A social work lecturer at the University of Pretoria made a submission on Section 150(1)(a), noting that the use of the word ‘ostensibly’ in the amendment was ambiguous and would make it difficult for children to access the foster care grant (FCG). He spoke about the current crisis in the foster care system. He noted that Section 150(1)(a) had caused a lot of problems in the past, especially for children living with relatives and grandparents. Some of the difficulties included rejection of applications by presiding officers in court. Applications had been rejected on the grounds of the strict and literal meaning of “visible means of support”. However, the word ‘ostensibly’ used to replace the phrase, ‘visible means of support’ was more ambiguous. Approximately, 1.5 million orphans were eligible to receive the FCG, but the foster care system could not cope with catering for all of them. There was a shortage of social workers. It was recommended that instead of amending the Section, consideration should be given to the proposal made in the third draft amendment Bill presented in 2013, that proposed the introduction of a kinship care grant (KCG). The KCG was meant to cater for children living with relatives instead of their going through the formal process of the foster care system in order to access the FCG. This would also make the work of social workers less difficult as the introduction of a separate parallel system would free up the workload of social workers so that they could concentrate on conventional foster care cases. The amendments in Sections 152, 171 and 176 were supported. Section 176 was particularly supported because it made provision for children older than 18 but younger than 21, to gain access to alternative care.
The discussion on this submission looked at the need to urgently address the acute shortage of social workers in the country; the need to establish a comprehensive social security system that would assist children in need of care until the social worker shortage and the foster care system can be resolved; the possibility of having a new grant to cater for children in the care of relatives in the form of a kinship care grant; the need for better payment of social workers; and scarce resources in the rural areas.
The Children’s Institute from the University of Cape Town also considered the wording of Section 150(1)(a) and noted that the use of ‘ostensibly’ entrenched the use of the foster care system as the preferred option for orphan to gain access to the FCG. The causes of child deaths linked to the failing foster care system were extensively dealt with. It was submitted that the amendment was not a comprehensive solution in line with the requirement of the 2011 ruling of the Constitutional Court to attend to the current crisis in the foster care system. The amendment was also not in the best interest of orphaned, neglected, and abused children, and it would pose an implementation challenge to the Department. Various aspects of the failing foster care system were highlighted. The financial implication of implementing this amendment was also considered. The Children’s Institute submitted that the consequences of the proposed amendment would prevent timely access of orphans to grants; prolong living in continuous poverty; give rise to an inability of abused and neglected children to access protection services; and might even pose a risk of further abuse or death.
Other problems posed by the amendment were highlighted. The Children’s Institute proposed an alternative amendment that would require changes to the social legal assistance framework.
On the registers, the Children’s Institute proposed that the Children’s Act should be aligned with the Sexual Offences Act by excluding children completely from the provisions in Section 120(1) to (6) of the Amendment Bill and inserting a new clause that would stipulate how a criminal court should deal with child offenders.
Members' discussion of this submission touched on addressing the crisis in the foster care system; placing emphasis on the proposed alternative amendment; focusing on the social practitioners, child and youth care workers and other relevant officials in the implementation of the proposals tabled before the Committee; considering the financial implications or resources needed for implementing these amendments; and monitoring the effective spending of the funds from the FCG for the purpose set for them.
The Centre for Child Law at the University of Pretoria gave a submission on the national child protection register and the national sex offender register. It considered whether it was necessary to have two registers, and proposed that the criminal record system should be used in place of the two registers, since it would be more efficient, cheaper and easier to get information on whether individuals had committed a crime against children, as well as other convictions against individuals. It also recommended that the use of the word ‘deemed’ in Section 120 should be replaced with the original word ‘found’, as there was no mechanism in place to put people ‘deemed’ to be guilty on the register. Instead, the mechanism provided for people ‘found’ guilty of crimes to be placed on the register. The Centre for Child Law, like the previous organization, also emphasized the need to address the crisis in the foster care system. It submitted that the use of the word ‘ostensibly’ in the amended Section 150(1)(a) would cause greater confusion. The amendment also introduced a means test for children to show proof as to why they needed to be catered for by the foster care system. This was in conflict with the Social Assistance Act. It was therefore recommended that the Committee should not implement these small amendments but rather, it should wait for systemic solutions in a bigger amendment to be brought by the Department of Social Development (DSD).
Members sought clarification on whether the means test was in conflict with labour laws with respect to children below the age of 16 that were not allowed to work.
The Save the Children South Africa submissions looked at provision for migrant children. It submitted that the inclusion of children and guardians in the court proceedings under Section 152 would be essential to achieve a durable solution for migrant children. It agreed with the amendment of Section 171 in empowering the provincial heads of Social Development. It was submitted that the amendment of Section 176 did not solve the problem of the lack of sustainable options for migrant children.
The discussion on this submission highlighted the need for the Committee to carefully consider the submissions in conjunction with population policy, and also collaborate with the Department of Home Affairs on migration matters.
The South African Human Rights Commission (SAHRC) proposed that the drafters should consider the wording of Section 10 of the Prevention and Combating Trafficking in Persons Act when drafting the wording of Section 120 as the word ‘deemed’ might be problematic. On the register, it recommended that alternate means of presenting evidence to the court should be looked into, instead of placing the onus on the child to prove why he or she should not be placed on the register. The use of the word ‘ostensibly’ in Section 150(1)(a) was also raised. It submitted that the current wording of the Act should not be replaced.
With regard to the amendment of Section 152A on the removal of a child from a particular environment without a court order, it was recommended that a stipulated timeframe should be given by the presiding officer making an order in respect of the return of a child to parents/caregivers or to conduct an investigation to determine if the child was in need of care and protection.
The Chairperson expressed appreciation for the involvement and contribution of NGOs in important matters that affect the progress of children. Universities that were involved in this programme were applauded. The Department should strengthen the linkage between the work of these NGOs and universities.
Mr Sipho Sibanda submission
Mr Sipho Sibanda, a Social Work lecturer at University of Pretoria, began with the clause amending Section 150(1)(a), which provided for the child in need of care and protection. The section had caused a lot of problems in times past, especially for children living with relatives and grandparents. Social workers have had difficulty in identifying these children in order to ensure that their relatives gain access to the foster care grant (FCG). Some of the difficulties included rejection of applications by the presiding officers in Court. Applications had been rejected on the grounds of the strict and literal meaning of “visible means of support”. It was proposed that the amendment to the Section in terms of its wording, should be rejected based on the following reasons:
- The word ‘ostensibly’ used to replace the phrase, ‘visible means of support’ was more ambiguous. The latter phrase made it difficult for many children to be found in need of care and protection, and could therefore not access the FCG. The word ‘ostensibly’ was a very subjective and relative word that meant something that was not certain or could not be established. Its synonyms included apparently, seemingly, superficially, presumably, and so on. Social workers were however expected to prepare reports based on facts and evidence, and not on presumptions.
- The amendment did not address the current foster care crisis in South Africa. The foster care system was designed to cater for 200 000 children, but it was currently catering for about 512 000 children. Approximately, 1.5 million orphans were eligible to receive the FCG, but the foster care system could not cope with catering for all of them. There was a shortage of social workers, and the current number of social workers in the country could not cope with the current number or children in the foster care system. It was therefore recommended that instead of amending the Section, consideration should be given to the proposal made in the third draft amendment Bill presented in 2013, that proposed the introduction of a kinship care grant (KCG). The KCG was meant to cater for children living with relatives instead of their going through the formal process of the foster care system in order to access the FCG. This would also make the work of social workers less difficult as the introduction of a separate parallel system would free up the workload of social workers so that they could concentrate on conventional foster care cases. It was proposed that the third draft amendment Bill should be urgently gazetted for comments and brought to Parliament for deliberation, since it contained a comprehensive legal social security system for the children.
The amendment did not address the lapsing foster care system. It was therefore proposed that Section 150 should be amended in such a way that the overburdened foster care system linked to the shortage of social workers could be addressed.
The amendments in Sections 152, 171 and 176 were supported. Section 176 was particularly supported because it made provision for children older than 18 but younger than 21, to gain access to alternative care.
Ms L van der Merwe (IFP) was worried about the shortage of social workers in the country. Considering the burden faced by the Department of Social Development (DSD) and the country as a whole in terms of orphans and vulnerable children, there was clearly not enough social workers to go round. The issue was linked to whether or not the amendments being deliberated upon would be successful or achievable with the limited human resources. DSD recently applied to Treasury for money to be able to employ more social workers and its request was turned down. This also constituted a barrier in recruiting social workers that would help implement all the desired changes to improve the lives of the most vulnerable children.
The Chairperson emphasized the point raised by Ms van der Merwe to the effect that implementation of existing laws should be strengthened in addressing the shortage of social workers.
Ms V Mogotsi (ANC) said that although there was a need to address the current foster care crisis and shortage of social workers, more focus should be placed on establishing a comprehensive social security system that would assist children in need of care, that would not only be based on the professionalism of social workers alone. DSD recently approached Treasury for money to employ more social workers and this application was turned down, thereby buttressing the need to urgently address the shortage of social workers. The drafters should consider using words that would include children instead of excluding them.
The Chairperson said that it was important to consider the integration of services when addressing matters before the Portfolio Committee.
Ms K de Kock (DA) wanted to know what Mr Sibanda’s take was on the possibility of having a new grant that would merge the KCG and FCG into one or if it should be two separate grants.
Ms H Malgas (ANC) sought more clarification on the two grants. It was proposed that the importance of the demand and supply of social workers be discussed at the next Committee meeting, as it would be relevant in terms of approaching Treasury. This was particularly important because the Minister was currently considering the appointment of one social worker in each ward.
Ms C Dudley (ACDP) said that her understanding of the kinship grant was that it would result in lightening the burden that was on the foster care system that lacked sufficient social workers. Focus should therefore be placed on the kinship grant, since it was an immediate solution as opposed to recruiting new social workers that would take time and money to achieve. The problem at hand was linked to looking for solutions that would require more social workers, which was worsening the issue. The Committee should do something about Treasury’s hesitance to put more money down for social workers.
Ms P Sonti (EFF) said that money was needed to hire many social workers. Consideration should also be given to better payment for the social workers in order to encourage them to carry out their responsibilities diligently. The issue of scarce social workers in the rural areas was another problem that should be addressed. Only a few social workers are present in the rural areas, and many children could not afford to go to the towns to access these social workers.
Mr Sibanda replied that although more social workers were needed, while waiting to recruit more social workers, mechanisms should be put in place to cater for children in need of the grants. If it took the Department ten years to cater for 500 000 children within the foster care system, it would probably take another 20 years to cater for the 1.5 million eligible children that should be catered for through the system. This therefore necessitated the need for a separate system in the form of the kinship care grant that would assist some of the children (orphans) within the foster care system that were currently being taken care of by relatives. This would ensure that the foster care system concentrates on cases of abuse against and neglect of children. While waiting to resolve the current crisis of a shortage of social workers, it was proposed that the Social Security Act be amended to provide for a kinship care grant to cater for children who need the grant immediately.
Children’s Institute, University of Cape Town, submission
Prof Shanaaz Mathews, Director, Children’s Institute, began her submission by considering the proposed wording in Section 150(1)(a), to the effect that this was not a small technical amendment. The main problem with the amendment was not the use of the word ‘ostensibly’. Instead, it was the effect of the amendment in entrenching the use of the foster care system as the preferred option for orphans. The foster care system was however in crisis and children were on the receiving end; some had even died in the process. Based on her research on child death in South Africa and its causes, she provided cases to support this (see document on ‘Death due to severe neglect’, ‘Fatal Abuse’ and ‘Monitoring of children’s care’). The cases highlighted the failing foster care system of the country which was designed to cope with about 50 000 cases. The system was currently being used as a poverty alleviation strategy, as opposed to providing for children in need of care and support.
In essence, the proposed amendment entrenched the use of the foster care system for poverty alleviation and not for its original purpose. A need therefore arose for the consideration of a comprehensive solution. The amendment would not provide family members taking care of orphans access to timeous adequate social grants, instead, the amendment would further clog the application process that would prevent abused children from accessing state protection. The Children’s Institute stated that the amendment was not a comprehensive solution as required by the 2011 ruling of the Constitutional Court to attend to the crisis in the foster care system. The amendment was also not in the best interest of orphaned, neglected and abused children. The Department would be unable to implement the proposed amendment. The amendment was legally flawed and would lead to an inconsistent application of the law. The challenges around the implementation of the amendment included the shortage of social workers, as well as insufficient financial resources to implement, as the cost of implementing the amendment was very high.
The crisis in the foster care system was elaborated. Approximately 500 000 children were in the foster care system, and 90% of them were in the care of relatives. Foster parents could wait up to three years before finding out if their application for FCG was successful, while the process of obtaining child support grant under the child support system administered by the South African Social Security Agency (SASSA) took three days.
The growth pattern of the FCG over the past seven years was shown - although the number of social workers had been increased over the past few years, the number of children getting foster care payments had actually decreased. It became imperative to consider if the current foster care system could be expanded. It would however take approximately 20 years to reach out to the 1.4 million children that were maternally orphaned, using the prediction and how long it took to provide 500 000 FCGs. According to a 2014 DSD affidavit, one social worker would be needed for 60 foster care cases. The current number of social workers according to that affidavit, was a little over 5 300 social workers in employment. DSD had calculated that to reach the current shortfall, an additional 3 275 social workers would be needed. However, Children’s Institute’s calculation showed that almost 4 000 social workers would be required to reach the current number of children in the system. However, to reach the shortfall of children that should be catered for by the system, over 11 000 social workers would be needed.
The financial implications for this amendment was not yet clear, as the Department had not provided projections on the cost or implications of the amendment on the fiscus. However, if an additional 1 million maternal orphans under the age of 18 that could potentially qualify were considered for the grant, the cost implication would be about R11 billion per annum. It would also mean that high operational costs for social workers and court personnel would be needed, as FCG operational costs were much higher than grants administered by SASSA. In essence, using the foster care system to upgrade access to social grants was not a feasible option, as the foster care system was in crisis.
The consequences of the proposed amendment would mean that orphans and their family members would be unable to access timeous grants, children would live in continued poverty for longer, abused and neglected children would be unable to access protection services timeously, and would therefore be at a risk of further abuse and even death.
It was important to consider if the proposed amendment was necessary, because the Bill’s Memorandum stated that the proposed amendment was required to comply with the ‘Manana judgment’. The Manana judgement provided an interpretation of Section 150 of the Children’s Act, but did not say the section was unconstitutional. There was therefore no obligation on the legislature to change this. The legislature could however choose whether to change the law or not. It was agreed that the current wording of Section 150(1)(a) was unclear. The proposed amendment did not however improve clarity, instead it made it more ambiguous. The proposed amendment was also inconsistent with the Children’s Act, Social Assistance Act, and the Constitutional, as it violated the constitutional right to equality.
The amendment failed to provide guidelines for the conduct of magistrates, thereby giving magistrates the discretion to decide which child could not ostensibly have the ability to support himself or herself. This could lead to inconsistent application of the law. The result of such discretion would mean that not all families caring for orphans would be able to access the FCG. The unequal access to the FCG would violate the constitutional right to equality.
Based on the identified problems with the amendment, the Children’s Institute proposed alternatives to Section 150(1)(a), which included the introduction of a kinship care grant or an extended child support grant for family members caring for orphans, that could be a ‘top up’ amount to the existing child support grant or could administered by SASSA to ensure quick and easy access. The Deputy Director General (DDG) of Social Security could provide more information to the Committee on the proposed grants. It was proposed that orphans in care of family members should be accessed by social service practitioners and not social workers. The practitioners could be alternative social workers or child and youth care workers. They would make an assessment on whether a child was in need of care and protection or whether a child was adequately cared for by a family member, in order to clearly assist such a child by referring him or her to a designated social worker for investigation, or to SASSA for the kinship grant application, or to counselling if need be, but not necessarily going through the court system.
The alternative amendment that was proposed would require changes to the social assistance legal framework. Although the social assistance legal framework could be amended, it was proposed that the current version of Section 150(1)(a) should remain in place.
On the national child protection register (NCPR), it was pointed out that the default position under the Children’s Act was for all child offenders to be added to the NCPR. The proposed amendment to Section 120 introduced the opportunity for child offenders to make submissions to court as to why his or her details should not be placed on the register. This provision originated from the similar idea that allowed adult offenders to show good cause as to why they should not be on the register. The default position of children under the Sexual Offences Act was however different, as it stated that children should not be added to the register. They could only be added if the prosecutor had proved that the child is a risk, the child had been assessed by a probation officer, and the best interests of the child had been considered. This raised the question why children offenders should be treated differently from adult offenders. Child offenders had a right to be treated differently based on the provisions of the Constitution, as well as international and African rights convention. South Africa had a separate justice system to deal with child offenders. Child sex offenders were not necessarily paedophiles as they committed an offence against a peer, and this would not pose a risk to children when they became adults.
It was recommended that the Children’s Act should be aligned with the Sexual Offences Act by excluding children completely from the provisions in Section 120(1) to (6) and inserting a new clause that would stipulate how a criminal court should deal with a child offender.
The Chairperson noted that the Children’s Institute was commissioned by the Minister to produce a report on the challenges of the foster care system and recommendations for reform. The report had not been formally presented to the Committee prior to the public hearing. This would limit the engagement of MPs with the report, and it posed serious concerns for the Committee, especially because some of the proposals made in the report would not be applicable in the rural areas. The population distribution in South Africa also constituted a problem, in the sense that there were many people spread across in the rural areas that the proposed services would not reach. Another issue was the process of agreeing to and amending laws, only for flaws to be made visible during implementation. The duty of the implementers was for them to come back to the lawmakers to notify them of the gaps identified in the laws.
Ms Mogotsi wanted to know how Children’s Institute, a civil society organization, would assist the country in solving the crisis in the foster care system; if the projection of the number of social workers needed was a national or provincial projection; and how the financial projections would be achieved. She pointed out that the implementation of the proposals should not only focus on social work practitioners but should include the child and youth care workers, and every other person that formed part of the social work field.
Ms van der Merwe was concerned about amending an Act without having the necessary resources to implement it. This also spoke to parts of the amendments that required social workers to take on the responsibilities of adoption, without being sure that Treasury would provide the extra money needed to employ more social workers.
Ms Dudley said the alternative amendments should be the primary focus of the Committee’s discussion. The issue around social workers seemed to be more complex than the financial aspect. Research should be done on recruiting social workers.
The Chairperson replied that an opportunity had not been given to the Department to give a report on the social workers conference, as that report contained information and recommendations on the best possible means to create an enabling environment for social workers to maximize their potential.
Ms Sonti asked what could be done to ensure that the FCG money was spent properly, for the purpose designed for, as there were instances where this money was used for the family since the parents were unemployed. There were also instances of the parents spending the money on themselves and making the children go hungry and without clothes. However, there were cases where the money was effectively spent but was not enough to cater properly for the child.
Ms Malgas said that DSD should submit the full cost of implementing the amendments to the Committee.
Ms de Kock asked if it would be easier to have a top-up amount to the existing FCG and pay that extra amount to all the children, and if this method would solve the crisis in the foster care system.
Prof Mathews replied that a comprehensive report was done when the Children’s Institute was commissioned by the DDG of Social Security, to look at the options. It was important for the Committee to gain access to that report in order to see the proposed options. The extended child support and kinship care grants had been explored within that document. These grants had however been mentioned by the DDG in the medium term strategic framework. An invitation should be put forward by the Committee for the DDG to make a submission on the report.
The Chairperson said that the information derived from the submissions was necessary for the Committee to decide if the implementation of an amendment that had not been researched was necessary. An amendment in such a complex situation could cause more problems. The discussion of the Committee should focus on the upcoming interventions in order to have a holistic debate on what has emerged. The Committee needed to deal aggressively with the submissions made by the organizations so far.
Ms Lucy Jamieson, Senior Researcher, Children’s Institute, said that the evidence that was presented in the Institute’s submission was from the Department’s affidavits in court. The evidence clearly stated that the present laws could not be implemented. To assume that the system could be further opened up would be a laudable objective, since the Department had intentions of providing financial support to struggling families, as well as giving extra cash to grannies and kin looking after children that were not their own. SASSA was a very efficient body in dealing with grants. Social workers were incredibly precious resources, and their skills were needed to deal with the children who need psychosocial support. The Department was expanding the workforce; it had an additional 7 000 registered child and youth care workers; and social auxiliary workers also existed. Things had to be done differently to prioritize getting the right kinds of support to children that need them the most. An implementable solution was of utmost necessity.
Centre for Child Law, University of Pretoria, submission
Prof Ann Skelton, Director of Centre for Child Law (CCL), began her submission by considering the National Child Protection Register. Two registers existed at present: the national child protection register (NCPR) and the national register for sex offenders (NRSO) under the Sexual Offences Act. The South African Law Reform Commission (SALRC) originally drafted the Children’s Amendment Bill and included the NCPR in the Bill. Another SALRC committee was drafting the Sexual Offences Bill and they decided not to include the register since they knew that there was a register in the Children’s Act. When the Sexual Offences Bill came to Parliament, the Justice Portfolio Committee added the NRSO to the Sexual Offences Act, and this was what led to the existence of two duplicate registers that conflicted with one another to a certain extent.
It was important to consider if there was a need for a register in the first place. The purpose of the register was to prevent adults who had been convicted of certain crimes not to be able to work with children. Under the NRSO, these convicted adults were also not allowed to work with mentally disabled persons. A question was posed as to why the objectives of the register could not achieved through the normal criminal record system, so that people could check the criminal record of individuals before employing them. Using the criminal record system would be more efficient, cheaper, and easier to get information on whether an individual had committed a crime against children, as well as other criminal convictions of the individual.
CCL was not opposed to bringing the law in line with the Sexual Offences Act that included a wide range of offences, which would have more implications for child offenders. The register was not aimed at child offenders. Instead, it was aimed at preventing problematic adults from working with children. The problem however was that the laws did not exclude child offenders, and it therefore applied to them.
According to the Children’s Act, a person could be placed on the register through the following means:
- The Children’s Court process, which was not a criminal process, but a process that was applied when a child was abused or neglected that necessitated an enquiry on what must happen to the child. It was rare to make a finding on child perpetrators here.
- Disciplinary proceedings, such as school disciplinary proceedings.
- Criminal proceedings.
The amendments focused on criminal proceedings by adding certain offences. Some offences such as attempted murder were accidentally deleted.
The use of the word ‘deemed’ posed another problem. There was no consistency in the other parts of the Amendment Bill, as the word ‘finding’ was used in sections 121 and 122. It was recommended that the word ‘found’ in Section 120 should not be changed to ‘deemed’, as it would have consequential effects on other provisions in the Bill. There was also no mechanism to put people who were ‘deemed’ on the register, while there was a mechanism to put people who were ‘found’ on the register.
With regard to child offenders, the judgment of the Constitutional Court in the recent case was referred to (see document). The court ruled that the law that automatically placed children on the sex offender register prevented the rehabilitation and reintegration of such children, particularly because evidence showed these children did not necessarily grow up to become adult sex offenders. The court did not say that children should not be placed on the register at all. Rather, each case should be assessed separately and not automatically place children on the register.
A table showing the NSRO under the Sexual Offences Amendment Act No 5 of 2015 and the NCPR under the Children’s Amendment Bill [B13 of 2015] was highlighted. The table showed the differences between the operation of the two registers (see document). It was recommended that:
- the provisions of the Sexual Offences Act should be brought in line with the Amendment Bill. This might mean an amendment to other aspects of the Bill.
- the word ‘children’ should be removed altogether and replaced with ‘adult’. This would mean that no children would go on the register.
- the operation of the register should be confined to convicted children in terms of criminal proceedings.
On the amendment to Section 150(1)(a), it was noted that the foster care system was in crisis. However, many children living in the system were actually living safely with their grannies and aunties. The foster care system could not cope with the number of children in need of care. It should therefore be strictly for children who needed care and protection, not minding who they were living with. CCL supported the need for grannies and aunties that cared for these children to get a higher grant than the child support grant.
It was pointed out that the foster care grant might not be the correct mechanism to deliver social assistance. Rather, a mechanism that would assess the number of children that needed care and protection should be established. Social service practitioners should be approached to carry out this initial assessment, instead of social workers. More faith should be put in community-based services such as the child and youth care models and the Isibindi model. There was a need for a complete system overhaul.
A court order was obtained by CCL in 2013 to address the collapsing foster care system. Details of the court order was elaborated upon (see document). The Department did not oppose the court order which gave them three years to come up with a system solution to clear the backlog of cases through administrative measures. The three years however lapsed at the end of last year, and the Department asked for another three-year extension on the court order. CCL did not oppose this application for extension, but requested that progress reports should be made to the court and CCL. The backlog of cases had been reduced, but there was still a backlog of 58 246 foster care cases yet to be attended to.
This Bill was not the right place to include the systemic solution. DSD was undertaking various processes towards a more comprehensive Bill.
The high court judgement on the Manana case referred to by the Children’s Institute was also highlighted. No obligation was placed on the Committee to make the amendment to Section 150(1)(a). The input of Parliament was however important as it helped to provide clarity sometimes.
CCL said that the amendment to Section 150(1)(a) would not help with clarification for the following reasons:
- the word ‘ostensibly’ would cause further confusion.
- the amendment introduced a means test for foster care for children to show ability to support themselves. This was in conflict with the Social Assistance Act. The foster care system was not based on the means of the people, because it was not primarily a poverty alleviation grant. Instead, it was designed to offer assistance to people catering for children who were not their own at a cheaper rate than it would normally cost. The only instance where children would be able to support themselves would be through inheritance.
CCL recommended that the Committee should not make the proposed small amendments to Section 150(1)(a). Instead, it should wait for systemic solutions in a bigger amendment that DSD planned to bring.
Ms Malgas asked if the means test was in conflict with the labour laws where children below the age of 16 were not allowed to work.
Prof Skelton replied in the affirmative. The fact that some children could support themselves financially did not mean they should not be cared for. A means test should not be introduced and children should not be expected to work or support themselves financially. However, the amendment would most likely focus on children with inheritance. This should not stop the grannies or aunties taking care of such children from gaining access to the FCG in order to assist with the upbringing of the child.
Save the Children South Africa (SCSA) submission
Mr Abongile Sipondo, Head of Advocacy and Campaigns, SCSA, submitted that the amendments would be considered in connection with migrant children. SCSA believed that the proposed amendment in Section 151 clarified the processes and timelines for temporary care of children. The court however tended to issue a two-year placement orders for migrant children from the start, which constituted a problem and affected the way social workers carried out assessments. This was because there was no sense of urgency to finalise the process and present results to the court. It was recommended that the Bill should lay out clear maximum durations of the stay of these migrant children in temporary care shelters. This would help in reuniting these migrant children with their families.
On the amendment to Section 152, SCSA suggested that the obtainment of a court order to place an unaccompanied migrant children in safe care often occurred after the placement itself. Migrant children were generally identified by border patrols, police or community members; and were in need of immediate protection. The amendment was therefore supported for placing emphasis on including children in the court hearings. The problem identified in the amendment was the right to guardianship of these migrant children that was often times not realised in South Africa. This impacted negatively on the efficiency and outcome of this process. Cases of migrant children might not be decided correctly. It was submitted that the inclusion of children and a guardian in the court proceedings would be essential to achieve appropriate durable solutions for migrant children.
SCSA agreed that the amendment of Section 171 was crucial in terms of empowering the provincial heads of social development. The distinction between temporary safe care and alternative care was however unclear. The Bill did not also clarify the kind of centres that would qualify as temporary care facilities. This might confuse the Children’s Court in making orders of temporary or alternative care placement.
The amendment to Section 176 clarified the types of alternative care that could be extended to children beyond the age of majority. The amendment did not however solve the problem of lack of sustainable options for migrant children. SCSA therefore submitted that the extension of alternative care did not address the need for integration or reintegration programmes for identified unaccompanied children. Other submissions on the amendment in terms of the wording of Section 150(1)(i) were highlighted.
Ms Malgas (who took over after the Chairperson departed for another appointment) said that the Committee had to go through the submission of Mr Sipondo thoroughly, especially since migration could be into or out of the country. Within the DSD, there was a white paper on population development which included migration issues. It was suggested that the Committee’s content adviser and researchers should compare the submission with what was already in place in the white paper, to see what effect the white paper had on the submission and vice versa. The Department of Home Affairs should also be contacted, since migration affected them.
South African Human Rights Commission (SAHRC) submission
Ms Fadlah Adams, Senior Researcher, SAHRC, said that the Commission was in support of the alignment of Clause 1 of the Children’s Amendment Bill with the Sexual Offences Act. It however recommended that the definition be expanded to include sexual offences related to child pornography and access to pornography as contained in the Film and Publications Act, as well as reference to Section 10 of the recently enacted Prevention and Combating of Trafficking in Persons Act.
SAHRC agreed that the use of the word ‘deemed ‘in Section 120 might be problematic. The Commission noted that although the amendments were a positive step in protecting children, they failed to recognize instances where adults could use or force children in committing an offence. It was recommended that the drafters consider the wording of Section 10 of the Prevention and Combating of Trafficking in Persons Act, and incorporate the provisions into the Bill.
SAHRC agreed that the inclusion of the provision for children to make resubmissions before their names were included in the register was in the best interest of the child. The Commission however highlighted the fact that not many children would be able to fully understand the clause or be able to make resubmission as to why an order should not be made to include their name in the register. This placed the onus on the child to present evidence, which could become problematic. It was recommended that alternate means of presenting evidence to the court should be considered, instead of placing the onus on the child.
With respect to registers, the Commission noted that the register comprised of Part A and Part B. The purpose of Part B was to have a record of persons who were unsuitable to work with children, and to use the information in the register to protect children against abuse from these persons. However, the Sexual Offences Act also provided a register. It was recommended that these two registers be aligned.
The Commission had discussed the registers extensively with the Portfolio Committee on Justice, earlier in the year. SAHRC was of the opinion that to further strengthen the provision of the Amendment Bill in terms of placing a child on the register, it should be expanded to allow a representative of the child to bring forth an application on behalf of that child. The provision should also clarify the age of majority upon which an application could be made to remove a name from the register.
SAHRC raised concerns on the clause amending Section 150(1)(a) of the Act, as the amendment removed the qualifying phrase of ‘without any visible means of support’ and replaced it with “… has been abandoned or orphaned and does not ostensibly have the ability to support himself or herself’. The Commission’s concern about this amendment was based on two grounds:
-the use of the conjunction ‘and’ meant that abandoned or orphaned children would not qualify for support unless unable to ostensibly support themselves. This additional condition would not align with the best interest principle of the child.
-the provision might also introduce a means test to determine whether a child in need of care actually qualified for it. It also placed the onus on the child to show that he or she was in need of care and support.
It was submitted that the use of the term ‘ostensibly’ created a purely subjective basis for the assessment.
The Commission was of the opinion that the current wording of the Act was sufficient and should not be amended.
On the removal of a child without court order provided in Section 152A (clause 6 of the Bill), SAHRC noted that the clause inserted a new section in the Act that provided for the review of a decision for removal of a child to temporary safe care without a court order. SAHRC recognized that the provision was in line with the judgement of C and others versus Departments of Health and Social Development. It welcomed the judgement to the effect that the removal of the child without a court order must first be brought before the Children’s Court for review. It also recognized that the proposed amendment would provide caregivers an opportunity to make resubmissions before the court to review a decision to remove a child from a particular environment. It was recommended that there should be a stipulated timeframe given by presiding officers in making an order in respect of the return of a child to his or her parents or caregivers or to conduct an investigation to determine if the child was in need of care and protection.
Ms van der Merwe welcomed the submission and apologized for the absence of most Committee members during the submission. The submissions would be considered thoroughly and questions that arise would be sent to the Commission for better clarification.
Ms Malgas highlighted the important issues raised in the submission with regard to the age of majority and the register.
The meeting was adjourned.
- Children’s Institute, University of Cape Town presentation
- Children’s Institute, University of Cape Town submission
- Sipho Sibanda, Social Work Lecturer (Practice) at University of Pretoria submission
- South African Human Rights Commission submission
- Centre for Child Law, University of Pretoria submission
- Centre for Child Law, University of Pretoria presentation
- Commission for Gender Equality submission
- Mamelani Projects submission
- National Adoption Coalition of South Africa submission
- Office of the Family Advocate: Ntombenhle Memela submission
- Save the Children South Africa (SCSA) submission
- Save the Children South Africa (SCSA) presentation
- South African Association for Social Workers in Private Practice (SAASWIPP) submission
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