Children’s Bill: deliberations

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
3 November 2004
CHILDREN’S BILL: DELIBERATIONS

Chairperson: Ms J Tshivhase (ANC)

Documents handed out:
Draft report on public hearings on the Children’s Bill, 11 – 13 August 2004

Summary
The Committee continued with its deliberations on the report on the public hearings on the Children’s Bill. The issue of the division of the Bill into separate Section 75 and Section 76 Bills was raised, and the Committee asked the State Law Advisor to consider reworking the current Section 75 Bill into a more solid form, for example by renumbering the Chapters sequentially. The State Law Advisor cautioned that this approach might lead to the need for an amendment bill almost as soon as the main Bill was passed.

Submissions dealing with adoption, children in need of care and protection, Children’s Courts and children in alternative care were discussed. Adoption issues were flagged, and concern was expressed that the provision excluding some categories of parents from a requirement for consent might result in one parent using the child against the other parent. Clarity was also requested on the provision allowing for payment of the mother’s medical expenses. The issue of the position of unaccompanied foreign children was debated, and the SA Law Reform Commission agreed to revisit the Immigration Act to check its provisions in this regard.

MINUTES
The Department was represented by Ms M Ngcobo-Mbere and Dr M Mabetoa (Chief Director: Child, Youth and Family). Ms L Stuurman and Ms R van Zyl represented the SA Law Reform Commission (SALRC). Advocate O Kellner (State Law Advisor (SLA) and Mr D Plaatjies (Director: Social Security and Welfare Services, Public Finance: National Treasury) were also present.

Chapter 5: Children’s Courts
Clause 42
The Community Law Centre – Children’s Rights Project (CLC) had submitted that there were serious problems with the way in which Children’s Courts functioned. They had expressed concern about the omission of a number of provisions in earlier versions of the Bill that had addressed these problems. It recommended that the provisions concerning qualifications and training of staff in Children’s Courts be re-inserted.

Clause 54(1)
The CLC had submitted that Clause 45 failed to contain certain key matters that a Children’s Court should have the power to adjudicate on. It further noted that chapter 10 of the August version of the Bill had been removed from the current version with the exception of Clause 150 and argued that this was a critical error.

Lawyers for Human Rights (LHR) had submitted that Children’s Courts were best placed to serve as an initial point of entry into the protection framework for foreign children, particularly regarding the determination of the resident status of children and the subsequent departure and removal from the Republic of children who were declared illegal foreigners in terms of the Immigration Act. They recommended that the High Court should not have exclusive jurisdiction on matters relating to the departure and removal of a child from the Republic.

The Law Society of South Africa had expressed concern about the manner in which Children’s Courts were envisaged in the Bill and noted that it should clarify the relationship in terms of jurisdiction between the Children’s Court and the Maintenance Court with respect to child support. It further pointed out that the Divorce Court did not have jurisdiction over the guardianship of any child and that this error in the Bill should be corrected.

Clause 46
Lawyers for Human Rights had submitted that foreign children were regularly detained pending their removal from the country, in contravention of Section 28 of the Constitution and the provisions of the Child Care Act. They recommended that a sub-clause be added as an additional order which the Children’s Court could make, regarding the circumstances when and manner in which children, who had been declared to be illegal foreigners in terms of the Immigration Act were detained and removed from the Republic.

Clause 47
The Law Society of South Africa had proposed that the suspension of proceedings to investigate whether a child was in need of care and protection be valid for a period of no longer than fourteen days.

The CLC had pointed out that the chapter on children in need of special care and protection had been removed from the Bill. They noted that Children’s Courts should have jurisdiction to deal with two groups of especially vulnerable children, namely children affected by HIV/Aids and refugee children.

Clause 50
The CLC had argued that there should be a provision in this clause setting out guidelines for the removal of a child from a parent or caregiver.

Clause 55
The CLC had submitted that, although current legislation made provision for the child’s right to representation, this often occurred only at the discretion of the magistrate. Earlier versions of the Bill had provided a comprehensive set of provisions allowing for children’s representation and concern was expressed that the current clause would not allow for the constitutional right afforded to children. The CLC recommended that the provisions regarding children’s legal representation as in the original SALRC draft Bill be re-instated.

Clause 60
The Law Society of South Africa had submitted that a sub-clause be inserted with reference to the conduct of proceedings in the Children’s Court, allowing for mediation.

Clause 63
The CLC had submitted that previous versions of the Bill had allowed for hearsay evidence, evidence of previous similar conduct and the power of the court to dispense with any rule of evidence and recommended that the provisions of Clause 86(1) of the SALRC version be reinstated.

Clause 67
The CLC had pointed out that the provisions concerning the role and qualifications of clerks of Children’s Courts had been changed considerably and argued that it was essential that the clerk, assistant or registrar needed proper qualifications and suitable training to operate in Children’s Courts. It proposed that the provisions of Clauses 81 and 82 of the June version be incorporated into the Bill.

Discussion
Ms I Direko (ANC) asked for the reaction of the SALRC delegates to the submissions, and asked for the reasons for the exclusions mentioned in the submissions.

Ms van Zyl replied that it was difficult for them to give reasons as they had only seen the complete report on Monday. At times, they had been instructed to remove clauses. The issues where questions had been raised had been flagged and a document would be drafted to address the flagged issues. Certain issues might have to be clarified with the Department and it was hoped that the document would be ready by Friday.

Mr Plaatjies said that an interdepartmental team would look at the reports and Department briefings and deliberations. The key issues would be extrapolated and the rationale for policy options would be identified. A proposal would then be put forward. It was premature to give a view on policy issues. He also pointed out that there was no previous draft Bill; the only draft Bill was Bill 70 of 2003.

Ms Direko remarked that the process seemed intricate and would need time. The Committee needed clarification and the rationale behind the issues mentioned so that they would be able to defend something defensible. There was no need for the Department to rush its response.

Dr Mabetoa said that the recess would give the Department an opportunity to put a recommendations document together. She pointed out that the public hearings had been on the SALRC draft and the Bill as it currently existed. There was particular pressure from the NGO sector that things had been taken out of the SALRC document. The report under discussion was about the differences between the SALRC document and the Bill.

Ms C Dudley (ACDP) asked for the thinking on the removal of Clause 47, dealing with children in need. Ms van Zyl replied that, in general, the whole chapter on children’s rights had been redrafted by the Department of Justice. Some provisions had been retained, and the whole court system was currently being evaluated. The country was not yet geared to Children’s Courts, and three pilot projects were running in the Western Cape, Johannesburg and KwaZulu-Natal. The question was difficult to answer without input from officials of the Department of Justice.

Ms Dudley asked how it was possible to break down the category of children in need into children in special need of care, saying that every child in need of care was vulnerable.

The Chairperson said that children needed protection, and she was concerned about this.

Ms van Zyl replied that the submission had its facts confused. The reference was to children in difficult circumstances, and that chapter had been omitted because those issues had already been addressed elsewhere in the Bill or in other legislation. For example, the clause on child labour had been retained, but the clause on child pornography had been deleted because of the amendment to the Films and Publications Act.

Ms Stuurman said that the main clause that had been removed was Clause 232, and one of the reasons for this was that it referred to the National Policy Framework (NPF). When the NPF had been removed, the clause had had to go.

Dr Mabetoa said that the submissions on Clause 46 related to children who were illegal foreigners, and stemmed from the fact that children were apprehended and held at Lindela as unaccompanied minors. The Department had been taken to court over this issue, and the matter was now resolved. Unaccompanied minors were now being treated like any other children. If the recommendation was accepted, all children would have to go through the court system, although most matters could be dealt with outside the court.

Ms van Zyl said that in terms of the Refugees Act, a child in need of care and protection should be referred to the Children’s Court but this was not happening.

Dr Mabetoa said that ideally only those in special need should have to go to court. The South African Police Service (SAPS) were to refer children to social workers who would then refer them to international social work organisations. It might be dangerous to repatriate children, and those children who were to be repatriated were to be treated in a very humane way. There were insufficient resources to take all unaccompanied minors through the Children’s Court.

Mr B Solo (ANC) suggested the issue be flagged and asked for copies of the judgement on the case referred to by Dr Mabetoa.

Ms Ngcobo-Mbere explained that refugee children were sometimes confused with unaccompanied minors. Refugee children had special status, while international social services dealt with illegal, unaccompanied minors.

Dr Mabetoa said that there was a process to be followed by SAPS, Social Development and Home Affairs when dealing with both categories.

Ms van Zyl pointed out that, in respect of mediation, numerous opportunities for mediation were contained in other clauses in the Bill, namely Clauses 49, 69, 70 and 71.

Chapter 47: Early Childhood Development (ECD)
Clause 91
The Early Learning Resource Unit (ELRU) and the South African Congress for Early Childhood Development (SACECD) had submitted that there was a gap in ECD provisioning for children aged seven to nine years. It was recommended that the definitional provision of ECD be changed to include children from birth to nine years of age.

Discussion
Ms van Zyl agreed that the international ECD definition was for children from birth to nine years. This was an area where the Departments of Social Development and Education needed to co-operate. When a child started the Grade R year, s/he fell under the auspices of the Department of Education.

Ms Ngcobo-Mbere said that the Department was working with the Department of Education on an integrated plan in respect of ECD. She realised that it should be birth to nine years, but children had to be turned over to the Department of Education at five years. She also realised that, in rural areas, children might start school considerably later. While children fell in this grey area, the Department cared for their needs as children, not educationally.

Ms Direko asked the Department’s position in this respect. She asked what happened to children who went to private crèches, and the relationship between those crèches and the Department.

Ms Ngcobo-Mbere replied that crèches were subsidised through the provincial departments from birth to five years. It was hoped that the Expanded Public Works programme (EPW) would expand ECD facilities, both those that were home-based and those that were centre-based.

Ms Direko said that she was thinking of the hundreds of crèches run by private people. She agreed that some were fly-by-night operators but said that children up to the age of five needed preliminary teaching and there had to be somewhere to supply this. She was concerned that the government was not looking at the international age. What was being doing about children from the squatter camps, who had the same right to education?

The Chairperson asked whether the facilities and their activities were inspected or monitored.

Ms Direko said that, if the facilities were not funded they could not be monitored. A policy was needed to regulate and assist in the establishment of properly run crèches that were monitored. Crèches were a necessity, as children needed these facilities. The Government needed to consider that age group.

Ms Ngcobo-Mbere replied that services including ECD programmes were monitored, and the Department followed a draft policy.

Dr Mabetoa said that the problem arose when the Departments of Health, Social Development and Education had different policies. With an integrated policy, the gaps became evident. All Departments needed to work together on ECD, and the EPW programme was forcing them to spread the services to the remotest areas.

Mr Solo expressed deep concern at the lack of a control system and monitoring mechanisms.

Ms P Tshwete (ANC) agreed with Mr Solo but questioned whether an audit of services had been done or whether there were timeframes for it. All of the Members had constituencies, and it might assist them to have information to disseminate to the crèches in their constituencies, such as information on registration processes. In most areas, the Government supervised most crèches and some kind of inspection was required. Some were operating without equipment.

Advocate M Masutha (ANC) asked for clarity on why Clause 91 was in the Bill. If it had been decided that the area of ECD was not contained in the Chapter, the definition did not make sense. He asked why this definition was in the body of the Bill, and said that this should be the exception not the norm. Was it really necessary to define ECD services and programmes if ECD was defined? He commented that, out of necessity, these services were mushrooming, but because many did not qualify in terms of municipal fire hazards and health regulations, the State was technically unable to assist them with subsidies, and so they were unable to develop. If it was agreed in principle that ECD was part of the right to education, it was protected in the Constitution and, as part of the developmental role of government, the Department of Education should gradually build more classrooms. He suggested that any person involved in ECD should be able to access State support, including financial support, to build appropriate facilities.

Chapter 8: Protection of Children
Dikwanketla – Children in Action submitted a number of recommendations to protect children against abuse and in respect of strategies for protecting and supporting children.

The SA Society for the Prevention of Child Abuse and Neglect (SASPCAN) regretted the omission of the NPF in this regard and said that this created a situation in which the current disarray in the child protection system was liable to continue.

The HIV/AIDS sector emphasised that Clauses 130, 132 and 133 had obvious direct implications for health workers and recommended that the provisions should be mirrored or cross-referenced in relevant health policy and legislation. It also requested the reinstatement of the NPF. It further questioned the appropriateness of the definition of child-headed households, given some of the potential implications for children and their caregivers, and recommended that Clause 136 be amended for a child-headed household to function under the supervision of an adult and that the adult be accountable for money received.

Discussion
Ms van Zyl said that the SALRC had originally proposed that an adult should supervise and that grants be paid to that adult. When the Bill was referred to the Cabinet, it had been feared that the adult might steal the children’s money, and the decision had been made to pay grants to NGOs. It was also possible for a person to collect the child support grant from the age of sixteen, and this age had been set as an identity document was required. If the child heading the household was old enough, the child could collect on behalf of the other children. She asked for the Department’s comments.

The Chairperson asked whether there was no provision for the money to be paid into a special bank account to prevent its being squandered or stolen.

Dr Mabetoa said that circumstances differed from one family to another. Childcare workers could be the responsible adults in question. The Department was looking at all options and was currently reviewing policies for orphans and vulnerable children. General legislation was required that fitted in with the options.

Ms F Batyi (ID) said that there was a problem with “geldskieters”, especially in rural areas. Children’s payment cards got into the hands of these people, and the children were just paid a stipend. The Department needed to work on protecting these vulnerable children.

Dr Mabetoa replied that the Department was doing research on social security, particularly the child support grant, and she had heard a number of similar reports. Such information was needed to inform programmes and changes.

Mr Solo asked whether chapters were still to be inserted in the Bill, as the numbering was not consecutive. He asked how the SLA had accepted the Bill in this form. Chapter 8 was not in the Bill and information was needed on what it would contain. If there were no other chapters to be inserted, the Bill should be renumbered.

Advocate Kellner replied that Chapter 8 was not a part of the Section75 Bill.

Dr Mabetoa confirmed that Chapter 8 was in the Section 76 Bill, but said that recommendations had been made to bring some of its provisions, such as the child protection register, to the Section 75 Bill. She had thought that Members had a copy of the SALRC version as well as the Bill.

Ms H Bogopane-Zulu (ANC) said there should be specific recommendations if issues were to be incorporated, and that the Committee was only dealing with the Section 75 Bill.

Dr Mabetoa replied that the meeting was working from the report on the submissions, and this was causing confusion. The report did not separate issues into the different Bills. It had been decided to go through the issues as they appeared in the report, because they crosscut and could not be ignored.

Mr Solo suggested that it should be simple to separate the issues and hold the relevant hearings with the Select Committee for the Section 76 Bill.

Ms Ngcobo-Mbere replied that it had been decided that it was not possible to focus only on the Section 75 Bill as issues in the Section 76 Bill could be taken back and then clauses would have to be amended. It would be possible to separate issues out more clearly in January.

Dr Mabetoa pointed out that a comprehensive Bill was envisaged. If the Section 75 Bill chapters were renumbered, it would not be possible to accommodate the gaps when it was amended with the Section 76 Bill.

Ms Bogopane-Zulu said that the end product would address the issue of the splitting of the Bills and the numbering. The Committee could change the numbering. She felt that it would assist the Committee to follow the report and skip the Section 76 issues as the mix was delaying the Section 75 Bill. Everyone acknowledged that issues overlapped, but when the Bills were merged, it would still have to come back to the Committee as a comprehensive Bill. She proposed that the Section 76 issues should not be discussed, and that overlapping issues be flagged.

Advocate Kellner said that there had been a feeling that deliberations on the Section 75 Bill should concentrate only on Section 75 matters, but the problem would be that, once the Bill had been passed, if matters were discovered when dealing with the Section 76 Bill, that should have been in the Section 75 Bill, there would have to be another Section 75 Bill to amend these sections. He recommended that the Committee proceed with caution and try to ensure that the Section 75 Bill that was passed was as good as possible.

Ms Bogopane-Zulu said that she anticipated numerous amendments to the Bill because it involved so many Departments.

Ms Direko suggested that the Committee look at the facts and make inputs, and that all Departmental inputs would be put together when the report was drafted.

Chapter 9: Prevention and Early Intervention
Dikwanketla – Children in Action recommended that the Bill state that an effective prevention service would require Government service personnel to work together with the community and required the existence of support mechanisms.

Ms van Zyl said that this Chapter was a Section 76 issue and said that the SALRC would revisit the Section 75 / 76 issue. The Department felt that some issues, such as the Child Protection Register, had been wrongly tagged.

Advocate Masutha said that at the end of the process, the Department would put together a comprehensive proposal as to the Section 75 and Section 76 issues. This might be a technical issue for the SLA to address.

Chapter 10: Children in Need of Care and Protection
Dikwanketla – Children in Action had submitted that removing children from their environment away from family and friends should be a last resort.

LHR had submitted that unaccompanied refugee and foreign children should be recognised as children in need of care and protection and be dealt with in terms of Children’s Court proceedings.

Clause 150
The Community Law Centre – Children’s Rights Project had pointed out that this clause referred only to Clause 47 of the Bill and argued that there should also be reference to Clauses 68 and 46. It further recommended that the provisions of Clause 166 of the SALRC version be reinstated.

The United Nations High Commissioner for Refugees (UNHCR) had recommended that this clause be amended to include provisions protecting foreign and refugee children whose families proved untraceable and that the Department of Home Affairs provide these children with the necessary documentation to regularise their stay in South Africa.

Discussion
Ms van Zyl pointed out that, apart from Clause 150, the Chapter was mostly in the Section 76 Bill.

Advocate Masutha said that there was no definition of an unaccompanied minor and asked whether it derived from Home Affairs legislation.

Advocate Kellner said the term was not used in the Bill, the term unaccompanied child was used.

Advocate Masutha asked why the term was not defined with reference to applicable legislation.

Ms van Zyl said it would be a starting point to check whether it was defined in the Immigration Act. If it was not, the Bill would have to look at a definition.

Dr Mabetoa said that the Department of Home Affairs identified these children, but they were the responsibility of the Department of Social Development. They were defined under Clause 150(a) at present, but this was not an adequate definition.

Ms Bogopane-Zulu said that the definition of unaccompanied did not address the foreign aspect, and the Immigration Act should be consulted.

Advocate Masutha agreed and said that a child holding South African citizenship, who was technically abandoned, should be regarded as an unaccompanied child. That a child was unaccompanied was in itself a sign of a problem. There should be some obligatory provision in Home Affairs legislation, that such children were identified.

Ms Bogopane-Zulu recommended that, as part of the discussions with the SLA, the Department look into the implications of reinstating the clauses as recommended.

Chapter 12: Children in Alternative Care
The National Association of Child Care Workers (NACCW) had expressed a concern relating to the excision of the provision for free state services to children in statutory care.

The HIV/AIDS Sector had contended that most children who had been orphaned were cared for by the extended family and kinship networks and suggested that the legislation make adequate provision for children in this situation.

Discussion
Advocate Masutha asked for clarity on the submission in respect of social assistance. He believed it would be a drawback to move to childcare rather than foster care. At a substantive policy level, the Department should report on the costs involved in children’s homes. The unit costs were very high in some institutions. There was a need to explore the possibility of more cost effective methods. He strongly moved that all Section 76 definitions be removed from this Bill and held for later. The SLAs should revisit how to condense it into one solid Section 75 Bill. The empty clauses and chapters presupposed that Parliament would have the same approach with the Section76 Bill, and it would be preferable to have the Section 75 Bill drafted as if it was a complete Bill.

Advocate Kellner said that it would be technically possible to do this, but there might be a lot of cross-references referring to the sections as they stood at present. If the Bill was renumbered, the cross-references would have to be revisited and this would lead to the possibility of errors. This possibility might outweigh the usefulness of the renumbering.

Advocate Masutha said he realised that the chapters had been an attempt to maintain a logical sequence and suggested that some be moved forward.

Chapter 15: Shelters and Drop-In Centres
Dikwanketla – Children in Action had recommended that the Government build places of care and safety in all communities and create a system of funding the NGOs running these centres.

Discussion
Ms van Zyl pointed out that this was also part of the Section 76 Bill.

Mr Solo asked the feeling of the Department on this, and referred to the discussion that crèches should be widespread. Was the submission realistic?

Dr Mabetoa replied that shelters existed, and most were run by NGOs with provincial departments providing funding. Most were in rural areas, where there were street children. Shelters had been included in the Bill so that there could be legislation for funding. Drop-in centres were a fairly new concept, and a service for children of all ages.

Mr Solo commented that there was a lot of emphasis on the provincial services of NGOs. He was aware that drop-in centres were most effective, especially when community-based and controlled.

Dr Mabetoa said that the ideal was to have a drop-in centre in each community.

Mr Solo pointed out the need to look at transformation of the NGOs.

Ms Bogopane-Zulu suggested that it would be helpful for the Department to look at all other decisions taken and other centres. Homes were not working and had serious budget implications for the State.

Dr Mabetoa replied that a moratorium had been placed on the establishment of new children’s homes. Many were also not registered. The recommendation was that these children were looked after at a community level rather than having institutions built. The Department was in the process of an audit of all children’s homes, and was unable to monitor unregistered homes.

Advocate Masutha said that the Department would have to put together a solid team to do a proper assessment of the position, as it would be a touchy issue. The best interests of the children should not be compromised. He suggested that it might be an option to have the institutions as temporary facilities, and to insist on a minimum number of children in each home.

Ms Ngcobo-Mbere replied that some provinces had already started rationalising services. It was a difficult issue, as people were protecting their territories. Dr Mabetoa agreed and said that the services were income generating for many people.

Advocate Masutha suggested the Department should “flex its muscles”, as there was an element of defiance.

Chapter 16: Adoption
Clause 229(c)
The Johannesburg Child Welfare Society had recommended that the clause be deleted.

Clauses 231 & 232
A number of persons and organisations had expressed concern over the omission of provision for the child’s consent to be required for adoption, as the right of a child aged ten years or more to give or refuse such consent had been in place for decades.

Clause 234(2)(c)
The Johannesburg Child Welfare Society had submitted that the requirement as introduced by the Adoption Matters Amendment Act, for a finding of the court on balance of probabilities that the child was conceived as a result of rape should replace the present clause.

Discussion
Advocate Masutha explained that in the case of a criminal conviction, there was a requirement of evidence beyond reasonable doubt, but that in a civil matter, the court would find on a balance of probability. He suggested the use of a different term for rape, such as “non-consensual sex”.

Clause 235(1)(b) and (4)
The Johannesburg Child Welfare Society had argued that there was no merit for the court to be required to insist on address and contact information for a person whose consent was not required to the adoption.

Discussion
Ms Bogopane-Zulu was concerned that parents used children to hurt each other and suggested this issue be flagged.

Advocate Masutha said there would be a need to establish that the person’s consent was not required. A preliminary enquiry would have to be held unless the application was unopposed, so the father would have to be given notice to appear. He asked whether there was still a requirement for notification.

Ms van Zyl replied that the Bill did not provide for a preliminary investigation, and only provided for notification to those parents whose consent was required. The SALRC would have to look into it.

Dr Mabetoa said that some of the issues would be addressed in regulations. Adoption was one phase in the treatment of vulnerable children. Legislation from different countries was being studied to ensure the best interests of the child.

Ms Bogopane-Zulu expressed concern that the process would be complicated when implemented. Children were often used to manipulate fathers. All realities should be considered, including the international adoption issue.

Advocate Masutha reiterated that where a person had been convicted of rape their consent was not requested, they should just be informed that they had been excluded for this reason. The clause should be revisited. A provision for a possibility of a preliminary hearing would have to be created if a mother wanted to oppose the father of her child having a say in the child’s adoption, where she alleged she was raped.

Ms van Zyl said that there was provision in the Bill for an enquiry into the exclusion of consent so the address would be required. She recommended a paragraph be inserted in the regulations, with the details.

Ms Direko said that she could not see why the father should have the opportunity to object if he had done nothing to find out about the child.

Advocate Masutha said that this might be the subject of a dispute between the parties. The mother might go to court and state that the father had never played a role and the father would be excluded. In the meantime, the mother was using it as a means to spite the father. It was a constitutional imperative for both sides to be heard.

Dr Mabetoa said that the Department would also look at the Chapter on parental rights and responsibilities, as this addressed the issue.

Advocate Masutha cautioned against being too eager to put in regulations, as these should only contain administrative matters.

Clause 249
The Johannesburg Child Welfare Society had submitted that aspects of the formulation of the issue of consideration were problematic and recommended the amendment of Clause 249(2)(a)(ii) which referred to the payment of medical costs, to establish a central fund to be used to pay for medical expenses.

Discussion
Ms Bogopane-Zulu asked for clarity on the issue of medical expenses, as she had believed that pregnant mothers received free treatment.

Ms van Zyl replied that people could not pay to adopt children, but that there were certain exceptions, such as the payment of medical expenses. There was a concern that this could be misused.

Ms Bogopane-Zulu said that South Africa offered free healthcare for pregnant mothers. Many mothers opted to give their babies up for adoption for economic reasons, and she questioned the rationale of the provision.

Ms van Zyl replied that she was not certain why medical expenses had been specified but suggested it might be to cover instances where the mother used a private facility. She suggested that the SALRC could apply their minds to covering any potential loopholes.

Ms Bogopane-Zulu remarked that it was also important to prevent people from having babies for the purposes of adoptions. The clause should be revisited and other wording found to respond to all concerns. The guiding principle should be the background leading to adoption.

Dr Mabetoa said that, at present, the clause was based on what adoption agencies did. Girls were placed in a centre, costs were incurred and the adoptive parents were charged. She compared this with farming children.

Ms Bogopane-Zulu said that she supported the principle, but felt it should be brought in line with the convention on the sale and trafficking of children.

Ms van Zyl replied that the trafficking protocol did not deal with the issue of adoption, and that this was a loophole. An investigation into this was underway.

Ms Bogopane-Zulu said that the Government did not have the capacity to provide adoption services and there would always be agencies. She was curious about how the management of these agencies was envisaged.

The meeting was adjourned.