and ‘must’ in the bill was not consistent and opened up further loopholes. Therefore some different wording might need to be found. If a reference to “must” was not appropriate, then the actions that were described should possibly be taken out of the Bill altogether. He urged the Committee that there was a need to impose obligations to make sure that the Bill could be implemented, especially in this case where rights of children were concerned.
Mr Waters agreed with Mkongi that ‘must’ should appear throughout the Bill.
The Acting Chairperson referred to the Constitution and spoke of fiscal federalism, and the fact that Provinces had equitable rights to the National budget. He further noted that the Constitution stated that national norms and standards could be imposed on provinces. He did not see any difficulty in the provinces saying that they were independent, although the Constitution used the word ‘distinctive’ as opposed to “independent”. The writing of concepts into law gave them legal weight.
The State Law Adviser responded to the question posed on the proposed new Section 93(4), saying that the intention of the Department was to ensure, as far as it could, that provinces would prioritise the rights of children.
Ms Ronel van Zyl, Researcher, SA Law Reform Commission, informed the Committee that these concerns would be considered when the Bill was considered clause by clause by the Committee. She said that what the State Law Adviser had referred to under Section 93 in fact related to the whole Bill, where provinces were encouraged throughout to prioritise children. In the few instances where funding was referred to, there were subtle differences, and this needed to be taken into account. There was prescription to the provinces on the strategy but not on the funding. She said that where regulations were referred to, the Bill had been costed.
The Acting Chairperson indicated that the explanations raised further questions. He stated that the Constitution specifically mentioned the allocations of responsibility in regard to children, although it was not clear how these responsibilities were allocated. He though the Act would allocate that responsibility clearly. He contended that the extent of the obligations was still not clear. He also referred to the phrase ‘ availability of resources’ as raising a question on who would have the power to determine what was available and what was not.
The Acting Chairperson reminded the Committee that it should be concerned with actual allocations and to anticipate legislation that set out the allocation of funding, creating an obligation and therefore responsibility on MECs to deliver. The concurrent functions gave three options. There was a clear need to allocate clearly and cut out ambiguity created by the use of the words ‘may’ and ‘shall’.
Mr Ndzimande echoed his earlier reservations and stated that the Department’s explanations seemed to make sense.
The Acting Chairperson responded that not every service enjoyed statutory obligations for funding. There was still a need for certainty on who was responsible for funding. There was a need to consider an alternative.
Ms Ncgobo-Mbere related an example that R4.2 billion had been given to the Provinces for Early Childhood Development and some of it was not used for this purpose. This was one of the reasons that conditional grants were given to provinces.
Ms Dudley asked the Committee how this legislation could assist with conditional grants.
The Acting Chairperson informed the Committee that the legal constraint was where there was a statutory obligation imposed, as this overrode any allocations. The expectation was that if an allocation was made under a specific piece of legislation or for a particular purpose, then the MEC could not spend it on anything other than what it was stated for. The conditional grants were created to prevent funds from belonging to the ‘equitable share’
Ms X Makasi (ANC) thought that all explanations given had opened up more problems and that there was a need to question the MECs how they used the funds.
Ms M Gumede (ANC) suggested that this grant should also be given a specific name, similar to grants such as the child grant, unemployment grant, pension and so forth, to prevent any funding meant for Early Childhood Development from being used for other purposes.
Mr Waters referred the Committee back to the R4.2 billion allocated to provinces for Early Childhood Development and questioned if National Treasury had informed the provinces on the allocation and what parameters were given at the time.
The Acting Chairperson suggested that the National Treasury needed to be invited to the Committee before it attempted to finalise the Bill, to explain on this matter, as well as the general obligations around funding allocations. He expressed that there was if there was certainty in terms of where the services were delivered and therefore where the money was spent, the responsibility should also be clear. He suggested that the researchers should assist in identifying areas the various departments needed to come and address the Committee specifically on the issues.
Ms Dudley refereed to the category of street children and related that the current procedure was that the police would be called in when identifying street children. However, it seemed as if this procedure was not working, and people stopped calling the police because they became used to them. She expressed that all the street children needed was someone who cared. She asked specifically how this legislation was addressing the response to street children.
Mr Waters raised the issue of why the Bill was referring to a time period of 24 hours, and not immediately, in relation to having such children cared for.
Ms Ncgobo Mbere informed the Committee that the ‘24hrs’ he had referred to was an error and that this was in fact supposed to read “immediately”. The Department would correct this.
Ms Ncgobo-Mbere referred to the previous week’s presentation and explained that street children were referred to as ‘children in need of care’, and this was the expression which the Department had used in the Bill. She referred to the contradiction that in fact such children were in fact having to take care of everything for themselves, while they were defined as “in need of care’
Ms Dudley asked if it was not possible to clearly stipulate Street Children in the Bill.
Mr Mkongi expressed that as he listened to the Department’s explanations, there was a need to understand the context. He posed the question of who was responsible for neglecting the children – the parents, or the State.
The Acting Chairperson suggested that there was a need to have a separate briefing on Street Children and the need to understand the phenomenon of such children in the context of a subculture. He related that policies might fail if this reality was not acknowledged. It was a reality that the street children invariably did end up going back to the streets and therefore they usually fell through the cracks in the system. The major challenge was how the legislation could assist in addressing the problems that confronted such children.
Ms Makasi concurred with Mr Mkongi and related that the street children were running away from home and from school, and returning them there would not necessarily solve the problems that were causing them to run away.
Ms Rajbally suggested that there should be a provision in the Bill for children who did not have parents, so that they could get an ID and therefore be able to get jobs. There needed to be a way to help these young people.
Ms Dudley raised concerns about referring to street children as a subculture. She felt that children should be treated on an individual basis. She also expressed that it was not easy to classify street children as a ‘child in need of care’.
Ms van Zyl informed the Committee that the issue of street children was very complicated. Such children were in need rehabilitation. The Department had tried in various areas but this issue did not belong to the normal reporting methods, as the reporting of a child in need of care was reserved for other serious cases. The sheer number of street children would make mandatory reporting chaotic. She suggested that ‘children in need of care’ was clearly explained in Section 150(c) and referred to Street Children. She also informed the Committee that Civil Society had clearly advised the Department during public hearings that shelters should be converted to rehabilitation centres. She reminded the Committee again that the Child and Youth Care Centres had a range of programmes, which must be suited to the child, to try and create some permanency for them. The Department had also included Section 191(j) at the request of NGOs to include therapeutic programmes. She indicated further that NGOs felt that schools needed to be given more responsibilities in terms of determining the symptoms and identifying the vulnerable children. This needed further discussion. In terms of Home Affairs and ID documents, she suggested that the Department of Home Affairs should address the Committee as this matter was covered in their legislation.
The Acting Chairperson again reiterated earlier suggestions for other departments to address the Committee. There was a need to look at other legislation, either existing or in the pipeline, including the Child Justice legislation, and identify areas where cross referencing was needed.
Ms I Direko(ANC) related her personal encounters with street children with whom she had spoken. The children had informed her that they did not have birth certificates and therefore could not get ID books, thereby preventing them from being employed.
Ms Dudley asked at this point how reporting could be linked to a certain child. If a child in need of care was reported to the police, that child could not always be identified by name, nor by location, due to their mobility.
The Acting Chairperson reminisced on the hard work that had gone into the current Bill since 1993, which was supposed to culminate in this ‘Super Act’. Hence he urged the Committee of the need to deal with the current issues during this term as it was receiving a great deal of attention. Referring again to Street Children, he again asked how it was possible to respond sections of the communities that were existing on the margins and fringes of society if there were no entry points for them. If a child, for example, did not have a birth certificate, there was a need to establish some way of getting him off the street and getting a certificate. The Committee needed to identify the barriers and address them in the Bill.
Ms Rajbally explained that, based on her encounters and experience, some street children did have permanent homes that could be good homes. Sometimes parents were not aware of what the children were up to. She noted that the rehabilitation aspects were unknown to the rest of society and there was a need for them to be publicised.
The Acting Chairperson asked what the extent was of synergising the teachers, schools, and parents to deliver, and what happened in the intervening space between leaving school and arriving at home.
Ms Dudley explained that the children were always in need. However, the parents were sometimes the offenders, especially around the areas of grants and foster care, in that some parents or caregivers were actually encouraging the children to go out so that they could bring in the money. There was clearly a need to look at a street-child as first and foremost a child and individual, before looking at the problem of a subculture.
The Acting Chairperson clarified that looking at the subculture meant looking at underlying issues such as not having access to ID documents or birth certificates which were needed to create points of access. Once again, he referred to the need for other departments to look at these issues.
Ms Direko noted that the Acting Chairperson had referred to provisions to penalise parents for allowing their children to misbehave, but she was not aware of the implementation of such provisions.
Ms Ncgobo-Mbere informed the Committee that there was an intergovernmental task team and NGOs such as Alliance for Street Children who were informing and advising the Department on various issues. The Department was in the process of developing an inter-department policy to support the Bill to prepare children for independent living.
Mr B Solo (ANC) wanted to know what independent living meant.
The Acting Chairperson reminded the Committee that all instruments should arise out of this legislation and insisted that the Committee wanted to hear about the strategy being proposed for street children. The Committee must decide to what extent there would be synergy created between this and other laws.
Mr Waters proposed that the Committee needed to visit children’s homes, rehabilitation schools and other centres to gain more insight into the issues.
The Acting Chairperson raised again the issue of Child Headed Households and how the children heading up such households could access support if they themselves lacked documentation, and what would be done about this issue.
Ms van Zyl reminded the Committee of the discussion in the previous meeting. The child heading a household could not have the full rights of a guardian, but that the age had been lowered from 21 to 18, to cater for the situation where a person could not presently sign a valid contract until the age of 21. The child Head of the Household was classified as a caregiver with limited responsibilities and duties. With regard to access to a pension fund of the deceased parent in the she suggested that the Department of Trade and Industry would need to come in to address how children could access their parents’ entitlements. A child could open a bank account at age 16 without parental assistance. The appointment of guardians for orphaned or abandoned children needed to be given to the Children’s Court. In regard to children in Youth Care Centres (YCC) who were in conflict with the law, she explained that the YCC as set out in the Bill would have a range of programmes dealing with various needs of the children, thus ending the distinction by institution that had previously been in existence.
The Chairperson informed the Committee that the new Pension Funds Act would update the law so those actually looking after the child could access the pension funds.
The Committee decided that instead of the Departments coming to make their presentations, it would be better for the Committee to visit the various departments at a time to be determined.
The Committee further decided that there must be public hearings on the changes to the Bill since the last public hearings. .
The meeting was adjourned.