Draft Children’s Bill: briefing on its progress

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
28 May 2003
DRAFT CHILDREN’S BILL: BRIEFING ON ITS PROGRESS

Chairperson: Mr E Saloojee (ANC)

Documents handed out:
Draft Children's Bill
Report by Department on the Development of the Child Care Legislation
Status of the Draft Children's Bill
 
SUMMARY
The Department of Social Development outlined the expected timeframe for the completion of the Children's Bill. The changes to the previous draft of the Children's Bill were the result of consultation with other pertinent departments. These changes were reviewed and discussed by the Committee.

The Committee discussed the need for a workshop at which all the issues of the Children's Bill could be discussed in depth with all the relevant departments. The Committee decided to get clarification on policy decisions on social assistance issues that affect children before proceeding to make final decisions on the Children's Bill.

MINUTES
Mr Salojee asked where the Bill stood in terms of the legislative process and what the expected timeframe was for completion.

Mr A Theron, Chief Director of Welfare Services, Department of Social Development, replied that there had been workshops in July of 2002 concerning the issues covered in the new Children's Bill. The report on the Children’s Bill was finalised last December. The Minister requested the Bill to be fast tracked.

The proposed timeframe is detailed on the last page of the report (see document). The Bill's progress will depend on whether the Cabinet approves it at the end of June 2003.

Mr Theron explained that the Bill had been work-shopped in conjunction with other departments whose input was applicable, such as the Department of Justice and the Department of Education. The amendments to the previous draft of the Bill (see document) reflect the input of these departments. For example, the Department of Justice disagreed with the South African Law Commission's recommendations on changing the court system (Chapter Six). Certain functions were taken away from the Department of Education. The Department was unhappy about losing the schools of industry and early childhood development. It was unclear who should accept responsibility for these functions. The South African Police also gave their input.

Discussion
Mr B Solo (ANC) asked if the Bill had been gazetted yet and whether it would still go to cabinet. He asked if the timeframe was close to six months.

Mr Salojee referred Mr Solo to the timeframe outlined on the last page of the report.

Mr Theron stated that the Bill would go to Cabinet to be costed and for an implementation plan to be developed. He referred the Committee to the section of the report where the redrafting of the Bill is outlined. By the 10 June 2003, a revised Bill should be approved and sent to the Cabinet. While this was the proposed timeframe, the Bill's progress could be impeded if the Cabinet took a long time to approve the Bill. Mr Theron offered to give the Committee a copy of the working document.

Ms R Southgate (ACDP) appreciated the fact that the Department of Social Development was keeping the Committee involved in the process. She asked whether the Department would go through the entire procedure of including public comment and comments from other organisations.

Mr Theron replied that the Department had consulted with a wide range of organisations. The Cabinet, however was clear that at the moment the issues were being dealt with via in-house discussions with other departments. Mr Theron stated that once the Bill is received by Parliament it would be the Committee’s responsibility to engage in a whole range of consultative processes.

Review of Draft of Children’s Bill
Ms L Siwisa-Pemba Director for Legal Services, Department of Social Development reviewed the amendments made to the Bill.

Amendment to Section 1
Adv M T Masutha (ANC) said that it was good to frame the concepts of abuse in this way as the previous legislation only dealt with issues of neglect. He asked if neglect and abandonment were dealt with separately or included under the term "abuse".

Ms J Chalmers (ANC) informed Adv Masutha that neglect was included under abuse.

Mr Salojee asked how one measures "emotional abuse".

Mr Theron said that a professional in the field would make such an assessment.

Ms T Tshivhase (ANC) asked if some children were not morally abused.

Mr Theron noted the point. He said that they included bullying in the term "abuse" in order to more fully cater for all forms of emotional abuse.

Ms Chalmers asked why bullying did not simply fall under "harm" or "ill treatment".

Mr Salojee responded that bullying included harm of a child by another child.

Ms Chalmers said that the definition of abuse is any form of abuse inflicted by anyone.

Mr Salojee asked the Department to make a note of the comment and instructed Ms Siwisa-Pemba to continue.

Amendment to Section 29
Ms N Tsheole (ANC) said that the age of majority had been discussed at the Gordon's Bay workshop concerning the Bill. Due to the circumstances in which they grow up, some people are not ready to cope with the responsibility of the age of majority when they are eighteen years old.

Mr Solo asked why the Department of Education wished to keep the age of majority at twenty-one years of age.

Ms G Borman (DA) was worried about the growing prevalence of child headed households due to HIV/AIDS. She asked how children under the age of majority would be able to access funds for the household.

Mr Theron said that it became clear from research and the workshops that the age of majority should be lowered to eighteen. He said they have now taken the Department of Education's view into account and would present both views to the Cabinet.

Ms Borman asked if the Department could summarise the findings of the research.

Adv Masutha stated that a rational basis for distinguishing between the age of majority and the age of adulthood was needed. He illustrated the point with an example. If a young man in foster care turned eighteen he became an adult, and thus, was no longer officially under the care of his foster parents. But it is likely that he may not have finished school. Having twenty-one years as the age of majority could be used as a second ceiling to allow a child to finish school. If one moves the age of majority to eighteen one has to examine how such systems would be affected.

Mr Salojee said that the Department would have to note these questions but he cautioned that the answers could not be prepared at the meeting.

Mr Hollamby of the South African Law Commission said that he agreed with Mr Salojee. He said that Adv Masutha had captured the essence of the problem in his example.

Ms Southgate asked how old a child must be in order for the foster parents to claim grants.

The Department answered that the age was eighteen and under.

Amendment to Chapter 5
Adv Masutha understood that the lower courts were not equipped to handle cases where proprietary interests were involved, such as when a child inherits money that has to be managed by an adult. He asked if the Department of Justice was referring to the entire area.

Mr Hollamby noted Adv Masutha's question.

Mr Salojee asked if the Department of Justice had made a lot of detailed changes.

Mr Hollamby said that they had, but had not offered many substantive alternatives.

Amendment to Section 53A-C
Ms Chalmers asked when the proposed surrogacy legislation would be dealt with and asked if there would be a period in which surrogacy was not covered by any legislation at all.

Mr Hollamby responded that the Portfolio Committee of Justice was in the process of looking at a draft surrogacy bill. He added that there was a specially allocated ad hoc parliamentary committee examining the matter.

Adv Masutha stated that surrogacy looked like a broader family law issue. He said that the whole point of comprehensive child legislation was that it covered all matters between adults and children.

Mr Salojee asked whether making mention of surrogacy in two Bills would be problematic.

Mr Hollamby said that the feeling in the Justice Department and amongst others was that they had to compromise on the comprehensive nature of the Bill. Problems may arise if there was mirror legislation. For example if the Surrogacy Bill is amended the Children's Bill would have to be amended too.

Ms Southgate questioned whether there should be a reference to surrogacy in the Bill even if it is covered in full by other legislation, as one does not want a comprehensive act.

Amendment to Chapter 6
Mr Theron stated the Department of Justice’s view was to retain the status quo. The Department of Social Development had referred to a Child and Family Court system but the Department of Justice preferred to keep the children's courts. The Department, however, did not rule the change out in the future. The final position was therefore a compromise.

Ms Tsheole said that she appreciated the constraints of the Department of Justice but the present situation was resulting in a pile up of children's cases. She said that these issues needed to be brought up with the Justice Department.

Ms Siwisa-Pemba explained that the Justice Department was concerned with changing the system because of financial and human resources troubles. The Department seemed willing to look at the extension of the children's courts in the future.

Ms Southgate asked if the Department had indicated when they might begin to extend them.

Ms Siwisa-Pemba noted the question.

Mr Theron stated that when the Bill reaches Parliament, the Department of Justice would visit the Committee and address their queries.

Adv Masutha said that it might be necessary to have a separate discussion paper on the issue of family court jurisdiction extension. The proposal involved the effective combination of separate courts such as the maintenance courts, children's courts and possibly the sexual offences courts. There might be a rational basis for bringing some courts together and maximising specialisation in terms of child and family issues. However, he felt this should be a separate debate with the Departments of Social Development and Justice. There was a lot of work in the lower and middle courts that could be combined.

Ms Chalmers stated that if the Committee simply accepts the Department of Justice’s notion that everything is unaffordable and impractical, then the Committee should not produce legislation that is in the best interests of the child. She noted that although the judges may see themselves as experts of everything, the Department of Social Development had expertise of their own.

Mr Hollamby said that he was quite sure the Department of Justice would accept a system that builds on the strengths and capacity of the existing system. If everything stayed with the higher courts problems with accessibility would exist.

Mr Theron stated that he was hearing support form the Portfolio Committee for the South African Law Commission's recommendations. He said that he would note this.

Amendments to Section 77
Ms Siwisa-Pemba stated that the Department of Justice was concerned that family advocates versed in mediation would now have to become children's representatives in court.

Ms Tsheole stated that when examining the old Child Care Act, it was decided that children would need separate representation.

Adv Masutha stated that this was the Child Care Amendment Act of 1996. A section was introduced to provide for the separate legal representation of children. It was previously assumed that the magistrate represented the best interests of the child, but that was found to be contradictory as the magistrate was also supposed to be impartial. It was uncertain whether the Legal Aid Board or Social Development was responsible.

Mr Hollamby said that section 8A of the 1996 Act was never put into operation due to the issue of who would budget for the cost: Justice or Social Development. But the Department of Justice's objection regarded the specific issue of the function of the family advocate.

Amendment to Section 86
Mr Hollamby said that the Department of Justice might have a legitimate point in that hearsay is allowed as long as it is relevant. The South African Law Commission included the section on allowing hearsay as magistrates often don’t allow it.

Amendment to Section 92
Mr Theron said that this amendment aimed to establish a trained person as a social worker, instead of having the court clerk assume those duties. Although the Department of Justice supported the idea that the assistant be more than administrative personnel and should understand issues in child cases better and could make recommendation to the magistrate, they felt the change in terminology would be confusing.

Adv Masutha noted that during visits to four metropolises he heard a suggestion that two separate roles for carrying out duties in the court should be established along the following lines: a registrar who is a lawyer and sees that the court functions properly and that cases are properly dealt with and a manager who makes sure that the court facilities are in working order. 

Adv Masutha asked how the notion of a court assistant who is a social worker would work. He said that one has a court clerk and then one has a social workers involved in a specific case.

Mr Hollamby said that the assistant would be similar to a prosecutor.

Mr Salojee said that time was running out and that they should organise a longer meeting period or workshop to deal with the rest of the Bill.

Mr Theron said that he agreed that after the Bill has been approved, a thorough workshop would be necessary.

Ms L Petersen, Parliamentary Officer, Department of Social Development, said that a workshop could be organised pending the Cabinet’s mandate on how to take the process forward and the Cabinet Lekgotla. She said that the Committee had two weeks before the plenary sessions in August in which members could commit themselves and the Department could co-opt members of the Departments of Justice and Education. Members could familiarise themselves with issues in preparation for the workshop.

Ms Tsheole agreed a workshop was necessary. She said that there were many Bills, including the National Development Agency Bill and the Social Assistance Bill. She asked which one the Department intended passing first.

Adv Masutha said that in the Portfolio Committee on Justice and Constitutional Development they dealt with ten Bills at a time. He urged that they keep rolling.

Mr Salojee said that they needed to prioritise and reassess the programme between now and the following year. He said that he would like an idea from the Department as to whether the Bill would be completed soon. He said that Ms Petersen's suggestion should be taken seriously.

Ms Tsheole asked whether it was possible to pass all three Bills in light of what Adv Masutha had said.

Mr D. Plaatjies, of National Treasury, said that the legislation being dealt with by Social Development included: the Social Assistance Bill, the Social Security Agency Bill, the Children's Bill and the Child Justice Bill. Any legislation with significant financial implications had to be costed. He suggested that they take up Ms Petersen's suggestion and be realistic about how long the Children's Bill is going to take to be finally legislated. The Departments of Health, Education and Justice had to work out the cost implications of the Bill.

Ms Petersen said that her intention was for them to come to grips with the Bill. The Minister of Social Development had prioritised the Bill, but she said that the Portfolio Committee needed to give consideration as to how they will deal with it. She said that they were also seeking the Committees advice regarding language. The Bill has yet to be translated. While the Bill can be certified in one language, it has to be translated before it is finalised, which will mean the process will probably carry on until after the election. She said that the Committee should declare which issues in the Bill they wish to prioritise.

Mr Salojee said that he would talk to the Department.

Ms Borman said that in the Committee on which she previously served they had met for four hours and suggested that the allocated time for meetings needed to be increased.

Mr Theron mentioned that there was also the Older Persons Bill to consider.

Mr Theron suggested an urgent meeting between Mr Salojee and the Director-General.

Adv Masutha proposed that the Committee "roll on" because they would be lucky if they finish one Bill this year. He said that there was still a long and protracted process to undergo. Social Development should continue to bring the Bill to the Committee and the Committee would find time to work on it.

Mr Theron said that there were one or two controversial points that the Department should put to the Committee, such as the issues in the Social Assistance Bill, which affected children.

Adv Masutha stated that they still needed to do work on what kind of caring structures existed, such as kinship care, child headed care, and community care. Once this was understood and defined they could look at providing for these care structures in terms of social assistance packages. A host of different aspects should be taken into account, such as the difference in grants for foster care versus child support and whether foster care could be defined as a professional service.

Ms Tsheole also referred to the issue of foster care and stated that few people would take orphans in. Many times foster care ended up separating children. She asked whether they would stick with the conventional form of foster care or come up with a more appropriate alternative. She added that in some instances it would be better to leave children together and appoint a guardian from the community.

Mr Theron said that it would be a good idea to have a policy document concerning implementation of these issues. He said that at the moment they were dealing with subsidised adoptions, informal foster care, kinship care, and cluster-home foster care. The present legislation makes provision for children to be put in foster care. Some magistrates think that it is their responsibility to say which grants should go to the children and which should go to the care givers. He said that there would be cost implications.

Mr Hollamby said that he agreed with Mr Salojee's suggestion of a workshop.

Adv Masutha drew their attention to the Taylor Commission. He said that policy decisions had yet to be taken in all areas including social assistance, which covers social grants for children. He cautioned that it was not just a question of work-shopping the issue, but rather the Committee had to take into account the policy and fiscal decision taken by government in the near future that would affect the Children's Bill.

Ms Petersen said that they were unsure of which policy choices the Department of Justice would make. She agreed with Adv Masutha that these policy choices needed to be taken into account. She stated that a meeting was a good idea on the one hand, but on the other hand, Treasury, the Departments of Education, Health and Justice need to first clarify their choices.

Adv Masutha said that he thought that an interdepartmental committee was going to be set up to address some of the issues in the Taylor Committee's report. He said that they could not finalise the Children's Bill while decisions arising from the Taylor Committee were left unresolved by the government.

Ms Tsheole suggested that they write a formal letter to the Minister of Social Development outlining these issues.

Mr Salojee and Adv Masutha agreed.

Adv Masutha said that the costing for the Child Justice Bill was already being carried out by a private consultant. He asked whether the same had been done with the Children's Bill. Making policy decisions based on fiscal constraints was a reality.

Mr Salojee said he thought costing had already been completed.

Mr Theron stated that a scoping exercise had been completed that resulted in a broad financial estimate of the cost of the Bill. The detailed costing would depend on whether or not a new court system for children would be implemented, whether the basic income grant would be implemented, whether the child grant would be extended to all children up to eighteen years old, whether industrial schools were to be budgeted for by Social Development or Education, as well as by other matters. He said that scoping was as far as the Department could proceed without final decisions on these matters.

Mr Theron said that this was a watered down Bill as all concerns of other departments had to be taken into account. It was necessary to cater for children and ensure that the necessary structures get phased in even if they are not agreed to now. He told the Committee that they had been part of the process all along and should ensure that the bill caters for the best interests of children.

Adv Masutha stated that one of the reasons that the Department of Justice had so many vehement objections to some of the issues in the Bill was that they have been outside of the process. They needed to come to the Committee and be heard.

The meeting was adjourned.

Appendix 1:
REPORT TO THE PORTFOLIO COMMITTEE ON THE DEVELOPMENT OF NEW CHILD CARE LEGISLATION

 

1.                   AIM

To provide the Portfolio Committee with an update on the development of new child care legislation.

 

2.                   BACKGROUND

2.1   The former Minister for Welfare and Population Development, together with the Minister of Justice, requested the South African Law Commission (SALC) during 1997, to appoint a Project Committee on the Review of the Child Care Act, in order to conduct a comprehensive review of the present child care legislation.  The aim was to develop recommendations for new appropriate and far-reaching child care legislation, which will take into account not only the present realities, but also anticipated future social political and economic constraints.

2.2   The Committee has completed a consultative process with regard to the First Issue Paper, which was consulted at workshops in all provinces.  A Report summarising comments from the workshops has been prepared and circulated to participants.

2.3   To hasten the process the Law Commission identified Mr G H Grove as the most suitable person to be appointed to draft the Bill.  Mr Grove finalised the first zero-draft Children’s Bill during July 2002.

2.4   The initial Report and the zero-draft Children’s Bill was submitted to the Cabinet Committee during October 2003

2.5   A workshop, arranged by the Law Commission, took place in Gordon’s Bay on 29 and 30 October 2002 in order to initiate broader crosscutting debate on the draft Children’s Bill. The purpose of the workshop was to give other government Departments, the provincial departments of Social Development and some national organisations and institutions the opportunity to present their views on the draft Children’s Bill to the Department of Social Development at this early stage.

The following concerns were raised during the workshop:

§         The Chapter on the new proposed court system was a concern to the Department of Justice and Constitutional Development.  This proposal will have a major impact on financial and human resources, as well as the training of staff for the said department.  The proposal that the Central Authority for the Hague Convention on Abduction be transferred to the Department of Social Development does not take into account that international best practice has determined that the Central Authority should be with the Ministry of Justice, as these investigations have legal con-sequences.

§         The Chapter on Early Childhood Development (ECD) needs to reflect the role of the ECD organisations and the draft Bill should take the Education White Paper 5 on Early Childhood Development into account in the draft Bill.

§         The role and responsibilities of Local Government is an issue of concern as mentioned in the prevention and early intervention services Chapter.

§         The Chapter on Trafficking in Children does not effectively criminalise trafficking as required by the United Nations Protocol to Prevent Trafficking in Persons.

§         The lack of human resources, especially in rural areas is a major concern for service providers to implement the new Act.

§         The costing of the draft Bill is imperative before the Bill could be introduced in Parliament.

§         The whole debate with regard to corporal punishment needs clarity.

§         The definitions of the draft Bill should be revised and extended and terms like injury, safety and well-being should also be defined.

§         The National Policy Framework should be negotiated and should provide for a structure to monitor the implementation, enforcement and administration of the Act.

§         The age issue is raising concern.  The draft Bill mentions ages like 18 years, 12 years, 14 years and the concept “child of an age, maturity and stage of development.”  Consensus should be negotiated.

§         Mechanisms to render social work support services to the South African Police Service officials need to be negotiated and competencies to police officials should be clarified to enable the officials to act in the best interest of children and to protect children.

2.6   The Cabinet Committee returned the draft Bill to the Department of Social Department to make final refinements to the Bill in conjunction with stakeholder departments.

2.7   The refinement process, overseen by an Interdepartmental Committee, entails reworking the inputs received from the relevant Ministers and their departments and an integrated costing process.

2.8   The SA Law Commission met on 6 December 2002 and approved the Report and draft Children’s Bill. This implies that both the Report and the Draft Bill have gone through all the Law Commission processes and approved documents would be handed to the Department. (The draft Bill is attached as Annexure 1 and the Executive Summary of the Report is attached as Annexure 2)

            The report covers:

·         Constitutional issues – rights and responsibilities of children; best interests of the child standard

·         Beginning and end of childhood “child” = person under 18.

·         Overview of the existing Child Care Act, 1983

·         Parenthood and the status of children – artificial insemination and surrogacy

·         Parent child relationship – codify large part of common law – “family law”

·         Prevention and early intervention – new!

·         Child protection

·         Health rights for children

·         Children as consumers

·         Children in especially difficult circumstances

·         Children affected by divorce

·         ECD

·         Alternative care – whole continuum: partial care, foster care, kinship care, adoption, residential care

·         Religious and customary law affecting children

·         International issues: trafficking, parental child abduction, inter-country adoption

·         Courts

·         Monitoring

·         Grants and social security for children

 

3.                   ACTIVITIES OF THE INTERDEPARTMENTAL STEERING COMMITTEE

The Steering Committee comprises of senior officials from the departments indicated in the letter from Minister Asmal who represented the Minister at the Cabinet Committee, namely Social Development, The Presidency, National Treasury, Justice and Constitutional Development, Education, Health and Safety and Security. The Steering Committee was supported by officials from the SA Law Commission was later extended to include the departments of Home Affairs and Labour.

 

The activities of the Steering Committee included the following:

·         Regular meetings and workshops

The process of consultation between the departments included the following:

a)       Incorporation of the outcomes of the national workshops that took place on 29 to 30 October 2002

b)      Highlighting the major concerns from the various departments

c)       Written inputs from the various departments

 

An integrative process was agreed upon which would include reaching consensus on the changes to be effected and at a later stage an integrative process to develop Regulations will also be overseen by the Steering Committee.

·         Reworking of the comments received from the different departments

Serious objections were received from the Departments of Justice, Education and Safety and Security (SAPS). A workshop was held on 17 to 19 March 2003 to rework the suggestions received from the departments.

The biggest objection was received from the Department of Justice who initially wanted the chapter on the courts removed.

The decisions of the workshop was that

a)       The Departments would request their legal sections to rework the areas in the draft Bill that they did not agree with. The Department of Justice indicated that they would redraft the chapter on the courts

b)      Bilateral meetings would take place with the departments to ensure that the process remains integrative – Ms Lulu Siwisa- Pemba (Director: Legal Services) and Agness Muller (Acting Director: Children) were appointed to meet with the departments once their inputs was received 

c)       The final inputs would be given to the Legal Drafter, Mr Grove who in conjunction with the relevant Legal Sections would do the redrafting of the relevant proposals

·         Appointment of a Legal Drafter

A decision was taken to appoint the same Legal Drafter, who drafted the initial drafts of the proposed Bill, to incorporate the inputs and comments from the different departments

            Costing process

It was agreed that the team would embark upon an integrated costing process.

Approval was therefore obtained from the Acting DG to appoint some one to embark on the costing exercise – this is being hampered by the policy implications indicated by the different departments all of which will have a direct impact on the costing process.

 

4.                   COMMENTS RECEIVED FROM THE VARIOUS DEPARTMENTS

The following is a summary of the comments received from the different departments. The detailed comments will be attached as annexures.

4.1               The National Treasury

In terms of Section 35 of the Public Finance Management Act 1 of 1999, “all draft national legislation that assigns an additional function or power to, or imposes any other obligation on, a provincial government, must, in a memorandum that must be introduced in Parliament with that legislation, give a projection of the financial implications of that function, power or obligation to the province.”

            It is therefore imperative that this draft Bill and envisaged Regulations be costed. Neither Cabinet, nor Parliament has therefore any basis for making a reasonable decision on the provisions of the draft Bill.

 

            Stakeholder expectations were raised while the reality is that Government cannot implement because of the large costs and resource requirements.

 

            This piece of legislation will have a great impact on the budgets of other national departments, provincial departments and local authorities.  It would be prudent to have the costs detailed so that these organs of state could frame their discussions on the Bill within the constraints of their own budgets and their ability to implement.

 

4.2               Department of Justice and Constitutional Development

The aim of the Children’s Bill, 2002, is to replace the Child Care Act 74 of 1983, as amended.  The Bill, however, has major budgetary, human resources and court structure implications of various departments including the Department of Justice and Constitutional Development.

 

            Representatives of the lower court judiciary and the Commissioners of Child Welfare, at a Workshop held for them in March 2002, indicated their disquiet about not being part of the structures, which have been put into place to discuss new legislation such as the Children’s Bill, as they are the presiding officers who must interpret and apply the legislation and they also have much experience on these matters in the courts.  It seems that though some magistrates have made individual representations to the Law Commission relating to the review of the Child Care Act, no formal consultations were held with them as a profession.  The Department suggested holding a Workshop with the Commissioners in order to obtain their views in this regard, however due to the Bill now being fast tracked consultations have not taken place yet.

 

             The officials from the Department of Justice are of the opinion that the Bill should not be introduced to Parliament without the justice matters and in particular the courts aspects have been urgently and thoroughly investigated and clarified.  Though it is clear that Chapter 6 of the proposed Children’s Bill could be a valuable contribution to the Department of Justice’s initiative in making their courts more effective and efficient, because of the nature of the proposals contained in Chapter 6 relating to the establishment of a two tier court system (District and Regional) and the additional functions and resources (human and financial) proposed therein, it is strongly recommended that formal consultations take place with the Department of Justice and Constitutional Development.

 

            This is stated because the Department is very concerned that the further fragmentation of the courts and the establishment of new specialist courts, such as the District and Regional Child and Family Courts, is not in line with the long term vision of the restructuring of the courts into one court system and a single judiciary.  Cabinet is to be approached soon through the Minister for Justice and Constitutional Development, requesting an embargo on any legislation contributing to the fragmentation of the courts, and it will be recommended that only the Minister for Justice and Constitutional Development who is the cabinet member responsible in terms of the Constitution for the administration of justice, be allowed o submit legislation to Cabinet dealing with any court structure whatsoever.  Any legislation that will increase the burden on the judiciary and the courts needs to be properly consulted with the judiciary, the Minister for Justice and Constitutional Development, his Advisors and the Director-General, during the formulation of such a Bill.

 

4.3               Department of Education

            The bill in its current form shifts responsibility for education programmes, for children up to the age of 9, from the Department of Education to the Department of Social Development.  If this is an oversight it can be easily rectified, but if it is intentional, then there are major implications for the education system.  E.g. it would mean that the Foundation Phase in schools i.e. Grade R to Grade 3 would fall under the responsibility of Department of Social Development and the other grades under Department of Education.

 

The issue of Schools of Industry and Reform Schools also needs clarification.  If we can agree that Education is responsible for the education programme in these institutions and that Department of Social Development is responsible for the other components of the programme we could have a workable situation.  Education does not have opposition to these “schools” being translated into “youth centres”.  We just need to establish clarity that Department of Education bears constitutional responsibility to ensure that learners “right to basic education” is met.  It cannot migrate this responsibility to another department.

 

            The transitional arrangements included in the Bill does not take sufficient cognisance of the fact that Education is a concurrent function between National and Provinces.  The transitional arrangements “shift” the current responsibility for reform schools and schools of industry from the provincial MEC for Education to the national Minister of Education.  This has constitutional ramifications and may need to be reconsidered.

           

The different ages mentioned in the draft Bill should be synchronised.  The ages mentioned are 12, 14, 16 and 18 years. The confidentiality of information on HIV/AIDS status of children is a concern where the age is determined at 12 years of age and older or under 12 years.

 

4.4               Department of Health

            Health related information on sexuality, reproduction, and sexually transmitted diseases including HIV/AIDS are not supposed to be confidential.  Confidentiality only relates to specific client information and not general health related information.

 

            Access to social assistance needs to be explicit with regard to guiding care providers on the social assistance services that may be accessed to cater for the children in need.

            Environmental officers from local municipalities should be involved in the inspection of Early Childhood Development facilities.

 

            Regarding consent for surgical operation it is suggested that legal Guardians should also give consent.  In cases of emergency the hospital superintendent should be able to give consent.

 

            Consent with reference to age needs to be further interrogated for example for HIV/Aids disclosure, choice on termination of pregnancy and medical and surgical operations.

 

Strategies to avoid child headed households should be developed and if for unavoidable reasons they exist, support should be available.

Additional Comments:

Page 182: Section 237. Consent to medical treatment and operations

It should read consent to medical treatment and surgical operations

 

Page 134: Section 162, (2) f, make provision for home visiting of new- born babies. A concern was raised as who should visit newborn babies. Home Based Care-givers trained in Community component of the Integrated Management of Childhood Illness (IMCI) strategy, and with the supervision of a professional nurse can visit the newborn babies. The Department of Health will then be responsible.

 

4.5               Office on the Rights of the Child, The Presidency

Reasonable chastisement should be clearly defined in the draft Bill to avoid misinterpretation.

 

The draft Bill has broadened its scope to include non-professionals liable for reporting cases of children in need of care and protection.  The draft Bill does not provide protection for those who report, but wish to be anonymous.  This issue will need to be tightened if reporting by non-professionals are to be encouraged.

 

The payment of a foster care grant is facilitated through the Social Assistance Act.  The fact that the latter mentioned Act has been assigned to Provinces and cannot be amended by the national Department could prove problematic.

 

In order to strengthen co-ordination and to avoid duplication, the roles of the Children’s Protector, the Human Rights Commission and the Office on the Rights of the Child need to be clearly defined.

 

4.6               Department of Safety and Security (SAPS)

Regarding reporting of child abuse, it is proposed that persons obliged to report must be prosecuted if not adhering to the provision. The draft Bill must provide that an alleged offender instead of the child victim be removed from the home or place of residence.

 

Establish mechanism to ensure that contact between the alleged offender and child victim do not take place. Definitions in the draft Bill should be extended and terms like injury, other person and safety and well-being should also be defined.

 

Where the draft Bill refers to a police officer it should rather refer to a police official. It is proposed that if a child abuse case is reported to SAPS it should be done by way of an affidavit, the reason for this being that should such a person lodge a false affidavit such a person could be prosecuted.

 

It is proposed that the court must authorise a police official to enter any premises while investigating a case of child abuse and the possible removal of a child. The draft Bill only provides for the executing of functions by the South African Policy Service officials and excludes law enforcers in the employ of municipalities and metropolitan services.

 

5.                   WAY FORWARD

5.1               Redrafting of Bill

Following a process of consultation and after taking into account the submissions received, the Department instructed the legal drafter to amend the draft Children’s Bill.  (See attached document, which outlines the major areas of change between that proposed by the Law Commission (SALC) and that proposed by the Department of Social Development)

 

5.2               Proposed Timeframes

           

9 June  Approval of revised Bill by Minister

18 June Submission to Cabinet Committee

25 June             Submission to Cabinet - If Cabinet approves the Bill must within 7 days be forwarded to the State Law Adviser for review and certification.

2 July               Bill to State Law Adviser for review and certification – when they are satisfied they will table the Bill

4 July               Explanatory Summary of Bill to be published in Gazette for general comment       

 

6.         RECOMMENDATIONS

 

            It is recommended that the Portfolio Committee take note of the progress made with the finalisation of the new Children’s Bill

 

Ashley Theron: Chief Director Welfare Services

Lulu Siwisa-Pemba: Director Legal Services