Children’s Bill: Consultation with Relevant Departments

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
25 August 2004
CHILDREN’S BILL: CONSULTATION WITH RELEVANT DEPARTMENTS

Chairperson: Ms J Tshivhase (ANC)

Documents handed out
Social Development Portfolio Committee meeting agenda
ELRU Fact Sheets 1 and 2
Department of Education: Response to the Children’s Bill
Department of Health briefing
Department of Correctional Services briefing
Department of Social Development Progress Report (not presented)
Department of Justice and Constitutional Development briefing

SUMMARY
The Committee was briefed by the Departments of Education, Justice and Constitutional Development and Correctional Services, as well as the South African Police Service. Each Department presented an overview of their current programmes as they affect or involve children. The Committee was particularly concerned about children in correctional centres and the child’s basic right to education. Concern was also expressed over the way in which children were exposed to an adult-centred police and justice system.
 
MINUTES
South African Police Service (SAPS) briefing
Dr T. Geldenhuys (Assistant Commissioner attached to Legal Services: SAPS) emphasised that children were very important to the SAPS as the adults of the future. The SAPS dealt with children in two main categories: child offenders, or children who had already committed crimes, and child victims of crime. These children were traumatised, needed support and to be able to trust the SAPS to assist them and bring the perpetrators to justice.

Specialised units had been established with specially trained investigators. Special interview rooms had been designed where children could play out what had happened, and allowance was made for videotaping of interviews. The SAPS was trying to set up specialised trauma centres at every police station. These trauma centres were manned by specially trained volunteers who were also able to give guidance to parents. Trained psychologists who were volunteers from the community were on 24 hour standby at each centre and would be able to assist the child at the scene of the crime leaving the SAPS to concentrate on the scene itself.

The SAPS had built up good relationships with NGO’s such as clinics and this was particularly important where there were allegations of sexual abuse. Use was made of forensic psychiatrists in multidisciplinary teams to provide information that would be valuable in court.

The SAPS also assisted children to avoid becoming victims and perpetrators of crimes. A number of projects were run in co-operation with other Departments, an example of which was the school-based crime prevention project where the SAPS was a support Department with the Department of Education. Captain Crime Stop and the “Adopt-a-Cop” programmes were projects to build trust in the Police Services and to have a visible police presence around schools. The SAPS also made a variety of presentations to schools, handing out pamphlets, colouring books, stickers and so on. These focused on assisting the child to identify and avoid dangerous situations and empowering them to report problems to the police. Children were also given information on firearms and their dangers. The SAPS was in the process of declaring school premises gun-free zones. This process was up for public comment. Drugs were easily available in South Africa and children were being targeted. The SAPS provided children with information, showed them the drugs and equipped the child to know their effects so that there was no need for them to experiment.

Discussion
Ms N Magazi (ANC) said that children with disabilities were particularly vulnerable and asked what happened when they reported a crime, for example when a deaf child used sign language. She asked what means of communication was used and whether the SAPS could take a statement. What assistance was provided to vulnerable persons in rural areas?

Dr Geldenhuys said the SAPS realised that communication was vital. It was a problem that police officers could not possibly speak all languages and were also not trained in sign languages. He said that when a child arrived, the child would try to convey a need and he would expect the police officer to ask the child to write down the problem or to make use of resources available in the community. Police officers needed to be creative and ensure communication in whatever way possible. Exactly the same would apply in a rural situation. He said there were usually fewer difficulties in rural areas as the members of the community would know who could assist.

Ms F Batyi (ID) asked what was in place for dealing with drug dealers in Cape Town, especially tik merchants. She said that 80% of children in the Mitchell’s Plain area were tikking. She understood that the SAPS knew the houses and dealers and asked what was being done.

Dr Geldenhuys replied that it was difficult to reply to this out of context. He said organised crime units had been set up specifically to counter drug use and dealing. An investigation could, however, take over a year. He offered to enquire into the specific circumstances or put someone in contact with Ms Batyi.

Mr M Masutha (ANC) interjected that one of the Committee’s responsibilities was to oversee the Drug Dependency Act, but that they were currently just dealing with children.

Dr Geldenhuys said that special attention was paid to gangsterism in the Western Cape as well because this was closely linked to drugs.

Ms J Chalmers (ANC) asked whether investigators were really using social workers and if they were sufficient. She also wondered whether the use of psychologists was a reality and asked if the Child Protection Units (CPUs) were still functioning throughout the country.

Dr Geldenhuys replied that social workers were employed and used at times to assist specifically with women and children. The SAPS did employ some forensic social workers but relied on social workers from other sources, such as other departments and NGO’s with whom there was excellent co-operation. He said that trauma centres could only be established where the local public was involved as this was not a core function of the SAPS. He said there were approximately 48 CPUs around the country. These units were not located in police stations but in specific areas and the members received specialised training.

Mr M Waters (DA) said that he had been to all CPUs in the country two years before but had seen a chronic lack of staff which had a direct impact on the caseload. He said there were also problems at the DNA laboratory in Pretoria which had vacant posts for scientists qualified to analyse DNA. He also raised the problem of doctors refusing to examine children who were reported to have been raped and asked whether this had been addressed.

Dr Geldenhuys agreed that there were serious staff shortages. One of the reasons for this was a general staff shortage in the SAPS and he referred to the recruitment drive. He said that proof of the SAPS commitment to children was the fact that the Family Violence Units were the only units fully stocked with motor vehicles. He recognised that the lack of forensic scientists was a problem and said that a scarce skills programme had been implemented the previous year. The work required great dedication and very specific skills.

There was a general problem of medical practitioners refusing to gather evidence from victims of crime and this was being addressed by the State. The Department of Health still employed some district surgeons and, in rural areas, had entered into agreements with local clinics to provide services.

Ms H Weber (DA) asked how many special interview rooms were available for interviews with children and whether these were envisaged for all stations. If these rooms were not available, what facilities were used?

Dr Geldenhuys replied that there were 1 169 police stations in the country and that it was impossible to say how many had special rooms. He was unable to answer about furnishings. He said that if there was no special room, the station commander should make a private room available. Where special rooms had been established, members of the Community Policing Forum had contributed furnishings.

Mr K Morwamoche (ANC) asked why it was not compulsory for the police to remind complainants to read their statements before appearing in court. He also asked what measures were in place to prevent dockets from going missing, and asked how many of the 27 000 schools in the country had the programmes referred to in the briefing.

Dr Geldenhuys said that it was not a function of the SAPS to remind witnesses to read their statements. The dockets were sent to the Public Prosecutor. Although the investigating officer usually assisted the Public Prosecutor, it was impossible to have investigating officers at every court case owing to staff shortages.

A number of steps had been taken to prevent the disappearance of dockets, including a computerised system to track them. Where a very serious matter was involved, copies were made and locked in a safe.

It was difficult to say exactly how many schools were involved in the programme. Every police station had a responsibility to promote the Safer Schools programme as a support Department in consultation with the Department of Education.

Mr B Solo (ANC) referred to the spaza shops next to many schools and said that they were actually selling drugs. He asked whether this had been investigated. He also asked what the SAPS were doing about young sex offenders.

Dr Geldenhuys said that the organised crime units would deal with the spaza shops but that this was one of the areas in which the “Adopt-a-Cop” programme would play a role as the police officer would investigate as well. He referred Mr Solo to the SAPS pamphlet on children’s rights and said that children were also taught to respect the integrity of others.

Department of Correctional Services (DoCS) briefing
Ms J Sishuba (Chief Deputy Commissioner: Development and Care) said that the primary position of the Department was that children do not belong in correctional centres. They saw the family as the basic level in corrections, the community as the secondary level and the Department as the tertiary level or last resort. Children should be diverted from the Correctional Justice system, but where diversion was not an option, they should be in secure care facilities designed specially for children with specialist staff, age-based programmes and an integrated approach.

There are children in correctional centres who are incarcerated with their mothers, where the mothers had no support systems at the time of incarceration. Correctional centres are security institutions so these can never be a normal environment for children. Section 20 of the Correction Services Act 111 of 1998 provides for mothers to have children younger than five years with them in detention. Where practicable, the Department should ensure that mother and child facilities are available. Once children are over five, programmes need to be in place to ensure the continuation of the mother-child relationship. At the time of the presentation, 205 infants were in correctional centres with their mothers.

Correctional officials were trained to correct and rehabilitate offenders and did not have the capacity to deal with young children. The Department accommodated NGOs who assisted in this role. Young children were only incarcerated with their mothers where no other suitable care was available. The Centre for Conflict Resolution had conducted research on the effects on babies and some of the issues included that their needs were not being met, there was a possibility that they might be exposed to abuse between adults, possible future aggressive behaviour and lack of exposure to father figures.

An option considered by the Department was to send children out of the centres to early childhood development institutions, although this was not ideal because they would still have to return to the correctional centres. This also carried considerable cost implications, at approximately R850 per child per month.

The Department had identified the following challenges: what happened to children of incarcerated mothers who are still in their communities, a need for an integrated approach between the DoCS and the Department of Social Development and additional staff training. Attendance of children at external crèches should not be seen as an encouragement. It was also a fact that overcrowding impacted negatively on service delivery.

Discussion
Ms Chalmers asked what was happening about the approximately three thousand children already in prison, and what education they were receiving. Some were still in the main prison population. In St Albans Prison in Port Elizabeth, for example, there was not total separation of child offenders. She asked how many secure care facilities were up and running.

Ms Sishuba replied that the core business of Correctional Services was safe custody and humane detention and that it was a very specialised field. The Department was one of the very few with long-term residents. She said that an entire presentation could be done on the Child Justice Bill and saw that this Bill was an answer to the Correctional Services problem areas. There were 3 594 children under the Department’s care, of which 1 857 were unsentenced children and 1 757 had been sentenced. There were also 1 695 children serving sentences in the community. The Child Justice Bill focused on alternative sentencing. The Departments of Social Development, Education and Health assisted with children awaiting trial.

She said that the Department of Social Development would provide a list of the secure care facilities.

Mr Masutha stressed that this was a unique opportunities for Departments to critically examine multisectoral and intersectoral collaboration. He said that a small number of children were affected and that the facility that he had seen at the Johannesburg Prison was good but that the environment was not a good one for children. He asked whether children were made to stay inside the area for the full five years or whether they were able to get out into the sun at all. He enquired what happened once the child turned five and asked whether the child was put into foster care. He asked what criteria were used to determine the five-year age limit.

Ms Sishuba said that children did get out for intervals but that there were few of these. NGOs did provide this service in many centres. In Pollsmoor, the Department had received donor funding for an ECD centre where children of inmates could mingle with other children, outside the cells.

Children were removed to relatives or secure care facilities if possible. The Department hoped that legislation would assist these children when they left the centres. The Department was unable to provide a follow up service for relatives.

Mr Masutha said that if the Pollsmoor model worked, this should surely be applied rather than dealt with on an ad hoc basis.

Ms H Bogopane-Zulu (ANC) said that fathers were not usually considered as caregivers and children ended up in correctional facilities. She said she felt that fathers should be held responsible for their children.

Ms Sishuba agreed that that would be ideal but said that children often had nowhere else to go. Fathers were not always available or able to deal with the age groups involved. The Department budget was informed by its core business and alternatives to sentencing were required. A multisectoral approach was essential.

Dr J Coetzee (Director: Education and Training, Department of Correctional Services) said that sentenced children were provided with formal education within the framework of adult education. They had access to education up to Grade 12 and it was then up to the family to assist with higher education. There were thirteen youth centres, but it was a reality that children were in the mainstream prison populations.

The Departments of Correctional Services, Education and Social Development were on the brink of signing a memorandum of understanding to take services to unsentenced children as well.

Mr Masutha asked why unsentenced children were in correctional centres if secure care facilities were not full. He asked how the youth centres differed from secure care facilities.

Dr Coetzee replied that the youth centres were within the prisons, for example at Brandvlei in the Western Cape. The youth did not mix with adult inmates. He said that the memorandum was directed at getting the unsentenced children out of the correctional centres.

Department of Education briefing
Mr T Mseleku (Director General: Education) said that he saw the Bill in its current form as more broadly a principle approach. Chapter 11 attempted to define early childhood development (ECD) but the term was not used later in the Bill. He felt that this definition was not needed. He also queried why it was not in the Definitions rather than in the body of the Bill.

Mr Masutha interjected that this needed to be put in context as the Bills had originally been a unified Bill. He said that the Committee wanted to understand what services the Department was currently providing to children.

Mr Mseleku said that the Department was responsible for the education of children. ECD was defined for the ages from birth to nine years, with the compulsory phase being started at Grade R, for children of four turning five. This showed the need for the definition of ECD to be seen in context.

The other issue was a policy issue, linked to children in need of care and protection. Once the definition of children in need of care was established it was necessary to decide how to assess whether the child was in need of care and who was taking care of the child. If the child was of school going age, the State needed to ensure that there was no violation of the child’s basic right to education. He described this as a principle of process, and asked whether courts, social workers or educators were responsible.

The Department was trying to foster inclusive education for all children regardless of their situation to ensure that there was no stigmatisation of children in special circumstances. The Department was responsible for ensuring that all children had access to education as a right up to the age of sixteen, and that education was progressively available after sixteen.

He referred to a minor issue in Clause 302 and suggested that the Committee look carefully at the power conferred by the Bill in its current form.
 
Discussion
Mr Masutha said that a constitutional question arose of whether or not Parliament could legislate on functions at provincial level. These issues would be addressed by the State Law Advisor. Concerns had been raised the previous year about the lack of provision for the National Policy Framework (NPF) and concerns that different Departments approached issues differently resulting in a lack of synergy. He said that the Committee had requested Departments to explain the policy implications of the Bill to them in the context of the services they currently rendered to children.

Ms Chalmers asked whether the Department was fully in favour of an NPF where priorities for children were dealt with from a nationally co-ordinated team. She asked how it would function and reiterated that education was a fundamental foundation for the future.

Mr Mseleku said that the Department favoured a multisectoral approach and would welcome it. He said he would offer suggestions if requested to do so. In practice a number of areas were already dealt with multisectorally, such as children in conflict with the law. The SAPS school programmes were also an example of collaboration between the SAPS, and the Departments of Education and Health.

Mr Waters said that the right to education was stipulated under children’s rights in the original Bill but had been omitted from the current draft. He asked whether the Department had been involved in its removal and what the justifications were.

Mr Mseleku said that the right to education is a Constitutional right. He said that the draft talks about the right to vocational guidance and information but that this was not conferred by the Department and had vast implications. The Department had accepted the exclusion of the whole clause as the rights in the Bill were a supplement to the rights contained in the Constitution.

Ms Weber asked who was to be responsible for the drop-in centres as it was impossible to educate hungry children.

Mr S Naicker (Director: Inclusive Education) replied that the drop-in centres fell under the Department of Social Development but that a lot of intersectoral work was being done. It was intended to look at educational programmes for children throughout the country with discussion with a range of departments.

Mr Masutha asked what the current policy was on children in institutions and whether there was a system to ensure appropriate education.

Mr Solo said that there had been a lot of fragmentation. Teachers were trained to teach but would like to know exactly how the system worked and how to identify problems. He asked whether the Department had engaged with the Department of Social Development prior to the Bill and whether the Departments were prepared to come together to see what was lacking in the Bill.

Mr Mseleku reiterated the need for a multisectoral approach. He acknowledged discussions with the Department of Social Development prior to the first draft of the Bill.

Ms Tshivhase said that many children were excluded from schools because of school fees. A new financial education system policy had been drafted to address this and allow schools to receive subsidies. She asked whether this had been implemented.

Mr Mseleku said the Department was in the final stages of finalising announcements for 2005. They were looking at trying to stop schools from requesting school fees from children receiving any form of grants. The schools serving the poorest communities will be enabled not to charge fees. The law gives parental bodies the right to charge school fees and the Department was looking at mechanisms to get around this.

Ms Bogopane-Zulu asked if the Department would look at section 20 and 21 schools. She said that school fee problems only arose in schools where governing bodies were functional. The amount required was also an issue and she felt that fees were becoming a barrier to education.

Mr Mseleku replied that the Department would prefer parents to make their own decisions. Parents needed to know their rights in order not to perpetuate the problem. He said it would be problematic to introduce a fee ceiling and it was a complex issue that would not be solved by legislation. The Department felt it was urgent to get to those schools serving the poorest of the poor, but it was also important to get to all schools as no child could be excluded if unable to pay fees.

Mr Masutha said that the special needs project was still in its pilot phase and that provinces had not yet started to integrate inclusive education in their budgets. He asked the status and progress of the project.

Mr Naicker replied that the set-up work had been done in the system. The curriculum had been adapted and redefined but it was very difficult to measure advances. Funding had been acquired from donors, conditional grants had been applied for and there were funds in the special needs budget. The Department focus was on strengthening special schools and an outreach role. Two pilot projects had been completed. The Department had also involved universities and government departments to generate common understanding when drawing up the concept documents.

Mr D Dikgacwi (ANC) asked why it was not possible to have one application for both ECD and Grade R, to minimise costs.

Mr Naicker said that this issue had been raised in many forums and the Department was looking at the issue particularly with respect to poorer communities.

Department of Justice and Constitutional Development briefing
Adv P du Rand (Programme Manager: Specialised Courts and Promotion of the Rights of Vulnerable Groups) said that the Department had given a full briefing on 5 August 2004. He reiterated that the high courts were the upper guardians of all children, although the regional courts handled most work relating to children. Special services were needed at court level with very specific equipment and services to protect children. The courts had to help children deal with court preparation and provide specific interaction relating to interpretation needs such as sign language, Braille and foreign languages. A data pool of interpreters was being compiled.

He emphasised the need for specialised courts and said that the Department was also involved in transforming the judicial charter. One of the core aspects of the charter dealt with communication and outreach, including informing children of their rights.

The Children’s Courts were an attempt to make the court system more child-friendly. Most matters were dealt with in offices or other atmospheres removed from the courts. The Children’s Courts dealt with all matters relating to children, including adoption, foster care and maintenance contributions. There were approximately 1779 magistrates, 204 judges and 3000 prosecutors with a range of administrative staff and clerks. The Department tried to ensure that specific clerks dealt with Children’s Court matters and that these clerks received specialised training. In view of the constitutional right to representation, there was considerable interaction with the Legal Aid Board as well. It was important to look again at the concept of a Children’s Court. This was removed from the Bill because it was a major cost driver. The Department was trying to deal with the issue with the specialised training of clerks.

One of the issues raised at the public hearings was the structure of the courts. He said that there were some difficulties with the way the courts were split. Children’s Courts could deal with all matters with the high court retaining their inherent right to deal with any matters. He reiterated the Department’s commitment to children.

Discussion
Mr Dikgacwi asked where the children listed on slides 26 and 27 of the presentation were being held.

Ms S Rajbally (MF) said there was a worrying number of children in custody and asked where the children were and under whose care.

Adv du Rand replied that the statistics had been obtained from the Department of Correctional Services and the SAPS and that the DoCS would be able to give information on the location of the children.

Mr Morwamoche pointed out that the maps used in the presentation still contained the old regions such as Bophuthatswana. He asked for an explanation of this. He enquired when the establishment of a Family Court was envisaged and whether traditional courts also fell under the Family Court centre. He asked why the reading of statements was not the duty of the officers of the court.

Adv du Rand replied that some high court divisions still carried old names, legislatively given to them. The Department was trying to rationalise them through the Supreme Court Bill. He reiterated the Departments commitment to transformation.

There were five main family court sites. The Department’s ideal was to have all matters belonging together, dealt with together. Presiding officers and officials needed training, however and the Department was dealing with a range of issues to change mindsets. Traditional courts were not part of family courts at present but further debate was needed.

When a child was traumatised, that child needed to be dealt with specifically and sensitively. Court officers tried to give him an understanding of what would happen in court and the Department was careful to ensure that people who did court preparation were trained to do this. Children were not told what to say. It was the role of the prosecutor to go through the statement with the child and they were trained to do this.

Mr Waters asked for more background on the Sexual Offenders Register and how it would work. He asked if the public would have access to it.

Adv du Rand said that the legislation for the Sexual Offenders Register was still before the Portfolio Committee on Justice and Constitutional Development. The Department’s view was that it should not be open to the public but should be a source of information to check on persons intending to work with children. There was a need for a joint discussion between the Portfolio Committees on Social Development and Justice.

Mr Waters asked whether any costing had been done on a Children’s Protector and whether such an office would fall under the Department of Justice. He said that the sexual offenders court seemed to be working well, possibly because the magistrates and prosecutors had been trained to deal with children. He said that Children’s Courts had been proposed and asked whether the Department was satisfied that Family Courts would fill this role.

Mr Masutha said that the Family Courts were intended to integrate the various services of magistrate’s courts and asked whether that was not essentially the concept of a Family Court.

Adv du Rand replied that Family Courts were already trying to pull the functions together. The Family Court was mainstreaming into the court system, and the Department was hoping to have one per province in this financial year. He said that the concept of clustering was not just limited to the Family Court.

The Children’s Protector had not been costed as it was not part of the Bill although the Department would have liked to have it in place. He said that it was not totally out of the framework but would be looked at in the longer term.

Magistrates and prosecutors had been specially trained and this was ideal for the Family Court and all other magistrates’ courts. The Department was continuing with training for all magistrates’ courts.

Mr Masutha referred to the public hearings and asked whether the role of lawyers in inter-country adoptions was to be given specific acknowledgement in the Bill. He said that guardianship, custody and access had been seen as the exclusive domain of the high court and asked whether this should not be devolved to the magistrates’ courts which were more accessible to rural communities in particular. In terms of inter-country adoptions in particular, he asked whether the route specified by the Bill would be the way for extended family members to take or whether they would still have to go through the high court.

Adv du Rand replied that the Department’s view was that lawyers needed recognition and a meeting had been scheduled with the Department of Social Development to address this.

In the long term, guardianship, custody and access were to be devolved and this was part of the review and rationalisation of the court structure.

High courts would always have an inherent right to deal with inter-country adoptions.

Mr Masutha asked him to look into the matter and report back to the Committee.

Ms Bogopane-Zulu said that the Department of Justice was responsible for implementing the Maintenance Act and said that her experience was that too much time was spent on criminal aspects rather than giving women access to maintenance. She asked whether the Family Courts would deal with maintenance. She said that she felt maintenance officers needed more training and were often insensitive. She also asked for an update on the provision for maintenance investigating officers.

Adv du Rand replied that, in addition to the Family Courts, the Department had an improvement plan to deal with maintenance that was a high priority. Change management needed to be implemented to deal with issues more sensitively. The need was to focus on the child. There were currently 85 maintenance investigators, and these were to be increased to 140 during the current financial year. They had been very successful.

It was agreed that any further briefings would be postponed until Friday.
 
The meeting was adjourned.