Children’s Amendment & Second Amendment Bill [B13-2015] & [B14-2015]: public hearings Day 1

Meeting report

National Association of Child Care Workers (NACCW) submission
Ms Cindee Bruyns, NACCW Senior Mentor and National Protection Social Worker, noted that NACCW was a national association of child and youth care workers, and had been operational in the area of child protection for the last 40 years. It had played a major role in driving the recognition and professionalization of child and youth care workers, and had become recognized as being able to translate the Children’s Act into affordable indigenous programmes such as the Isibindi model. The Isibindi model was developed by NACCW as child and youth care response to orphans and vulnerable children. It was also a community-based response. It had been recognized as a best practice model.

The membership of the NACCW included the 4 500 child and youth care workers that worked in 310 projects in all the nine provinces. NACCW served more than 200 000 children and youth.

NACCW was in support of the amendment to section 120 of the Children’s Amendment Bill [B13-2015] in respect of the national child protection register. The expansion of the list would contribute to increasing the education that could be given to children. It however proposed that this section be aligned to the final draft of the Sexual Offences and Related Matters Act.

It also supported the automatic inclusion in section 120(5), although, it believed that the wording not clear enough. The aim was not to allow child offenders to be automatically included with the register. However, the wording was unclear in the sense that the mechanisms for automatic inclusion of offenders would include those that were children from 2005. This went against its recommendations made in the public hearing on the Sexual Offences Act, too the effect that children should not be treated as criminals. Overall, the changes made in this section were positive, and the expansion with regard to the national child protection register would further help NACCW to work more effectively in protecting children. This was because NACCW used the national protection register to filter suitable candidates that could work with children and contribute to their developmental growth and best mold the children. Most rapes were perpetrated by people who knew the victims. The expansion proposed within the amendment of this Bill would therefore protect children more, since there would be more people covered by the national protection register.

On section 150(1)(a) that provided for foster care, NACCW understood the need for a change of wording in the section. It however felt the change of wording could sometimes lead to a problem of interpretation and vagueness. It also believed that the provision enhanced the use of foster care grant (FCG), and its related mechanisms. NACCW however proposed the promotion of kinship grants as opposed to FCG. It understood that there was a heavy pressure on the foster care system at the moment. The system was not working the way it should, and it was believed that further pressure on the foster care system through the use of the vague interpretation would worsen the situation. However, child and youth care workers could be an advantage if utilized properly for monitoring and regulation, in this burdened foster care system. NACCW would therefore like to see legislation that would include the use of child and youth care workers. The South African Council of Social Service Professionals (SACSSP) had reported 7 000 child and youth care workers who had been registered by July 2015.

Ms Honiphile Ndhlovu, Isibindi Senior Mentor (Gauteng), shared experiences on the effective utilization of child and youth care workers in the Gauteng province. The main role of child and youth care workers was the identification of children to be placed in foster care. Upon identification, they approach the destination social workers to arrange the foster placement of such children. They assisted in gathering information for the reports. As they work in communities and visit families, they assist in supervision and monitoring of the placements. They helped in strengthening families where one of the members’ whereabouts was unknown. It had been found that this process has strengthened the multidisciplinary team (MDT) approach in Gauteng, as well as partnership among all the professionals working in the best interest of the child.

Ms Bruyns said that NACCW was in support of the amendment in section 176(2)(b) and 176(3) of the Children’s Second Amendment Bill with regard to the application for children to stay in foster care beyond the age of 18 as provided. However, it proposed the inclusion of internships and learnerships for children in alternative care. The aim was to ensure that children within the foster care placements were still able to obtain alternative placements and could access their foster care grants even when they were away from their foster parents, most especially for children in the rural areas. NACCW also carefully considered the recommendations on foster care placements. Supporting legislation should be considered with regard to child and youth care centres, as well as secure care centres, in order to decide whether to keep the spaces open for children to come back. The mechanism of distance learning in child care centres should also be considered.

Ms Ndhlovu shared two case studies that explained the importance of the foster care programmes. One was about an 18-year old girl whose parents died from HIV/AIDS. She was one of the three orphans that were fostered by her unemployed aunt who also had three children of her own. Financial assistance was offered to the family from the FCG through the intervention of the Isibindi child and youth care workers. She had joined a study group and was now receiving support and encouragement. She was also assisted with past exam question papers and had matriculated with four As and two Bs. Medicine was her first career choice and she was able to secure admission to study medicine. However, the money from the FCG was not enough to pay for her schooling. But with the support from the child and youth care workers, a bursary was secured for her, and she was currently studying medicine in KZN.

The second case study was about a child from a grey-headed household. The family had no support whatsoever, but depended solely on the older person’s grant. They had applied for child support grants for a number of years without success. However, with the intervention of the Isibindi child and youth care workers, the family was able to keep all appointments and produce the necessary documents. The child was in grade 12 and had been assisted with study support and had also been given old exam papers for revision. A routine had also been introduced to assist the child in focusing more on her studies than home chores. She should have commenced her bachelor degree this year but was being held back due to financial challenges. However, she was working part-time in order to raise funds for the coming application.

Ms Bruyns said these support mechanisms were important to assist children to prepare adequately for the next phase of their lives. Often times, children were eager to learn,but they also had a profound commitment or responsibility to their family. The inclusion of these support mechanisms in the Bill would therefore go a long way in helping children.

Discussion
Ms V Mogotsi (ANC) said that the Isibindi programme was more of an outreach programme since it involved visits to communities, providing assistance and supervision. She wanted to know if the programme was carried out within or outside the institutions; what the kinship grant was all about; the qualifications held by the 7 000 child and youth care workers, and if they were registered with any professional body.

The Chairperson said that the common experience was that children were deemed to outgrow foster care placements. However, it was important to ensure that these children were not checked out from such arrangements. She wanted to know what interpretation NACCW had towards provision of alternative care.

Ms Ndhlovu said that the 7 000 child and youth care workers did not only comprise community child and youth care workers. It included child and youth care workers in different settings like places of safety. The Isibindi workers also worked in communities.

Ms Bruyns said that the Gauteng youth care workers in the Isibindi programme came from communities where they lived and worked. These youth care workers were trained with an entry level within the framework of NACCW. They were regulated by SACSSP, which was the same regulatory body for social workers. These workers do not work from a residential setting or a building or an office. Instead they worked within communities, and recently within schools and they offered support and services to the social workers within DSD foster care system.

With regard to the kinship grant, there were usually more needs than what the FCG could cover. At the moment, many family members were moving towards the FCG as opposed to what could be referred to as the kinship grant, which was an extended amount that did not necessarily consist of the intensive monitoring mechanism found in foster care placements.

Mr Francisco Cornelius, NACCW National Treasurer, said that child and youth care workers working in the Isibindi programme were attached to existing organisations. The organisations contact the Department, in order to provide services at a prevention stage. It would be advantageous if they were attached to a government-owned organization but presently, the overarching role carried out by the DSD both at national and provincial level was with regard to funding. Funding was provided for the roll-out of the programme in the various provinces, and also for the training of these child and youth care workers since they were usually not qualified at the enrollment stage into the programme.

It was important to note that there were no recognized numbers of child care workers. The Minister signed the regulations to register child and youth care workers at the end of October. Registration with the Council was supposed to be done by every child and youth care worker, and there should normally be no unregistered child and youth care worker in the field. The obligation was on the organisations who employed these child and youth care workers, and send them out to work in the various programmes in government facilities and non-profit organization (NPO) child and youth care centres. Few child and youth care workers were attached to schools. The obligation would therefore lie on the schools to ensure that the employed child and youth care workers were registered with the Council.

Child Welfare South Africa (CWSA) submission
Ms Julie Todd, CWSA National Head of Advocacy, submitted that CWSA supported and welcomed the amendment to section 1 of the Children’s Act. Clause 2 amending Section 150 there was a concern that the amendment replaced the word ‘found’ with ‘deemed’ which was vague. One of the problems found in the Children’s Act was the different interpretations by presiding officers in courts. CWSA was of the opinion that the new word could cause more confusion, as the dictionary meaning of the word ‘deemed’ was very subjective. It suggested that 'found’ should be left as it was for clarity and definitive interpretation.

In terms of the sexual offences register, CWSA appreciated the alignment of the DSD register with the register administered by the Department of Justice (DoJ). However, there was inadequate resourcing for the current DSD register, and this had affected the current administration. Until these issues were addressed, the register would remain ineffective. The alignment between the DSD and the DoJ had to be further addressed. CWSA seemed unsure of the reason for the amendment of section 128 of the Children’s Act, since a person whose name appeared in Part B of the register would be inclusive of all ages.

Section 150 of the Act had caused numerous concerns about its interpretation by the courts, and the reason for this problem may be linked to the overburdened foster care system. A whole lot of issues should be factored in when considering this amendment. The concern was the use of the word ‘ostensibly’, which meant different things to different people and was confusing and could be open to interpretation. The amendment had tried to clarify the confusion in the interpretation of section 150 but there was now a more flawed item in place. The oversight management and provision of foster care in the country required a complete turnaround.

The insertion of section 152 was welcomed because judicial review of a removal without court order should happen, and had been specified in this section. However, it appeared that the wrong section was referenced in the first sentence. The sentence made reference to section 152(2)(c) but it should be section 152(1)(c).

CWSA identified what it believed was the cause for the drop in adoptions which were the numerous administrative delays experienced by social workers which negatively impact on an adoption being finalised. It list seven of these types of delays. While it supported the inclusion of State Social Workers, it must be done in a manner which ensures the specialization required to practice in the sphere of adoption. The sector cannot lose the specialization required of Social Workers working with adoptions. It supported the amendment of section 242 with respect to adoption matters. The section clarified the legislative intention. One of the problems faced with the Courts Act was that the current Act sought to rectify the problems of the old Act. Under the old Act, if a single mum wanted her child to be adopted by her new spouse or life-long partner, they had to jointly adopt. The new Act changed that but went to the extreme in that regard in the sense that the biological parent of the child would lose all responsibilities upon the adoption by his or her new spouse, in terms of the way the Act was worded. The amendment of the section had clarified that the biological parent of the child would not lose his or her parental rights and responsibilities when his or her spouse or life-long partner adopted the child. This was an important section that needed to be rectified within the current legislation.

Discussion
Ms S Kopane (DA) said that the MPs were not given ample time to go through the submission, and this made it difficult to engage with the submission.

Ms Todd replied that the submissions were submitted earlier but not in power-point format. The only addition that was missing from the submission and present in the power-point was the submission on section 242 of the Act.

Ms H Malgas (ANC) and Ms B Abrahams (ANC) also identified the gap in the submission and the difficulty in following the submission without the power-point document.

The Chairperson requested that copies of the power-point submission be made and distributed to MPs for better understanding.

Ms K de Kock (DA) wanted a clarification on the issue surrounding the use of the word ‘deemed’. The previous submission insisted on the importance of the use of the word. She opined that the use of the word would mean that the person would be found automatically unsuitable to work with children, without requiring a specific pronouncement. However, using the word ‘must’ would mean that a specific pronouncement would be required to be made by the court.

Ms Todd replied that the word ‘deemed’ was subject to different interpretations by different presiding officers. This was the reason why it was proposed that the word should be replaced.

Ms E Wilson (DA) said that the word ‘deemed’ seemed to be quite important, particularly when rights were involved, and when sufficient evidence existed to show that a certain person had been involved in an offence. With regard to CWSA’s submission on why the amendment of section 128 was unnecessary, she said that the amendment was in place because a new law had been passed at a certain time and therefore, people convicted before that time could not be placed on the register.

Ms Malgas sought clarification on the submission of CWSA to the effect that the amendment of section 128 was unnecessary.

Childline South Africa submission
Ms Nomfundo Majola, Programme Manager, Childline South Africa, said that the organization supported the amendments to align the Children’s Act with the Sexual Offences Act. It proposed that the amendments should have some additions. It agreed with the insertion of the definition ‘sexual offence’ in section 1(b) of the Act, and it proposed that the definition of sexual offence must include section 10 of the Prevention and Combatting of Trafficking in Persons Act.

With regard to section 120 of the Act that spoke to the register, Childline was of the opinion that children who had been convicted of offences should not be automatically included in the register. All efforts should be made to ensure that these children received rehabilitation services. Hence, placement on the register would only be for extreme cases, and act as the last the resort. Children that had been convicted could also be dealt with the in the same manner.

Childline proposed that ‘may’ in section 152A of the Act should be deleted and replaced with ‘must’. It also proposed that the court must set the timeframe with regard to the return of the child to parents or caregivers for further investigation to determine if the child would be in need of care and protection. This was a matter of priority as many children found themselves left in alternative care for longer periods than was necessary.

In terms of the insertion of new sub-section 151(2A) that dealt with the removal of a child, Childline agreed that the court ordering the removal of children must simultaneously refer the matter to a designated social worker. This would ensure that delays in the investigation processes were minimised and cases would be given immediate attention.

Likewise, Childine agreed with the changes to section 152 of the Act. This was important to ensure that there were no delays in reporting the placement of a child to the DSD, and also to ensure that alternative placement in temporary safe care did not absorb the cost of looking after the child while awaiting the child’s official placement.

Childline agreed with section 171 of the Act that included all forms of alternative care. This would ensure that social workers were held accountable and were able to justify reasons for change in care.

With regard to section 176, Childline believed that subsection 2(b) should read: “the continued stay in that care is necessary to enable that person to complete his or her grade 12, higher education, further education training or vocational training and internships or learnerships.”

Childline proposed that the timeframe should be listed and included. This would ensure that ample time would be given and children would not be left with uncertainties about their future. This would also ensure that the individuals doing the analysis of the application had enough time to analyse the applications.

Discussion
Ms Mogotsi pointed out a contradiction with regard to placement of children on the register based on the merits of the case. She could not see the concern if the merits of the case had been decided resulting in placing the child on the same register as adult offenders.

Ms Majola replied that children who had been convicted of offences should not be automatically placed on the register. Instead, these children should be rehabilitated, and services should be provided to help with their rehabilitation. Placing them on the register would further complicate matters for them in future.

Ms Mogotsi said that rehabilitation was ordinarily available. Rehabilitation was part of the process of the child development process.

Ms Malgas wanted to know what the correct motivation was for keeping children offenders below the age of 18 off the register.

Ms Joan van Niekerk, a child rights consultant, said that the motivation was that children should not be automatically placed on the register upon conviction of a sexual crime. This was provided for in the Amendment Bill. However, the wording of the section should be aligned to the wording in the Criminal Law (Sexual Offences and related matters) Amendment Act. The current wording in the Children’s Amendment Bill placed the responsibility on the child to make a submission as to why he or she should not be placed on the register. In the new Sexual Offences Amendment Act, the onus was placed on the prosecutor to apply and for a probation officer to assess the risk, and afterwards present the assessment before the court. The problem with this method was that no provision existed for that assessment to take place after the child had been rehabilitated. The submission motivated therefore to follow more of the wording of the Sexual Offences Amendment Act that was passed in June and that the assessment should be made after the child had gone through a rehabilitation programme.

Ms van Niekerk noted that children in South Africa could be held liable for criminal behavior from the age of 10, with a revertible liability between ages 10 and 14. A child would be considered to criminally liable and capable of taking responsibility for his or her behavior from age 14. It was brought to the attention of the Committee that there was a shortage of specialized programmes for children with difficult illegal sexual behavior in the country. This shortage should be addressed.

Ms Mogotsi wanted to know the demographic spread of Childline offices.

Ms Majola replied that the national office was situated in Durban, but there were offices across all the nine provinces.

Molo Songololo submission
Ms Chantal Chandler, Victim Empowerment Programme Manager, Molo Songololo, introduced the organization and made the submission as written in the attached document. See the attached document, especially Appendix 1 for the comments on the National Sex Offender Register.

Two learners (Martha Jacobs and Odwa Qaziyana from Atlantis Secondary School and another high school) also submitted that a separate register should be provided for children, as placing them on the same national sex offender register meant that they would be accorded the same treatment as adults. This would do more harm than good to children.

Discussion
The Chairperson clarified that the placement of the children on the same register with adults would not amount to physical contact with those adults. In the past, convicted children were automatically placed on that register, and could not be allowed to work with other children in the future. The amendment however provided that an opportunity would be given for children to state why they should not be listed in the register upon commitment of an offence. Another proposal had been made to evaluate if that child should not be placed on the register. However, children were not placed in the same prison facilities as adults. Secure centres were provided by the Department where children were treated separately and provided rehabilitation services.

Ms Wilson and Ms P Sonti (EFF) appreciated the submission made by the learners.

Ms de Kock asked for clarification on the legal age of a child with regard to criminal liability; the people who could access the register; and what the format of the register was.

The Chairperson referred to the Children’s Act with regard to the definition of a child. A child under the Act was a person below the age of 18.

The format of the register would comprise of the details of the offender and would include the name, gender, age, and the type of offence committed. Only the Director General and officials of the Department designated by the DG had access to Part A of the register. The DG could however grant access to a provincial head of social development or an official of provincial department on conditions determined by the DG. The only people that had access to Part B of the register were officials in the Department designated by the DG, a provincial head of social development, officials in the provincial department designated by the head of social development, and the manager or person in control of designated child protection organization. The register was treated with extreme confidentiality. These officials were not allowed to divulge any information within the register. The importance of the register was to identify people who could not be given job appointments working with children based on their history of criminal convictions. The amendment sought to protect the children further by giving them the opportunity to state why they should not be placed on the register.

Ms Malgas said that the register should be discussed amongst members of the Committee with the input of the DoJ and DSD.

International Society for the Prevention of Child Abuse and Neglect submission
Ms Joan van Niekerk, President of the International Society for the Prevention of Child Abuse and Neglect, began the submission by agreeing with the additional definition of sexual offence in the Criminal Law (Sexual Offences and Related Matters) Amendment Act. However, the expansion of this definition was recommended as further sexual offences relating to child pornography and the access of children to adult pornography are listed in the Films and Publications Act as well as the Prevention and Combatting of Human Trafficking Act and these offences should be included.

The word ‘deemed’ in section 120 of the amended Bill could be subjected to many interpretations, especially in the courts. The word ‘deemed’ was a very uncertain word in most vocabularies.

She applauded the inclusion of a wider range of sexual offences committed against children. It was suggested that the provisions of the Prevention and Combatting of Trafficking in Persons Act on crimes committed against children should be included in this amended Bill.

The issue of domestic violence was brought to the attention of MPs. At the moment, people who were subjected to orders and oral domestic violence were not specifically catered for by the Bill. It was suggested that the legal drafters should consider the wording of the section to include this form of domestic violence. High levels of domestic violence existed in the country and exposing children to violence in the home would be detrimental to the holistic development of children. Domestic violence impacted on the psycho-social wellbeing of children and affected their behavior. Also, children that witnessed domestic violence often times got hurt in the process. The inclusion of people subject to domestic violence protection orders in the register should also be considered. The Children’s Act already recognized the negative impact of domestic violence in section 7.

Section 150 of the Children’s Amendment Bill provided for the child in need of care and protection and it included a sub-section F that recognized the harm done by exposing children to domestic violence.

With regard to the proposed new subsection to S120 after subsection (4) that deals with children on the register, it is recommended that this provision be aligned with the provision of the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Act (No 5 of 2015) as enacted (and not the Bill version). The new provision of the Sexual Offences Act was to the effect that children were not to be automatically placed on the register and were not responsible for making a submission in the court. Instead, the onus was on the prosecutor who had to make an application for an order for the child to be placed on the register and a probation officer had to submit a report to the court clarifying whether or not the child presented an ongoing risk of repeated sexual offence. The court had to be satisfied that substantial and compelling circumstances existed based on such a report.

The provision in the Bill version, on the other hand, placed the onus on the child to bring resubmission to the court as to why he or she should not be placed on the register. The reality was that children did not have this kind of power or access to comply with this provision of the law. It was recommended that the method adopted in the Sexual Offences Act, No 5 of 2015, should be emulated. It was also suggested that risk assessment for sexual offenders should only occur after a child had undergone a rehabilitation process. Risk assessment was a specialized activity. There were currently no standardized risk assessment tools for South African children. Some form of specialized training would be required for the management of sexual offences.

In terms of offender registers, it was pointed out that South Africa had three registers: the SAP 69 register, the register in the Sexual Offences Act, and the register in the Children’s Act – Part B child protection register. The duplication of these registers was unnecessary. The alignment of these registers had been suggested to the Committee previously. International evidence indicated that registers had very little impact on the protection of children. These registers should therefore be aligned, despite the fact that the alignment might pose a challenge for the legal drafters of DSD and DoJ.

In the time being, the separate register should be properly managed. It had been discovered that many social workers received responses to their application to the register only after several months. These delays posed a lot of problems to children by denying them access to required services. It was therefore necessary to put all the resources together by aligning the registers, as this would most likely lead to greater effectiveness of the registers.

The word ‘ostensibly’ in section 150 was very unclear, and was also opened to various interpretations. It was suggested that the word be omitted.

With regard to the Children's Second Amendment Bill (B14-2015), the definition of ‘adoption social worker’ was fully supported, especially in situations where a private adoption practitioner or an agency registered to process adoptions could not be accessed. This was a complex and specialized field of practice. It was expected that all children in the country received equal standard of service. Therefore, a recommendation was made to the effect that social development workers managing adoption should be accredited to do so by the Professional Board Of Social Work. Children in rural areas should not be allowed to have a lesser quality of service.

The amendment of section 176 that included the extended definition of further education and training was supported. There were so many children who experienced delays in their education due to neglect, parental absence and being placed in care of others. This section would enable children to enter the workforce with appropriate education.

Discussion
Ms de Kock was curious about the practicability of the inclusion of orders and crimes related to domestic violence in the register, since a person had to be found guilty of an offence before such person’s name could appear in the register. Clarification was sought on who would be held liable for domestic violence.

Ms Niekerk replied that a person could be placed on Part B of the Children’s Act register without a criminal conviction. Since other courts of law were allowed to place a person on the register, the Children’s Court could therefore place a person on the register if it believed that such person was unfit to work with children. The domestic violence courts could also recommend that a person be placed on the register, after a protection order had been served and was confirmed or not contested. This would be possible in situations where the domestic violence court had sufficient evidence before it in order to issue a protection order in terms of the impact of the domestic violence on the victim of that violence. Often times, the information included the impact of such violence on children. It was therefore possible to include domestic violence offenders on the register.

Ms van der Merwe (IFP) sought clarification on how the use of adoption social workers could lead to the lesser quality of the service for people in rural areas, especially since working through agencies actually undermined some families who were unable to adopt children in the rural areas.

Ms Niekerk disagreed that the drop in adoption was due to fees. The Department was responsible for setting the fees. Although many child protection organisations that had been registered to carry out adoptions also charged certain amount as fees. She however suggested that the adoption process had been complicated in some provinces through the establishment of committees within the DSD structures and prevention levels that should approve the adoption process. Instead, the drop in adoptions could be linked to all the uncertainties surrounding the new legislation, as well as the establishment of some new forums that dealt with adoption at prevention levels. In her experience, the delays were often attributed to administrative delays, as well as the various interpretations of the legislation by the presiding officers in the children’s court or not using the legislation appropriately to free children up for adoption.

It was pointed out that having standardized procedures in place would help with the adoption processes. It was also important to ensure that the presiding officers were specialists of the law in order to properly implement the adoption procedures as provided for by the Children’s Act.

Ms Malgas noted that the South African Council of Education worked on related matters with regard to sexual offences. The issue of registers called for urgent attention.

Ms Niekerk replied that it was important for the legal drafters to assist in clarifying issues in the legislation.

The Chairperson appreciated the submissions made by the various organisations.

The meeting was adjourned.