Transnational & Subsidised Adoptions; Progress on new Childcare Legislation

Social Development

03 October 2000
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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report


4 October 2000

Documents handed out:
Project 110: Review of the Child Care Act - progress report [see Appendix 1]
Extract from Discussion Paper on new Child Care legislation: Parent Responsibility
Extract from Discussion Paper on new Child Care legislation: Draft Recommendations for a New Court Structure
Project 110: Review of the Child Care Act (Issue Paper No 13)

Chairperson: Mr E Saloojee

The South African Law Commission sounded out the committee on two childcare issues that could received immediate attention in terms of regulations: transnational adoptions and subsidised adoptions.

On the one hand it was argued that subsidised adoptions would encourage adoptions which was a positive step as temporary foster care resulted in lack of stability and security for the child. On the other hand, adoption subsidies would be open to abuse just as foster care grants are already being abused. It was agreed that strict monitoring would be the solution for this concern. While some members held the view that transnational adoptions should not be encouraged, the majority agreed that it was a possible solution to the problem of the growing number of children orphaned by AIDS.

Certain documents, forming part of the Discussion Paper on new Child Care legislation, were also discussed. These documents focused firstly on the question of replacing parental rights of access, guardianship and custody with the concept of parental responsibilities. Secondly a new court structure was recommended. A more inexpensive and accessible court, namely the Children and Family Court, would replace the High Court. The role of the High Court would be limited to appeals and reviews. This represents a revolutionary step, as there will be a move towards replacing legally trained staff with child-oriented people who have multi-disciplinary training.

Progress report on Discussion Paper
Professor Zaal, on behalf of the SA Law Commission, stated that they are currently busy completing the Discussion Paper on new Child Care legislation. He said the documents before the Portfolio Committee were chunks of the Discussion Paper in their draft form. They have completed the consultation process, which has been very broad, making the process very democratic. Their last consultation meeting dealt with residential care, while the workshops dealing with adoption and foster care had also been completed.

It was obvious that fundamental changes were needed to existing legislation as the current system was clearly failing and children requiring additional or alternative care were not having their needs met. A children's code must be integrated into the new legislation. One of the problems with the existing legislation is its fragmented nature. This is evident in the existence of different courts for dealing with children, resulting in the child "bouncing between" the courts.

Professor Zaal stated that some issues mentioned in the Discussion Paper could be worked on immediately. In this way, they will be able to produce legislation, which is in line with the children's code. This, he argued, would enable them to deal with some of the concerns immediately.

Dr Harvey (Department of Social Development) stated that the department realised that they could not wait for revisions before drafting regulations. This was because the department was now forced to review and amend 1998 regulations for which there had not been extensive consultation. A Task Team consisting of the Departments of Welfare and Justice amongst others will meet before the end of October, and will have completed the revised regulations by early next year.

In answer to a query as to why a new Task Team was necessary, Dr Harvey replied that the Task Team was established merely to expedite matters. Members of the Department were also members of the Project Committee and they were therefore involved throughout the process.

Issues capable of being dealt with immediately
Trans-national adoptions
Professor Zaal stated that Section 18(4) of the Child Care Act was clearly deficient as it completely prohibited a non-citizen of South Africa from adopting a South African child. This provision was criticized in the Fitzpatrick case where it was declared to be unconstitutional. Professor Zaal stated that in terms of the enabling legislation, which is to be introduced, foreigners would be able to apply to adopt a South African child after an appropriate screening process has occurred.

Cultural differences is the criterion that has to be considered in these adoptions. Prof Zaal said that when removing a child from its cultural background, one must have regard for its best interests because if anything were to go wrong, the situation cannot be undone as easily as in the case of a normal adoption. It is thus necessary to implement a far stricter screening process than that in cases where the applicant is South African.

A member enquired as to the possibility of a mechanism (such as a treaty with the foreign country) whereby the foreign country's welfare structures could deal with the child being adopted.

Professor Zaal observed that this was a good idea unless the adoptive parent then took the child to another country (other than the country in which the parent was a citizen).

Dr Harvey stated that the fact that South Africa was a member of International Social Services is such a mechanism.

The Chairperson asked if the Department has actively been involved in such cases.

Dr Harvey replied that there were not many such cases of which he was aware.

Mr Masutha (ANC) mentioned a case in which he was involved in Kwazulu-Natal. In this case a Canadian citizen wished to adopt a South African child. As there was not a provision made for this in legislation, his organisation advised them to rely on the constitutional principle that every child has a right to a family as a basis for arguing in favour of trans-national adoption. They therefore advised the applicant to approach the High Court. He suggested a plan in terms of which a social worker is appointed the curator personae of the child who can then retrieve the child, should the adoption fail.

Mr Masutha suggested that SA become a signatory to the Hague Convention for the purpose of trans-national adoptions.

Ms Gandhi (ANC) stated that the issue of trans-national adoptions was a minor one and the impression should not be created that laws were being written to encourage this practice.

The majority of committee members agreed that transnational adoptions were a possible solution to the problem of the growing number of children orphaned by AIDS.

Subsidised adoptions
Professor Zaal stated that subsidies are currently provided to foster parents but not to parents of adopted children. Many people cannot afford adoptions for financial reasons. Thus, artificial foster care situations are being created where adoption is being camouflaged as foster care in order to collect a grant to support the child. The problem is that because foster care is a temporary situation, the child is not provided with a sense of security. An immediate solution would be to apply the foster care grant and fit it into the adoption category.

An (ANC) member argued that the problem with subsidised adoption is that people will adopt merely for the sake of the grant (as is the case with the foster care grant). Secondly, people who adopt should be able to afford it because unlike foster care, adoption is a legal and a permanent situation.

Mr Durand (NNP) described the insecurity that a child faces when in foster care. He agreed that it was possible that children would be adopted by people who did not wish to be parents, but merely wanted the grant as a means of income. He acknowledged that such children could face exploitation and other abuses. However he felt that, with appropriate monitoring mechanisms in place, this could be overcome.

Ms Chalmers (ANC) favoured a middle ground in terms of which regular monitoring continued after adoptions, as is the case with foster care.

Ms Cupido (DP) stated that people who could afford to adopt were reluctant to do so. She said that trans-national adoptions were part of the answer.

Mr Masutha (ANC) referred to the child support grant as being a possible solution. To qualify for this grant, one no longer required a legal relationship with the child.

Ms Rajbally (Minority Front) believed that financial status is an important criterion when deciding if a person qualifies to be an adoptive parent.

Professor Zaal stated that a system of hard-hitting monitoring was needed, that is, arriving unannounced to collect evidence. He also stated that officials who failed to perform such duties would be held accountable.

A member asked if the department has the capacity to implement this.

Professor Zaal responded that the resources were available but had to be used in an optimal way. For example, local government could take more responsibility and the Family Advocate could deal with issues other than divorce cases as well.

In conclusion, the Chairperson asked for time frames for effecting these changes.
Professor Zaal was not sure but said that these two issues would receive priority.

Parts of Discussion Paper on new Child Care legislation
Professor Zaal stated that these documents covered two aspects of the Discussion Paper: i) Parental responsibility and ii) Recommendations regarding a new court structure.

i) The introduction of parental responsibility meant that in future, there would be no rights of guardianship, custody or access over a child. Parental responsibility could be given to more than one person who was not necessarily a blood relation of the child. The main factor would be the best interest of the child.

ii) The High Court has been criticised as being inaccessible and expensive and did not specialise in child and family matters. It is thus recommended that the role for the High Court be limited to appeal and review. It would however be replaced by the Child and Family Court, which would consist of two levels i.e. the District and Regional levels.

This represents a revolutionary step, as there will be a move towards replacing legally trained staff with child-oriented people who have multi-disciplinary training.

Ms Coetzee (ANC) suggested that lay people be used for such courts and that members of FAMSA were a particularly good option.

Professor Zaal stated that multi-disciplinary skills would be a prerequisite as it would cost the state less (it would have to pay one instead of many experts). Social workers could possibly do a course in the Law of Evidence and in this way be more useful than someone who only has a legal qualification.

Future Plans
Mr Hollenby (of the SALC Project Committee on Childcare Legislation) stated that they were working towards a first draft of the Discussion Paper, which will then be considered by the project committee. More drafts supported by well- reasoned recommendations would follow after which a Working Committee of the Law Commission must approve it. Further recommendations, consultations and reports will follow after which it will be presented to Cabinet. He was unable to say how long this process would take.

The meeting was concluded.

Appendix 1:



1. Background
Various amendments to the Child Care Act 74 of 1983 have been effected and proposed since the Act came into operation in 1987. From the outset, the Act gave rise to disquiet amongst practitioners, social workers and child and youth care workers with respect to the functioning of, and principles underlying, the legislation. In June 1995, a new draft Bill, with regulations, was released for comment by the Department of Welfare, the stated intention being to effect urgent interim reforms, pending a more comprehensive redraft of child care law. The eventual legislation in this regard, the Child Care Amendment Act 96 of 1996, drew widespread and divergent responses. A key concern was that piecemeal amendments to comply with constitutional imperatives and the ratification of the Convention on the Rights of the Child would not resolve deep-seated concerns about the content and application of the current South African child law, nor indeed the relevance of its underlying philosophy to present-day South Africa. Also, reservations were expressed about the process that was followed prior to the adoption of the 1996 Act. The need for a comprehensive rewrite of the principal Child Care Act, the need to Africanise child care and protection mechanisms and, as is mandated by the ratification of the Convention on the Rights of the Child, to review and harmonise all relevant child related law, has since become increasingly clear. The law reform process was further strengthened by the outcome of the Gordon's Bay Conference Towards Redrafting the Child Care Act, held on 26 to 28 September 1996, and co-hosted by the Portfolio Committee on Welfare and Population Development and the Community Law Centre, University of the Western Cape.

2. Brief history of the investigation
Following recommendations from the then Minister of Welfare and Population Development, the then Minister of Justice requested the South African Law Commission to include a review of child care legislation in the Commission's programme. The Commission decided on 4 April 1997 to include the investigation on its programme and to establish a project committee. The first meeting of the Project Committee was held in Durban on 28 July 1997. Since then the Committee has met on 19 occasions.

For the benefit of the Minister, the following milestones in the investigation are highlighted:

2.1 National briefing workshop.
The Committee held a national two day briefing workshop on 5 and 6 March 1998 in Pretoria. At this workshop, the committee received inputs from South African experts on a range of issues such as children with disability, children affected by HIV/AIDS, the position of children in Muslim law, and early childhood development.

2.2 The release of the First Issue Paper.
The Commission released the First Issue Paper on the Review of the Child Care Act in Cape Town on 12 May 1998. The issue paper is a formidable document of 156 pages and addresses issues as to the scope of the envisaged comprehensive children's statute and the fundamental principles which must underpin such statute. The closing date for making submissions on the issue paper was 31 July 1998, but this date was extended to 31 October 1998 due to public demand. Numerous submissions to the issue paper was received.

2.3 Workshops on the First Issue Paper.
During May to August 1998 nineteen workshops were held throughout the country with the First Issue Paper as basis. Two workshops, one in an urban setting and one in a rural setting, were held per province, with the exception of KwaZulu-Natal where three workshops were held. The consultation process was funded by donors. By all accounts the workshops were a huge success.

2.4 Preparation of the second and third issue papers and the move to consultative research papers.
During the issue paper consultative phase, work on the second and third issue papers (one issue paper would have dealt with the status of children, including adoption, and the other with children in care proceedings) continued unabated, as was the original idea. This idea of two more issue papers was abandoned at the meeting of the Committee held on 1 and 2 October 1998 following a request by Minister Fraser-Moleketi and the Potfolio Committee of Welfare and Population Development to fast-track the process.

The Committee determined that, having raised a broad range of issues on which considerable response has been received at issue paper stage, it should move to the discussion paper and draft legislation stage which will consolidate the work undertaken and in which a clear direction will be taken. The Committee agreed further that whilst there are many issues on which the Committee can immediately move to drafting the discussion paper, there were certain areas in which further detailed research and additional consultation was needed. The Committee called this combined approach 'consultative research'.

2.5 'Consultative research' process.
The plan was that the Committee, and also contract researchers, would draft a position paper, called a research paper, for each of the selected issues as a background document to stimulate debate. A group of people selected for their particular knowledge, experience or interest was then brought together for a consultative meeting. They were provided with the research paper prior to the meeting, and the purpose of the meeting was to pose questions, discuss issues and debate solutions.

The Committee identified the following areas as those in which further consultative research was required and held focus group discussions on these on the following dates:

° Parent - child relationship: 12 and 13 March 1999
° Children living with HIV/AIDS: 26 March 1999
° Street Children: 8 April 1999
° Children's courts and court orders: 15 April 1999
° Child protection: 29 April 1999
° Early Childhood Development (ECD): 30 March 2000
° Residential Care: 29 and 30 May 2000
° Foster Care: 27 and 28 June 2000
° Adoption: 27 and 28 June 2000

This valuable phase has now come to an end and the research done, the input and submissions recieved, and decisions taken are being reworked into chapters of the discussion paper.

2.6 The 'bosberaad' sessions and preparation of draft legislation
At the last six meetings of the Committee, most of the time and energy were spent on discussions of the key issues facing the Committee and what should ideally be included in the new children's code. Based on the decisions taken at these 'bosberaad' sessions, instructions were given to a specially appointed legal drafter to formulate the necessary legal provisions.

Mr Smit, the legal drafter, has so far produced three drafts of the bill. The latest draft consists of close to sixty clauses and is 46 pages long. This work in progress can be made available. The preparation of the draft legislation is done parallel to the writing of the respective chapters of the discussion paper. This means that not only will the discussion paper and draft legislation be completed simultaneously, but also will supplement each other.

3. Target dates
At its meeting held on 11 and 12 August 2000, the Committee set itself the following tentative deadlines. However, meeting the deadlines is very dependent upon the availability of adequate research and legal drafting capacity in the Committee, the Law Commission and the Department.

° Next Committee meeting: 5 and 6 October 2000
° First draft of the discussion paper with draft bill to the Working Committee of the Law Commission for its consideration: 15 December 2000
° Discussion paper to Minister: 15 February 2001
° Completion of the consultation process on the discussion paper: 31 March 2001
° Closing date for comment on the discussion paper: 30 June 2001
° First draft of the report to the Working Committee of the Law Commission for its consideration: 30 September 2001
° Report to Minister: 31 December 2001
° Draft regulations and forms to the Working Committee for its consideration:
31 December 2001
° Costing and implementation strategy to the Minister: 31 December 2001
° Cabinet memorandum on the introduction of a new comprehensive children's statute to the Minister: 31 December 2001

4. Factors affecting progress
The main factors affecting progress in this investigation are the vastness of the terrain to be covered, the complexities involved (inter-country adoptions and the status of the child born of surrogacy are but two of these highly tecnical areas), constantly changing international and national developments and scenarios such as the impact of HIV/AIDS, and court decisions such as the recent Fitzpatrick-case. Other factors affecting progress relate to the consultation processes and the lack of sufficient research capacity.

In its desire to provide workable and affordable recommendations and draft legislation, the Committee is also forced to traverse terrains such as economics and statistics (forecasting) not usually covered by law reformists and law-makers. This takes time but is necessary in order to lay the proper financial foundation for our recommendations and draft legislation.

14 August 2000
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