Children’s Bill: deliberations

Meeting report

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

Chairperson: Ms T Tshivhase (ANC)

Documents handed out
Committee draft report on public hearings

SUMMARY
The Committee discussed its report on the public hearings into the Children’s Bill. One of the main issues of discussion related to parental rights and the responsibilities of caregivers, especially those in child-headed households. Other discussion points concerned the guardianship of unmarried fathers and the age of consent for medical treatment. The Committee made it clear that it wanted certain state departments who had not made submissions on the Bill, to appear before it in early 2005. It was also decided that the Committee would engage the Department of Justice on aspects in the Bill that related to the administration of justice.

MINUTES
The Chairperson began the meeting by asking one of the Members, Advocate Masutha, to address the Committee on the plans for the future.

Adv Masutha (ANC) said that he, the Chairperson, the Committee secretary, a researcher together with officials from the Department of Social Development and Mr D Plaaitjies from National Treasury had met to discuss the progress with the Bill and how the process could be taken further. The Bill had been through the first phase which had entailed three processes. The first process was the public hearings; the second process was for the Committee to be briefed by various departments that had a stake in the Bill. The third process was for the Committee to do a site visit to the provinces to see what was happening on the ground.

These processes were now completed and reports from these processes had been drawn up. So far, only one report had come before the Committee, namely the one on the public hearings that they were now engaging with. The report on the different department briefings was still incomplete. There were some departments that had not done briefings but that the Committee felt needed to give some input into the Bill. It was felt that certain issues should be identified and a second round be held where the different departments could give input. Ideally the Committee should have gone through all the reports by the time they rose for the recess. Certain issues would then have been identified and these would be taken back to the Department. He was not sure whether this would all happen in time. It was therefore important to know what issues would be dealt with and what departments would be required and dates given as well. By early in the next year, the Department could then report back with proposed redrafts.

Mr Waters (DA) said that he was concerned that there were many Members absent. Only six Members were present and three were from the Opposition. The Department had made a special effort to be present and it was important for Members to be present. It would not be productive if most of the Members were not present. The Chairperson said that the concern was noted.

Mr Masutha (ANC) said that the normal day for the Committee to meet was on a Wednesday. However, because of the workload, it was clear that more time had to be spent and therefore they had scheduled this particular meeting. This was done so that the Bill could be dealt in a just way. He supported Mr Waters but said there were other Committees meeting. It was an issue that party whips should raise with their Members.

The Chairperson said that this issue had been raised at the Chairpersons meeting.

Ms Mars (IFP) said that she had to leave her meeting in Home Affairs to come to the current one. This caused problems and had to be addressed.

The Chairperson then asked the Department to continue to take the Committee through the report on the hearings.

Mr Masutha (ANC) said that the Committee was working through one document, but had received another document that morning which also dealt with the public hearings.

Dr M Mabeta, Chief Director: Children, Youth and Families, explained that the document handed out was prepared by the Department with a task team. They would continue to use the report produced by the Committee and would then look at the Department’s document the following day. Mr Masutha (ANC) interjected that the exercise would probably be completed the following day and then some catching up would need to be done.

 Dr Mabeta said that she would recap what had been done in the previous meeting. It was mainly policy issues that had been discussed. The case of unaccompanied minors was discussed. They could not access grants because they did not have identity documents. This would be taken back to the Department where it would be dealt with. The Department of Home Affairs would have to be consulted about this. Another issue discussed was the consent which primary care givers, especially those at shelters for street children, could have regarding medical treatment. The Department had also been advised to look at the instance of court ordered kinship care. Many issues had arisen around child headed households. Whether guardians or a board of trustees had to be appointed had been discussed. The idea of child-care forums in communities had also been raised in regard to these households. It had been suggested that an amendment might need to be made to the Social Assistance Act to accommodate the issue around child headed households. There were also a number of issues that related to the Department of Health. This related to the issue of testing where some organisations felt that minors should have access to the results of medical tests. There were numerous issues in the chapter on children’s rights. It was felt that the principles and rights were confusing and should be redrafted and separated form each other. There had also been a number of recommendations regarding the objects of the Bill. This would have to be looked at by the Department.

Adv Masutha (ANC) said that there was one school of thought that felt that the Bill had to conform to the Constitution and enforce the rights of children. The other school of thought felt that the rights in the Constitution were not enough and that new rights had to be drafted.

The Chairperson said that the issue around the age of child-headed households needed to be addressed.

Dr Mabeta continued by saying that the issue around age had been discussed with the Law Reform Commission. She said that this issue was confusing. They were not sure whether one should consider the maturity of the child or the chronological age. It would probably be good to go back to the discussion document to see why it was recommended that the age of consent be reduced to twelve.

Adv Masutha (ANC) said that age was a very dynamic and broad concept. It should therefore be looked at holistically. The meaning of consent was also not clear. The capacity of the child to make certain decisions would also be considered.

Ms R van Zyl, a researcher with the Law Reform Commission, explained that no mention of age was made when child headed households were mentioned. The only place where age was mentioned in the Bill was where the age of majority was brought down to 18 from 21. The age of twelve was in connection with the consent to medical treatment, access to contraceptives and for HIV testing. This age was used as it was generally agreed that this was roughly the age for the onset of puberty. The age of twelve therefore was not linked to child-headed households.

Adv Masutha (ANC) said that his understanding was that guardians would normally have to give consent for certain things for children. In the case of a child headed household the child was then elevated to the level of a parent to access certain things. The powers that one gave such a child was then brought into question. Whether a child should receive all of the powers of a parent or just some was the issue that had to be addressed. For this reason the age of the child should be addressed. The whole question of age in various situations therefore had to be dealt with by the Department. The age for consensual sex and the age for marriage were also issues that had to be addressed.

Dr Mabeta said that at the previous meeting, they had gone through the chapter on parental responsibilities quite fast. The issue of which matters related to Section 75 and which to Section 76, were quite mixed and were not dealt with fully. It was also felt that the issues that other departments had to deal with had to be isolated. It was felt that all other departments had to be involved.

At this point, the Committee watched a video presented by the National Association of Child Care Workers (NACCW) on child-headed households. The video was entitled “Path of Courage” and focused on the Isibindi project that the NACCW had initiated in partnership with the Department of Social Development.

Ms Z Thumbadoo, from the NACCW, added that the project was based on policy so that it contributed to transforming child and youth care services. The program was cost-effective and was community based. Estimates showed that the cost per child would be between R75 and R120. The programme was based on strong partnerships between the NACCW, the children’s home, community based organisations, the Department and the community. A Steering Committee had been established in the community involved. Thus far, 113 unemployed women were trained as child and youth care workers. These workers worked in the life space of the child. Issues with the Department of Education were also addressed where children could not pay school fees or afford a school uniform. The purpose of the project was also to network all possible sources of support for the family. She emphasised that they had worked very well with the Department of Social Development. In the Durban region, the project was running in the Indwedwe and Inanda region. They were looking at replicating the project in Hout Bay in the Western Cape. In the Northern Cape the project was almost operational in Donkerhoek and five other sites around the Kimberley area.

Adv Masutha (ANC) said that many of the issues dealt with in the video were the issues that they had been dealing with. He wanted to know how they conceptualised the aspect of guardianship.

Ms Weber (DA) referred to the assets which children inherited from their parents. She asked whether the Bill could not address this so that it could stay in the children’s possession.

Ms Thumbadoo, said that the issue of property snatching was a serious one and one that was being addressed. They tried to get parents to make wills which was kept in a memory box. They were also working closely with Lawyers for Human Rights to draw up wills for parents. She agreed that this needed to be strengthened. On the Issue of funding she said that they had been very fortunate to have very good partners. They had not looked at individuals funding them, but they would welcome donations. The issue of guardianship was one that had to be considered. The establishment of a consortium was planned for the following year in which other role players would also be brought into the project as it was too big for the NACCW alone.

Adv Masutha (ANC) said that many of the things mentioned were new to Members and new to the system as well. The system therefore had to be re-engineered to cater for all these new issues. There was a big need for solutions that should be in the law so that the barriers could be broken down and the bureaucratic obstacles removed. Referring to wills, he said that not all people had access to lawyers and therefore it should be dealt with in the legislation so that children were protected.

Ms X Makasi (ANC) said that having a will and lawyers did not always help families. It was more important that the communities be involved. The community could then ensure that the children stay in the house. In some cases even lawyers caused children to be evicted from their homes. She added that the Department of Education needed to be informed as far as child headed households were concerned. In many of the rural areas, children were barred from schools because they did not have school fees or uniforms.

The Chairperson said that on the oversight visit they had experienced cases where houses where sold and children left destitute.

Adv Masutha (ANC) emphasised that it was therefore important that the Department of Housing also be present.

Ms L Stuurman, a researcher with the Law Reform Commission said that in terms of the Intestate Succession Act, children are entitled to inherit the property of their parents. The problem, however, was that this Act was not enforced properly.

Adv Masutha (ANC) agreed but said that the problem was that there were some legal responsibilities that children could not exercise because of their age. The Bill should therefore seek to give children these rights so that they could exercise these legal rights.

An ANC Member said that Members needed to educate the communities of their rights. Members should see this as their duty.

Ms Stuurman said that according to customary law, women were not entitled to inherit. A recent High Court ruling however had declared this as unconstitutional.

Ms Ludwabe said that under the present Act, a child had the right to own a home. Women also had rights to have a house now.

Dr Mabeta added that the Department took the Isibindi model very seriously. It was important to get a child care worker and a social worker to work with children to protect their rights. She asked Ms van Zyl to continue to take them through the report.

Ms van Zyl said that she would be looking at the section on parental rights and responsibilities. There were various definitions in the Bill that impacted on parents and the issues around children. There was a definition which referred to biological parents in the case of artificial insemination and surrogate motherhood. The Bill also referred to parental responsibilities and the rights of the primary care giver. This referred to the case of guardianship. The definition of family had also been raised by the Children’s Institute in the hearings. The present definition referred to a family as a man and wife and children. The South African reality was that there were other kinds of families as well because of apartheid, migrant labour and the AIDS pandemic.

Clause 32 gives a person, who cares for a child but who had no parental responsibility, the right to safeguard a child and exercise rights over that child which would be in the best interests of the child. This meant that a caregiver would be able to give consent to medical examination or treatment if the parent was not available. This does not however give them the right to consent to medical operations. Giving this responsibility to caregivers was new in the law. This would also allow children with AIDS to obtain medical treatment. The Bill also proposes that the age of consent for treatment would be lowered from fourteen to twelve. The child would not be able to consent to an operation though and still needed an adult to do this.

Clause 21 in the Bill had been controversial as it gave certain rights and responsibilities to unmarried fathers. If the father had lived with the mother for twelve months or more, the father had parental responsibilities and rights. Clause 22 also gave fathers parental rights if the mother entered into such an agreement with the father. There was concern by some organisations that fathers would claim that the conditions in clause 21 existed and this would have to be contested by the mother. Suggestions were made that these rights and responsibilities be given to unmarried fathers by means of a court order. The State Law Advisors had suggested that if fathers were denied rights it could be regarded as discrimination on the basis of marital status. At present, the only way an unmarried father could gain these rights was by approaching the High Court which was very costly. The above clauses therefore sought to change this as there were many unmarried fathers who could not afford these costs. The Children’s Institute had also suggested that clause 22 (3) be deleted as it placed a responsibility on the High Court to confirm a parental rights agreement. In the same way clause 23 (2) said that only the High Court could issue an order relating to the guardianship of a child.

The UN High Commissioner for Refugees submitted that clause 24 be amended with a proviso which exempted refugees, applying for the adoption of children, from being treated in terms of the law relating to inter-country adoption. The Children’s Institute had also suggested that clause 26 be amended so that the court’s role was removed and that the regulations give responsibility to care givers so that provision is made for succession for children. Care givers should therefore inform people so that children were not left destitute.

Adv Masutha (ANC) said that clause 32 was formulated in an awkward way. The aim was to extend parental responsibility yet it started off by referring to people who have no responsibility.

Mr Kellner, the State Law Advisor, said that some words might need to be removed. They would need time to consider this.

Ms van Zyl agreed that it was confusing and that they would look at how it could be simplified.

Adv Masutha (ANC) said that the Roman Dutch Law principle was upheld in the sense that the biological mother did not have to establish parental responsibility. This was automatic. He suggested that a clause be inserted which stated that there should be no discrimination in disputes. Gender should therefore not be the sole determining factor to establish rights. Under customary law the child belonged to the father. He asked if the intention in the Bill was to suppress the customary law and enforce the common law position.

Dr Mabeta said that the biological mother had full rights unless it was shown that she was unfit. There were cases where the mother was also a child (under eighteen) and the grandmother would then be regarded as the mother and would assume parental responsibility.

Mr D Plaaitjies, Director for Social Security and Welfare Services in the National Treasury, said that men were also parents and therefore had responsibility. These issues were complex but had to be addressed. The customary law position also had to be investigated. The connection with the Maintenance Act also had to be considered.

Adv Masutha (ANC) added that these issues were complex. It was also important to look at the whole definition of the primary caregiver. He gave the instance of a minor who had a child, and where the grandmother cared for the child.

Ms Van Zyl said that at present, if the parents were married, both had guardianship over a child on an equal basis. A married minor achieved majority status on marriage and would have guardianship with the husband. In the case of an unmarried minor, the minor’s guardian would be the guardian of the child. This was the legal position and overruled customary law. The minor could however give consent for adoption. The duty to maintain the child was a common law duty. The maintenance law at the moment was quite complex. At present unmarried fathers had no rights over their children. This Bill sought to expand the rights of unmarried fathers to obtain guardianship. Unmarried fathers would have to give consent for a child to obtain a passport, and for marriage. If the mother was not available, the father would have to give permission for a medical operation or a school trip even if the parents were not married. Guardianship embraced three aspects namely, the right to care for the child, to maintain contact with the child and to act as the guardian of the child. The primary care giver was not the guardian of the child. The major change in the Bill was therefore to give unmarried fathers guardianship.

Dr Mabeta said that the definitions sometimes caused problems as they were in a different section in the Bill. She suggested that perhaps some way should be found to include some definitions in the substance of the Bill.

Adv Masutha said that the exercise that they had gone through had been very helpful as it had given them a good picture of the areas which needed attention. They would need the Department of Justice when dealing with Chapter 5 of the Bill. Chapter 4 however needed to be rounded up.

Ms van Zyl said that she needed to add that there had been a change in the law with regard to unmarried fathers and adoptions. Unmarried fathers had to give consent for a child to be adopted.

Adv Masutha (ANC) said that these rights were not automatic however. In the case of a rape or incestuous relationship, the father did not have the right. Where the father did not play a meaningful role in the life of the child he would also forfeit the right.

Dr Mabeta said that they would continue with the report the next day.

Adv Masutha (ANC) added that it was not just for Chapter 5 that the Department of Justice was needed, but other issues that related to the High Court.

The meeting was adjourned.