Children’s Bill: public hearings

Meeting report

Social Development Portfolio Committee
11 August 2004
Children’s Bill: PUBLIC HEARINGS

Chair: Ms J Tshivase (ANC)

Documents handed out:
Children’s Bill Working Group submission
RAPCAN submission
South Africa Society for the Prevention of Child Abuse and Neglect submission
South African National Council for Child Welfare submission
HIV/AIDS Sector submission
Dikwanketla – Children in Action submission
Southern African Catholic Bishops Conference submission
Community Law centre – Children’s Rights Project submission
Save the Children submission
Alliance for Children’s Entitlement to Social Security submission
Wybrow-Oliver Attorneys (Adoption) submission
Law Society of South Africa Submission

Summary

Many civil society groups presented, and were questioned by, the Committee. The Committee heard submissions from the Alliance for Children’s Entitlement to Social Security, HIV/AIDS Sector Network, Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN), the Children’s Bill Working Group, the South African Society for the Prevention of Child Abuse and Neglect, the South African National Council for Child Welfare, Dikwanketla – Children in Action, South African Catholic Bishops Conference, Save the Children, Wybrow-Oliver Attorneys, the Community Law Centre and the Law Society of South Africa.

Almost all argued that the proposed Bill was most inadequate compared to the previous legislation prepared by the Law Commission. The reduction in the section on children’s rights compared to the Constitution‘s Bill of Rights, and the removal of provisions for a National Policy Framework, were particularly unpopular. Proposals included the creation of a register of child abusers, the reinstatement of the original Chapter 3, a Children’s Court, and a ban on corporal punishment.

Discussion followed on protection mechanisms against various types of child abuse; the provision of basic needs; the roles of lawyers and social workers in the adoption system; the responsibility of the religious establishment, as well as providing for needy children in the context of the HIV/AIDS epidemic.

MINUTES

Children’s Bill Working Group submission
Ms J Loffel (Advocacy Co-Ordinator, Child Welfare Society) briefed members on the Children’s Bill Working Group’s position. The original version of the Bill developed by the South Africa Law Reform Commission - while not perfect – had been widely welcomed. The Bill had then undergone changes into ‘a pale shadow’ of its former self. The coverage of Children’s Rights had been cut to the bone. The chapter on funding, grants and subsidies had been removed, as had provision for an intersectoral National Policy Framework. Provisions designed for children in especially difficult circumstances had been done away with. Local government’s responsibility to monitor the situation of children had been removed, as well as intersectoral mechanisms to oversee co-ordination of the child protection system. The Children’s Court Structure had been significantly downgraded. The provision for a Children’s Protector to monitor the implementation of the Act had been removed.

Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) submission
Ms C Bower (Executive Director) presented on often physically and sexually violent, and thus vulnerable, childhood in South Africa. The failure to prevent abuse and neglect would have serious consequences for the financial and social fabric of the country. They were concerned with the removal of the provisions for a National Policy Framework. The alterations to Chapter 3 of the Bill had resulted in the removal of a range of protections available to children in difficult situations. The removal of Chapter 9 – Prevention and Early Invention Services – was very problematic.
 
South African Society for the Prevention of Child Abuse and Neglect submission
Ms N Sipuka (Director of the UMTATA Child Abuse Resource Centre) said the maltreatment of children was a multi-faceted problem that needed tackling from several angles. Such a multi-level approach should look at preventive and protective measures, particularly to protect children in especially vulnerable positions, such as the disabled, street children and chronic illness sufferers. Planning was vital on how and when the state should intervene, along with a more child-friendly court system. There was the need for the provision of a child-abusers register to ensure these people were not able to come into contact with vulnerable children. The redrafting of the bill had done massive damage. 

South African National Council for Child Welfare submission
Ms L Schreuder said that by accepting the concept of “child-headed households” in the Children’s Bill, South African society would be doing a grave injustice to children. They strongly supported the inclusion of a Natonal Policy Framework that would allow government to implement a co-ordinated and synchronised child protection plan. Children’s rights should be reinstated as in Chapter 3 of the October 2002 draft. The Ministry should put an effective and efficient Children’s Court in place. Child-headed households were unacceptable and the government should seriously tackle this problem. The Child Support Grant should be extended to all children under the age of 18 to encourage families to adopt.

Discussion
Mr T Masutha (ANC) was keen to hear the Department’s opinion on how they intended to tackle the issues raised in the presentations. He wanted to know how critical the Integrated policy framework was. He could not see any rights proscribed in the Bill that were different from the rights proscribed in the Bill of Rights. To simply state these rights would not solve the problem, they needed to be refined and given more substance. He wanted to know the Child Welfare’s Society proposed supporting child-headed households that did exist, and asked what was being done to address problems in the foster care system.

Ms J Chalmers (ANC) said that the majority of the rights were in the Constitution but re-emphasis was important. She asked Ms Loffel’s view on how she rights inclusion would change the plight of children. Very many child-headed households were due to parents dying because of AIDS. If children were orphaned, it would be preferable to break up families any further. To not keep these orphans as a unit, might be worse than letting them live in child-headed households.

A Member asked about the role of child-care facilities and NGOs. Local government needed to be actively involved.

Ms Loffel said that, in the current situation, co-operation between departments would leave a lead department saddled with an unreasonable burden and there would not be full commitment. Systems would not be implementable as budgetary requirements would not be developed. With an ‘intersectoral framework’, departments would have to commit and budgets would be made. This was the only way to ensure that the good intentions of the various departments were implemented. A defining document should be produced to incorporate as many existing policies as possible. Having it all under one statute would help to prevent ‘cracks’ in the system. In the original Law Commission version, there were several rights mentioned that were not in the Constitution. In the Children’s Bill, the rights should have gone further than a restatement. There was the need for greater clarity. The issue of property rights was very important as currently, when parents died, the children lost everything. The rights of education for street children should have been incorporated.

Ms Loffel said legislation had changed enormously with regards to local government’s role. There was disagreement about how far it went. There was far more space for local government involvement. They needed to better take children into account and ensure that budgetary requirements were in place.

Ms Schreuder said that child-headed households were a shocking South African reality. The 1996 census showed that there were 95 000 child-headed households - this had probably tripled by 2004. Projects were essential to deal with their needs as the system was currently overloaded. There was a certain complacency about children as caregivers. The system had to adapt for the needs of children, not the other way around.

Mr Waters asked for more clarity on the issue of lawyers in the system. How was the new reality of child-headed households being adapted to?

Mr Masutha urged that they examine the internal adoption system. South Africans needed to be encouraged to adopt. The Department had a comprehensive financing policy outstanding. Not only children were been adversely affected.

Ms Schreuder did not see a role for lawyers in the system as only social workers should deal with adoption. She challenged others to convince her of the need for lawyers. She sought clarity on whether private practice social workers were banned from handling inter-country adoption. All options for similar family and cultural background, or South African transcultural adoption, needed to be exhausted before inter-country adoption was considered. The financing policy did not adequately addressed all needs. With regards to child-headed households, home-based carers did not assist children late at night or early in the morning, and such households lacked adequate medical care. Normal childhood was disrupted which often led to educational failure, discrimination and child labour. Programmes needed funding to assist such households.

HIV/AIDS Sector submission
Ms S Giese (HIV/AIDS Programme Manager, Children’s Institute) briefed members on the HIV/AIDS Sector K view. South African children faced many extra hardships because of the HIV/AIDS epidemic. She recommended that the Bill should be amended to include an express objective to assist families in the protection of children. Interdepartmental collaborative policies and programmes were needed to cope with the HIV/AIDS problem. The tabled Bill included some essential rights but omitted others. The sector supported the recognition of child-headed households as a family form in South Africa. The Social Assistance Act did not adequately address the needs of children in the context of HIV/AIDS.

Dikwanketla- Children in Action Presentation
The Dikwanketla – Children in Action submission was presented by a group of children. Nkosi, who was 16 years old and from the Western Province, related that Children in Action was a group of twelve children examining the Children’s Bill. In the past few months, they had learnt the democratic procedures of making law. They had met several local policymakers and asked for their support. They had spread the importance of Children’s Rights in their communities, visiting schools and informing children and parents of their responsibilities. Their recommendations were based on workshops held over the last year.

Eight-year-old Kosintela spoke on the need for protected rights to food, water and shelter. Rebecca added that every child had the right to be a child, and never have to be soldiers, etc. Children needed to be able to get identity documents so they could access to important benefits. They had the right to speak and be listened to, and to participate in decisionmaking procedures.

Kurt explained that all children should go to school, but they needed more teachers, classrooms and schools that also provided nutritious free food. Health clinics were particularly needed in rural communities. Information should be given to children about HIV/AIDs. Girls should not be shouted at by nurses for being pregnant, but be offered help. Children had the right to a safe and loving homes. Orphans should have the right to choose with whom they lived. More parents and children needed to understand their duties, rights and responsibilities.

The next child was very concerned about children who took care of their siblings. Four of her six siblings were HIV positive and she has to take care of them. This responsibility affects her school-work. Children should be afforded the right to play and rest. There should be the right not to suffer. Her 10-year-old sister was recently raped by her grandfather. Parent’s duties and responsibilities should be included in the Children’s Bill.

Holly then said that caregivers should take children to the doctor when ill, and ensure they receive an education. Caregivers should care for, love, respect and protect children to the best of their ability. They should provide clothes and shelter. They should help children make the best possible decisions. Parents should not abuse them physically, mentally or emotionally.

Tebogo told of her eight-year old younger sister that was raped. A suspect was caught by police but was released the following day. If parents knew their rights and responsibilities, such things would not happen.

Sixteen-year-old Sikle from KwaZulu-Natal had a problem with his father who mentally abused them and chased them away from their home. Sikle pleaded for parents to be informed of their duties and responsibilities.

Another child appealed that children not be treated like slaves or be beaten. Children as young as six were beaten for not finishing chores. Hitting children was wrong under any circumstances.

Finally, the children’s delegation concluded by pleading their case to the Members, not as MPs, but as fathers and mothers.

South African Catholic Bishops Conference submission
Mr C Chagunda (Catholic Parliamentary Liaison Office) again raised the lack of a National Policy Framework. The chapter on the rights of the child should not have just repeated the Bill of Rights, but should have also elaborated on these rights. The government should support families to care for children. Without the above provisions inserted into the Bill, the comprehensiveness and consolidation of children issues might be negated.

Discussion
Mr Masutha asked that what problems plagued the existing policy. Government needed to address the shortage of social workers.

The Dikwanketla representatives urged the government promote children’s rights to parents. They urged that the victims of abuse to be allowed to remain in their homes. The abuser should be punished, not the victim.

A Member said that the church was well placed to deal with moral problems. In his area, more than 200 people went to church every Sunday, and 80 went daily – these 80 people could be used more effectively. Congregations could assist child-headed households.

The Chairperson added that churches were still resistant to the use of condoms, even though it was an effective measure to protect from HIV. She asked Mr Chagunda’s opinion on contraception for the prevention of HIV.

Ms Chalmers asked whether the social workers were actively sharing their experiences, and if they were getting help when they needed it.

Mr Chagunda said that the church’s national distribution of resources was often not visible. For example, the National Trust was funded by the church. With respect to prevention of HIV/AIDS, he said that it was a highly contentious issue. Society should not promote promiscuous relations by promoting condoms they supported abstinence, being faithful and waiting for marriage.

Ms Dudley asked whether the suggested redrafts would be adequate.

The Dikwanketla delegation offered various responses to the question of social workers. One child said that social workers came to help but only after long delays. Another said that social workers were two hours away, and another concurred that they were not within easy reach. One boy said that in his experience, they never came.

Mr Diko asked them whether there was sufficient awareness regarding child’s rights in their schools. He inquired whether social workers came to their schools. The Dikwanketla delegation replied that there was not much awareness of rights in their schools.

Ms Giese called for greater realism, saying that South Africa could not rely entirely on social workers to take the load.

Community Law Centre submission
After the lunchbreak, Ms D Kassan said the Bill’s alterations since its initial draft had detracted from the potential of a far-reaching protective blanket. Corporal punishment should be abolished to protect children from all forms of physical and mental violence and preserve their human right to dignity. State resources should got to informing the public about alternative disciplinary measures. It was a necessity to re-look at key aspects of the Children’s Court. The Commissioner of Child Welfare should be compelled to decide whether a child should be assisted to acquire legal representation. Urgent attention also had to be given to the legal representation of children.

Save the Children Sweden submission
Mr P Mabuza (Programme Officer) recommended that the prohibition of corporal punishment of children in all forms. She proposed that legal reforms be coupled with awareness raising and education campaigns in more positive forms of discipline for parents, teachers and others. Research showed that corporal punishment in the home was of major concern to many children. The Children’s Bill should explicitly prohibit all forms of corporal punishment or any other degrading treatment of children.

Alliance for Children’s Entitlement to Social Security (ACESS) submission
Mr A Dlwengu presented the views of his organisation regarding the Children’s Bill. The current Bill had been watered down with regards to comprehensive social security for children. They were concerned about the removal of the National Policy Framework (NRF) and the main elements of the Children’s Rights Chapter. He emphasised the dire poverty experienced by of millions of children. South Africa needed to create a comprehensive package of social protection to provide basic means and other services for all people.

Ms S Rosa (Senior Researcher, Child Rights Programme) said there was a need for more research on child-headed households as there was a lack of comprehensive national data. They were concerned about the financial and other support to given to children without adult caregivers, and supported mentorship schemes.

Mr N Mafongosi (Black Sash) recommended that a coherent social security scheme for children be placed in the Bill.

Discussion
Ms S Rajbally (Minority Front) said there was not so much of a question of whether, but how these recommendations could be implemented.

A Member asked the first two presenters how the recommendations would be enforced and how the parents would react to criticism. With reference to page 6 of ACESS’ submission, he queried whether it referred to children in general or to a specific group of children. He also asked whether South Africa was becoming a ‘nanny state’.

Mr T Godi (PAC) asked for a definition of child-headed households. He referred to the first line of page 10 of the ACESS document that gave the impression that child-headed households were households that had lost a mother. He asked if child-headed households implied a lack of biological parents, or simply where the mother was absent

Ms D Kasan said that many countries had already banned corporal punishment. The resources required to enforce the ban was also problematic. The outcome of the law was not to criminalise parents and prosecutions would not be opened. However, corporal punishment should not be tolerated.

Mr N Mafongosi replied that South Africa already had legislation that outlawed domestic violence, so to some extent South Africa had already become a nanny state.

Ms Rosa said ACESS believed that people in need should be provided with free basic services. Social grants from one department should not be used for purposes other than intended, such as where beneficiaries used their child support grants to pay electricity or water bills.
Child-headed households were households where the primary caregiver was under the age of 18 or where the child was 19 and still attending school. It also applied to households where the primary caregiver was terminally ill. Society should recognise that child-headed households existed and needed support. Such households existed because not all children could be put into institutional care. Sometimes it was best for children to live with their siblings and remain in their communities, and to live in their homes they inherited. A mentorship programme was proposed whereby adults could check on the children once a day.

Mr Diko asked if civil society had made representations before they presented to the Committee. He also wanted to know whether free education and health care grants should also cover free transportation.

Ms Kassan said that workshops regarding corporal punishment had taken place. Samples had been taken, albeit from a small number of people, and the majority voted for a total ban. Children’s dignity should be protected and an awareness campaign should to be embarked on. A publication has been produced that outlined their views. To have access to education, there was a necessity to have access to transport. It was recommended that public transport be made free.

Wybrow-Oliver Attorneys submission
Ms Debbie Wybrow said that the Children’s Bill should be amended in three ways. Specialist attorneys should be accredited to provide adoption and inter-country adoption services. The standard for all adoptions should be raised with oral and affidavit evidence being mandatory. Local adoptions should be conducted in the Children’s Court, national adoptions in the Regional Court and inter-country adoptions in the High Court. In accordance with the Hague Convention, the first choice for a child should be local or national placement. Where this was not viable placement, international should be second.

Law Society of South Africa submission
Ms S Abro (Attorney) rejected implementation of the Bill if the current structures, staff at the courts and the office of the Family Advocate remained the same. There was a necessity for a dedicated Family Court. She suggested that urgent attention be given to the problems and shortcomings before the Bill was promulgated. Several cases were identified where cross references to other sections in the Bill were incorrect. Practical problems, such as understaffing and a lack of training, were highlighted.

Discussion
Ms Chalmers asked whether children were disadvantaged if attorneys were excluded from the adoption process. The current emphasis was on every court being a Children’s Court. Since Magistrates Courts could deal with children’s issues, she asked why this was not the right way forward.

Ms Dudley asked what percentage of adoption work involved the social worker, and what percentage was legal work. She asked whether there was a difference in fees charged by lawyers and by NGOs. She wanted to clarify the situation regarding welfare organisations.

Mr Godi asked whether the submission implied that lawyers should be added to the envisaged system. He was concerned with inter-country adoption because of the life-long consequences.

Mr Salogie said that the inter-country adoption phenomenon had really started within the last few years. The overall impression was that social workers were doing very well out of fees. He raised the possibility of registered family welfare agencies handling these processes. Inter-country adoption could be very lucrative. The possibility of lawyers taking over should be considered. However, child and welfare societies were doing tremendous work

Ms Wybrow said that children were disadvantaged if there was no legal input. The emphasis should be on local placement first. The complexity and life-long ramifications of inter-country adoption meant they should be handled in the High Court. The social worker’s role in the process was fundamental. Without a comprehensive report there could be no placement. About 20% of the process was the social worker’s report. She would welcome an investigation into fees and the establishing of a tariff. There was the need for social workers and lawyers to work together.

Mr Masutha asked about the role of lawyers in inter-country adoption. He spoke of the need to create a standard.

Ms Wybrow said that the social workers report was essential and they should not be excluded from the process. However lawyers and social workers could form a team to deal with adoption effectively.

Mr Masutha said social workers did not need legal training, and their assessment looked at family circumstances. The suitability of a family had nothing to do with legal rights. Lawyers should be involved when as needed.

Ms Wybrow said according to Section 24, custody applications in the High Court had been stopped. The High Court had immense experience in dealing with adoption

Mr Masutha asked whether this Bill would exclude the High Court in total. This Court was used as an ‘upper guardian’ as a temporary measure. He asked whether lawyers should recommend children for adoption

Ms Wybrow said Section 24 meant any application by a non South Africa citizen was an inter-country adoption. The High Court should no longer to be used. Social workers should recommend on adoption. However, lawyers should be accreditated to perform inter-country adoption services, facilitating the permanent placement of the child.

The meeting was adjourned.