Children’s Bill: deliberations

Social Development

28 October 2004
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Meeting Summary

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Meeting report

Social Development Portfolio Committee
29 October 2004
CHILDREN’S BILL: DELIBERATIONS

Chairperson: Mrs T Tshivhase (ANC)

Documents handed out:
Children’s Bill [(B70-2003) Reintroduced]
Draft Committee report on public hearings on the Children’s Bill, held 11-13 August 2004

SUMMARY
The Committee considered the outcomes of the public hearings on the Children’s Bill
[B70-2003 (Reintroduced)]. They decide that there was a need to resolve the debate on powers to be given to child heading a household. In terms of the law, there were two powers that a parent could exercise in respect of children. These were custodian and guardianship. There was a need to decide who exercised the powers in different circumstances if a child did not have parents or a legal guardian. It was difficult to decide at what stage a child could be regarded as a head of a household and a primary care giver.

The Committee did not entertain submission on Chapter 3 of the Bill because these dealt with issues already covered in the Constitution. The Committee and the Department were worried about the dominant effect that children’s rights seemed to have. It was agreed that children should be made aware of responsibilities that they had to the state, community and their parents.

MINUTES
The Department was represented by Mr P du Preez (Legal Services), Ms A Muller (Deputy Director: Child, Youth and Family), Ms M Ngcobo-Mbere and Dr M Mabetoa (Chief Director: Child, Youth and Family). Advocate O Kellner State Law Adviser) also attended the meeting.

The Committee considered the outcomes of the public hearings. Mr Muller asked if the Department had to focus on the Committee’s draft report or deal with the Bill clause by clause.

Mr M Masutha (ANC) said that after the public hearings, the Committee would consider their outcomes. The Committee should look at issues of general policy and then look at specific matters. It should be guided by the report.

Ms S Rajbally (MF) asked if the Department felt that there were provisions that needed to be added to the Bill. It would be better to address such issues before dealing with the rest of the Bill.

Ms H Weber (DA) suggested that the Department indicate problems that they had picked up and address these, before dealing with other issues.

Advocate Masutha noted that
Lawyers for Human Rights (LHR) had submitted that the Bill had shortcomings in providing protection and care to foreign children in South Africa. Members who went to Thaba Nchu came across a situation of a child whose parents both came from Lesotho. The mother had left the child behind and returned to Lesotho and died while she was there. The child continued to attend school in South Africa. The child soon fell pregnant after the mother had left. The child she would give birth to was going to be a South African. She was 17 years old and needed some form of identification to get into the foster care system. He could not see how she was going to get South African identification because she did not have relatives in South Africa who could vouch for her, so that the Department of Home Affairs would issue her with some form of identification. In any case, she would be issued with a Lesotho birth certificate. She did not want to go back to Lesotho and would have preferred to give birth in South Africa. The likely response from Home Affairs would have been to deport her. This indicated that there were issues that the Department of Social Development could not deal with on its own. It needed to interact with the Department of Home Affairs. He asked if some thought had been given to addressing such issues.

Dr Mabetoa said that it was difficult for the Department to participate meaningfully in the discussion because it had not properly studied the draft report on the hearings. The Department had also not discussed the report with colleagues from other departments. The current legislation could be used to protect foreign children. Once a child was unaccompanied by parents and had no visible means of support, the child could be declared ‘in need of care’ in accordance with childcare legislation. Together with the South African Police Service and the Department of Home Affairs, the Department had resolved that such children should be referred to a social worker’s office instead of being taken to Lindela. It was illegal to place children with adults in Lindela. The issue was that foreign children had no access to social services like social grants. The Department had not yet made a decision on whether to extend social security to refugees and unaccompanied minors. At the moment, they did not qualify for social security. Any changes, if necessary, had to be made in the Social Assistance Act and not the Children’s Bill.


Advocate Masutha said that it did not matter whether a child was South African if in need of care. The system had to intervene and one intervention could be to place the child under foster care, pending the resolution of the problem. The social assistance system had never made South African citizenship a precondition for accessing foster care. The requirement of identification documents thus created a barrier to accessing the system.

Dr Mabetoa said that children who were about to be repatriated, were placed at a place of safety. It was difficult to place them in foster care if they did not have identification documents.

Ms Rajbally said that one should be concerned about the in-flow of foreign children. She did not support the suggestion that the definition of “child” should provide that a child meant any child under the age of 18 years, regardless of nationality.

Dr Mabetoa said that the Department also did not support the inclusion of “regardless of nationality”. She lamented the fact that a number of officials were not trained on how to deal with foreign children.

Ms Rajbally said she meant that there should be some control mechanisms, rather than allowing people to take advantage of the social security system. An unwarranted inflow of foreign children should not be supported.

Advocate Masutha noted the submission by
the National Alliance for Street Children (NASC) that clause 129 specified that the parent or “primary caregiver” needed to consent to medical treatment or a surgical operation for a child under 12 year of age. However, the definition of “primary caregiver” did not include a child and youth care worker at a shelter.

He felt that the submission highlighted the need for the Committee to resolve the debate on powers to be given to a child head of a family. In terms of the law, there were two powers that a parent could exercise in respect of children: custodianship and guardianship. There was a need to decide who exercised the powers in different circumstance if a child did not have parents or a legal guardian. The primary caregiver concept had been adopted in the Social Assistance Act for the purposes of the child support grant. The question was whether the Committee wanted to extend the authority of a primary caregiver to include custody and guardianship. He noted the proposal by the National Alliance for Street Children that the Principal of the Shelter should be allowed to consent to the child receiving medical treatment or a surgical operation. This implied the extension of guardianship to workers in institutions of this kind. This was a policy question that needed to be dealt with. He hoped that the State Law Adviser or the South African Law Commission would guide the Committee on the matter.

Dr Mabetoa said that clause 129 had to be read with clauses on parental responsibilities and rights. She felt that the Bill adequately covered the concern raised by the NASC, even though it did not specifically referred to shelters. The Child Care Act did not deal with the testing of children for diseases and the Committee should investigate if the Bill provided for testing and treatment of diseases.

Ms Muller said that clause 129 was in the Section 76 Bill. She proposed that the Committee should focus on the Section 75 Bill issues. Mr B Solo (ANC) agreed with the suggestion. Issues that belonged in the section 76 Bill, but were commented upon during the hearings, should be flagged.

Ms J Chalmers (ANC) said that there was so much overlap and this made it difficult to confine to particular issues. However, dealing with Section 76 and 75 Bills issues at the same time would hinder progress.

Advocate Masutha said that Chapter 4 of the Bill dealt with who should exercise parental responsibilities and under what circumstances different aspects of parental responsibilities could be allocated to more than one person. The chapter laid a foundation for interpreting clause 129. It was not simple to say that the clause should be flagged and discussed after this Bill had been passed. The extent to which the Committee did not deal with parental responsibilities might create problems when the Committee dealt with the section 76 Bill. It might be forced to go back and amend an Act it had already passed.

Ms Chalmers asked if Advocate Masutha was saying that the Committee had to be aware of what was coming, in order to lay the appropriate foundation. She also asked if he was hoping that Chapter 4 would be so comprehensive so that any problems the Committee might encounter when dealing with the section 76 Bill would be manageable, because the foundation had already been laid.

Advocate Masutha said that central issue was the policy around awarding custody and guardianship. These were two key elements of parental responsibility. The issue of consent to medical treatment was in part an aspect of parental responsibility, and more specifically guardianship. It was important to give answer to questions raised during the hearings on this issue. It was equally important to investigate if the issue was adequately addressed in the Bill as suggested by Dr Mabetoa. The issue raised by the NASC specifically related to street children, who might be in or out of shelters. The issue of a child and youth care worker might not come up. The Bill allowed the person in charge of the hospital or clinic to consent if the child had no parent or caregiver, and there was no designated child protection organisation arranging the placement of the child. With regard to custody and guardianship generally, the question was whether the Bill adequately dealt with street children who were not in shelters, and child-headed households. The question was what powers were extended to a child who was a head of a household. Could the child act as a parent for all intents and purposes?

Dr Mabetoa said that the definition of a caregiver included a person who had the parental responsibility and right in caring for the child, and who exercised that responsibility and right. It also included a child and youth care worker at a child and youth care centre where a child had been placed. The concern was that shelters were not part of child and youth care centres. However, paragraph (e) of the definition provided that a primary caregiver included a person who cared for a child while the child was in a temporary safe care. Shelters were places of temporary safe care and were therefore included under paragraph (e) of the definition of a primary caregiver. It was not necessary to specifically refer to shelters in the Bill.

With regard to child-headed households, there were debates on whether the head of the household should be regarded as a primary caregiver. The Bill provided that the head of a household was a primary caregiver.

Ms Chalmers asked if the “person” in the definition of a primary caregiver, included a child who was a head of a household.

Advocate Masutha said that the oldest sibling in a household that consisted of children might be 12 years old or even younger. He asked if there was an age limit for the purposes of conferring the responsibility of being a primary caregiver.

Dr Mabetoa replied that a decision needed to be made on whether to include age restrictions in the Bill. It was difficult to decide at what stage a child could be regarded as a head of a household and a primary caregiver.

Advocate Masutha said that the extension of the notion of a primary caregiver to cover both custody and guardianship, meant that the child would exercise the totality of parental responsibilities. This would include representing the siblings in legal matters, and dealing with properties of the siblings. He asked if the idea was that all such powers would be to any child without imposing an age restriction. If this were the case, it would mean that the Department of Housing, for instance, would be required to entertain an application for an RDP house by a 12 years old child. It was important to identify areas in which a child would be competent to act.

Dr Mabetoa agreed that some age restriction might be necessary in respect of certain matters.

The Chairperson asked at what age a child should be considered as a head of a family.

Ms Chalmers said that the issue was difficult to address because different children matured at different ages. Allocating responsibilities according to ages might be problematic.

Advocate Masutha agreed that the matter was complex and needed to be considered carefully. He felt that all departments involved in the Bill should have been present in this meeting.

Dr Mabetoa said that all departments involved in the Bill met regularly to discuss issues pertaining to the Bill. It had been decided that other departments should be present only when the Committee was dealing with issues relevant to them. The decision was motivated by the fact that it was difficult to get staff from different Departments to attend meetings in Parliament on a regular basis.

Ms Ngcobo-Mbere said that said that every child under than 18 years was in need of care. There should be a guardian for every child.

Ms Rajbally said that in cases where a child who was a head of a household was young, there should be a guardian. A question that arose from this situation was whether the guardian or the child should have access to social grants. This also gave rise to a question of how to monitor that the grant was used in a proper manner.

Dr Mabetoa replied that there had been a suggestion that a designated organisation should have access to social grants if a child was under the age of 18. This is what was happening in practice.

Advocate Masutha asked if the grant would continue to be called the foster care grant or if it would become the ‘foster and kinship grant’.

Dr Master replied that it would be the foster care and kinship grant. It would be at the same level with the foster care grant. The same application procedures would have to be followed. There might be an amendment to the Social Assistance Act to extend the meaning of foster care grant to foster and kinship grant.

Ms Weber suggested that in rural areas, there should a group of people who could act as a board of trustees. The properties of parents and other things could be put into a trust under the names of the children. The board could control all child-headed households in a particular area.

Advocate Masutha feared that even the concept of a trust, was alien to most people in rural areas. The idea of a trust could be used in some communities. Another problem was that a trust came with legal responsibilities and duties to the board.

Ms Weber agreed that this suggestion might give rise to problems. She proposed a simplified version of a trust without elaborating on the nature of this simplification.

Dr Mabetoa said that the suggestion by Ms Weber was covered in the Bill. The Bill provided that a child-headed household should function under the general supervision of an adult designated by a Children’s Court, non-governmental organisation or organ of State. The Department was busy establishing childcare forums in communities. These would care for the need of vulnerable children in their communities.

Definitions
The Chairperson noted a submission by the Law Society of South Africa that the definition of “abuse” in the Bill did not follow the definition in the Prevention of Family Violence Act, and proposed that “neglect” should be included in the definition. She asked for comment on the matter.

Dr Mabetoa saw no point in the submission because there was a definition of “neglect” in the Bill.

Family member
The Law Society had submitted that the definition of “family member” was too extensive, especially in sub-clause (e), and that this might lead to exploitation in certain instances.

Mr du Preez clarified that the Law Society’s problem was limited to paragraph (e) of the definition.

Advocate Masutha asked if any purpose was served by the inclusion of the definition in the Bill. This was especially the case given that the Bill referred to a primary caregiver and a parent.

Dr Mabetoa replied that the some clauses of the Bill referred to a family member and hence the attempt to define such a member. The concept of a family should be viewed in a narrow sense to exclude extended family members and other who are in some remote way part of the family.

The definition was flagged for further discussion.

Parent
The Law Society had submitted that the definition of “parent” should include, as sub-clause (d), "a surrogate mother who had elected not to terminate the surrogate agreement within the prescribed period". The words "means a biological, adoptive or commissioning parent where the agreement referred to in (d) below has not been terminated" should be inserted after the heading "parent".

Ms Rajbally said that naturally a surrogate mother became the biological mother of the child. She asked why the Law Society referred only to a surrogate mother who had elected not to terminate the surrogate agreement within the prescribed period. She asked if the surrogate mother who had elected not to terminate the agreement would cease to be a biological mother of the child.

Advocate Kellner referred to paragraph (c) of the definition. The paragraph referred to a parent whose parental responsibilities and rights in respect of a child had been terminated. The surrogate mother ceased to be a parent once she had delivered the child to the other party to the contract.

The Chairperson asked who would become the biological mother. Dr Mabetoa replied that the case of surrogate motherhood should be viewed along the lines of an adoption. The parent cut all rights and responsibilities with the child upon giving it up for adoption. Once could not claim the child back once the process had been completed. Should a mother in a surrogate agreement decide to terminate the contract before the prescribed time, she would be regarded as the parent of the child.

Advocate Kellner felt that all aspects of surrogacy were covered by the Bill.

Advocate Masutha noted that the definition of a parent excluded a biological father of a child conceived through the rape of or incest with the child’s mother. The definition missed the point that until it was declared by a court that a person was not a father, he de facto remained the father of the child. Declaring that a father of an incestuous child was not a father , would make it difficult to hold that person accountable should he neglect or abandon the child. Paragraph a) of the definition should be deleted because it was covered by paragraph (c).

Advocate Kellner said that paragraph (a) was important to cater for situations where a court had found a person guilty of incest, but did not terminate the person’s parenthood. The paragraph would have the effect that the person would cease to be a father of the child. If the paragraph was removed, the court would have to make a declaration.

Advocate Masutha said that the concern was whether the matter should be regulated through a definition. This was a substantive matter that needed to be provided for in the Bill itself. A question that arose was whether incest only became incest upon criminal conviction. What would happen if it was established during criminal proceedings that the child was born out of an incestuous relationship?

The Committee agreed that the matter should be regulated in the Bill itself, and not dealt with by way of a definition.

Clause 2: Objects of the Act
The Children’s Institute had submitted that the Bill focused on secondary and tertiary interventions once a child had been abused or neglected, at the expense of primary prevention and early intervention services.

Dr Mabetoa said that prevention and early intervention belonged to a Section 76 Bill. She asked the Committee if it would be wise to deal with Section 76 Bills issues in the Objects of the Bill. The Committee agreed not to deal with the matter.

Chapter 2: General Principles
The South African Aids Vaccine Initiative (SAAVI) had submitted that clause 5(6) did not recognise the fact that in some instances, the Children’s Bill recognised the competence of children to act independently of their parents or guardians. The protection of children’s privacy with regard to their medical treatment, general health status and HIV status, might be of utmost importance in encouraging children to access health services and to participate in research. They recommended that the clause be redrafted to provide for instances where a child, having regard to age, maturity and stage of development, should be informed of any action or decision taken in a matters that concerned and significantly affected him or her.

Advocate Masutha said that in a child-headed household, the head of the household would have to be consulted in respect of his/her situation. The child would have to be consulted in relation to the younger siblings’ welfares.

The Chairperson asked what was included in the concept of ‘maturity’. Dr Mabetoa said that maturity did not refer to biological, but the emotional, development of the child. The clause raised issues regarding the participation of the child in matters concerning him or her. SAAVI’s submission proposed to allow children to participate in research. The Bill covered the testing of children for HIV/AIDS.

Advocate Masutha said that the submission raised a constitutional issue. He was worried that there might be problems, especially in cases where parents were asked to “volunteer” their children for reward. Poor communities might be targeted. Some of the research might not be done by government-controlled institutions, or by government itself. He felt that the Committee could not make a policy decision on the matter without input from the Department of Health. He suggested that the issue be flagged and directed to that department. Ms Weber agreed.

The Law Society of South Africa had submitted that the words “or sexual orientation" should be inserted at the end of clause 5(3) to ensure that the clause did not permit discrimination on the basis of sexual orientation.

Advocate Masutha wondered if it was necessary to insert the words because the Constitution already prohibited discrimination based on sexual orientation. If there was reference to sexual orientation in the Bill, a question might arise why disability or any other attribute, was not included.

Advocate Kellner agreed. However, at the same time, he felt that the issue might not be discrimination but issues of who should get custody of the child. In the past, courts had always held that custody of a very young child should be given to a mother. The clause was about levelling the playing field.

Dr Mabetoa said that the clause seemed to address cases wherein a divorce, for instance, came about because one of the partners was homosexual. The decision to award custody should not be based on sexual orientation of a parent.

Advocate Masutha felt that the suggestion was still about equality, and did not add anything that was not in the Constitution. In any case, the best interest of the child took precedent. Children who were still being breast-fed should preferably remain in the care of their mothers. He asked who had custody of a child of a child born out of wedlock.

Dr Mabetoa said that first and foremost, a child belonged to the mother, unless a court had found that she was incompetent to take care of the child.

Chapter 3: Children’s Rights
The Committee noted various submissions on Chapter 3.

Advocate Masutha was completely opposed to repeating anything that was already covered by the constitution. He felt that such an exercise might have an effect of undermining the Constitution. The Chapter should only address how to apply the rights in the Constitution and not list further rights. The key was to first give full effect to constitutional and international obligations to children before creating further rights. Advocate Kellner agreed, as did the Committee and the Department.

Advocate Masutha was surprised that clause 16 provided that every child had responsibilities appropriate to his age and abilities towards the community, his or her family and the State. He asked for some explanation on the meaning of this clause.

Dr Mabetoa replied that there had been an outcry that children were made to believe that they had rights only and no responsibilities. At times children would refuse to help their parents because they felt that it was their right to do so.

The Chairperson felt that children’s rights were very dominant and there was a need to control them.

Advocate Masutha felt that the clause as it stood, did not address the problem. The responsibilities needed to be clarified. There was general agreement on this.

Clause 10: Child participation
The Law Society of South Africa had raised questions about the procedure for a child’s participation in decisions that affected him or her.

Mr du Preez felt that prescribing the procedure might have resulted in justice not being for a child.

Advocate Masutha said that the clause was mentioned under the chapter that dealt with children’s rights. He was surprised why it was not put together with other clauses on children’s rights. He felt that the Law Society intended the clause to serve as a principle and not a right. This clause and clause 16 should be included under the list of principles. The Committee agreed.

Clause 12: Harmful social and cultural practices, and clause 13: Information on Health Care
The Committee noted submissions on the clauses. Mr du Preez said that clauses 12 and 13 were part of chapter 3, and this was flagged.

Advocate Masutha said that clause 12 was specific and clause 16 should also be formulated in that way. Paragraph (a) of clause 13 was already covered by the Constitution.

The meeting was adjourned.

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