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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
5 August 2004
CHILDREN'S BILL: BRIEFING
Chairperson: Ms T Tshivase (ANC)
Documents handed out:
Children's Bill [B70-2003]
Executive Summary: Children's Bill [B70-2003] Re-introduced
The Departments of Social Development and Justice and Constitutional Development as well as the SA Police Services presented their comments on the Children’s Bill to the Committee. The participants were generally in favour of the Bill and supported its various provisions to enhance the rights of children within the social welfare and criminal justice sectors. Committee Members were mostly concerned with the relationship between various pieces of legislation dealing with children’s rights; removal of children from the presence of abusers; their placement in places of safety; the unacceptable position of children being treated in the same manner as awaiting-trial prisoners in normal prisons and the complexities of cross-border adoptions for financial gain.
Department of Social Development Presentation
Mr Pierre du Preez of the Department of Social Development (DSD) briefly touched on Chapter 1 of the Bill, which covers interpretation, objects, application and implementation of the Act, as well as all relevant definitions, such as the definition of a child, being "a person under the age of 18 years". Chapter 2 contains guidelines for the implementation of the Act. Chapter 3 defines the rights of children, including those set out in section 28 of the Constitution. Chapter 4 deals with parental responsibilities and rights. Mr du Preez said that there were several legislative definitions of a family, depending on the context. It had become obvious that the traditional concept of a nuclear family was no longer a true reflection of South African society. The Bill redefines the term "family member", basing it on the type of relationship the child has developed with a person. Different persons can also be assigned different parental responsibilities and rights.
Mr du Preez said that a core principle underlying the Bill is the change of the concept of parental power to parental responsibility. These rights and responsibilities are defined in Chapter 4. The Bill also provides for the assignment of parental rights and responsibilities to parent substitutes, as well as for the termination, extension, suspension or restriction of parental rights and responsibilities.
Clause 30 of the Bill provides that more than one person may have parental rights and responsibilities for the same child at the same time. Each of them may act alone in fulfilling those, except in certain defined circumstances. In this respect also, the Bill provides that major decisions affecting the child cannot be made without considering the views and wishes of the child.
Clause 33 of the Bill deals with parenting plans, which are written agreements between the co-holders of responsibility, in the eventuality of these co-holders experiencing difficulties in caring for the child. These plans can be registered, amended and terminated.
The Bill provides that the legal status of a child can no longer be rendered "extra-marital" in the event of an annulment of a voidable marriage. The child retains his/her legitimate status.
The last part of Chapter 4 of the Bill deals with artificial fertilisation. The Bill reflects the changes made to any child's status by the Children's Status Act 82 of 1987. This regards any child as legitimate, who was born as a result of artificial fertilisation, of a woman with the consent of both spouses. The Bill adds that any child, born of a woman who has been artificially fertilised, is the legal child of that woman, regardless of the donor of the gamete or gametes. A gamete is defined here as either of the two generative cells essential for human reproduction.
Ms J Chalmers (ANC) asked how the definitions or interpretations in Chapter 1 of this section 75 Bill were going to be integrated with the section 76 Bill.
Ms A Johaat from the State Law Advisers replied that slots had been allocated in the section 75 Bill for the definitions of the section 76 Bill to be inserted and that the rules of interpretation of the section 75 Bill would apply.
Mr du Preez explained that the section 76 Bill would start with some of the definitions, which are indicated by asterisks in the definition section of this Bill. The first chapter would be chapter 6 and 7 of this Bill as indicated by asterisks. There would therefore be no duplication.
Ms L Petersen, of the Ministry of Social Development, said the definitions to be included into the 76 Bill were marked by asterisks. All section 76 definitions had been omitted from the section 75 Bill. Once the amendment Bill was introduced, the definitions from the section 76 Bill would be inserted into Chapter 1 of the Bill.
Mr B Solo (ANC) asked for an indication of the different pieces of legislation that defined a family and asked whether integration could be sought.
Ms R van Zyl of the South African Law Reform Commission referred Mr Solo to Schedule 4 at the end of the Bill, listing all legislation to be repealed by this Bill. This Bill would also repeal some provisions in the common law in this regard.
Mr Solo referred to the change from parental power to parental responsibility and asked what impact this change would have and the reasoning behind it.
Ms van Zyl said the change had been proposed in the Law Reform Commission Report. One of the reasons was to better reflect the content of the Bill. The word "power" seemed to imply a power relationship and power over a child, whereas the word "responsibility" referred more to obligations the parent had in taking care of the child.
Adv M Masutha (ANC) commented that the Bill was changing aspects of common law and replacing them with statutory provisions. In common law parental power had a whole range of legal implications. The shift was therefore not just semantic and should be flagged for further discussion.
Mr Solo suggested the inclusion of the right to recreation in the section on children's rights.
Dr M Mabetoa of the Department of Social Development said that when drawing up the rights of children in this Bill, they had been cued by the Constitution. The right to recreation or play is implied under Clause 11 (f) (ii), which refers to the right not to place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development. It had been considered prudent to stick to the guidelines provided by the Constitution since adding the right to recreation might create legal problems for the department.
Adv Masutha pointed out that the rights of children stipulated in the Constitution set a minimum floor of rights, which were supplemented by other rights, such as those in common law, customary law and the UN convention, to which South Africa was a signatory. He recommended that the right to play be included in a statute and that it be given full expression.
Ms Chalmers referred to the definition of a primary care giver and whether this term would apply to a child-headed household and whether such a child would then carry full parental responsibilities.
Ms R van Zyl replied that the person heading up a household could never be regarded the parent of his/her own siblings. Certain limited rights and responsibilities were invested in the care-giver, but not full rights and responsibilities. She added that the definition of care-giver states that the person does not have full parental responsibilities and rights. She referred to Clause 32, which refers to people who act as care-givers, as having basic rights and responsibilities, such as a child at the head of a household.
Adv Masutha asked if a responsibility came with a right, as rights are enforced and responsibility can be imposed.
Ms R van Zyl explained that the responsibility and right did not refer to the same person at the same time, for example; the child has the right to be taken care of, while the parent has the responsibility of taking care of the child.
Dr M Mabetoa said there seemed to be confusion around these two terms. She said the biological mother of a child has the most rights pertaining to the child. The Bill includes the rights of other family members to have contact with the child, even if they are not in daily contact with the child. She referred to a constitutional ruling which gave rights to an unmarried father to be responsible for a child.
Adv Masutha asked for the flagging of this issue and said there were legal implications.
Mr Dikgacwi (ANC) asked what the rights of the father of a child born out of wedlock were, especially if he were fulfilling his responsibilities and even though he were not living with the child.
Ms R van Zyl referred to Clause 21 (1)(b).
Ms S Rajbally asked whether payment of maintenance was a parental responsibility.
Ms R van Zyl referred to the common law where it states that the child has the right to be maintained by both parents. This right is reiterated in the Bill, Clause 21 (2). Payment of maintenance is instituted by the Maintenance Act of 1998 and is administered by the Department of Justice. She pointed out that the Act has not yet been fully implemented.
Ms P Moodley from the Department of Justice responded that there were maintenance officers in every court in the country, but that there had been a delay in appointing maintenance investigators, of which so far 72 had been appointed across the country. The roll-out would be completed in this financial year.
Ms Rajbally asked that one such maintenance investigator be sent to Chatsworth urgently.
South African Police Services Presentation
Mr Geldenhuys, Assistant Commissioner of the SAPS, said that the police had been involved in the drafting of the Bill and fully supported the process and the wording in the Bill, with a few minor exceptions. In principal then, the SAPS supported the Bill and believed that it would improve the lot of children in South Africa and that it would enhance their position. He said the SAPS already performed most of the functions it had been allocated in the Bill. It would not greatly change the function of the SAPS, but that certain procedures would have to change. The SAPS was ready to implement the functions and enforce the powers allocated to it by the Bill once it was adopted and passed.
Mr Geldenhuys proceeded to refer to the sections of the Bill in which the police were expected to play a role. These started with the definition of a police officer, which included municipal police officers, who could also be involved in assisting a child. Section 50 dealt with investigation, which was required by the court to come to a decision that would be in the best interest of the child. Provision was made to request assistance from the SAPS. Section 68 referred to the assistance provided by the police to the clerk of the court in bringing the child before the court. Section 298 relates to offences in which the police would get involved. Subsection 5 of section 298 makes it an offence if a person, who is the owner or occupant of any premises on which commercial sexual exploitation of a child occurs, fails to report this occurrence to the police.
Section 151 of the 76 Bill refers to the removal of a child to a place of safety, which often requires the assistance of the police, who are empowered to use force, if necessary.
Section 152 of the 76 Bill is a provision specifically requested by the police. Mr Geldenhuys emphasised the importance and innovation of this provision, which allowed for the removal of the abuser of a child from the premises, rather than the removal of the child from his/her home. In most cases the abuser was a male in the home and the child would be spared the trauma of being removed and being placed in an unfamiliar environment. The abuser would be removed immediately upon being served a written notice, which also instructed him to appear in court on the first available date. The abuser would not be allowed to return to the home of the child. Section 170 of the Section 76 Bill is a provision for SAPS to find, apprehend and return a child to alternative care. The SAPS was already performing this duty in terms of existing legislation.
Mr Geldenhuys closed by categorically supporting the Bill and the new and existing provisions that were relevant to SAPS. Most of these functions were already being performed, which meant very little cost increase. The SAPS regarded its role in these matters as crucial and recognised that our children are a vulnerable group in society.
Ms Chalmers asked whether the abuser, as referred to in section 153, was expected to leave the premises immediately.
Mr Geldenhuys confirmed this.
Ms Rajbally asked what would happen if the offender refused to leave, on the grounds that he was the owner of the premises.
Mr Salojee (ANC) asked what would happen if both parents were abusing the child.
Mr Geldenhuys said the child would be removed.
Adv Masutha said that the continuing responsibility of the offender to support the occupants of the premises was a legal issue that needed to be explored. He asked for comment from SAPS on how they saw their role with regard to street children. Where were the gaps in the way services were structured to deal with this issue and where could the law be improved to better assist in serving these needs, he asked.
Mr Dikgacwi asked why cases were delayed unnecessarily, resulting in the unsuccessful prosecution of perpetrators.
Mr Geldenhuys replied that this was an issue to be dealt with by the Justice Department, although in some cases it was a failure on the part of the police. There were dedicated units who had received specialised training to give special attention to such cases. Unfortunately the Bill of Rights protected the suspect. These rights were often abused by the accused who could find ways of delaying the case as this counted in his interest. Amendments to the Criminal Procedures Act would go a long way to stopping such unnecessary delays. This problem required a multi-disciplinary approach in order to close all loopholes.
Mr Geldenhuys said the police were not legal experts and could not be expected to deal with the complexities of the legal implications of every case where an abuser was removed. It was up to the children's court to settle these matters. This provision was purely an emergency measure, which provided the means to remove the abuser from the home of the child. The implications on the abuser's rights and responsibilities to the child had to be resolved by the court within 24 hours if possible.
Mr Geldenhuys said in terms of existing legislation, street children qualify as children in need of care. As such, they should be removed from the street and placed in places of safety. The problem that the SAPS were faced with was that there were not sufficient places of safety available. The issue was a complex one, which the SAPS have gone to great lengths to address by implementing various initiatives and specifically training personnel to deal with these children. Even attempts to reunite these children with their families, after extensive investigations, had proven futile in many instances and these children had returned almost immediately to the streets. The phenomenon could not be dealt with by SAPS alone and required involvement from social workers, ministers, etc. Available places of safety were often not ideal because they were seen as prisons and this should not be so, since these children had committed no crime. SAPS supported the work of several NGO's in this regard, because unfortunately it was also true that street children had a tendency to turn to crime in order to survive.
Adv du Rand of the Department of Justice said that an inter-sectoral child justice committee had been instituted to monitor statistics on children in police cells and in prison awaiting trial to look at ways of speeding up the process. This was an ongoing problem, which required co-operation from various sectors. Discussions were in process with the judiciary to bring court dates forward in cases involving children and women. A range of interventions had already been instituted, notwithstanding the fact that there remained approximately 2 100 children in jails awaiting trial. The Department of Education had been engaged to deal with children who had been sentenced
and were awaiting relocation to reform schools. Previously children languished in jails awaiting such relocation, but this was no longer the case.
Department of Justice and Constitutional Development
Adv du Rand began by saying the Department of Justice was totally committed to improving the situation of children and fully supported the Bill.
It would do whatever possible within budgetary and human resources constraints to assist in its implementation. This Bill is supposed to answer the needs of children in need of care. Where children were in conflict with the law, different legislation was applicable. The Children's Bill was part of a range of legislation that which answers the needs of children in various contexts. All in all the legislative intervention provided for in these Bills would improve matters for children. Adv du Rand pointed out that the children's courts were at present still the most effective forums in upholding the child's rights. Chapter 5 of the Bill had been drafted in anticipation of changes to the court structure. The cost and implication of such changes to 747 courts were huge and would delay the implementation of the Bill. Therefore, the structure would be retained in its present form. Presently every court is a children's court. Even though Chapter 5 of the Bill does not contain major changes, innovations have been made in inter-sectoral co-operation for example. A proper costing and implementation plan was still needed.
The Department was committed to assisting in this regard. Chapter 5 of the Bill dealt with the establishment of courts, procedures, clerks of the court and miscellaneous matters. Adv du Rand went through these clauses. He ended by highlighting the challenges faced by the department. One of these was the cost of implementation and the Bill would probably not be implemented in its entirety immediately. Another challenge was foster care grants, which needed to be standardised countrywide. Adv du Rand suggested that the Committee revisit the issue of inter-country adoption, which involved highly complex legal matters, which under the current system were not being dealt with by sufficiently capable persons. The department should be included in this process.
Adv Masutha asked whether secure care facilities were dealt with entirely by the Child Justice Bill and if so, at what point should this Committee be involved in the implementation of that Bill. Which department was responsible for overseeing this? Adv Masutha pointed out that in principle, as far as adoption in general and inter-country adoption in particular is concerned, no money should pass hands, as this could compromise the best interest of the child. He asked if there were any mechanisms within the Department of Justice to prevent this.
Adv Masutha also asked whether the results of any changes made to the court structure would be measured against the improvements they were supposed to effect and would the Children's Bill be amended to align with such changes. Relating to clerks of the court, he noted that he understood that social workers could act as clerks in assisting magistrates. He asked how this system would be improved.
Ms C Dudley (ACDP) asked how the law was dealing with child trafficking.
Adv du Rand replied that secure care facilities were the responsibility of the Department of Social Development. The Department of Justice was looking at the judiciary's reluctance to use these facilities, for various reasons. Industrial schools also needed to be considered. The Child Justice Bill definitely accepted the responsibility of addressing the issue of secure care facilities in its entirety. Adv du Rand suggested a joint sitting of both committees.
Adv du Rand said child trafficking might require separate legislation, although this would not address the problem immediately. South Africa was signatory to the UN protocol. The law commission was also in the process of looking at the issue, which could result in draft legislation.
Adv du Rand said that there were measures in place to deal with any misconduct on the part of lawyers involved in inter-country adoption transactions and professional societies were there to address this. The problem does require more attention, he said.
M E Saloojee (ANC) commented that his experience of inter-country adoptions showed that hardly any of them were not approved and that lawyers' fees were massive, making impartiality questionable. He suggested the involvement of social workers who worked for no monetary incentives.
Adv du Rand agreed.
Adv Masutha pointed out that the system lent itself to exploitation by design and should be changed fundamentally. The issue needed debate.
Adv du Rand concurred that it needed flagging. He further affirmed that changes in the court structure would be revisited. Presently, high courts, lower courts and the judiciary were involved in the process of change. As far as child commissioners were concerned, he said that they needed more assistants and there were simply not enough social workers. The DSD had been approached and the need for family councillors was so dire that they were being appointed on a contract basis. The department had initiated pilot projects where paralegals were being brought in to solve this shortage.
Dr M Mabetoa said that adoption was a legal process, involving a very vulnerable child. Only social workers could establish whether the child could be placed in its country of birth, before resorting to inter-country adoption, as the rules of adoption require. The final part of the transaction is a legal process. These rules must be clearly defined and are in the process of being finalised in conjunction with welfare societies and the Department of Justice.
Mr A Theron (UNICEF) said it was disturbing to see the high charges being levied by private social workers for adoptions. Regulations should perhaps only require that fees be linked to costs. He supported a joint session between Social Development and Justice in order to bring the Child Justice Bill, the Sexual Offences Bill and the Children's Bill into alignment. The DSD had already taken account of the need for more secure care centres. A costing had been done to effect this and had been submitted to Treasury. He commented that magistrates were refusing to place children in secure care facilities because they were not secure enough and many children absconded. Some of these facilities were standing empty. This would have to be pursued as opposed to leaving children in prisons.
Mr Theron said the Bill makes provision for the central authority to take responsibility for inter-country adoption, whereas before it was the South African Council for Social Services Professions. Representation of both the Departments of Justice and Social Development was advisable in this regard.
Ms Rajbally said in KZN the court sat only once a week in some places. Children waited in overcrowded prisons awaiting trial.
Ms Tshivase commented that children may not be held in custody for more than 48 hours.
Adv du Rand said this Bill provided for children in need of care, which should not be confused with children in conflict with the law. The aim of the Child Justice Bill was to divert the child, to assess the child and to get them out of the criminal system as soon as possible. Children must be kept separately and sexes could not be mixed, he said. In general, correctional and police services made sure that children were kept separately and that no children under fourteen were held. This was being monitored by the department on a monthly basis. The department could send circuit courts to places where the court sat only once a week and the situation would be investigated.
Adv Masutha said that out of 8 000 prisoners in the Johannesburg prison, 1 200 were children, while a well-managed secure care facility was not very far from the prison.
The managers here claimed that they had no more capacity although the building was large enough and that the limit set by DSD was sixty per facility. He questioned this.
Dr Mabetoa said the department was aware of this problem and they were addressing the question of limits and capacity for these facilities. Other options that were being considered were community home-based care as a temporary measure and remanding the child back into the parent's custody. The department was working with Justice to make magistrates aware of these available options. More secure care facilities would also be built.
MR B Solo (ANC) said buildings were standing empty and under-utilised.
Adv du Rand concurred and said these challenges required a creative approach.
Mr Solo asked whether any use was being made of volunteers.
Mr Theron said the costing and implementation plan that the DSD had been working on included making use of such buildings.
Dr Mabetoa said that NGO's were being used by social workers and volunteers were used elsewhere. Some 20 000 volunteers received a stipend of R500 per month from the department. . .
Mr Saloojee asked for access to statistics of children in prison and information on all secure care facilities.
The meeting was adjourned.
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