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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
14 November 2003
CHILDREN’S BILL: BRIEFING ON TABLED BILL
Chairperson: Mr E Salojee (ANC)
Documents handed out:
Children’s Bill (As introduced in the National Assembly as a section 75 Bill)
Public submissions on the Children's Bill must address the combined Bill (Section 75 - national competences and Section 76 - provincial competences) and it is hoped that the hearings will take place on 8 to 10 December.
The Committee were provided with a clause by clause briefing on the tabled Bill. Concerns raised by the Committee were noted by the Department. Examples of these were:
- the definition “adoption social worker” appeared to exclude lawyers,
- Clauses 19 to 21 appeared to discriminate against fathers,
- the children’s court should have competence to issue interim orders as well as final ones to prevent delayed proceedings,
- the objectives of the “strategies concerning child protection” should be defined,
- the norms and standards for care should be the subject of public hearings but the Department could only promise a draft version for 2004.
- the different offences of severe forms of child abuse such as abduction and trafficking were not consolidated in the Bill but scattered all over.
- child-headed households should have a section to itself in the Bill.
Public Hearing arrangements for Children's Bill
The Chair noted that it had been firmly established with the Minister and the Department that the Department had instructions to bring the Bill to this Committee rather than to the Justice Portfolio Committee. The Committee wished to hold public hearings from 8-10 December 2003 so that the public input could be collated before the Committee met in 2004.
The Chair continued that as the Bill had been split into two parts dealing separately with matters deemed to be Sections 75 and 76 competences (as outlined in the Constitution), the Committee would scrutinise the former now. If all proceeded smoothly, the Section 76 part would be looked at in 2004.
Mr A Theron, Chief Director of Welfare Service, (DoSD), interjected to say that the public hearings would engage with the combined Bill, which would be split afterwards.
In reply to Mr M Da Camara (DA) asking if Parliamentary budgetary proceedings were in place for the public hearings to be advertised in the press, the Chair said that they were. The advertisements were to be placed in the daily and Sunday newspapers, announced on radio stations and NGOs would advertise them through their networks.
Clause by clause briefing on Children's Bill
Mr Pierre du Preez, DoSD legal drafter, then took the meeting through the Bill, clause by clause. Issues raised by the committee were mostly noted, to be dealt with at a later stage.
Adv M Masutha (ANC) queried the time frame of three months with respect to an “abandoned” child (Chapter 1, Clause 1(1)). He said that a few hours abandonment of a baby could be fatal, whereas three months for an 18-year-old would be different.
Mr Theron alerted the meeting to the fact that the interpretation of “adoption social worker” in the definitions in Chapter 1 had been changed from previous drafts. A child at the head of the household was a new inclusion in the interpretation of “care-giver” in the same chapter, as was “cluster foster care scheme”.
Adv Masutha asked if 'adoption practice' would be accredited but this had been outlined in the interpretation of “adoption social worker”.
Ms R Southgate (ACDP) asked why lawyers had been excluded. Mr Theron noted this concern as the DoSD did not want the group working in adoptions to be exclusive.
Mr Theron said “family member” had been expanded to include a cousin. (This change was not in the copy the committee was scrutinising.)
The interpretation of “Minister” was the same as that for director-general.
Ms J Chalmers (ANC) asked whether guardians were included in the clause on “parental responsibilities and rights”.
Adv Masuthu noted that the interpretation of “primary care giver” was different to the one in the Social Assistance Bill but he assumed that this was because the policy frameworks were different.
The Bill catered for partners of the same sex adopting but this was not in the interpretations, as were many issues discussed once only. The relevant clause was 231.
There were no comments made on Chapter 2, General principles and Best interest of child standard.
In a major policy shift, the age of consent had been lowered from 21 to 18, partly because children matured faster nowadays.
Adv Masutha said that “child participation” in Clause 10 should specifically mention 'court'.
The Committee had a problem with Clauses 19-21 which appeared to discriminate against fathers and the DoSD noted this.
There was a discussion about inserting clauses into the Bill which already appeared in the Constitution; Adv Masutha said that the usual effect of such repetition was to expand or limit constitutional rights. (Mr Theron said that the Cabinet had requested the insertions for emphasis.) The clause which was raised by Adv Masutha was Clause 14 Access to courts.
Clause 24 was a new insertion in line with the Hague Convention.
Clause 26 indicated a change in policy which made provision for the reality of extended families – primary care-givers dying of HIV/AIDS could appoint someone to take over parental responsibilities.
Clause 30 was also new policy and made provision for “co-holders of parental responsibilities and rights”.
Adv Masutha noted that Clause 32 would have an impact on the definition of abandonment.
“Parenting plans” in Part 3, Clause 33 were formalised, which was a new development.
Part 4 (Miscellaneous) made provision of unmarried fathers who had recently challenged the Constitution. The rights of children conceived by artificial insemination were also covered in part 4 (Clause 40), which was also a new development.
An example of “voidable marriages” would be where close blood relations had married. Ms J Chalmers felt that Voidable marriages should be in the definitions.
Ms C Kok of the DosD briefed the meeting on Chapter 5 onwards of the Bill. These parts had been extensively amended because of restructuring in the Department of Justice, and would continue to be amended for this reason. She pointed out that Clause 46 – orders that children’s courts may make – was a major change.
Adv Masutha noted that the scope of children’s courts had been expanded.
Ms Kok said that the Cabinet had some responsibilities of this Court to be removed and for the Family Court to deal with children’s court matters, domestic violence, child maintenance and sexual offences against minors. Some of the changes were pending an Act regarding the Family Court being passed in Parliament. It was noted that the committee would need briefing on the new areas of competence of the Family Court.
Ms Ayesha Johaar (State Law Advisor) explained that Clause 45.3(b) regarding matters children’s courts may adjudicate would be excised because it conflicted with Clause 23(1) (assignment of parental responsibilities by order of court).
Mr Da Camara asked for the motivation for Clause 46 (1) (b) whereby a children’s court may order the placing of a child in a child-headed household under the supervision of an adult person designated by the court. Ms Kok said that this related to the many orphans, especially in KwaZulu-Natal and Limpopo who lived on their own and were vulnerable to exploitation and other abuse. In these cases, an aunt or headman could be designated supervisor of the child-headed household. It was noted that this adult supervisor was not clearly different to a care-giver/parent guardian etc.
Ms Kok said that the additional powers of the children’s court (Clause 48) was made at the request of magistrates, and that Clause 49 which made provision for lay-forum hearings was new. Mr Theron said that reverting to the old name for lay forum did not mean that the policy was not new.
Clause 52 (2) outlined the rules concerning questioning and interpretation for children was new.
The clause dealing with legal representation for children (Clause 55) was controversial, according to Mr Theron, because it was not clear whether the Legal Aid Board would have sufficient funding to provide this.
Clause 62 (professional reports ordered by the court) involved the family advocate more widely than previously.
Clause 66 (protection of court case records) had been included at the request of the Cabinet.
Mr Theron noted that the SA Law Reform Commission had recommended the use of paralegals in addition to clerks of children’s courts but this recommendation would not be followed up until the Family Court had funds to appoint them. The matter had been complicated by Treasury asking if the intention was to create a new professional class. The cost for this would be R33m which was not feasible, therefore the Cabinet had advised that this policy revert to the status quo.
Mr Theron said that the clerk of the court was supposed to have been the children’s court assistant but this had never happened. The need was for a professional person more than an administrator. Although costs prohibited what the Law Commission had recommended, administrators in this role would be inadequate and the issue would have to be revisited. Ms Kok added that paralegals would be trained to assist all in need, not only those in the children’s courts but this change would be implemented very slowly as only 5 out of 747 courts were properly resourced in this respect.
Adv Masutha suggested that the children’s court have competence to issue interim orders as well as final ones to prevent delayed and protracted proceedings from disadvantaging children. This concern was noted.
Mr Waters (DA) asked for a briefing on the roll-out plan to resource the children’s court, in terms of intermediary services, clerks, magistrates and counsellors and the SoSD agreed to provide this in the next sitting. Ms Kok said that there was a “cross-grain between the Sexual Offences Bill and the Children’s Bill” and the business plan and budget submitted to Treasury could easily be used for this briefing.
Clauses 69-71 (relating to pre-hearing conferences, family group conferences and other lay-forums) were new. Clause 71 was a repetition of Clause 31 because the intention was for the children’s court clerk to arrange these conferences but not if his highest qualification was only a Standard Eight.
Mr Du Preez then took over the briefing. Adv Masutha asked whether information relating to adoptions would be held by an agency or a court (Clause 74 – publication of information relating to proceedings). Ms L Stuurman of the DoSD said that Clause 74 was the only part of the bill that dealt with confidentiality and that there would be a confidentiality clause specific to adoption.
At this point the Chair was alerted to the fact that there was a problem with the advertisements for public hearings. Adv Masutha chaired the meeting while Mr Saloojee was attending to the matter.
Adv Masutha asked who determined the minimum norms and standards for partial care (Clause 83). This was outlined in Clause 77, according to Ms Stuurman.
Mr Da Camara asked who monitored compliance with the norms and standards and who would define what constituted the criteria such as “a safe area for children to play”.
Ms Kok said that this was clarified in Clause 87 but the committee requested that the linkages be clearer and seamless. Mr Du Preez explained that Clause 77 dealt with all aspects of the facility or service and Clause 83 dealt with the physical premises specifically. Everything would be dealt with in the national norms and standards as defined by the Minister.
Ms Chalmers asked when these norms and standards would be drawn up and debated. She felt that they should be the subject of public hearings along with the bill. This was noted but the DoSD could only promise a draft version for 2004.
Adv Masutha said that some regulations were administration instruments and some expanded the law. He said that there should be clarity regarding with category the norms and standards would fall into. If it was not clear which were binding and which were not, the courts would have to interpret them and this would be costly.
At this point Mr Saloojee returned to chair the meeting. He reported that there was a bureaucratic problem with the advertisement but as Chair of Chairpersons was not available, Mr Saloojee would have to sort out the matter on Monday. It was agreed that, although it was regulated that public hearings should be advertised, the NGOs could be notified in the meanwhile, to enable them to prepare.
Adv Masutha asked why Clause 89 only applied to the death of children in partial care facilities, and not to injury or abuse. He also asked what penalties would apply if no notification was given. Ms Stuurman said that professionals would be required to notify the proper authorities in cases other than death and that Clause 298 dealt with the penalties for failure to notify. Mr Theron said that registration of partial care facilities (Clause 78) had been changed to enable to provincial authority to devolve responsibility to the local authority, where there was an agreement to do so or where the local authority had the capacity to deal with this responsibility. There was an error in this Clause (78 (1) a) – the facility should be registered with the provincial DoSD and the provincial government. Mr Theron also said that the Law Commission had made provision for a policy framework in Chapter 2 but that had been omitted so that the Act would not have to be amended every time policy changed.
There was no comment on Chapter 7 Early Childhood development
In Chapter 8, Adv Masutha requested that the objectives of the “strategies concerning child protection” be defined and this was noted.
Mr Theron expected many submissions on the National Child Protection Register (Chapter 8, Part 2). There was a discussion around an apparent misapprehension regarding the parents’ right to chastise a child in Part 2. The intention was to protect children against chastisement severe enough to be classified as assault and to prevent parents charged with assault from using the parental right to chastise as a defence against it. Ms Southgate said that this abuse should then be defined, but Ms Stuurman said that if an assault charge was laid, the prosecuting authority should decide if this constituted abuse. This concern and doubt was flagged.
Adv Masutha said that he had expected child-headed households to have a section to itself. As children did not have adult legal rights in terms of the Constitution, how far would the Act suppress this limit?
Mr Theron said that this issue should be examined against the section on cluster foster care, and possibly cross-referenced.
Adv Masutha said that Chapter 8 was a mixture of protection and different forms of care issues. He noted that severe forms of child abuse such as abduction, trafficking were not consolidated in the Bill. This was noted.
Mr Theron alerted the MPs that children in especially difficult circumstance had been removed and combined under protection. There had been a suggestion from the state law advisors for an intersectoral mechanism but this had been taken out, as there is already the Public Protector and the Office on the Rights of the Child. And the MPs were to keep this issue in mind if they want to bring it back.
Adv Masutha noted that the issues of different offences were scattered all over and could they not all be consolidated into one part? The Chair asked the department to note this.
Chapter 9 indicated a new emphasis on prevention and early intervention where “children are identified as being vulnerable”. No comment was made on this chapter.
There was a misunderstanding about Clause 154 which deals with the sibling at home of a child already in care. Mr Theron said that the entire chapter indicated a policy shift from the old Children’s Act which focused on the child in need of care, instead of the parent and finding measure to support the family structure.
Adv Masutha further queried Clause 156, the chair asked the department to flag this.
At 1 pm the meeting adjourned.
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