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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
18 February 2005
CHILDREN'S BILL: DELIBERATIONS
Chairperson: Mrs TJ Tshivhase (ANC)
Children's Bill [(B70-2003) Reintroduced]
Clauses to be added to the Children's Bill [B70-2003 Reintroduced]
Proposed Amendments: Clauses in section 76 Bill to be added to section 75 Bill
The Committee discussed Clauses 12 to 30 of the Children’s Bill. The Committee agreed that social and cultural practices were not necessarily harmful. Virginity testing should be outlawed only so far as it related to children. Female genital mutilation should be outlawed. The South African Law Reform Commission, during its workshops on cultural practices, found that most members of the community preferred to have their cultures left alone. Male circumcision would not be prohibited but regulated.
There was general agreement that children should not be prevented from going to court due to jurisdiction issues. A child should be allowed to take a matter to any court and leave it to the court to decide which court had jurisdiction. The Committee would hold a workshop with a panel of experts to discuss issues around the responsibilities of children. The Committee suggested various amendments to some clauses of the Bill with the view to eliminate any form of discrimination.
The Department of Social Development (DSD) was represented by Ms M Ngcobo-Mbere (Director) Mr P du Preez (Law Advisor). Ms L Stuurman (Researcher) represented the South African Law Reform Commission (SALRC). Mr O Kellner (State Law Advisor) and Ms L Petersen (Parliamentary Liaison Officer) also attended the meeting.
Ms du Preez presented the Bill clause by clause and Ms Stuurman highlighted comments that were made during the public hearings on each clause.
Clause 12: Harmful social and cultural practices
Ms Stuurman said that this was one of the most contentious clauses in the Bill. A submission had been made that stated that virginity testing discriminated against a girl child on the basis of gender. During the SALRC workshop on the Bill, some people had indicated that virginity testing should not be outlawed but carefully regulated. Virginity testing was a deeply rooted cultural practice. This clause gave the right to refuse virginity or unhygienic virginity testing but did not provide a penalty for the violation of the right. The clause did not protect the confidentiality of the results of virginity testing. Some people had suggested that the results of the test should be kept confidential. The purpose of virginity testing was to inform the community whether or not the girl was a virgin. The Department felt that keeping the results of the test confidential would defeat the whole purpose of virginity testing. It was important to strike a balance between the fact that virginity testing was a deeply rooted cultural practice and the negative effects of testing. Virginity testing was not necessarily harmful to children.
Ms Ngcobo-Mbere added that the purpose was to check if the hymen was still there or not. This would enable one to decide if the child was still a virgin or not. The problem was that children lost their hymens for different reasons. The community was divided on how it should be done. The issues of confidentiality and the unhygienic conditions in which testing was done remain a challenge. This practice was deeply rooted in places like the Kwazulu-Natal province. The community would have to decide how to regulate it and how to keep it hygienic and confidential.
Ms H Bogopane-Zulu (ANC) said that the heading of the clause was problematic and probably discriminatory. Every person had the right to practice his or her own culture. It was clear that virginity testing amounted to discrimination on the basis of gender. It was interesting to find out how the community determined if a man was a virgin. The fact that the social and cultural practices in question were African did not necessarily mean that they were harmful. The word "harmful" should be deleted from the heading. There was no way that one could stop virginity testing. People would still do it even if there was legislation expressly prohibiting it.
She indicated that too many children died in initiation schools. The government had moved to regulate it and not to prohibit initiation schools. She wondered if the Committee, though the Children's Bill, had the powers to prohibit cultural practices like virginity testing. She was aware that virginity testing was not accepted internationally and she was also against it.
Ms Stuurman said that genital mutilation was seen as a violation of women's rights. In female genital mutilation, a whole organ of a woman, the clitoris, was removed as opposed to the foreskin in the case of male circumcision.
The Chairperson said that genital mutilation was performed in order to ensure that a woman would not have a relationship with another man when her husband was away. Women, like men, had the right to enjoy sex to the fullest.
Mr L Nzimande (ANC) said that virginity testing was not done on children. The Bill should limit itself to genital mutilation in respect of children. The Bill was drafted in order to address issues that were facing children.
Mr M Masutha (ANC) also had a problem with the heading of the clause in that it implied that the practices were generally harmful. The heading should be redrafted so that it would give content to the clause. He suggested that Clause 12(1) should be deleted and that sub-clauses (2) to (5) should be formulated as offences. He agreed that the practices should be outlawed in so far as they related to children. African culture provided that children should be kept away from sexual life. Children were not expected to fall pregnant. The clause did not go far enough in that it provided no sanction for violation of the rights. In terms of the common law there was no criminal offence unless the law provided it. This means that this clause would be useless if it provided no criminal offence. The Committee should decide if it wanted to create an offence. It was important to know if providing a right to a child meant that the child could apply for an interdict. The Committee should also decide if it wanted to outlaw circumcision or simply regulate it. It was advisable to look at how the Department of Health had addressed it in its legislation.
Ms Stuurman said that in terms of Clause 298 of the draft comprehensive Bill it was an offence to commit an act in contravention of the prohibition set out in Clause 12(3). Clause 12(3) dealt with female genital mutilation and the circumcision of female children. The Committee could outlaw virginity testing if wanted to do so. However, the Department felt that the best approach was to regulate it and make it a criminal offence for anyone who subjected a child to virginity testing against the child's will. The child could lay a charge of assault, indecent assault or assault with intent to do grievous bodily harm.
Ms C Dudley (ACDP) agreed that Clause 12(1) should be deleted. The issue was not cultural practices but the protection of children. She asked if there was any institution or person who had made a submission that was strongly pro-virginity testing.
Ms Stuurman replied that the SALRC, during its workshops on cultural practices, found that most members of the community preferred to have their cultures left alone. The clause outlawed female genital mutilation. The Committee could decide if it also wanted to outlaw virginity testing. The Bill could provide that virginity testing was a crime if it was done without the child's consent.
Ms I Mars (IFP) saw no point in giving rights to children because they could not exercise them. It would be difficult for a child to refuse testing if that was what the parent wanted. The clause would be difficult to enforce.
Mr Masutha said that the clause did not even define what it meant by 'unhygienic circumcision'. The Department of Health might not be prepared to set hygiene standards.
Ms Bogopane-Zulu noted that the Committee seemed to have been in agreement that female genital mutilation should be criminalised. Circumcision should not be outlawed because it might be important for medical reasons.
Mr Nzimande said that it was very important for Parliament to be consistent in the way it made law. This was important especially when the Committee had to decide at which age virginity testing should be allowed. It was also vital to look at other pieces of legislation and see how they dealt with the issue.
Ms Stuurman noted that the feeling was that female genital mutilation and virginity testing in respect of children should be outlawed. Anybody who performed such activities should be guilty of a criminal offence. Circumcision of children should be regulated and not outlawed. A male child would have the right to refuse being circumcised. The question was what would happen if a child was circumcised without his consent. The child should be able to lay a criminal charge against parent or the person who performed it? The Department should consult with the Department of Health on harmful cultural practices.
Mr D Dikgwacwi (ANC) suggested that circumcision should not be dealt with in the Bill because the Department of Health was addressing it. No child could be taken to an initiation school without having being checked by a doctor and no one could be circumcised without his consent.
Ms Dudley wondered if parents who had already circumcised their children without the children's consent would face criminal charges.
Mr M Waters (DA) said that it would be difficult for a child to prove that the place was unhygienic. Who would determined if the place was hygienic or unhygienic. He felt that the whole clause should remain in the Bill. The clause should protect the right to refuse.
Mrs Ngcobo-Mbere said that the clause should contain a cross-reference to the National Health Bill.
Mr Nzimande suggested that children should be given rights and the duty of care should be placed on parents or guardians.
Advocate Kellner said that the Committee should decide want it intended to achieve. There was no need to give rights to children because parents could still influence their children in to doing something. In such cases one could not say that a child had exercise his or her right.
Ms Stuurman noted the Committee's concerns. She would discuss the clause with the Departments of Health and Social Development. The Committee agreed to flag the clause for further discussion.
Clause 13: Information on health care
The South Africa AIDS Vaccine Initiative was concerned that children would be discouraged from accessing vital public health services or participating in research, if their right to confidentiality could be breached on the basis described in Clause 13(b). Ms Stuurman did not agree with the submission. An earlier version of the Bill did not have the words "except when maintaining such confidentiality is not in the best interest of the child". A concern was raised that a child could be in urgent need of medical treatment and it would be in the best interest of the child to disclose the child's health status to the parents. Hence the decision to include these words. The relevant Departments disagreed with the submission.
Ms Dudley said that the clause should be amended to take into account the child's age and stage of development.
Mr Nzimande disagreed with the suggestion. He wondered what would happen if the suggestion was not incorporated.
Ms Bogopane-Zulu said that the suggestion was important. For instance, one did not want a child of five years to know how a baby was delivered. It was accepted internationally that there should be an age limit.
Ms Petersen wondered if the clause also covered access to contraceptives.
Ms Stuurman replied that the clause only referred to access to information and not the products themselves. Access to contraceptives would be dealt with in the Section 76 Bill.
Mr Nzimande agreed that the clause referred to promotional materials. He was not convinced that there should be an age limitation built into it. A number of members were in favour of some kind of a limitation.
Clause 14: Access to courts
There was a submission by a Durban Commissioner of Child Welfare to the effect that the procedure for bringing a matter to court should be provided in regulations. Ms Stuurman agreed with suggestion.
Ms Bogopane-Zulu asked if the words "provided the matter falls within the jurisdiction of that court" were necessary. She suggested that the words be deleted. The priority was that the matter should get before a court of law in time. The court would have to deal with the jurisdiction issue. The issue of jurisdiction failed a lot of children. A child should be allowed to go to any magistrate court and thereafter the courts would have to sort the jurisdiction issue out. The clause should be expanded to cover all steps from the reporting of the matter. Some police station did not have child protection units.
Ms S Rajbally (MF) said that it was difficult for people to determine which court had jurisdiction.
Ms Stuurman said that the courts in which the child was ordinarily resident would normally have jurisdiction. She referred members to Clause 44 of the Bill. This clause specified which court would have jurisdiction to hear a certain matter.
Ms Peterson wondered how the South African Police Services fitted into the scheme of things. She said that her car was once broken into and she had difficulties in reporting the crime. Every police station she went to referred her to another station. It would be difficult for a child without legal representation to access all services to ensure that her rights were protected. It was important to make it easier for children to exercise their rights.
Mr Waters was concerned that not all Magistrates' courts had facilities for children and that some cases of rape did not go to the sexual offences courts.
Ms Rajbally was concerned that in terms of Clause 54, a party in a matter before a children's court would be expected to appoint a legal practitioner at his or her own cost.
Ms Stuurman said that it was unclear how the referral process would work. Hence it was necessary for the Department of Justice to address the Committee on certain issues. She requested members to shelve all issues relating to courts until the Department of Justice appeared before the Committee.
Clause 15: Enforcement of rights
Ms Dudley said that the clause was copied from the Constitution and should be simplified. The clause was flagged for further discussion with the Department of Justice.
Clause 16: Responsibilities of children
Ms Stuurman said that there was a suggestion to spell out all responsibilities of children. The Departments were of the opinion that children's responsibilities should be spelled out as principles.
Ms Petersen said that it would be beneficial to discuss this issue with experts on the responsibilities of children.
Clause 17: Age of majority
Ms Bogopane-Zulu said it was important to check what the age of majority was in terms of other legislation.
Advocate Kellner said that this clause would repeal the Age of Majority Act.
Clause 18: Parental responsibilities and rights
Ms Stuurman referred the Committee to the definition of "guardianship". She said that the definition dealt with substantive issues and proposed that it should be incorporated under Clause 18. The committee agreed.
Clause 19 Parental responsibilities and rights of mothers
Ms Stuurman said that the clause was difficult to understand. She suggested that it should be amended so as to make it clear.
Ms Bogopane-Zulu felt that the clause amounted to discrimination. She asked what would happen if a father wanted to exercise parental responsibilities and rights in respect of his child.
Ms Stuurman said that the clause only provided that if the biological mother of a child was a child, her guardian would exercise parental responsibilities and rights in respect of the child whose mother was a child. This would apply provided that the child's father did not have full parental responsibilities and rights. An unmarried father could still have parental rights and responsibilities in terms of Clause 21.
Ms Dudley said that the most important thing was to protect the child. The clause sought to ensure that the parents of the child who had a baby took responsibility for the baby.
Mr Waters felt that this clause had to be read in conjunction with Clauses 20 and 21. The clause discriminated against unmarried fathers. Married fathers had rights whilst unmarried fathers had to earn them.
Ms Bogopane-Zulu said that the issue was not supposed to be whether the parents were married or not but the best interests of the child.
Clause 20 Parental responsibilities and rights of married fathers
Ms Stuurman said that this clause reflected the current legal position and discriminated against unmarried fathers. There were some married fathers who had full legal responsibilities and rights but did nothing for the child. At the same time one also found unmarried fathers who had no legal responsibilities and rights but did everything for the child. She could see no way of doing away with this clause because it reflected the prevailing legal position.
Ms Dudley said that the clause should not be changed. It was important for fathers to be held responsible for their children.
Clause 21 Parental responsibilities and rights of unmarried fathers
Ms Stuurman said that this clause was very contentious. The question was who would decide if there was compliance with the 12 month period. She suggested that a provision should be added to refer any dispute concerning the time period to mediation by a Family Advocate, social workers or any other professionally qualified person. The outcome of the mediation process could be reviewed.
Ms Rajbally said that the State was burdened with maintaining children who had fathers who were supposed to maintain them. It was important to have a provision aimed at ensuring that fathers maintained their children.
Ms Bogopane-Zulu asked what was the common law position on this issue.
Adv Kellner replied that the common law provided that a married mother could never have an illegitimate child. It was presumed that the father of the child was the person to whom the mother was married. It was presumed that the husband was the father of the child until the contrary was proved. This was changed in the Constitutional Court following the court's recognition of the fact that people who lived together without being formally married could acquire certain rights which married people had. People of the same sex who were staying together could also acquire certain rights. Guardianship of children was governed by the Guardianship Act.
Ms Stuurman was opposed to giving all fathers parental rights and responsibilities on the grounds that some patents did not deserve the rights and responsibilities. A line had to be drawn somewhere. It was important, for instance, not to give parental rights to a father of a child who was conceived following a one-night stand with the mother.
Ms Bogopane-Zulu said that mothers should also be screened because not all mothers were good mothers. There were a lot of mothers in rural areas who had given birth and abandoned their children.
Ms Stuurman agreed. Clause 27 of the Bill provided for the termination of parental responsibilities and rights. This meant that a bad mother's parental responsibilities and rights could be terminated upon application to court.
Mr Waters said that the premise was that all unmarried fathers were bad and must prove themselves before a court of law that they deserved parental rights. Married fathers and mothers did not have to prove that they deserved the rights and responsibilities.
Ms Dudley suggested that the heading of the clause should also cover mothers.
The Department would consider reformulating the clause.
Clause 22: Parental responsibilities and rights agreements
Ms Stuurman said that the Department had received a submission to the effect that that the clause should not be limited to biological fathers. A caregiver, for instance, should be able to enter into such an agreement with the mother of the child. She agreed with the submission. The clause should be expanded to cover any person who had an interest in the care, wellbeing and development of the child.
Mr Waters said that the wording of the clause should also change if Clause 21 was changed.
The Law Society of South Africa had submitted that the Family Advocate should, before registering the agreement, ensure that the agreement was in the best interest of the child. Ms Stuurman reminded members that the Family Advocate had no decision-making powers. The Family Advocate should be consulted to see if they agreed with the suggestion. It was important to note that the father could not enter into a parental agreement with the mother of the child if there was already a court order that provided that the father could not have parental responsibilities and rights in respect of the child.
Ms Bogopane-Zulu said that the suggestion seemed to create another institution, alongside the High Court, to act as a guardian for all children.
Ms Stuurman said that it was expensive to access the High Court and hence the need to make use of the Family Advocate.
Clause 23: Assignment of parental responsibilities and rights by order of court
Ms Dudley said that the best interest of the child should be the primary concern. She suggested that paragraph (d) of Clause 23(3) should be moved to (a) and the existing (a) to (d).
Clause 24: Certain applications regarded as inter-country adoptions
Ms Stuurman said that this clause was designed to cater for instances wherein foreigners would apply for guardianship of children and later take and adopt them out of the country. This clause would ensure that the person referred to would also undergo the same scrutiny to which a person who had applied for adoption would have been subjected.
Mr Waters said that the clause should also apply to permanent residents.
Clause 25: Persons claiming paternity
the clause enabled fathers to come forward and asked to be recognised as fathers of children. It would not apply retrospectively.
Ms Bogopane-Zulu was worried that Clause 25(2) excluded certain father from applying for an amendment of registration of birth.
Ms Stuurman replied that the person could be registered as the father of child if the mother had consented to such registration.
Ms Bogopane-Zulu asked if the father would not be held responsible for maintaining the child if the mother had not consented to the amendment of the register. She wondered if a person would be prepared to maintain a child whilst his name did not appear on the child's birth certificate.
Ms Stuurman replied that the father would still be required to discharge his maintenance duties. The clause only referred to the amendment of the register for the purposes of being recognised as a father of a child.
Mr Nzimande said that the clause might have traumatising consequences for children who had been living with a man they believed to have been their father and all of a sudden there was another man claiming to be their father.
Ms Stuurman said that it all boiled down to what was in the best interest of the child. The court would always consider what was in the best interest of the child before making an order.
Adv Kellner said that the content of the clause was probably covered in the Births and Deaths Registration Act. It seemed to amend the prevailing legal position. It was important to have a careful consideration of the current position before making any changes.
Ms Bogopane-Zulu suggested that the Department should also look at how the Sexual Offences Bill related to Clause 25(2).
Ms Petersen said that the Committee should also look at how the clause could affect a child’s right to inherit from his or her biological father.
Clause 26: Assignment of responsibilities and rights to parent-substitutes
Ms Stuurman said that Clause 26(1) would be amended to include both parents.
Mr T Godi (PAC) wondered if sub-clause (7) was important if the clause would not be limited to biological parents.
Ms Bogopane-Zulu said that the clause reinforced the fact that parental responsibilities and rights could be acquired.
Clause 28: Who may approach court
Ms Dudley said that the best interest of the child should be the primary concern of this clause.
Clause 29: Court proceedings
Sub-clause (4) would refer to chapter 2 because chapters 2 and 3 would be combined.
Ms Petersen asked if Clause 29(5) would include DNA test results. Adv Kellner agreed that the DNA test result would be included if relevant to applications listed in sub-clause (1).
The meeting was adjourned.