Children's Act: implementation challenges & proposed amendments: by Departments of Social Development & Justice and Constitutional Development

Social Development

12 August 2013
Chairperson: Ms Y R Botha (ANC)
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Meeting Summary

The Department of Social Development reported on the implementation of the Children’s Act 38 of 2005 and its Amendment Act. Since promulgation, the 43 sections of the Children’s Act had shown areas where implementation was a success and other areas where implementation had challenges which necessitated the proposed amendment of certain provisions of the Act. Through extensive consultations with stakeholders in 2011 and 2012 to engage on proposed amendments, the Department had received substantive submissions on proposed amendments from individuals, organizations, and coalitions.

Operationally, the implementation challenges attested to the lack of staff available to implement the Children’s Act including social workers, child and youth care workers, social auxiliary workers and social work supervisors. The Children’s Act had imposed new obligations on the Department and relevant stakeholders. However, the lack of significant budget increases had affected the quality and prospects for extension services especially in the management of the Child Protection Register (CPR). Legislatively, implementing the provision and quality of Early Childhood Development (ECD) services presented another area of concern as did the implementation of adoption services in how a social worker was defined. Section 1 of the Act defined an adoption social worker as a social worker in private practice, who had a speciality in adoption services and was registered in terms of the Social Professions Act, 1978 (Act 110 of 1978), or a social worker in the employ of a child protection organisation which was accredited, but excluded social workers who were employed within the Department of Social Development.

The implementation challenges addressed by the proposed Second Amendment Bill would focus on Section 120: Finding Persons unsuitable to work with children, the interpretation of Section 150(1)(a), the unconstitutionality of Section 151 and 152, the duration of court orders: Section 159 and the Transfer of a child in alternative care: Section 171.

The Department of Justice and Constitutional Development (DoJCD) provided a three-page response to the Private Member's Bill, the Children’s Amendment Bill. The Amendment Bill proposed amending section 120(4) and (5) of the Children’s Act, 2005 (Act 38 of 2005) (“the principal Act”) by adding a reference to "attempted rape" to the list of crimes that would cause a person to be found unsuitable to work with children.

The DoJCD stated that a more comprehensive amendment of the list might be required. Three important aspects were: (i) the absence of statutory offences, (ii) the retrospective effect of the provisions and (iii) reference to the “attempt” to commit an offence, that needed to be noted. Hence, the Department proposed that section 120(4) and (5) of the Principal Act should therefore be amended to include those sexual offences that are reflected in the Criminal Law Amendment (Sexual Offences and Related Matters) Act, No 32 of 2007.

The author of the Private Member's Bill said that if it had taken the impetus of the introduction of the Private Member's Bill for the Department of Justice and Department of Social Development to engage in dialogue with one another and draft an Amendment Bill, then the introduction of the Private Member's Bill had achieved its goal. Members asked the DSD to clarify the challenges associated with Section 120 of the Act, and whether the proposed amendment would facilitate the procedure in addressing the challenge of ‘Finding Persons unsuitable to work with children’. They asked for clarification on the implementation challenges associated with Section 171: Transfer of a Child in Alternative Care, and address the steps being taken to resolve those issues. They asked why there was a definitional differentiation between a private social worker and a state social worker and if steps were being taken in ensuring that there was alignment. They asked the DSD and DoJCD whether they were on the same page in rectifying the technical challenges involved in amending the Act and if both departments were ensuring that a system of communication was present in facilitating departmental alignment.

Meeting report

Department of Social Development (DSD) Implementation of Children’s Act and its Amendment Act
Ms Margot Davids, DSD Chief Director: Children, spoke about the implementation of the Children’s Act, No 38 of 2005, and the second part of it (Children's Amendment Act, No 41 of 2007). The forty three sections of the Children’s Act were promulgated in 01 July 2007 and the second part of it on 01 April 2010. Since promulgation, the Department had been monitoring implementation, which revealed that there were areas where implementation was good and areas that were challenging and necessitated the amendment of certain provisions of the Act. The Department commenced with the process of reviewing the Act in April 2011, consulting relevant stakeholders and identify implementation challenges and possible solutions. Through extensive consultations with stakeholders, conducted in 2011 and 2012, on proposed amendments to the Act, the Department had received substantive submissions on proposed amendments from individuals, organizations, and coalitions.

Implementation risks
Prior to the implementation of the Act, the Department undertook a costing exercise to estimate the costs and personnel implications presented by the new Act, and found that the major risks for the implementation of the Act were funding and human resources.

Operational implementation challenges
The lack of staff available to implement the Children’s Act included social workers, child and youth care workers, social auxiliary workers and social work supervisors. The Children’s Act had imposed new obligations on the Department and other relevant stakeholders. However, the lack of significant budget increases had affected the quality and prospects for extension services. One area the department had found challenging was the management of the Child Protection Register (CPR). Part B of the CPR was a new function which proved to be very challenging in the initial stages of implementation, but was in the process of stabilisation.

Legislative implementation challenges
Mr Puseletso Loselo DSD Chief Director: Legal Services said legislatively, implementing the provision and quality of Early Childhood Development (ECD) services was another area of concern. The Act required the Minister and provincial Members of the Executive Councils (MECs) to develop national and provincial strategies on partial care, ECD, child and youth care centres, drop in centres and early intervention. The Act also provided for automatic registration of facilities and organisations that were previously registered in the Child Act Care. These included ECD centres, child and youth care centres and child protection organisation. Currently, there were new provisions for registration and the approval of ECD programmes and programmes offered at child and youth care centres. However, the process involved in registering those programmes was slow and needed to be accompanied by training and guidance on processes and procedures.

Foster care and the care of children by relatives was another area of challenge legislatively. As a social work intensive process which required investigations, children court proceedings, supervision, counselling, administration, monitoring and support, the DSD often experienced backlog in foster care services because of the large number of cases it received.

Implementation challenges: adoption services
The challenge here lay in how a social worker was defined. Section 1 of the Act defined an adoption social worker as a social worker in private practice, who had a speciality in adoption services and was registered in terms of the Social Professions Act, 1978 (Act 110 of 1978), or a social worker in the employ of a child protection organisation which was accredited, but excluded social workers who were employed within the Department of Social Development. DSD social workers could not appear in court to present adoption matters but social workers in private practice and child organisations offering adoption services were able to charge a fee for their services. The Department instead, promoted adoption as a preferred method of placement for children who were in need of care and protection and permanent family placements, and opted for a free state adoption service available to parents who wished to adopt but could not afford the prescribed fees. Its proposed legislative solution to the highlighted challenges was to include social workers employed by the Department of Social Development, in the definition of an “adoption social worker”.

Implementation challenges addressed by the Second Amendment Bill
Section 120: Finding Persons unsuitable to work with children

Mr Loselo said, when an offender was convicted of an offence mentioned in section 120, the courts were then liable to make a finding of ‘unsuitability to work with children’, but most courts failed to adhere to that policy, affecting the Department's ability to place convicted persons in Part B of the National Child Register (CPR) since it was ‘findings of unsuitability’ not the conviction that needed to be reported. This situation resulted in the number of convictions being higher than unsuitability findings and consequently lower number of offenders were registered in the CPR. Section 120 did not provide for attempted sexual offences that were stated in section 55 of the Criminal Law Amendment (Sexual Offences and Related Matters) Act, No 32 of 2007, and another challenge was the passing of the Children’s Act before the Criminal Law Amendment Act, hence making some of the terms used in the Children’s Act obsolete.

The proposed legislative solutions recommended by the Department were to add new wording in section 120 (4) to read that in criminal proceedings, a person must be deemed to be found unsuitable to work with children, which would allow an automatic ‘finding of unsuitability to work with children’ immediately after the conviction of a person of any offence mentioned in section 120. It also proposed that a person convicted of an ‘attempted’ sexual offence against a child be included in section 120(4)(a). Further, it aligned the wording in the Children’s Act with the wording in the Criminal Law Amendment (Sexual Offences and Related Matters) Act, No 32 of 2007.

Interpretation of Section 150(1)(a)
Mr Loselo said section 150(1)(a) stated that ‘a child [was] in need of care and protection if the child had been abandoned or orphaned and without any visible means of support’. This proved to be challenging because the term ‘visible means of support’ was subject to interpretation. DSD's proposed legislative solution was to add a new definition of ‘visible means of support’ and a new subsection (d) in section 160 which dealt with Regulations for children in need of care and protection.

Unconstitutionality of Section 151 and 152
Sections 151 and 152 did not provide for judicial review of the social worker’s decision to remove a child and placement of that child in temporary safe care. This omission prevented the court from confirming or dismissing the social worker's decision soon after the removal of the child. DSD's proposed legislative solution was to make a provision for the social worker who had removed a child into temporary safe care to place the matter before the Children’s Court for review, a day after the removal.

Duration of court orders: Section 159
Section 159 required all court orders issued by the Children’s Court to be extended by it and took the responsibility away from the Department of Social Development and placed it on the Children’s Court. The Department's proposed legislative solution was to amend section 159 to allow the Department of Social Development to extend court orders by the Children’s Court.

Transfer of a child in alternative care: Section 171
Section 171 did not allow transfer of a person over the age of 18 years but below 21 years from one form of alternative care to another. However, if the care arrangements of a person over 18 years changed (and it is evident this person is still in need of care), the social worker did not have any legal authority or option to transfer such a person. The legislative solution proposed by the Department was to amend section 171 to allow the transfer of a person between 18 and 21 years from one form of alternative care to another.

In moving forwards, the Department intended to introduce an Amendment Bill containing the above proposed amendments. A further Amendment Bill which would focus on more substantial matters that needed policy decisions and costing, would be introduced at a later stage.

Mr Coceko Pakade, DSD Director General, stated that the current amendments being discussed addressed the most immediate needs pertaining to the Children’s Act, which would enhance the services to children especially in instances of vulnerability and the need for alternative care arrangements.

The Chairperson thanked the Director General and the Department for its presentation.

Department of Justice on Private Members Bill: Children's Amendment Bill
Mr Henk Du Preez, State Law Advisor apologised to the Committee for failing to provide its comments relating to the Private Members Bill [that of Mr M Waters, MP, called the Children's Amendment Bill], but the Committee was now provided with a three-page document with comments from the Chief Directorate: Legislative Development on Clause 1 of the Children’s Amendment Bill which aimed to amend section 120(4) and (5) of the Children’s Act, 2005 (Act 38 of 2005) (“the principal Act”). The amendment was to add a reference to "attempted rape" to the list of crimes that were stipulated. However, the DoJCD said that a more comprehensive amendment of the list was required. The list did not refer to:
-all sexual offences committed against children between 31 March 2005 and 16 December 2007;
-all sexual offences that had been committed against children after 16 December 2007; and
-any offence referred to in section 55 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) (“the 2007-Act), which had been committed in respect of a child after 16 December 2007.

Therefore a more comprehensive list was required that took into consideration: (i) the absence of statutory offences, (ii) the retrospective effect of the provisions and (iii) reference to the “attempt” to commit an offence. Hence the Department proposed that section 120(4) and (5) of the Principal Act should therefore be amended to include these omissions.

Discussion
Mr M Walters (DA) stated that it had taken the impetus of the introduction of the Private Member's Bill for the Department of Justice and Department of Social Development to engage in dialogue with one another. If this proved to be the outcome of the Private Member's Bill, then its introduction had achieved its goal. He asked the Department of Justice to give an indication of what the other offences were when it stated in the document ‘any offence referred to in the Sexual Offences Act, 1957 (Act No. 23 of 1957)’.

Mr Walters asked the DoJCD if changing the wording in section 120(4) to deemed to be found in finding persons unsuitable to work with children, would ensure automatic "unsuitability" of persons or whether a judge or magistrate would have to find them unsuitable. He was pleased to hear the Child Protection Register (CPR) had stabilised and was under control but asked how many names it currently contained. He asked the DoJCD whether it agreed with the proposition that social workers could extend court orders, and with the proposed legislative solution of including state social workers in rendering adoption services. He asked what the cost implications of that would be and how this would impact on their work load given the shortage of social workers. He asked the Department to give any indication of what was currently happening with the Anti-Spanking new legislation.

A committee member asked about the incident of a deceased guardian responsible for the care of an underage adoptee. With the current law, a social worker lacked the authority to place the child in another care facility. What steps would be taken to resolve that issue?

Ms E Moore (DA) asked why the adoption social worker was defined as social worker in a private practice. She asked for clarification on when DSD would investigate and finalize the policy for ECD funding and also asked for an indication on the number of names in the CPR. She asked DSD what it meant when it stated "All relevant stakeholders developed implementation plans that were costed", would such plans be accessible, and who were these relevant stakeholders?

Ms F Khumalo (ANC) asked the DSD to clarify its legislative provision for dealing with the transfer of a child in alternative care. She asked if there was a provision which catered for the removal of a child who was over the age of 18 but below 21 years.

A committee member asked the Department of Justice what it was doing about the large number of backlog foster care cases, especially in the rural communities.  

Mr R B Bhoola (Alt) (MF) asked DSD how it would ensure that the changes it was proposing in the proposed Children’s Amendment Act would be in line with the comments of the DoJCD. The DSD mentioned technical challenges it had to deal with concerning the amendments and asked whether the DSD and the DoJCD were on the same page in rectifying those challenges. He noted that the Children’s Act preceded the Sexual Offences Act, and that the legal interpretation of both must be aligned.

Members stated that more care needed to be given to matters of such sensitivity. They asked for clarity on what fell within the term ‘Related Matters’ indicated in section 120(4) where it stated ‘Sexual Offences and Related Matters’. Members made it clear that public participation was necessary before the Bill was passed.

The Chairperson stated that the work done by the DSD and the DoJCD was highly important because of their legislative responsibilities. The faster both departments worked on such issues, the more the rights of women and children could be protected.

The Director General thanked the Committee for its positive feedback and ensured that the DSD would strive to improve its working relationship with the DoJCD.

Ms Conny Nxumalo, DSD Deputy Director General: Welfare Services, responded that ‘all relevant stakeholders’ was referring to departments deemed as key in the implementation of the Children’s Act as well as all the provinces and each implementation plan developed by the relevant stakeholders would be made accessible to the Committee. She noted that there would be hidden and direct costs in the implementation of state social workers to mitigate adoption services. In the case of an underage adoptee who was under the care of a deceased family member, the law enabled the child the capacity to access an alternative form of that care. The social worker was required and held the ability to reassess the situation and find alternative care for said persons.

Ms Davids clarified that the stabilisation of the CPR was attributed to the newly appointed structures which gave the DSD the capacity to handle new cases as well as applications. She clarified that adoption social workers were defined as social workers in a private practice due to the nature of how the system was promulgated in the old Act. The old Act referred to adoption as a highly specialized field which could only be applied by a private practitioner and one needed accreditation in order to be deemed legitimate. State social workers were only able to carry out related adoptions but did not have the legislative capacity to carry out closed adoptions because such was under the domain of private practitioners. The amendment of the Children’s Act would afford persons the option of obtaining state assisted adoptions if they could not afford private adoptions. In response to the ECD funding question, the DSD was proposing the funding to be made obligatory and public, ensuring that all children had access to it.

Mr Loselo responded to the question on the difference between ‘finding’ and ‘deemed to be found’ in Section 120. When the law stated there needed to be a ‘finding’, a specific pronouncement was required stating that a person/s were found unsuitable to work with children but if a convicted person was ‘deemed to be’ found unsuitable, this meant one was automatically unsuitable to work with children.

He clarified that the legislative provisions dealing with the transfer of a child in alternative care provided that a child over the age of 18 could apply to the provincial head of Social Development in requesting for alternative care if they wanted to continue with their education. This provision was only available to persons over the age of 18 but would not apply to persons over the age of 21.

Mr du Preez responded to Mr Walters by indicating that the other offences included in the Sexual Offences Act of 1957 included the old statutory rape and indecent offences which were repealed from the 57 Act and then re-enacted in the 2007- Act. There were also offences dealing with the prostitution of children which was also repealed but re-enacted in the 2007-Act, and there were also very limited provisions which touched upon the grooming of children which was repealed and placed with an extensive grooming provision in the 2007-Act. He noted that the South African Law Reform Commission (SALRC) was busy with the last part of the original investigation of the Sexual Offences Act which dealt with certain statutory offences committed by adult persons.

Ms Pritima Osman, DoJCD Deputy Director: Child Justice, responded to the question on backlogs by stating that both departments had been interacting in addressing the high number of backlog cases for foster care applications. The administrative process in providing assessment reports for such cases were time consuming for the departments and hence it had approached the courts to grant it an administrative process where social workers would be given the legal capacity to extend foster care orders without having to seek these from the courts. The extension grant gave social workers until the end of 2014 to extend foster care orders, and both departments had assisted in producing the kind of assessment reports deemed acceptable in facilitating the production of reports by social workers. With the current provisions suggested in the amendmen,t it would enhance the departments capacity in dealing with backlog cases.

Ms Davids further noted that in dealing with backlog cases the administrative process involved were time consuming but it had managed to work through the initial backlog of cases that required extension orders. In response to the Anti-Spanking legislation the Department was still engaged in discussion on how to address the matter due to the sensitivity of the topic. From a child’s rights perspective, the Department was looking towards the possibility of eliminating spanking from the home, and position papers stating the pros and cons for the amendment were available, but the subject was still under further debate.

The Chairperson asked the DSD if the position papers were backed by further research.

The Department said the position papers advocating for the Anti-Spanking amendment and papers against the amendment were balanced in their arguments and during the next South African Country reporting cycle, the Department was required to present to the Convention of the Rights of the Child (CRC) with its definitive position on the matter.

Mr Walters asked the DSD when the next reporting cycle was.

The DSD stated that it had missed the second reporting cycle in 2007, but the most recent report was finalised with the Department's position highlighted in it which was presented to the Women, Children and Persons with Disabilities Portfolio Committee, but it was not sure of the exact date of the next reporting cycle.

Mr Siyabonga Shozi, DSD Director of Legal Services, commented that although the Children’s Act preceded the Sexual Offence Act such a situation would not impact the validity of the amendments because they were not in conflict but were strengthening the alignment between the two legislative documents.

A member asked both Departments whether they worked together to ensure that the lives of children were fully protected because in her experience private social workers were not adhering to the proper practices involved in their work

The Chairperson stated that the member should take up any child maintenance matters with the DoJCD and consult the DSD Director General in addressing the conduct of social workers.

A member asked both Departments whether their systems were aligned in addressing child maintenance issues.

Ms Osman said that all questions and queries about child maintenance and social workers should be sent to children@justice.gov.za, which would then be forwarded to the respective departments.

The DSD Director General said that DSD would provide the Committee with its detailed submission of the South African Country Report. The Department's intention was to catch up on all the reports due to its multilateral structures as well as AU structures, and it would ensure that the issues raised by the Committee were addressed jointly with the DoJCD.

Committee members asked the DSD to ensure that it provided the Committee with its Anti-Spanking report, as well as the numbers of registered persons on the CPR.

The DSD Director General said it would investigate and confirm the reporting cycle date with the Committee.

The Chairperson thanked the DSD and DoJCD and the meeting was adjourned.

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