Amendments to Children's Bill: SA Law Reform Commission briefing

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
15 February 2005
AMENDMENTS TO CHILDREN'S BILL: SA LAW REFORM COMMISSION BRIEFING

Chairperson: Mrs T Tshivhase (ANC)

Relevant documents:
Draft Comprehensive Children's Bill [B70 – 2003]
Proposed Amendments: Clauses in section 76 Bill to be added to section 75 Bill

SUMMARY

The SA Law Reform Commission (SALRC) briefed the Committee on new proposed amendments to the Children’s Bill. The amendments were mainly about moving some clauses from the section 75 Bill to the 76 Bill and vice versa. The Committee debated whether the whole of Chapter 8: Part 3 should be in the section 75 or 76 Bill. Part 3 dealt with protective measures relating to the health of children. It was in the section 76 Bill and the Department felt that it should remain there. Some Members felt that this Part had to be in the section 75 Bill. It was decided that the Committee Researcher would look at the matter and formulate a motivation why the provisions had to be in the section 75 Bill.

Other amendments mostly dealt with issues surrounding the National Child Protection Register; its composition; control of information listed therein; access to the information; supply of information to the Register; the conditions for listing persons in the Register and the conditions and time periods involved in delisting a person from the Register.

The Committee noted the proposed amendments and raised concerns about the flow of information to the Register; the availability of its information to foreign institutions and governments; cross-border child care issues, and the removal of offenders’ names from the Register after a five year period.

MINUTES
The DSD was represented by: Dr M Mabetoa: Chief Director; Ms A Muller and Mrs M Ngcobo-Mbere (Director). Ms R van Zyl (Researcher) and Ms L Stuurman (Researcher) represented the South African Law Reform Commission. Ms van Zyl briefed the Committee on the proposed amendments. (See document attached).

Clause 1
Ms van Zyl proposed the inclusion of the following definitions in the Section 75 Bill:

"Abandoned"- the reason for the inclusion of the definition was its relevance to clause 150 of the Bill. Clause 150 provided that a child should be declared to be in need of care if that child was abandoned. It was therefore important to have a definition of abandoned for the purposes of this clause.

"Contribution order"-the definition was included due to its relevance to Chapter 11 of the Bill.

"National Child Protection Register"- this was consequential since the Department was proposing to put back Part 2 of Chapter 8 in the Section 75 Bill.

"Person unsuitable to work with children"- this definition related to the National Child Protection Register and hence it was proposed that it should be in the Section 75 Bill.

Mr M Waters (DA) asked what happened if a person was registered in Part A of the Register. Ms van Zyl replied that Part A contained information on vulnerable children and the reasons why they were considered to be vulnerable.

"Residential care programme"- the Department proposed the omission of this definition because it contained a cross-reference to clause 191 which was in the Section 76 Bill. It was considered inappropriate to include a definition that referred to something that was not in the Bill.

"Respondent"- this definition was important for the purposes of Chapter 11 of the Bill.

"School"- this was necessary for the purposes of the National Child Protection Register.

Chapter 6
Clause 76 Partial Care
This was the only clause in this Chapter. The Department had discussed the clause with the State Law Advisor and it was decided that this clause should fall under the Section 76 Bill. It made sense to include the clause in the Section 76 Bill since the rest of the Chapter was there.

Chapter 7
Clause 91 Early Childhood Development
Like clause 76 this clause stood alone in this chapter. It was decided that it should fall under the Section 76 Bill.

Chapter 8 Part 2
The Department introduced the following new clauses to follow clause 75.

Clause 111 Keeping of National Child Protection Register
This clause imposed a duty on the Director-General of Social Development to keep and maintain the National Child Protection Register. The Register would have Parts A and B.

Clause 112 Confidentiality of Register
It was important not to have the information in the Register freely available to anyone. The information must be secure from unauthorised intrusion.

Cause 113 Purpose of Part A of the Register
The purpose of Part A of the Register include, amongst others, to have a record of abuse or deliberate neglect inflicted on specific children and to use the information in the Register for planning and budgetary purposes. The information of child abuse should be passed on to the national Department of Social Development (DSD) every time an incident of abuse occurred. If, for instance, a child is taken to hospital in Mpumalanga province and it became clear that the child was abused, the provincial Department should pass the information to the national Department to be recorded in the Register. If the same child was to move to KwaZulu-Natal and again he or she was taken to hospital, the provincial Department in KwaZulu-Natal should report any evidence of abuse. This would help the national Department to pick up trends in respect of that particular child and alarms would possibly go off. It would also make it difficult for a parent or any person under whose care the child was to claim, for instance, that the child fell from a tree. A pattern of abuse and neglect could be established.

The Chairperson asked what would happen if the child was taken outside the country. Ms van Zyl replied that there was international co-operation between South Africa and other countries. Ms Ngcobo-Mbere added that South Africa could give the other country any information on the child if so requested.

Dr Mabetoa added that countries like England had very good mechanisms for detecting child abuse. If one took a child to a doctor and the observation was that the child had been abused, he or she would report the matter to social workers. Social workers would thereafter visit the parent or the person under whose care the child was to investigate the matter.

Mr M Masutha (ANC) said that the Chairperson's question was important especially in the context of child trafficking and abduction. The Committee might have to discuss the question of access to the Register by foreign institutions and governments at a later stage. It was a pity that a Convention on the protection of children was not operative because there were not enough signatories. South African law applied within its borders and one needed inter-country agreements to regulate situations across borders. He wondered if the Committee had to look at an instrument to regulate cross border issues. There was nothing that prevented South Africa from initiating such instruments.

Clause 114: Contents of Part A of Register
The clause would include the full names, physical address and identification number of children. It would also include a brief account of the incident and a brief account of the charge and conviction.

Clause 115: Access to Part A of Register
The information in the Register would not be freely available to anybody. Designated child protection organisations and other institutions, as allowed and under conditions set by the Director-General, would have access to the Register. It might be necessary to include a provision on international co-operation given the fact that South Africa might want to enter into bilateral agreements with other countries.

Mr Masutha said that bilateral co-operation might go beyond the Register and access to information. It might not be prudent to deal with the issue in a piecemeal fashion. One might have to look at the country's relationship with International Social Services (ISS) and see if one could give recognition to the relationship in the Bill. This was important because one might be dealing with an informal relationship.

Ms van Zyl replied that international organisations could request the Director-General to provide the required information and it would be up to the Director-General to decide whether or not to provide the information.

Ms Muller added that South Africa had a contract with ISS.

Mr Masutha said that without legal sanction there could be lawsuits against the Department following the disclosure of information.
Ms Mabetoa replied that Interpol could access information about persons suspected of criminal activities.

Mr Masutha said that it might be important to study how Interpol operated. He reminded the Committee that one was dealing with issues that might face Social Workers and not the South African Police Services (SAPS).

Clause 117: Inquiries on Information in Part A of Register
People who suspected that their names might be in the Register could enquire why their names were in the Register. The Director-General had to respond to the enquiry within 21 working days and in writing.

Mr Waters asked why the Director-General had to respond within 21 working days and not 15 or any other number of days.

Ms van Zyl replied that the Department indicated that given the available manpower 21 working days seemed reasonable.

Mr Waters asked if there were time frames within which information about a child or any other person had to be put in the Register.

Ms van Zyl replied that the DSD would receive the information from sources like the South African Police Service and courts. An obligation to report timeously should be placed on the institutions that should report to the Department. Ms Stuurman added that the procedure of submitting the information would be laid down in regulations.

Mr Waters was concerned that the Department might get the information but take time to record it due to a lack of manpower. Ms van Zyl noted the concern.

Clause 118: Purpose of Part B of Register
The purpose of Part B was to have a record of persons unsuitable to work with children.

Clause 119: Contents of Part B of Register
Part B would include details of persons found to be unsuitable to work with children and a brief summary of the reasons why the persons was found to be unsuitable to work with children. It might be useful to have fingerprints of the persons recorded because it was easy for people to change their names. This possibility would be discussed with the Department of Home Affairs and SAPS.

Ms H Weber (DA) said that the matching of fingerprints could be time consuming. She suggested that the Department use photographs. Ms van Zyl relied that the Department would consider the suggestion.

Clause 120: Finding persons unsuitable too work with children
It was important not to put persons' names in the Register on the basis of mere allegations. At the same time, one did not want to provide that a person’s name would be entered only once a court had made a ruling to that effect. Hence the recognition of findings by any forum established or recognised by legislation in any disciplinary proceedings concerning the conduct of that person relating to a child.

A person would be considered unsuitable to work with children if that person had been convicted of an offence referred to in clause 120(4) during the five years preceding the commencement of this clause. The Department had planned to make clause 120(4) entirely retrospective but decided to limit it to five years preceding the commencement of this clause. The reason for this was that a period of five years had to have lapsed before a person's details could be removed from the Register. A finding that a person was unsuitable to work with children was not dependent on a finding of guilty or innocent in the criminal trial of that person. The reason for this was that the onus of proof in a criminal trial was heavy.

Ms Stuurman pointed out that a similar provision in the Sexual Offences Bill applied retrospectively and without any cut off period.

Mr Masutha said that the Portfolio Committees on Social Development and Justice and Constitutional Development had a fundamental difference on what should be included in the Register and the issue of retrospectivity. It was surprising to note that the Portfolio Committee on Justice opted for an unlimited retrospective effect of a similar provision. The issue of retrospectivity was problematic as shown in a number of asset forfeiture judgements. It was not clear how good the register of offences was and the codes under which offences were recorded might not necessarily be in line with the crimes created in the Bill. It might be difficult to establish that a particular offence recorded by the SAPS fell within the definition of an offence that had to be registered in the National Child Protection Register.

Ms van Zyl replied that SAPS had no record of victims of crime. They also did not distinguish between children and adults. She did not know how the Sexual Offences Bill would deal with the matter but both Registers would get information on offenders from the same source.

Mr Waters asked why attempted rape was not included in clause 120(4).

Ms van Zyl relied that the list in the clause was not closed. Changes might be effected once the Committee formally considered the Bill.

Mr Waters said that there were institutions that hid disciplinary proceedings against their members. He gave the Catholic Church as an example. A priest might be found guilty of abusing children. In most cases the public would know little about the case and the priest would be transferred from one branch of the church to another. He asked how the Department planned to deal with this issue.

Ms van Zyl replied that anyone who had an interest in child protection could report on such proceedings.

Ms Stuurman added that the leaders of the institution had a duty to report the matter.

Mr Masutha said that the Portfolio Committee on Justice had strong views against recording anything short of a criminal conviction. It was interesting to note that the Committee believed in sniffing out paedophiles in any way. It was vital to have an informed discussion on which institutions' judgements should be recognised. There might be issues of authenticity of the records and other disputes. It would be interesting if people would be given a right to challenge an entry. An entry constituted administrative action and the audi alteram partem rule applied. There might be resistance against making a failure to report a criminal offence. One might also end up imprisoning people who did not deserve to be in jail. This was a difficult issue to deal with and it might be helpful to have a panel of experts or another process to discuss it.

Ms van Zyl replied that the intention was not to recognise any disciplinary hearing. The Bill was limited to hearings of professional bodies like the Social Services Profession Council. In any case, if evidence of child abuse was to come up during an informal hearing, any person who had an interest in the protection of children could bring an application in court.

Mr Waters agreed that the matter was difficult to address. The Child Pornography Bill made reporting compulsory. It might be better to make reporting of child abuse and related offences compulsory.

Mr W Morwamoche (ANC) was surprised that clause 120(1)(c) excluded traditional institutions. The Limpopo province had only one Children's Court that was very far from people living in deep rural communities.

Ms van Zyl said that the provision was not restricted to Children's Courts. Traditional courts could also make an appropriate finding provided they were recognised by law.

Clause 121: Disputes concerning findings
This clause allowed a person in respect of whom a finding in terms of clause 120 had been made to appeal against the finding.

Clause 122: Findings to be reported to Director-General
This clause obliged the relevant administration which made a finding in terms of clause 120 to report the findings or appeal or review to the Director-General. The report should be in writing. The clause was borrowed from the Sexual Offences Bill and would be redrafted to align it with the content of the Children's Bill.

Clause 123: Consequences of entry of name in Part B of Register
A person whose name had been entered in Part B of the register could not work with children.

Ms Stuurman said that the Department intended to amend clause 123(1)(b) to include access to children.

Ms C Dudley (ACDP) said that the list in clause 123(1)(b) should be open ended to cover, for instance, taxi drivers who took children to school.

Mr Morwamoche asked how long a person's name would remain in the Register. The Department of Justice and Constitutional Development was struggling with the enforcement of Magistrate's Court decisions on maintenance. He asked who would monitor that the contents of the Bill were implemented. Ms van Zyl replied that a person's name could only be removed after a period of five years had lapsed.

Clause 124: Disclosure of entry of name in Part B of Register
The clause obliged any person who worked with or had access to children in different child care facilities and whose name had been entered in Part B of the Register to disclose the entry to an employer. Failure to disclose entry in the Register could be used as a ground for disciplinary proceedings and possibly dismissal. It was inappropriate to simply say that failure to disclose would lead to dismissal.

Clause 125: Access to Part B of Register
The clause provided a list of people who could access Part B of the Register.

Clause 126: Establishment of information in Part B of Register
The clause placed a duty on employers to check if the names of their employees were not in the Register.

Clause 127: Disclosure of names in Part B of Register prohibited
The clause provided circumstances under which the information in Part B of the Register might be disclosed.

Clause 128: Removal of name from Register
An application for removal of a person's name on the grounds that the person had been rehabilitated could be brought after at least five years had elapsed since the entry was made and after considering the prescribed criteria.

The Chairperson said that it was well known that police files and dockets often went missing due to corruption. She asked how the Department intended to deal with this.

Ms van Zyl replied that the institutions that would supply information on offenders to the Department would have to deal with the issue of corruption. The Department would have to deal with its officials who intentionally or negligently failed to enter a person's name in the Register. This issue could not be addressed in the Bill.

The Chairperson asked if it was not possible to have two Registers kept at different places.

Ms van Zyl replied that the Department could look into that possibility. However, having two registers could be an unnecessary and costly duplication of function. Moreover, it would not serve any purpose since both registers would contain information from the same source. The source of information would probably give the same incorrect information to both registers.

Mr M Diko (UDM) asked there would be any mechanism to establish that the information was sent to the Department.

Ms van Zyl replied that the Department would get the records from SAPS and the courts. The information from both institutions would be used to verify each other in order to ensure that all information was covered.

Dr Mabetoa added that the Department was working with the SAPS on piloting an information management system.

Mr Waters said that there should be tight control on who could remove names from the Register. He asked who would assess if a person was really rehabilitated. A person whose name was entered in the Register did not deserve to work with children anymore.

Ms van Zyl replied that a person's name could be removed following court application. The court would have to be satisfied that the person was rehabilitated. The Director-General could only remove an erroneous entry.

Ms Stuurman added that in terms of the Sexual Offences Bill all persons who were sentenced to a certain period could not have their names removed from the Register. The Committee might want to borrow the provision from the Sexual Offences Bill. Mr Waters felt that the provision in that Bill was preferable to the one in the Children's Bill.

Clause 142: Regulations
Ms van Zyl proposed a new clause to follow clause 128 of the Bill. The clause empowered the Minister to make regulations prescribing certain conditions relating to the National Child Protection Register. She also suggested that the Minister should have the power to prescribe the procedure through which the information should be sent to the Director-General before being entered into the Register.

Chapter 10
Clause 150: Child in need of care and protection
This clause stood alone in this Chapter. The SAPS requested that certain parts of this Chapter should be brought back to the Section 75 Bill. The Department of Labour might want to have a victim of child labour to be declared to be in need of care.

Clause 151: Removal of child to temporary safe care by court order
The inclusion of this clause under the Section 75 Bill was requested by the SAPS. They felt that the clause dealt with their powers and duties. It was appropriate to include it in the Bill because the SAPS operated at a national level.

Clause 152: Removal of children to temporary safe care without court order
This clause was also requested by the SAPS for the same reasons given for clause 151.

Clause 153: Written notice to alleged offender
This clause was also requested by the SAPS for the same reasons given for clause 151. This clause gave the SAPS the power to issue a written notice for the removal of the offender from the place where the child resided. It was believed that it would be less traumatising to remove the offender instead of the child.

Ms W Direko (ANC) said that there might be problems in cases where both parents were offenders.

Ms van Zyl replied that the notice would take into account the best interest of the child.

The Chairperson said that in most cases the father was the breadwinner and was likely to convince the wife that he would never abuse the child.

Ms Direko said that being a breadwinner did not entitle anyone to abuse children. The person would be removed from the house and still be obliged to maintain the children.

Ms van Zyl added that the common law duty of maintenance applied irrespective of whether or not the father was staying with the children. Mothers had a duty to report child abuse and it was not a defence to say that they did not report because they were scared of how the husband would react.

Chapter 8: Part 3
The Committee debated whether the whole of Part 3 should be in the Section 75 or 76 Bill. Part 3 was in the Section 76 Bill and the Department felt that it should remain there. Some Members felt that this Part had to be in the Section 75 Bill. The Department pointed out that the Joint Tagging Mechanism had looked at the Bill and decided that Part 3 should be in the Section 76 Bill because it dealt with provincial functions. Some Members were not convinced that Part 3 dealt with provincial competencies. It was decided that the Committee Researcher would look at the matter and formulate some motivation why the provisions had to be in the Section 75 Bill.

Chapter 9: Part 2
Ms van Zyl proposed that this Part be left in the section 76 Bill. The Department could not give a motivation for putting it under the section 75 Bill. This Part dealt with services offered by provinces.

Mr Waters said that courts operated at a national level. He could not see any reason for leaving Part 2 under the section 76 Bill.

Ms van Zyl replied that the splitting had been done with the State Law Advisor and confirmed by the Joint Tagging Mechanism. The Department did not consider the Bill clause by clause to determine which clause to include in the section 75 or 76 Bills. It mainly focused on clauses it considered critical.

Chapter 11: Contribution orders
Clause 161: Issue of contribution orders
This clause was equivalent to a section contained in the Child Care Act. The section in the Child Care Act was not used very often. It was important to encourage the use of the section. Non-governmental organisations should be made aware of the section. It might be desirable to provide that the person liable to maintain the child, should pay the costs of the application.

Chapter 11 also addressed the issues of which court had jurisdiction to issue a contribution order, attachment of wages of respondents and the effect of a contribution order.

Chapter 12: Children in alternative care
Clause 167: Alternative care
This clause stood alone in the section 75 Bill. The rest of the Chapter was in the section 76 Bill. The Department suggested that the clause should be put in the section 76 Bill together with the rest of the Chapter.

Clause 298: Offences
The Department would work together with the State Law Advisor in order to cover all offences that they wanted in the section 75 Bill.

The meeting was adjourned.