Children’s Bill: hearings

Social Development

11 August 2004
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Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
12 August 2004
CHILDREN’S BILL: HEARINGS

Chairperson: Ms T Tshivase (ANC)

Document handed out:
Children’s Bill [(B70-2003) [Reintroduced]

Molo Songololo and It’s Your Move – Youth Action submission.
Soul City Institute for Health and Development Communication/Soul Buddyz submission.
Network Against Child Labour submission.
Childline South Africa submission.
South African Council of Churches’ submission
Ms Robyn Shepstone, an individual private social worker submission

Education Law Project, Center for Applied Legal Studies submission
Children’s Institute submission
People’s Family Law Center submission
AIDS Law Project submission
Lawyers for Human Rights submission

SUMMARY
The Committee heard a submission from a private social worker on accredited adoption social workers performing inter-country adoptions. Her concern was that this bill would prevent adoptions by private social workers. The Education Law Project covered children’s rights to education. The Children’s Institute discussed the wellbeing of children in South Africa and the UN High Commission for Refugees (UNHCR) addressed the Committee on aspects of the Bill affecting refugee children. The People’s Family Law Center spoke on several clauses in the Bill, which gave rise for concern and Lawyers for Human Rights discussed the plight of refugee or foreign children in South Africa. The AIDS Law Project supported changes made in the Bill regarding matters of consent for medical treatment.

In the afternoon, the five interested bodies represented were: Molo Songololo It’s Your Move – Youth Action, Soul City Institute for Health and Development Communication/Soul Buddyz, The Network Against Child Labour, Childline South Africa and the South African Council of Churches.

The youth delegation highlighted the conditions street children and refugee children were exposed to and the social problems that faced young people who also did not have adequate access to leisure and recreational activities. The issue of Child Labour was discussed. Concern was expressed about the removal of the following from the revised Bill: the National Policy Framework, certain of the Children’s Rights, a comprehensive system of social security, and the Children’s Protector.

MINUTES
Private social worker’s submission

Ms Robyn Shepstone motivated for private accredited adoption social workers currently excluded from the Bill, to be eligible to apply for accreditation to perform inter-country adoption. This related to Clause 258 of the Bill. She detailed her extensive background and experience in adoption and inter-country adoptions, the need for both being great in KwaZulu-Natal, where the population was poorer than most and had the highest rate of HIV infection in the country. Experience had also shown that foster care, sometimes within the community or by extended families, had proven unsatisfactory, with the child often landing up abused, neglected or orphaned again. Operating in a private capacity had enabled her to acquire the experience and expertise required to perform inter-country adoptions, which involved total dedication, work outside office hours and extended hours of work to complete the process. Child protection organisations were ill equipped to provide this level of service. Presently, no inter-country adoptions were being performed by such organisations. She said it was a misperception to think that these adoptions were highly lucrative for the private social worker involved, because it was not something one could make a living out of and often the prospective parents were themselves not wealthy and had to operate on a tight budget. The processing of such an adoption could take from 60 to 65 hours. Ideally, she proposed a partnership between private accredited adoption social workers and government child organisations, in order not to lose the wealth of expertise and experience that had been built up by private social workers. She welcomed any guidelines in the Bill regarding regulation of procedures in this regard and asked that private social workers could be included. She was also concerned about the omission from Chapter 16 Clause 232, regarding who could give consent to an adoption, of any child of ten years or older. She considered this a regressive step.

United Nations High Commission for Refugees (UNHCR) submission
Mr Abel Mbilini, assistant representative of the UNHCR said that the Bill’s definition of a child was neutral and that this was regarded as positive by his organisation. The prohibition of certain cultural practices, such as female genital mutilation, was applauded, since such practices elsewhere had caused children and their guardians to flee their countries. This provision in the Bill would allow for a claim of refugee status to be made to Home Affairs on the basis of such practices and their prohibition in South Africa. He noted the country’s participation in many international instruments regarding children. Commenting on inter-country adoption of refugee children, he said it was UNHCR policy not to allow adoption of refugee children, unless a thorough attempt had been made to trace the parents or family of the child in the country of origin or elsewhere. He cautioned that should an adoption occur, the right to protection of a refugee might be compromised as a result of the adoption procedures, exposing the child’s whereabouts to central authorities in the child’s country of origin. They therefore proposed that in so far as such applications for adoptions required the approval of central authorities, this requirement would be waived. This could take the form of an exemption in Clause 24 of the Bill. He said that Article 22 of the Convention of the Child required that every attempt be made to trace parents of a refugee child.  Should this not be possible, the child should not be institutionalised indefinitely with uncertain status, but should be given the status of a national and should be treated as such in similar circumstances. The UNHCR proposed that under Clause 150 of the Bill such children should be included.  

Education Law Project submission
Kate Savage, an attorney with the Education Law Project, from the Centre for Applied Legal Studies at Witwatersrand University focussed on the need and right to education. The excision of the right to basic education from Chapter 3 of the Bill was seen as a glaring omission and should be re-inserted. She said South Africa had an obligation in this regard, since it had ratified various international conventions, which clearly stated the child’s right to education. The Bill should also identify and define what the entitlements were of the right to education, as referred to in the Constitution. The right to education was a widely recognised socio-economic right. The original South African Law Reform Commission (SALRC) draft Bill identified and elaborated on this right, particularly for children. She submitted that it be re-introduced.

Children’s Institute submission
Paula Proudlock represented the Children’s Institute, a research and advocacy institute, conducting policy and law reform research, to promote the realisation of children’s socio-economic rights. She said the institute promoted the use of evidence and consultation with civil service and service providers in developing law and policy. The UN Convention and UNICEF considered certain health indicators as key indicators of the level of protection of the health and well-being of children in a country. The country’s infant mortality rate for children under one year was 60 out of every 1000 births and 95 out of 1000 births for children under five years old. These rates were higher than Cuba, Vietnam and India. The causes of these deaths of infants under one year were respectively: HIV/AIDS, gastroenteritis, respiratory failure and malnutrition and for children under five respectively: trauma, gastroenteritis, respiratory failure, malnutrition and HIV/AIDS. Simple preventative measures by various government departments could reduce these numbers significantly. She said the rights of children, as set out in Chapter 3 of the Bill, should be binding on all departments and not just to Social Development. Ms Proudlock recommended various changes to the Bill and pointed out that much of the thrust of the Bill was with regard to secondary intervention and that this should shift to primary intervention where the state should make a priority of assisting families in caring for their children. She suggested specific provisions for handicapped and refugee children in the Bill, as had already been effected by international law. She proposed that the child should have a right to access to a social worker relating to Clauses 145 and 146 (see submission).

Discussion
Ms J Chalmers (ANC) asked Ms Shepstone’s opinion on attorneys performing inter-country adoptions.

Ms Rajbally (ANC) asked why there were waiting lists of prospective parents, who were waiting for up to two years to adopt a child and yet children were adopted in other countries.  

Mr T Godi (PAC) asked for clarification of the request made by Ms Shepstone regarding Clause 251. He said it was alarming to see so many children adopted out of the country. He asked for clarity regarding the removal of refugee children and to what extent was the practice of female genital mutilation or other such practices, the reason for people fleeing their country of origin and applying for refugee status in South Africa.

Mr M Diko (UDM) asked whether social workers in the employ of the state would not be tempted to go private in search of financial gains posed by inter-country adoptions. He asked who would be responsible for investigating a child’s claim to refugee status, thus ensuring that the child would not be sent back to their country to face possible persecution. He asked for a distinction to be made between the request for the right to education and the right to free education. He asked whether the Bill should refer to handicapped and refugee children.

Mr Saloojee (ANC) commented that most prospective parents seemed to be from Western Europe and that adoptions were cross-cultural. He pointed out that the Bill sought to improve existing working conditions for social workers and to provide more funding for volunteers, in order to enable agencies to perform inter-country adoptions. He observed that the level of training of social workers in the country was very high and that many of them were being lost to other countries.

Ms Tshivase asked whether an amendment to the Constitution was being suggested by the Children’s Institute.

Ms Shepstone said she did not wish to comment whether attorneys were capable of performing inter-country adoptions. Should they become accredited, it would constitute a revolutionary change. She saw no need for attorneys to become involved in them, since social workers working in this sphere had become knowledgeable and experienced in handling the procedures required by the two countries and that a background in adoption was desirable. Ms Shepstone said she worked according to recommended tariffs, set down by the South African Social Workers Private Practice. She welcomed any formalisation of rates for service provided and guidelines for procedure, which should be brought into line with international fee structures and practices. The Bill, in its present form, would require her to give up her practice and become a paid employee of the state, in order to continue performing inter-state adoptions, as per Clause 251.

Going into private practice for the purposes of performing such adoptions was not necessarily lucrative since it involved many hours of dedicated work and part of the fees went towards disbursements. Since it was a specialised skill, it did not attract many social workers. Ms Shepstone said that inter-country adoptions only took place with countries that were party to the Hague Convention. Her most recent adoptions had taken place in and around Toronto, Canada, which was very multicultural. Every adoption was done in consultation with the social worker at the orphanage or other professionals.

Ms Rajbally asked what avenues were used to advertise the list of children available for adoption.

Ms Shepstone said it was not permitted to advertise such children in the media. These lists were communicated between agencies and social workers. It was found that most prospective parents wished to adopt a same culture child. She admitted that every adoption was possibly not the best that one could do for the child, but that it was the best under the circumstances and considering the time these children had already waited to be placed in a home. In every instance the best interests of the child were being served.

People’s Family Law Centre submission
Diane Smart, an attorney, made a submission regarding the automatic rights of unmarried fathers, which could be exercised at any time and without court intervention. This seemed to be more in the interest of the father than the child. On the other hand, Clause23 required a court order for parental responsibilities to assigned to a person who wished to become a caregiver. Similarly, Clause22 required High Court intervention for ratifying parental agreements. This seemed extreme and impractical, when family advocate offices could reasonably fulfill the same purpose. She also asked for specific guidelines, regarding the procedure to be followed in the event of an intra-country abduction, to be added to Chapter 18.

AIDS Law Project submission
Anneke Meerkotter, an attorney, made the submission. This NGO was in full support of Clause 32 of the Bill, which elaborated on who could give consent for a child to receive medical treatment. This alleviated major problems for children desperately in need of medical treatment as a result of sexual violence or HIV/AIDS, where caregivers were absent to give consent. She painted various scenarios being experienced in this regard in hospitals and the problems faced by hospital personnel and children. She recommended an amalgamation of various clauses into one section in the Bill, covering the various cases where consent was not required by a caregiver, but could be given by a medial person. Often such personnel were not aware of their rights to act in these instances.

Lawyers for Human Rights and the National Consortium for Refugee Affairs submission
Fritz Gaerdes highlighted shortcomings in the tabled Bill, in providing protection and care to foreign children in South Africa. Migrant children were vulnerable both as migrants and as children. This had not been recognised by the Bill, as it did not make provision for undocumented, migrant, refugee and asylum-seeking children. He recommended that the definition of a child in the Bill be widened to include “regardless of nationality”. Refugee children should not be compelled to return to their countries of origin if they were to face persecution. He said the children’s courts should serve as an initial point of entry in determining how the child should be assisted. The court could determine the child’s status and the circumstance of the child and whether they had a refugee claim, which could then be referred to Home Affairs. In the case of deportation, children should have legal representation and where deportation is deemed necessary, adequate procedure should ensure that children did not simply get dumped at border posts unable to fend for themselves and with nowhere else to go, except back into South Africa.

Discussion
Ms Chalmers asked how the it would be possible for the courts to carry the additional load of dealing with foreign children.

Ms Rajbally asked what provision was being made for foreign children living on the streets of our cities.

Ms D Smart said that the law needed to go beyond implication and had to be more specific. The use of new terminology such as “rights and responsibilities” as opposed to old terminology such as “custody”, also created problems for practitioners to apply the law correctly.

Ms Tshivase asked who would determine the reasonableness of not being able to obtain the consent from the parent or caregiver and in which cases did it apply.

Ms A Meerkotter replied that presently this responsibility had been delegated to the Chief Directorates of the various provincial departments. In turn, these provincial departments had come up with guidelines to assist them in making the decision. Regulations could determine these guidelines on a national and standardised basis.
 
Mr Gaerdes said that foreign children should be given the same rights and regard as any other child. Social workers should be involved in investigating these cases and the courts should become much more sensitive to these children’s needs. The fact of the matter was that foreign children were in this country and they needed to be dealt with in a legal and appropriate fashion.

Afternoon session
Molo Songololo It’s Your Move – Youth Action Group submission
This submission had been workshopped and written by 70 young people between the ages of 14 and 17, and was presented by its authors. They said children made up more than half of the population and they were dependent on the rest of the population to take care of them. After ten years of change, they were concerned that children still faced abuse, sexual assault, violence, rape, murder, poverty, exploitative labour practices, gangs, kidnapping, teenage pregnancies, prostitution, sexual disease, HIV/AIDS and a lack of shelter, food and services. They called for effective child participation in the current bill, for all child rights to be included in the Bill and the right of the child to participate in any matter concerning that child. They asked that a parent or guardian be informed if a child is detained for longer than one hour and that comfortable surroundings and supervision be provided when a child was detained. One of the spokespeople said that children had the right to live on the street and should not be discriminated against if this was their choice. Other additions requested related to the Children’s Courts, legal representation, refugee children and trafficking in children. In conclusion they said they did not understand why another part of the Bill, dealing with Section 76 provincial competences, had to be separated from the Children’s Bill. They believed that the Children’s Bill must be comprehensive so that it ensured that children’s care, needs, protection and rights were considered.

Network Against Child Labour (NACL) submission
The Network consists of organisations that were actively working to eliminate child labour in South Africa. The presenter, Mr Camay, defined child labour as “work by persons under the age of eighteen years which is exploitative, hazardous or otherwise inappropriate for their age or detrimental to their schooling or social, physical or moral development”. He said his organisation had welcomed the South African Law Reform Commission’s draft Children’s Bill because it outlawed child labour and had also made provisions to assist children engaged in such practices. These included economic alternatives such as social security and access to basic education, services, shelter and rehabilitation. An NACL spokesperso, Ms K Allan, said these provisions, the definition of child labour, the National Policy Framework and the obligation on schools and local authorities to assist children at risk and tools to monitor the extent of child labour must be returned to the Bill. The NACL was also concerned about the change in the section on Children’s Rights.

Soul City Institute for Health and Development Communication/Soul Buddy submission
Soul City is a multi-media health project that aimed to make information popular and accessible and empowered learners to make healthy choices. The media used included television, radio, booklets, advocacy campaigns and education and life skills training. The presenter explained that health and social issues were interdependent. Her organisation expressed concern about the “watering down” of the Bill from that which was drawn up by the South African Law Reform Commission (SALRC). She said her organisation supported the recommendations of the Alliance for Children’s Entitlement to Social Security (ACESS). The following omissions from the August 2003 draft of the Bill were highlighted: the recommendations of the Committee of Inquiry into a Comprehensive System of Social Security, the removal of the National Policy Framework (NPF) and the absence of a comprehensive Children’s Rights Charter. Other concerns included the rights of refugee children and children with disabilities and chronic illness, the right to health care and education, and the right to basic nutrition, shelter and social services including leisure and recreation.  On the section on Children’s Responsibilities, her organisation felt that it was inappropriate to place responsibilities on children in the Bill. The reinstatement of the National Policy Framework was called for. The section on Information on Health Care was endorsed but the organisation also asked for the provision of information on sexuality, pregnancy prevention and termination especially to children with disabilities and for the sale of solvents and other harmful substances to be addressed.

Discussion
Ms D Morobi (ANC) said she was concerned with the statement that “children had a right to live on the street”. She asked the youth delegation to guide the law -makers on how they could facilitate and accommodate such children.

Ms J Chalmers (ANC) asked whether the youth delegation would be able to keep in touch with the Committee and to monitor how the Bill is progressing. She asked how, after this initial contact, they would be able to move forward.

Ms S.Rajbally (MF) asked where the centres were that the youth could go to with their problems.

Mr N Godi (ANC) asked the NACL whether the two million children involved in subsistence farming were considered to be “child labour” and how these statistics were obtained. He also asked how children’s responsibilities and the rights of children could be balanced when you were referring to such a big group at different stages of development. For example, what information should be shared with children about termination of pregnancy and whether one suddenly became responsible at the age of nineteen?

Ms H Mars (DA) asked what the definition of disability was and whether it should be included in the Bill.

A member of the youth delegation said children living on the streets also had rights and these must not be violated by police for example.

Concerning centres, one of the youths said they were highly important but there were not many. Different ones were needed in different communities so that there was always a place to go. With regard to street children, one must not overlook what was happening in the home that had forced the child to leave. She asked whether social workers were doing their work properly.

The representative from Soul City said they supported the notion that children had responsibilities but that it was not possible to legislate these. She said that the people who work in the disability sector would be able to give a definition of “disability” to include in the Bill.

Mr Camay said that in November 2000 the Department of Labour had published information on the number of children involved in Child Labour. The results were from a survey carried out in 1998. He referred to the definition of “child labour” and contrasted this to “child work” which builds character, was done under supervision or controlled by a parent or caregiver and which did not harm physical, psychological or educational development.

Ms Morobi said that children living on the streets must be protected, as they were vulnerable to drugs and sexual abuse there.

Mr M Diko (UDM) said the youth submission should not be used merely as a presentation to Parliament but that these young people should also be going out and educating their peers about the rights they had as children. They should use their talents to benefit other children.

A youth (who had spoken of his experience of shelters in his group’s submission) said children left home for many reasons and some also ended up in jail. Afterwards they are just sent back to the same situation. The problems at home must be resolved first before the child is sent back. Regarding shelters he added that children were often moved from shelter to shelter because the government either closed them down or they ran out of funds. These changing environments were not good for a child and so the child familiarised himself with the streets and became involved in this way of life. He questioned what was going on in these shelters and suggested that this be investigated.

Ms N Magazi (ANC) then asked a general question about children who misbehaved, or who did not want to listen to authority or who were influenced by peers. Some children she had worked with were not honest about why they were on the streets. Sometimes street children had just made a choice to be on the street.

One of the youths said that there were no recreational centres for children or they closed at 2.30 in the afternoon. There was nothing for the youth to do to keep them out of trouble.

Another youth said this did not answer Ms Magazi’s question. She agreed there were some children on the street who did not want to listen or who misbehaved but the majority were on the streets because there were problems at home.

A young male said that those who wanted to help these children must keep trying to improve the situation in the home until they got it right.

Another youth added that those working with children in shelters must consult the child and try to motivate him/her. The child should not remain in the shelter forever and the home problem must be solved. This was a process that had to be started and finalised.

Childline South Africa submission
Ms J van Niekerk said that because children did not have a vote they were not a powerful group in society. She said a National Policy Framework was necessary in order to provide holistic services for children. Such a chapter in the Bill (which was now omitted) provided a developmental approach instead of a residual one. The omission of the NPF would result in gaps and duplications in service provision between departments and across provinces and would not help in the co-ordination of efforts by NGO’s and the state who were both responsible for the care of the child. Childline was also concerned that the chapter on the Children’s Protector had been omitted in the new draft. Such a protector was needed to monitor the implementation of laws, the gaps that existed and how these could be rectified. The organisation recommended that the chapter in the SALRC draft on the Child Protector be re-inserted in the Bill or that the function of the Child Protector be assigned to a body with a human and/or child rights monitoring function.

South African Council of Churches submission
Mr K.Vermeulen said his organisation represented twenty-six different denominations and had 18 million members of which a very large number were children. The organisation’s mandate included poverty alleviation, the promotion of family rights and well-being and the development of a democratic constitution.
The organisation said several child rights had been removed in the current draft of the Bill and the SACC supported the ACESS call to re-instate all these rights. The removal of the chapter on the NPF had undermined the capacity of this version of the Bill to satisfy even its revised objectives. The organisation called for comprehensive social security for children and said it was opposed to the splitting of the Bill. Other issues of concern to the SACC included: the removal of adult mentors designated and responsible for child headed households (CHH), the removal of Chapter 8 dealing with corporal punishment by parents, courts and schools and the removal of the office of the Children’s Protector from the revised Bill. The organisation welcomed the lowering of the age of majority from twenty-one to eighteen and the introduction of alternate dispute resolution mechanisms for family conflict. In regard to the latter, further synchronisation between the Children’s Bill and the Child Justice Bill was essential. The SACC questioned whether local and provincial government ought to be involved in ensuring that sufficient youth and childcare centres were provided instead of this responsibility being placed solely on the Minister of Social Development.

Discussion
Mr M Diko commented on the perception that legislation is only put in place for those who had the vote. He said that this was not what informed the law -makers.

He said the submissions had expressed strong concern about the National Policy Framework. He asked if the NPF was to going to be for the co-ordination of government departments or did the presenters feel that the organisations of civil society would be left out if the NPF were omitted. Or was the concern about the interaction between government and civil society?

Mr M Waters (DA) asked for clarity on the Children’s Protector. How vital was this office and how effective would it be in protecting children?

Ms Rajbally referred to Childline’s concern about child welfare offices that had been forced to close down in the Eastern Cape because provincial government funding had been delayed. She asked what had happened since then and had the offices re-opened?

Mr Godi also wanted to check with Childline on the notion of a Children’s Protector. He said there were already different offices and structures that were engaged in the monitoring of children’s needs (such as in the President’s Office and the Joint Parliamentary Committee on Children, Youth and the Disabled). Would these structures be taken away or would they be added to?

The Childline presenter, Ms J van Niekerk said the need for the NPF was “blatantly obvious”. There was a lack of a coordinated response to the needs of children because so many departments were “straddled”. An inter-sectoral response was needed but children often fell into the gaps. Civil society movements were critical as many services for children were carried by these organisations. There were many gaps and much duplication and in order to make the best use of the resources that were available and to measure how these resources were functioning, an NPF was necessary. Civil society was not scared of being left out but rather wanted to get things right.

There were concerns about the costs involved in the provision of a Children’s Protector but in the long-term there would be many savings. Research on public opinion was unanimous about the need for this office. The Police and Justice Departments could not monitor this Bill because they needed to be monitored themselves as did the civil society organisations. The Office of the President was not an appropriate place for such an office and it also needed to be independent of any state department. The Joint Parliamentary Committee would need to have its mandate increased but Parliament was also not an appropriate place for such an office.

Ms van Niekerk said the offices in the Eastern Cape had been re-opened at great cost both in terms of re-establishing the offices and in loss of staff who were trained but who had left because of the lack of job security. She said this would not happen if there is was a NPF that enabled and ensured efficient planning and funding.

Mr Vermeulen (SACC) said his organisation would argue as passionately as Childline about the provision of the NPF. He said protection of children was not just a social development issue but involved all departments. The Bill did not clearly state what government’s role was or the role of the Treasury and an NPF could clarify this.

Mr Diko asked for some clarity on this issue. Would the omission of the NPF render the Bill incomplete?

Ms van Niekerk said without it the Children’s Bill would not be implementable or developmental. The NPF could also bring together the roles to be played by the different tiers of government.

The Chairperson adjourned the meeting.


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