Draft Children’s Bill and Older Person’s Bill

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
19 November 2003.
DRAFT CHILDREN’S BILL AND OLDER PERSON’S BILL

Chairperson: Mr E Saloojee (ANC)

Documents handed out:
Children’s Bill (As introduced in the National Assembly as a section 75 Bill)

SUMMARY
Members of the Departments of Social Development and Justice, a representative from the South African Law Commission and State Law Advisors, continued briefing the members on the Children’s Bill. The public hearings scheduled for 8-10 December were postponed because there was not enough time to advertise them. The Chair of the Committee would prepare a statement on the way forward which was unclear at the close of the meeting.

MINUTES
The Chair welcomed the representatives from the Departments of Social Development (DoSD) and Justice, the South African Law Commission (SALC) and State Law Advisors to the meeting.

Mr A Theron (DoSD) reminded the members that the agenda was to finish the briefing on the old version of what was a certified copy of the Bill. Public hearings would also be on this version. Later formal deliberations would focus on the split Bill. The Chair reminded the meeting that issues raised in the meeting would be flagged and discussed later, either before or after the public hearings.

Mr Pierre Du Preez, law advisor, then continued briefing the Committee, taking up where he left off at the previous meeting.

Mr ML Da Camara (DP) asked about the difference between maintenance and other support orders in Chapter 11. Mr Theron said that parents paid maintenance to each other but that both parents could pay support orders for their child’s care. Mr P Du Randt (DoSD) said that support was the wider term.

The Committee noted that all deaths of children in care would be investigated. Clause 178 covered the death of children in alternative care only. Deaths in partial care, foster care, early childhood development centres etc were covered elsewhere. Ms J Chalmers (ANC) asked whether abuses at drug treatment centres such as Noupoort were covered in the Bill. Mr Theron said these were covered in the Treatment of Drug Dependency Act 20 of 1992. The Minister had ordered an investigation into the deaths at Noupoort. That Act would be reviewed at a later stage. Mr Du Preez commented that most children at Noupoort had been placed there by their parents.

Mr Theron drew attention to the change in policy indicated in Chapter 13, whereby the care given by family members who took in their relatives’ children, was also defined as foster (kinship) care.

Mr M Walters (DA) noted the extra responsibilities outlined in clause 184 and elsewhere. Given the serious shortage of social workers, he asked whether the cost implications of placing a social worker in every magisterial district had been taken into account. Mr Theron said the Minister had instructed the DoSD to design a programme to attract and retain social workers. Mrs RM Southgate (ACDP) sad that she was a volunteer at a South African Police Services (SAPS) Comfort Room and it was very difficult to find a social worker to take a raped child from the police station to a Place of Safety. Magistrates could only be persuaded with difficulty to send children to foster care after a social worker had completed the necessary form. It was her experience in a working group drawn from community members, social workers and NGOs, that the magistrate was the greatest hitch in ensuring children’s welfare.

Ms Southgate also queried whether six per household was too many for the maximum number of children in foster or kinship care, given the demands of these children. Mr Theron said that the number was historic and also that the intention was to allow siblings - of which there could be more than six - to stay together.

Mr Du Preez continued the briefing to the end of Chapter 13. Mr Theron noted that Chapter 14 indicated a policy shift. Orphanages, shelters, schools of industry etc were all now designated “child and youth care centres”. The intention was to provide enabling legislation for the DoSD to take over all these. The Bill should be read in conjunction with the Child Justice Bill. Mrs Southgate asked whether all youth care centres funded by the state and privately were to be taken over. Mr Theron acknowledged the importance of this question, but said he would deal with it later.

Mr Du Preez then asked whether there were any questions regarding Clause 196 (establishment of child and youth care centres by accredited organisations). Mr Da Camara enquired whether an NGO that ran a drop-in shelter and a youth care centre would have to accredit both facilities or whether the NGO itself would be accredited. He asked how they would be supported in the latter case. Regarding Clause 194, which stated the “MEC for social development of a province … must … establish … centres”, he suggested that the DoSD should instead support existing centres run privately. Mr Theron explained that the government would not be taking over non-government-run centres. The Bill made provision for both private and public centres. The expertise in NGOs should be encouraged, although they would be required to register and meet certain conditions. Clause 194 applied to private and public facilities and Mr Theron agreed that the DoSD would consider changing “must” to “may”. Ms Mbatha of the DoSD said that each facility would have to accredited as the DoSD needed knowledge of each facility

Mrs Southgate asked, with respect to Clause 207, whether the management boards of private facilities would be “protected from government interference” or be forced to appoint demographically representative boards. Mr Theron said that there was no prescription regarding this issue in youth care centre management or in old age home management, but that the DoSD would have to look into the matter “at some stage”.

Mr Da Camara noted that there was no reference to the imposition of values. Many child care institutions had a religious orientation and children ought to be protected from punishment for not adhering to the institution’s orientation. This concern was noted.

When Mr Du Preez had reached the end of Chapter 15, Mr Theron reminded the Committee that in the SALGC version of the Bill, facilities were to be run by local authorities. Not all local authorities had the capacity to do this but the legislation enabled their being taken over. Mrs G Borman (DP) doubted whether the local authorities would have funds to take on this and other expansions of its role. This was noted.

Adv MT Masutha (ANC) said that the regulations for facilities etc should be categorised and this was noted.

The Chairperson added that all chapters from Chapter 16 onwards would be included in the Children’s Bill an would be discussed formally.

Changes to Clause 23.1 (persons who may adopt a child) had been made because of court challenges. Mr Walters asked why a biological father had to adopt his own child. Ms Mbetha said that a mother, married or not, automatically had full parental responsibility but that an unmarried father did not. Ms Stuurman said that Clauses 21 and 22 dealt with the unmarried and biological fathers’ responsibilities and rights. This Bill would not overturn customary and common law, although the Constitution did, and this contradiction was noted, as well as a query regarding the difference between ‘biological’ and ‘unmarried’ fathers.It was noted that Clause 23.4 allowed a woman who had conceived and given birth after a rape to withhold consent from the biological father to adopt the child, although the rapist would have to be convicted.

Mr Walters asked about the extent of financial means that would affect consent to adopt. Mr Theron said that previously people were discriminated against because they could not afford to give up the foster care grant in order to adopt a child. The policy would now be changed after careful examination. The SALC had recommended an adoption grant similar to a foster care grant. This new grant would be covered in the Social Assistance Bill.

Mr Theron pointed out that Clause 250 allowed social workers in the employ of a local authority to be accredited to provide adoption services. The Committee had been very concerned about adopted South African children in other countries. The present Bill was an attempt to address these concerns.

He went on to say that Chapter 18 made provision for one central authority for child abduction in the Department of Justice and one in the DoSD (Clause 275 was in line with the Hague Convention and the Mediation in Certain Divorce Matters Act.)

Surrogate mothers (Chapter 20) could have abortions without giving grounds. This right was enshrined in the Termination of Pregnancy Act.

Mr Walters felt that having to wait 18 months for artificial insemination, after signing the agreement to do so, was too long (Clause 28.9) although he understood that a “cooling-off period” was necessary. This was noted.

Mr Du Preez continued with Chapter 21. Mr Theron asked the Committee to look at this chapter and the next, in conjunction with the tracked version, as some material had been omitted and some changed. [PMG has a copy of the tracked bill]

Mrs Borman queried this process. As the meeting would shortly be dealing with the Section 75/Split Bill, she queried whether the Committee should look at the amended Bill in conjunction with the one under discussion, to ensure that nothing was left out. When the amended Bill was scrutinised, the Committee might have changed. Mr Theron said that the Amendment Bill could not be dealt with until there was an Act. This dilemma meant that some of the “considerations would be restarted”. Mrs Borman requested that her unhappiness regarded the inability of the Committee to deal with the bill holistically, considering the possibility of a new Committee coming in, be noted. Mr Du Randt said that other departments had to be briefed too, and there could be joint sittings. The Chair said that the Committee had been alerted to that and had appointed researchers to go through the Bill, looking for sections that had relevance to other Committees. These other Committees had already been formally written to, as this was the lead Committee.

The Chair also announced that there had been no permission to hold public hearings and there were a number of other issues that had a bearing and might lead to the Committee having to abandon its work. (He had been in discussions with various officers during the tea breaks.) The Bill had not been prioritised so he proposed that the Committee not proceed “in a big way” until there was clearer direction “in a day or two”. At this stage, it was impossible to advertise the public hearings in Sunday’s papers, and advertising them later would not give the public sufficient time to prepare comment for 8-10 December.

At Mr Du Randt’s request, the Chair agreed to issue a public statement as the Department of Justice and the DoSD were being “besieged” for information.

With this uncertainty, it was agreed that the meeting scheduled for Friday would be cancelled. The meeting was adjourned.