Children's Amendment Bill [B19B-2006]: deliberation

Meeting report

s180

Adv. Mike Masutha (Chairperson - ANC): What is cluster foster care?

Musa Mbere (Department of Social Development): Children living in homes in the community, houses are donated, and there are six children in each home.  The organisation managing the homes hires house mothers who work in shifts.  They have time off. They try and keep children of the same age together.  They access the foster grant and they fundraise for in direct costs. They try to keep them according to age group in each house.  All the houses are all in one area.  The house is like any other, they feel like other children, they have an address.  Feel like it is a family setting. 

Adv. Mike Masutha (Chairperson - ANC): One of the candidates for judgeship runs such a scheme in Johannesburg. Can things go wrong?  What happens if the foster parents pull out?

Dr Maria Mabetoa (DSD): We support the concept which is community based.  The management is by a designated child protection organisation, and an approved NGO.  The organisations will get funding.  It will be easier to manage.

Musa Mbere (DSD): We are also advocating for children to be adopted.

Adv. Mike Masutha (Chairperson - ANC):  The NGO is guaranteed funding therefore children could get stuck in foster care.  There have not been many adoptions.

Janet Semple (DA): What about the SOS villages, what is the difference between these children’s homes and cluster foster care?

Dr Maria Mabetoa (DSD): SOS village is campus style and not in the community.  They have independent living for older children. This is another option that we prefer they grow up in the community. 

Janet Semple (DA): How many children in each scheme? 

Dr Maria Mabetoa (DSD): There is a concern about creating mini children’s home which we need to minimise.

Cheryllyn Dudley (ACDP): Is it well defined and well understood? 

Musa Mbere (DSD): They put six children in a home. Can deal with multiple families.

Adv. Mike Masutha (Chairperson - ANC): What is the reason for the objection by the public submission on this clause?

Yolisa Nogenga (Committee Researcher): There is a concern that cluster foster care will result in moving into more institutional arrangements.

Adv. Mike Masutha (Chairperson - ANC): And its not an institutional arrangement?

Caroline Makasi (ANC): We  don’t want children to be abused.

Janet Semple (DA): We have addressed the number of children and the regulations.

S181
No public submissions

S182
No comments

S183
Cross-reference to s120 in terms of person that is fit and proper.

S184
Submission from DICAG (Disabled Children’s Action Group)

Clause inserted to address submission but placed rather in s183

S185
Public submissions received

Definitions included in the HIV sector submission.

Ronel van Zyl (SALRC - drafter): Criticism is being directed at cluster foster schemes because at present they are unregulated and uncontrolled.  With the proposed scheme the department has to approve the organisation and regulate the scheme.  Definition read out.

Janet Semple (DA): Would like to see the norms and standards.

Adv. Mike Masutha (Chairperson - ANC): Management scheme and the family its self.  They want to define the management scheme separately and then regulate the family separately. 

Janet Semple (DA): The number is limited to six in the household, but no limit on numbers in the scheme.  Concern you could get too many children in the household.

Dr Maria Mabetoa (DSD):  The scheme will have more than six children – scheme could manage 100 children.  If there are eight children they will be kept together.

Adv. Mike Masutha (ANC): Shouldn’t you have a proviso that no more than six in one household?  Or would the cross-reference say that.  No more than six.

Ronel van Zyl (SALRC - drafter): That is left to the regulations. The scheme has to be registered with the department. 

Adv. Mike Masutha (Chairperson - ANC): Why should it be in the regulations?  Family setting is the idea setting, that is why there is a limit on six.

Cheryllyn Dudley (ACDP) if limit is six then how is this different?

Adv. Mike Masutha (ANC): The difference is the pooling together, basic principal is the same but it is organised component that makes it different.

Janet Semple (DA): We approve of the scheme but want it to be properly regulated.

Dr Maria Mabetoa (DSD): Conditions for registration of the schemes could be put in the Act.

Ronel van Zyl (SALRC) we can put the more important issues in the law i.e. must be a registered NPO.

Hilda Weber (DA): It is a positive scheme.

Adv. Mike Masutha (Chairperson - ANC): How would children move around within the scheme?

Musa Mbere (DSD): You can move the people around.

Adv. Mike Masutha (Chairperson - ANC):  Who does the scheme belong to? If you substitute the parents is it screened by the court?

Ronel van Zyl (SALRC - drafter): The chapter on alternative care applies if you move the children. The approval of the scheme is important.  The organisation decides on the mothers. 

Adv. Mike Masutha (ANC): The court does screen the people.

Hilda Weber (DA): Concerned about NPO registration, that needs tightening up.

Cheryllyn Dudley (ACDP):  Are we excluding NGOs?

Ronel van Zyl (SALRC - drafter): NPO registration is not sufficient.  Child Protection Organisations are registered with the Department and the Department will register the scheme.  We like the idea but realise that it must be properly managed.  Will to add whatever we need to do.

Adv. Mike Masutha (ANC): Ok we have exhausted this argument. Move on.

S186
Public submissions received: Children's Institute

Cheryllyn Dudley (ACDP): Are we interfering with the adoption process? [by providing for long term foster care placements]

Ronel van Zyl (SALRC - drafter): Foster care has increased by over 700% over the last 7 years.  It used to be the exception rather than the rule.  Orphans are putting pressure. The increase is mainly orphans that are living with relatives.  Want the grant because they are poor not because they need care and protection. 

Adv. Mike Masutha (Chairperson - ANC):  If the child is settled with the extended family that is not alternative care.  I thought that the department had sorted this out.  Johannesburg Child Welfare Society argued in its submission for the resuscitation of kinship care to solve this problem. There is a difference between family care and alternative care.  When a child has been orphaned, they are not necessarily children in need of care and protection.

Custody is not a legal affair it is a factual affair.

The 700% increase relates to the unfair application of the law.

Musa Mbere (DSD): We start with the premise that an orphan is a children in need of care and protection.  The question is who determines whether the caregiver is a fit and proper person to look after the child?

Adv. Mike Masutha (Chairperson - ANC):  Guardianship is a legal act that must go through the court, that is why we asked for guardianship when an uncle plunders resources. That is illegal -  deal with that in a different way.  If the aunt says I am not able to look after the child she can then ask social services to find a proper placement.  Must separate the concepts [guardianship from placement/custody].

Dr Maria Mabetoa (DSD): We do not have any room to manoeuvre.

Adv. Mike Masutha (Chairperson - ANC): The Social Assistance Act takes its cue from you [Children’s Act]. You define who gets foster care.  This law must resolve the uncertainty of who is entitled to foster care.

Dr Maria Mabetoa (DSD): With a child who has lost both parents and who has no estate [means] - the Child Support Grant is supposed to be available. Do we deny the orphans the right to social security whilst we wait for the CSG to be extended?

Musa Mbere (DSD):  In reality the Child Support Grant is not attached to any welfare services.  There is a lot of abuse in these families[relatives caring for orphans], resentment because they have responsibilities without resources.  At least with the foster care grant they know there is somewhere [social services] they can run to.

Adv. Mike Masutha (ANC): You cannot blame this committee.  If the co-ordination has failed within one building [ie in the department of social development between the two directorates of social welfare services and social security] how can we ensure that there is co-ordination across spheres of government and departments?

The moment a child is orphaned there is no-one that is legally obliged to look after those children.  At best the grandparents have a duty, but the other relatives do not have this duty to support the children.  If your argument is that all these orphans are entitled to foster care – this is not clear in the Act. The alternative is the Johannesburg Child Welfare Society kinship care concept but this is covered by the Child Support Grant. If relatives are already looking after the children, then refer them to the Child Support Grant not the Foster Care Grant.  Grannies are being used as kinship placements.

There is no real placement here -  foster care does not transfer guardianship – therefore it is not a real placement.  Not sorting this out is causing inequalities in society.

Hilda Weber (DA):  Bottom line is that South Africa cannot afford to pay these amounts of money.  The Foster Care Grant should be subject to a means test.

Caroline Makasi (ANC): In our communities we are happy when the grannies can become foster parents.  They do not have anything, but they will tell the social worker to take the children and place them with a stranger if that means they get the money.  Personally I have three children of relatives and I want to adopt them, but everything is taking ages.

Adv. Mike Masutha (Chairperson - ANC):  There must be equality. One way of solving this is to let relatives claim the Child Support Grant. Some people will say we cannot have one system for blacks and one for whites, just because blacks have been….[rest of sentence not captured].  Don’t want a child in Limpopo to be treated in a different way to the child in Western Cape. A Granny can apply for the Child Support Grant whilst waiting for Foster Care Grant, there should be no difference if the granny is looking after the child just because she is a relative.

Dr Maria Mabetoa (DSD):  Other countries are congratulating us for having orphans in foster care.  The state is taking responsibility for the child. 

Ronel van Zyl (SALRC-drafter): The grounds for finding a child in need of care and protection are listed in s150.  One response is alternative care. There are three forms of alternative care: foster care, residential care, or temporary safe care.  For alternative care, there must be a due process which includes a court investigation. 

Cheryllyn Dudley (ACDP):  Is sub clause 186 (3) necessary? It seems to opposite to what you are saying.

Janet Semple (DA):  A child in foster care needs monitoring.

Caroline Makasi (ANC): I second Ms Semple.

S187
No submissions
No Comments

S188
No submissions
No comments

S189
No submissions
No comments

S190
No submissions
No comments

Chapter 13 – Child and Youth Care Centres


S191

Public submissions received from CLC, Siyakhana, NACCW, Dicag.

Dr Maria Mabetoa (DSD):  Developmental programmes are not defined in the bill, I know what they mean e.g. life skills, skills for independent living - that is not provided for, but we can add it.  Child and youth care centres already run these programmes but they are not provided for in the law.

Adv. Mike Masutha (Chairperson - ANC): They need extra money to run these programmes therefore must include the word “developmental”.

Dr Maria Mabetoa (DSD): If they have a programme for child addicts – we regulate for the facility as well, the two have to be combined.  Most of the programmes are run by NGOs, they must be regulated here.

Adv. Mike Masutha (Chairperson - ANC): So do need to mention it.

Dr Maria Mabetoa (DSD): The disability concern is that the legislation is not clear whether children with disabilities are mainstreamed or separated.

Adv. Mike Masutha (Chairperson - ANC):  There is a school of thought that separation leads to exclusion. But on the other hand if you mainstream then their needs are not met. DICAG is pushing for mainstreaming with added support. Does the formulation cover their request?

Ronel van Zyl (SALRC-drafter): In partial care facility chapter there is a special clause to ensure that children with disabilities get prioritised when the funding is distributed because in partial care chapter the provisioning clause is a may.

Under the programmes some times you need specific programmes to cater for children with disabilities, they are also mainstreamed.

Adv. Mike Masutha (Chairperson - ANC):  The official policy is to mainstream.

Cheryllyn Dudley (ACDP):  Put in a cross-reference.

S192

Public submissions from NACCW and DICAG

Ronel van Zyl (SALRC- drafter): Regarding NACCW’s submission, the cross-reference is already in. They are referring to an older version of the Bill.

S192(3): “From time to time” will be changed in line with the rest of the Bill.

S193
No submissions
No comment

S194

Cheryllyn Dudley (ACDP): Need to prescribe norms and standards for safety and security.

Janet Semple (DA): CLC re. s194(2) norms and standards for investigation of complaints by children.

Cheryllyn Dudley (ACDP): What about early childhood development?

Ronel van Zyl (SALRC - drafter): Early childhood development must be offered as per s191. Those programmes will comply with norms and standards in that chapter. Two places where early childhood development must be offered s191 in terms of programmes and chapter 6.

Cheryllyn Dudley (ACDP):  Include in s194(2)(l)

Ronel van Zyl (SALRC - drafter): We can do that: “(l) access to schooling, education and early childhood development;”

Janet Semple (DA): Comment on the proposal from the Centre for Child Law?

Dr Maria Mabetoa (DSD): We can add that here, something for children with disabilities in the norms and standards.

Ronel van Zyl (SALRC - drafter): In partial care chapter we added a clause on disability, we can add the same clauses here. 

The Committee then turned to discuss s 139 – corporal punishment

Zola Vice (Committee Secretary) read out the correspondence from the National Prosecuting Authority (NPA). 

Adv. Mike Masutha (Chairperson - ANC): Asked for reactions from the department.  We asked the NPA to look at a soft landing for this clause, by considering other mechanisms of diversion.

Ronel van Zyl (SALRC - drafter): The department considered the letter from NPA and agree with the letter in that only s139(3) [abolishing the defence of reasonable chastisement] is necessary to abolish corporal punishment.  The problem is that the layman does not understand the meaning of the change in the law, so it would be advisable to retain first sections for clarity.

The Department is not in agreement with the proposed change to s139(7) discretion as interpretation of best interest of the child – would the NPA be the best people to determine this?  Advise deleting s139(7) entirely. The one thing that is necessary if you want a ban you must remove the defence of reasonable chastisement.

Decision that must be made is should diversion be used and when? For first offence, or second offence?

The NPAs suggestion of implementation delay of s139 – could also be advantageous.

Adv. Mike Masutha (Chairperson - ANC): The first decision for the committee is whether to maintain the decision of the NCOP to ban corporal punishment including the removal of the defence of reasonable chastisement. If we do abolish what other measures do we put in place to soften the blow? Look at possible cooling off period during which appropriate parenting skills can be taught. Possible diversion programmes to accommodate the removal of the defence of reasonable chastisement.

Cheryllyn Dudley (ACDP): I will start by referring to the submissions that were made during the hearings. The majority of those submissions show the temperature on the ground about the government interfering in parental responsibilities and rights.

NPA has clearly stated that even the slightest tap would be considered an offence.  All complaints would have to be investigated.  Both departments [SAPS and Justice] are under huge stress and strain.  To add this burden would be absolutely criminal.  The best interest of the children is the crux of matter.  It is unthinkable that we would not put that clause in.

Louis Nzimande (ANC): in addition to submissions we must be guided by the commitments in terms of international instruments and our own Constitution and the policy as espoused by the government.  When we regulate and legislate we  do so on the basis of the situation that citizens find themselves in and to harmonise if they are at odds with each other.  In essence we must balance those interests.  My inclination is that the NCOP position covers that situation of positive discipline of children. 

Hendrietta Bogopane-Zulu (ANC): The first legislation to enter peoples homes was the Domestic Violence Act.  We cannot use language that people do not understand, we must be honest that we live in a very violent society and enlightment doing what works.  Right now we are not introducing anything new -  has already been done in education.  It started with the teachers struggling, but they are learning.  We have learnt from that, this law builds in diversion and parenting skills.  We want to strengthen families and we don’t want children exposed to violence – spanking is not acceptable  - it is done out of anger it is a reaction. 

Adv. Mike Masutha (Chairperson - ANC): Allow parties to brief on the Bill, then request a special session to deal with the voting after the parliamentary session. It is disappointing that we do not have a legal opinion from government on the implications of international law and the Constitution. How far can we push this discussion?

Ronel van Zyl (SALRC - drafter): I need to leave by 3.30 but if it is critical I can risk missing the plane.

Cheryllyn Dudley (ACDP): It would be helpful to have the judgement in the Education case.  People say that people hit their children because they are angry.  This legislation does not deal with people who have anger management problems.

Adv. Mike Masutha (Chairperson - ANC): Is there anyway in which corporal punishment can be inflicted without the intention being to cause pain? 

Cheryllyn Dudley (ACDP):  This whole concept is misunderstood. There are some parents administering violence in the name of corporal punishment.  Some parents are not administering loving caring corporal punishment.  Proposal: “S139(2) no child may be subjected to corporal punishment which in its manner is ….” [end of sentence missing]

Adv. Mike Masutha (Chairperson - ANC): What is a “light padel”?

Cheryllyn Dudley (ACDP): Ms Dudley gave a demonstration of a light attention getting smack.  She said there should be a campaign to instruct parents on how to smack like that.

Hilda Weber (DA): I heard what Hendrietta Bogopane-Zulu has said and I hope a cricket bat is not considered as a flat/light padel.  Education has nothing to do with this committee.  I agree with sub-clause (4) South Africans must be given alternatives.  Not sure that we will ever get rid of all forms of corporal punishment, but it is a good attempt.

Janet Semple (DA): The definition of corporal punishment is the problem.  Parents who give their two year old a smack do not see that as corporal punishment.  General perception is that we are going too far in terms of regulating parental responsibilities and rights.  There is general agreement that the programmes are not widespread enough. Fully support the Constitution against violence. 

Adv. Mike Masutha (Chairperson - ANC): What is the difference between explaining the problem rather than smacking. Train them to understand the right things and the wrong things.

Janet Semple (DA):  Very few parents are trained not to rely on their basic instincts. 

Hendrietta Bogopane-Zulu (ANC): This thing of mixing love and hate! Hitting leads to violence. This bus must stop here. 

Adv. Mike Masutha (ANC): I am a father of a 12 year old and there has never been a single situation where I have had to smack her.  It is the nature of children to come up with other ways of looking at things.  Wait until the issue has passed and explain.

Dr Maria Mabetoa (DSD): The department was fortunate to be part of the debate in the NCOP. The mandates from the provinces indicate that most agreed that it had to be banned.  Based on the UN study there is a lot of violence against children in South Africa.  If we instil pain in children they think that they can do the same to others.  International conventions if you look at the African Charter regards physical abuse as a violation of children's rights. 

Endorse Hendrietta Bogopane-Zulu. We cannot endorse hitting children as a method of disciplining children.  Raised by my grandmother, not smacked and here I am and I’m sure I’m a responsible adult.

Ronel van Zyl (SALRC-drafter): Under the Constitution and common law  - corporal punishment is an offence of assault.S 12 of Constitution says that everyone has the right to freedom from all forms or violence public and private. Everyone includes children.  If you smack a child, what stands between being prosecuted and not being prosecuted is the common law defence of “reasonable chastisement”– part of inherited law.  However, if you slap an adult, even the threat constitutes an offence and you cannot raise the defence of reasonable chastisement. The defence of reasonable chastisement is the one thing that stands in the way of  conviction.

Abuse is defined in the principal act if anyone does defence of reasonable chastisement can be invoked to stop the prosecution of the parents for abuse.

Musa Mbere (DSD): I support Dr Maria Mabetoa in terms of if you cannot do it to adults you should not be able to do it to children.  Violent society must move with the times.  There is a lack of family support systems and the pressure builds and it is taken out on children.  They are the targets.  Rights come with responsibilities we should emphasise that when we are talking about the children.

Adv. Mike Masutha (ANC): Everyone has been allowed to vent, the public also vented. [Submissions in black font in favour of ban; submissions in red font against the ban.]

Centre for Child Law (University of Pretoria)
Southern African Network to End Corporal and Humiliating Punishment of Children
Doctors for Life
South African Human Rights Commission
Management Systems and Training Programmes (MSTP)
Resources Aimed At The Prevention of Child Abuse And Neglect (RAPCAN)
Vuyiswa Mahohare representing the NACCW Youth Forum, Port Elizabeth
Darrin Mccomb
Russel Stewart
Howard Theunissen
Carol Bower Independent Consultant
Christian Action Network
Deon Barras
Childline North West
Southern African Catholic Bishop’s Council
Community Law Centre, UWC
National House of Traditional Leaders
Women in Partnership Against Aids Summit (WIPAA)
The South African Council of Churches (SACC)
Submission made on behalf of the Sub-Group on Corporal Punishment and Positive Discipline, a sub-group of the Children’s Bill Working Group by RAPCAN


Adv. Mike Masutha (ANC): There are 2 schools of thought –
(1) Abolish corporal punishment and any defence to an assault charge; or
(2) The existing status quo is desirable. Keep the law as is,  and promote other forms of discipline.

Further area culture of child upbringing which includes positive parenting skills, this is broad consensus to include this in prevention and early intervention.

Those who advocate corporal punishment agree that if you ban corporal punishment that there other ways to deal with parents without prosecution.  Clearly if someone bashes a child’s head to a pulp then that is a clear prosecution.  Some forms of violence need clear immediate ban, even whilst people are learning skills.

Clear two options to vote on the day of the Bill.   

Meet on Tuesday to consider the formulations. Each camp must speak one language.  Not voting, chance to re - brief the drafter.

Wednesday chance to come back to review final changes.  Brief caucus.

Thursday vote.

Suggest that Cheryllyn Dudley as the corporal punishment champion to draft the one proposal. 

Cheryllyn Dudley (ACDP)

“s139 (2) no in manner or degree

(3) circs parental responsibilities and rights in respect of the child and acts in respect of (1)
(b) moderate reasonable bearing in mind age of the child
(c) has been explained to the child.
(d) using the back of the hand or a flat paddle.

(4) as per (5)

(5) corporal punishment violating (1) (2) or (3) falls outside the defence of reasonable chastisement. “

Janet Semple (DA): I do not agree with the use of the flat paddle.Rather say right of parents to inflict punishment without the use of excessive or degrading punishment.

Hilda Weber (DA):  This should go to a national referendum.

End of meeting