Hague Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption: briefing

Social Development

13 August 2002
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SOCIAL DEVELOPMENT

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
14 August 2002
HAGUE CONVENTION ON PROTECTION OF CHILDREN AND CO-OPERATION ON INTER-COUNTRY ADOPTION: BRIEFING

Chairperson: Mr. E. Saloojee (ANC)

Documents handed out:
Hague Convention on Protection of Children and Co-operation in respect off Inter-country Adoption
Optional Protocol to the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.

SUMMARY
The officials from the Department of Social Development briefed the Committee with the purpose of obtaining approval from the Committee for South Africa to accede to and ratify the Hague Convention on the Protection of Children and Co-operation in respect of Inter-country Adoption and the Optional Protocol to the Convention on Rights of the Child, sale of Children, Child Prostitution and Child Pornography. No final decision was reached at the end of the meeting to ratify the Convention. Members undertook to consult in party caucus so as to come up with a unified position. Further deliberations on the issue of ratification would take place again as soon as possible once the members have consulted with their parties possibly the following week.

MINUTES
HAGUE CONVENTION
Mr Ashley Theron (Chief Director - Welfare Services) and Ms Angela Bester (Director-General - Social Development) briefed the Committee Hague Convention and the Protocol.

Mr Theron said that on 15 May 2002 the Cabinet supported the ratification of the above mentioned Instrument as it would guarantee the protection of the fundamental rights of children from being sold or trafficked between parties or countries. The Convention seeks to establish safeguards to ensure that inter-country adoptions takes place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law.

The Convention states that the state of origin has the responsibility to establish that the child is adoptable, counselled, and that she has consented, where such consent is required, and must not be induced by payment or compensation of any kind. He added that the Convention is not in conflict with the domestic laws and policies of South Africa and should, therefore, be supported.

So far the Registrar of Adoptions has registered approximately 107 inter-country adoptions since May 2000. Once the Convention is ratified the Central authority will have the power to regulate adoptions to and from SA. He suggested that the ORC in the Presidency, which is responsible for co-ordinating and monitoring the UN Convention on the Rights of the Child, could be charged with monitoring the implementation of this Convention. Hence he recommended that the Committee should support the ratification of the Hague Convention on the protection of children and co-operation in respect of inter-country adoption.

Discussion
Mr Essop Essak asked if the Central authority would make funds available to be used for the adopted child by the adoptive parents in the receiving country.

Mr Theron replied that Article 32 of the Convention makes provision for expenses in case of inter-country adoption, in cases where monetary assistance is required.

Mr Dithebe (ANC) asked if a third party could object to the inter-country adoption of the child on the grounds that it will not be to the best interests of the child to be so adopted even in situations where parents have consented.

Mr Masutha (ANC) followed up Mr Dithebe's question by asking who will have the authority to be the guardian and custodian of the child at the time when the adoption is finalised. He expressed his concern that the adoption of the Convention would not ensure that children's rights are followed through from the country of origin to the receiving State.

Mr Theron replied that indeed the rights of children need to be safeguarded and protected, and that there was nothing that could prevent the Central authority from sending its officials to the receiving State to find out about the child, unless if the receiving state was not a contracting party to the Convention.

Ms Bester emphasised that the issues as raised by Mr Masutha have been addressed thoroughly in the new child legislation.

Ms Ghandi (ANC) was concerned about the 107 adoptions that had already been made. She asked if it was possible for individuals from non-contracting states to adopt from contracting states. She said that obviously some of the 107 children adopted went to non-contracting states, and was not impressed with the state of affairs. She suggested that if South Africa adopted the Convention, then perhaps South Africa needed a legislation to the effect that only individuals from contracting states would adopt from South Africa. She was concerned that it seemed as if children were adopted from South Africa from other countries and that this does not happen the other way round. She was also concerned that the criteria for inter-country adoptions was when there has been no suitable family to adopt her in the State of origin, that there may be instances where the child needed to be adopted by some people close to the child from overseas even when there is a suitable family in South Africa. She also asked who would conduct the reports on the "suitability" of adoptive parents.

Mr Tsheole (ANC) followed up on Ms Ghandi's question and asked what if problems arise while the child is already in the care of adoptive parents in the receiving State, or where the adoptive parents then remove the child from that country to a non-contracting State.

Mr Theron replied that the Central authority would accredit organisations to do these reports. The Central authority would also ensure that the new child legislation covered accreditation. He said that indeed inter-country adoptions seemed to be from South Africa and not the other way round. Mr Theron added that the Convention provides that any individual from any country, including non-contracting States, may adopt children from South Africa. He said that perhaps the new child legislation needed to specifically provide that only those from contracting States may adopt from SA.

Ms Ghandi commented that the international community is making a mockery of this Convention by allowing non-contracting parties to adopt from contracting States.

Mr Masutha commented that indeed the Constitutional Court has opened borders by deciding that every person can adopt South African children if is to the best interest of the child, even if such individuals are from non-contracting States.

Prof Mbadi (UDM) commented that some children may be able to consent to be adopted. He asked who would make decisions for those who cannot consent to the adoption, and in particular those under five years.

Ms Mogopane (ANC) followed up Prof Mbadi's question by asking who decided whether the child is placeable or not. She was concerned that children are trafficked for monetary gains.

Mr Theron replied that parents have to decide for their children, but that the State is the ultimate guardian and custodian to ensure that children's rights are protected. He said that if there was money changing hands, then that constituted a sale of a child and that it is unacceptable.

Ms Bester added that if South Africa were to ratify this Convention, this would assist in protecting children's rights more effectively. She said that it is obvious that there are gaps in the current legislation seeking to protect children'' rights.
The chairman commented that the Committee is under tremendous pressure that they come up with a unified position on the ratification of this Convention, as it has to be done before the start of the World Summit on Sustainable Development (WSSD) because this is on the agenda of the WSSD. He read a letter from the Department of Foreign affairs in this regard.

Ms Bester answered that it is not to her understanding that these Protocols have to be rushed before the WSSD because in any event the Summit started the following week and she still had to make a presentation to the Committee next week, and that rushing things would not be useful.

The chairman commented that he hoped that Ms Bester and Mr Theron would present the Committee's frustration to the relevant authorities.

Mr Da Camara (DP) was concerned that the Committee was being rushed to make decisions on this issue and that this contradicts parliamentary sovereignty.

Mr Masutha commented that the Department of Social Development needed to look at their legal obligations before signing the Convention as there will be legal implications following from the signing of the Convention. He suggested that the Department of Justice should be consulted for guidance in this regard.

THE OPTIONAL PROTOCOL
The purpose of the presentation by Mr Theron on the Optional Protocol was to obtain approval that SA should accede to and ratify this Protocol. There was a significant increase in the international trafficking of children for the purpose of sale of children, child prostitution and child pornography. The Department of Social Development was concerned about the growing availability of child pornography on the internet and other evolving technologies. Ratifying this Protocol would enhance the protection of children's rights..

Discussion
Mr Essak commented that female circumsicions, especially among children, is a growing phenomenon in SA and that this problem had to be addressed.

Ms Mogopane followed up on Mr Essak's question witchcraft practises is a harmful cultural practice and that perhaps this need to be addressed in the Protocol.

Mr Da Camara commented that Article 32 which provides that the child must be protected from work that threatens his or her health, education and development should perhaps be broadened to limit trade in particular products that are harmful to children.

Ms Ramotsamai (ANC) commented that perhaps the issues raised by Ms Mogopane and Mr Da Camara should be considered when finalising the draft of the new child legislation.

Ms Tsheole asked if the Department aims to engage in awareness campaigns to expose harmful cultural practises and to educate the public that such practices are forbidden.

Ms Kasienyane was concerned about child pornography on the internet and asked what the Department is doing about it.

The Chairman commented that the Committee had to pressurise the Department of Labour to come up with a Bill in this regard.

Ms Ghandi added that in such awareness campaigns, child labour on farms had to be mentioned and that there had to be publicity on abuse of children's rights in farms.

The Chairman concluded the meeting by asking members to consult in their respective party caucus in order to come up with a unified position. This should be done as soon as possible in order to facilitate the ratification of the Convention.

The meeting was adjourned.

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