Various bodies and entities gave public submissions on the Children's Second Amendment Bill (the Bill) which proposes quite extensive changes to the Children's Act (the Act)
The Children’s Institute said Constitutional Court had declared sections 151 and 152 of the Children’s Act unconstitutional and thus proposed amendments should rephrase sections 151 and 152 to align them with the Constitutional Court judgment. The main shortcomings of the Bill is that the proposed amendment sets a social worker’s deadline in relation to the placement of the child in temporary safe care, as opposed to in relation to the receipt of the referral. The Bill also needed to take account of the fact that a person over 18 may still be in full time education or unable to live independently and the Bill needed to cater for this; wording was proposed and it was suggested that late applications for alternative care should be accepted at any stage as long as good cause was shown for the late submission. The Institute urged the Committee to reject the proposed amendment to section 186, to protect children’s right to review and the 'best interests of the child' principle. Members called for an explanation from the Department of Social Development (DSD) on why this last amendment was made only when the Bill was presented to Parliament and asked about the success of foster care.
The Jo’burg Child Welfare focused on the proposed amendment to section 215 that seeks to include a social worker in the employ of the provincial department of Social Development, but was concerned that there is neither a specialisation nor accreditation requirement for social workers working for a state department. Section 152(3)(b) differed from what the Constitutional Courts directed the amendment to be, and it asserted that the Court’s original direction should be followed, affording the social worker time from referral to the next court day, to have the matter brought before court. The amendment to section 176 could have inequitable results as many children in alternative care had fallen behind in school, and when discussing extension of the foster child grant, reference should be made to secondary school rather than “grade 12”. It regarded the proposed amendment of section 186, which seeks to change the phrasing “foster care with” to “care of” as risky because supervision prior to the granting of an indefinite order was currently a prerequisite. There was a need to ensure stability in a placement, and if a child is found in need of care and protection, it meant that their current living arrangements were untenable.
Child Welfare South Africa welcomed the broadening of the definition of “adoption social worker” to include social workers in the employ of the State. There was a misconception that the annual number of adoptions finalised was due to the high fees charged for the process; instead, this organisation believed that the major stumbling blocks in adoption had not been related to finance but were due to the numerous administrative delays. Amendments of section 151 and 152 were supported and welcomed as there was a need to have a comprehensive and speedy review process of any child removed into temporary safe care. Amendment of section 171 was welcomed as it would now allow for children in care to be transferred from one placement to another after 18 years. It was felt that the amendment to section 176(2) now gave clarity on what was previously referred to as “education and training”, which was interpreted differently by different departmental officials. Child Welfare believed that that the Department of Social Development, with its limited resources, would have to partner with others, and these amendments and additional edits now suggested by civil society should clarify areas and ensure that the intention of the Act to protect children was more effective and efficient.
Mamelani Projects commented on the amendments to section 191(3)(e), and said use of the word ‘may’ limited the service provided, and the focus on ‘when leaving’ excluded the preparation aspect of “Transitional Support”. It fully supported the proposed amendments that permitted the extension of an alternative care placement to enable a young person to complete his or her education and training. Research done by the Department of Social Development had identified young people in alternative care as being at a higher risk of dropping out of school, being affected by low educational achievement and learning disabilities. Mamelani also suggests that minimum standards be introduced for the kinds of interventions that could guide Child and Youth Care Centres on what they needed to put in place, and to have necessary skills and resources for these interventions to be successful.
Centre for Child Law said Sections 151 & 152 must be read within the broader framework and context of Chapter 9 of the Children’s Act; this included the principle of keeping the child as stable as possible and recognising the importance of keeping the family together. The amendment of section 152(2)(d)(ii) should allow for the presence of the parent or caregiver, and being “reasonably possible” should be extended to the child. Section 152(3)(b)(i) was unclear as to when a social worker must place the matter before the court after a matter was referred to the social worker from police. Section 17C(2)(a)(ii) required an adoption service provider to submit proof that he or she conformed to the prescribed minimum requirements, although this was not in line with the specialisation required of current social workers providing adoption services. Amendments were recommended to sections 242 and 230.
The Southern African Catholic Bishop’s Conference welcomed the Bill, and the aim to make the adoption process easier and cheaper. There remained a profound disjunct between the rights and services promised to children in terms of the Children’s Act, and the number of social workers available to actually implement the Act. While the Department of Social Development has taken steps to train additional social workers, all newly graduated social workers require further supervision and in service training. It welcomed the extension of foster care placement beyond the age of majority in order for the child to pursue further education and training, but made suggestions for the proposed new section 176(3). The amendment of clause 6 allowed the courts to widen the exclusion from biannual assessments; this would both reduce the load on the Children’s Courts and allow social workers the opportunity to focus on more urgent matters.
The Committee agreed with the need to cater for those older than 18 who were still in education. Members asked why there seemed to be so few adoptions by black people, whether these amendments were likely to increase and encourage adoption, whether cost was a determining factor, what a reasonable fee would be and why some people did not go through legal adoptions when taking on a family member's child. They sought clarity on the legal processes, which organisation it was suggested should accredit provincial social workers, the role of the Department in adoption services, the notion of self-development and the support that women received after deciding to give up a child for adoption. They asked if there had been any research to show that children who lived with a family member were in a better position that those fostered.
Appointment of Acting Chairperson
Mr Llewellyn Brown, Acting Committee Secretary, said the Chairperson and other few members of the Committee would be joining the meeting later. The Chairperson was held up at the airport and some members were attending another Portfolio Committee public hearing.
Members nominated and elected Ms H Malgas (ANC) as the Acting Chairperson.
Ms S Kopane (DA) said that it was unacceptable that Members of the Portfolio Committee were late for meetings, and that it was an embarrassment that the guests had been kept waiting.
Mr S Mabilo (ANC) explained that some Members of the Committee served in more than one portfolio committee, and there were simultaneous public hearings today on environmental affairs matters which some Members also had to attend.
Children’s Second Amendment Bill [B14-2015] Public Hearings
Children’s Institute submissions
Ms Lucy Jamieson, Senior Researcher, Children’s Institute, said the Children’s Institute is a leader in child policy and advocacy in South Africa.
She noted that the Constitutional Court had declared sections 151 and 152 of the Children’s Act unconstitutional, so her first comment was that the proposed amendments for sections 151 and 152 should be made to align them with the Constitutional Court judgment, which allowed for a child’s right to participate, the right of the child’s family to be heard, and urged that delays should be avoided. The proposed amendment reads as follows:
“refer the matter before the end of the first court day after the day of removal of the child to a designated social worker, who must ensure that –
the matter is placed before the children’s court for review before the expiry of the next court day after placement of the child in temporary safe care”
The shortcoming of the Bill as it currently stood was that the proposed amendment sets a social worker’s deadline in relation to the placement of the child in temporary safe care; but the Constitutional Court had said the social worker’s deadline should be set in relation to the receipt of the referral. Therefore, Section 152(3)(b) should read as follows: “refer the matter before the end of the first court day after the day of removal of the child to a designated social worker, who must ensure that –
the matter is placed before the children’s court for review before the expiry of the next court day after the referral”
The proposed amendment to section 176 of the Children’s Act allows a child, or a young person, to remain in alternative care until he or she is 21 years old, whilst completing their education. Ms Jamieson recommended, in regard to the expansion of alternative care, that a young person should be permitted to stay in alternative care until they have developed the skills to live independently. A new definition of ‘Independent living programme’ should be inserted in section 1 reflecting section 191(3)(e)to support the proposed amendment of section 176 to allow children to remain in alternative care until they have been prepared to live independently.
According to the Bill, applications for remaining in alternative care need to be submitted before the end of the year in which the child turns 18 years, and late applications needed to be considered only if a good cause is shown for the late submission and if the application was sent within three months after the due date. She proposed that the provincial HSD should be able to accept late application sat any stage as long as the applicant shows good cause as to why his or her application was submitted late.
She then discussed the proposed amendment to section 186(1). The Bill proposes to delete the word ‘foster’. She explained that according to the proposed amendment a Children's Court could make a long-term foster care order and order that no further social worker supervision/reports are required. Sub-clauses (1) and (2) of section 186 are different and she asked if it was the intention to amend section 186(2) of the Children’s Act? The proposed amendment is for a long-term foster care placement with a non-family member without an investigation or court order, but the Institute recommended that the Committee should reject the proposed amendment to protect the children’s right to review and the “best interests of the child” principle. She also highlighted that the amendment to section 186(1) had not been gazetted in 2013.
The Acting-Chairperson asked the Department of Social Development (DSD or the Department) to clarify why section 186(1) was not published for public review, but was part of the amendments which were submitted to Parliament.
A representative of the DSD replied that the amendment to section 186(1) was indeed not part of the gazetted Bill in 2013. After the public had made their submissions to the Portfolio Committee, the Department saw fit to amend section 186.
Ms V Mogotsi (ANC) agreed with the proposed amendment to sections 151 and152, and the fact that the deadline for placements should be clear. She also said that that word ‘education’ must be broadened, because there were some children who were not able to take care of themselves by the age of 21; for some children in the rural areas they were still in high school and unable to take care of themselves. The country had a high number of high school drop outs. The school drop outs ware still not able to take care of themselves by the age of 21.
Ms Kopane asked if there was any evidence to show that children who were being cared for by family members were much better off than children who were under the guidance of a foster parent and asked the reason behind the difference in approaches.
Ms Jamieson replied that section 186 was not gazetted for comment in November 2013 so her amendment could not have been suggested after the public submission. However, the amendment was a major change and the Institute would have opposed it, had it been part of the Bill which was gazetted. Research had shown that non-orphans were better taken care of than orphans raised by a foster parent. The ultimate goal was to place children back in the care of a family member. The reason why the Constitutional Court said the deadline was unconstitutional was that this wording allowed for a child to be removed and still wait up to 90 days, or even longer, before a formal hearing, even where the child and the parent could clarify that there had been a mistake and the child should be returned into their care.
The new proposal in the draft Bill said the removal of a child from a family had to be reviewed as soon as possible; and there are two deadlines which are linked. First, whoever removes a child from their home has the duty to notify the court and a social worker, but the social worker would go to court with the child and the family, to examine whether or not the child should remain with the family or in alternative care until a full investigation is done. The social worker would require at least one day for preparing for the court day.
Jo’burg Child Welfare (JCW) submission
Ms Lowina Fourie, Child and Family Unit Manager, Jo'burg Child Welfare, said the current definition of “adoption social worker” includes a social worker in private practice who has a speciality in adoption services and is registered in terms of the Social Services Professions Act, as well as a social worker in the employ of a child protection organisation which is accredited in terms of section 251 of the Children’s Act. The proposed amendment seeks to include a social worker in the employ of the provincial department of Social Development. However, Joburg Child Welfare (JCW) was concerned that there is neither a specialisation nor accreditation requirement for social workers working for a state department. It is therefore submitted that divisions of departments of social development rendering adoption services should have to seek accreditation in terms of section 251. This would also require an amendment of section 251 so the wording would include “a division of the Department of Social Development or provincial department of social development with skills and experience in the field of adoption”. Since the Director General of the Department of Social Development accredited organisations in terms of section 251, it was submitted that, for the sake of transparency, that such accreditation process involving the Department should be overseen by an independent third party.
Section 152(3)(b) deals with instances in which the child concerned is removed by a police officer. The proposed amendment, however, differs from what the courts directed that the amendment should be. The distinction between the two creates the effect that a social worker has from the time the child is placed in temporary safe care until the next court day to ensure that the matter is brought to court. She submitted that this is inequitable as it may take some time for the child to be placed. She suggested that instead, the Court’s original direction should be followed, affording the social worker time from referral (not placement) to the next court day to have the matter brought before court. Within only 24 hours, many different prescribed documents are required by the courts if the matter is to proceed and at times it is not feasible to obtain all of these documents, resulting in matters being postponed. She submitted that it is clearly in the best interests of the child concerned that such matters be allowed to proceed even in the absence of prescribed forms or other documents, if they cannot be obtained.
The amendment to section 176 could have inequitable results, as many children in alternative care had fallen behind in school. When discussing extension of the foster child grant, reference is made to “secondary school” and Ms Fourie suggested that this was a more suitable choice of words and that references to ”grade 12” should be removed from this section and replaced by “secondary school”. Given the constitutional right of access to information and the right to just administrative action, it is submitted that the outcome of an application to remain in foster care should be communicated to the child concerned, within three months of the Department having made the application. Should the application be unsuccessful, the Act should state that the child concerned is entitled to reasons as to why this is the case.
The proposed amendment of section 186 seeks to change the phrasing “foster care with” to “care of”. This has the effect that if a child has been some kind of informal care arrangement with a person not related to them, a court order can be granted indefinitely until the child turns 18 years in respect of the foster care of this child, as opposed to the mandatory two years of foster care currently required for such an indefinite order to be granted. This is risky. She pointed out that supervision prior to the granting of an indefinite order is currently a prerequisite because of the need to ensure stability in a placement. If a child is found in need of care and protection, it means that their current living arrangements are untenable. There thus exists a good chance that the informal care setting is unstable. Children who are being cared for by people other than their families are prolifically vulnerable and often require the continuing intervention of a social worker. Should an indefinite order be granted, such services may not be available to such a child. On this basis, it is submitted that the proposed amendment could well be dangerous for children and that the section should be left as it currently stands.
Mr Mabilo asked what the motivation behind accrediting the specialisation process to a third party would be. He questioned whether a third party would have the capacity to carry the function out and why an indefinite order should be granted without supervision.
Ms D Raphuti (ANC) asked for further explanation on the call to amend section 251. She asked whether social workers were not trained to process , which third party it was suggested would be responsible for accrediting social workers.
Ms Kopane pointed out that children are often also abused by family members; therefore their family members are not always best suited as alternative care.
Ms Mogotsi said the effectiveness of the Social Workers’ Council should be assessed, rather than granting the accreditation process to a third party. She asked what caused the delays in forms of adoption being submitted late.
Mr N Paulsen (EFF) asked if the use of documents was still relevant, when processes could be done electronically. Adoption was not a new challenge for the Department and it was surprising that the question of specialisation had not been completed yet.
A representative from the Department of Social Development said the accreditation was offered to child welfare organisations and specialist social workers only.
Ms Fourie said that the reason for suggestion accreditation of the specialisation process to a third arty would be for objectivity. She added that there were not enough black people who were wanting to adopt and most of the children who were on their registers were black children.
Ms Kopane asked how the Department could implement the Bill when there was a shortage of 6 000 social workers in the country. She also wanted to know the cost implications of the new amendments.
The Acting Chairperson responded to Ms Kopane that there was only a shortage of 661 social workers, and not 6 000. She made it clear that the meeting was intended to hold public hearings only and no questions should be posed to the Department at this point.
Child Welfare South Africa (CWSA) submission
Ms Julie Todd, Head of Advocacy, Child Welfare South Africa, said her organisation welcomed the broadening of the definition of “adoption social worker” to include social workers in the employ of the State. She added that the low number of adoptions finalised has very little to do with the charging of fees, but more to do with systems and processes that did little to expedite and facilitate the adoption itself. There was a misconception that the annual number of adoptions finalised was due to the high fees charged for the process. In fact, Child Welfare had found that the major stumbling blocks in adoption had not been related to finance but were due to the numerous administrative delays experienced by social workers, which negatively impacted on an adoption. It should be pointed out that if child protection organisations accredited to do adoptions were paid for this service by the state, as specified in section 105 of the Children’s Act 38 of 2005, then these organisations would not need to charge a fee. Delays in adoptions were invariably caused by a delay in the issuing of a Form 39 by the Department’s officials, delays and costs in advertising and referrals from hospitals.
Having said that Child Welfare would support the inclusion of State Social Workers, it must however be done in a manner which ensures the specialisation required to practice in the sphere of adoption. The same accreditation and/or a minimum qualification must be required of State employed social workers who specialised in adoptions as were required for any social worker currently practising in this sector, so as to align with current requirements. She agreed that these accreditations needed to be independently made as the Department cannot accredit itself.
Amendments of section 151 and 152 were supported and welcomed as Child Welfare agreed that there was a need to a comprehensive and speedy review process of any child removed into temporary safe care.
The amendment of section 171 was welcomed as it would now allow for children in care to be transferred from one placement to another, after 18 years. This was sometimes necessitated due to a change in family circumstances. Currently a transfer of care is not possible which had negative consequences for the young person as the placement would be terminated and the young person would be left without any visible means of support.
The amendment of section 176(2)(a) is broadened to also allow for someone other than the child to request extension in alternative care, by the substitution in subsection (2) for the words preceding paragraph (a). This was also welcomed, as the burden and onus in making the application would no longer rest solely on the young person.
The amendment of section 176(2) was supported as clarity is now provided on what was previously referred to as “education and training”, which was interpreted differently by different departmental officials. It allowed for a young person to complete education beyond grade 12, whilst still remaining in care. A further extension to this proposed amendment was being submitted - namely that the words ‘internships and learnerships’ be added to follow the words “vocational training”. This would be a more appropriate and enabling option to help capacitate and empower these individuals for future independent living.
Mr PJ Cloete, National Executive Director, Child Welfare SA, said the Committee had been quoted as saying that more social workers were needed to implement the Children’s Amendment Act. The Committee Chairperson had been quoted as emphasising that the Portfolio Committee did not want a situation where the Bill could not be implemented because the Department of Social Development did not have enough resources, and had asked that the Department come back with a clear cost plan on how to implement the Bill.
CWSA believed that that the Department, with its limited resources, could not be expected to do this on its own. The Department and other organisations in civil society must be seen as positive partners who could assist with implementation. CWSA would therefore ask that the Department must place its bursary students at the 151 affiliates of welfare offices, and be paid by the Department while receiving top class training and exposure from those in the field. It would also ask that partnerships be built, and that the DSD must finalise and implement the Financial Awards Policy, and to do so consistently throughout the provinces. A further request was that it should standardise the subsidy allocation for Non-Profit Organisations (NPO) staff salaries. The negative result of non-standardisation was that CWSA and other NPOs have a high turnover of staff because as posts became available in government departments, their workers would leave to receive better salaries and benefits, which created an unstable work force which then impacted on service delivery.
CWSA felt that the proposed amendments, and the additional suggestions submitted by civil society representatives would clarify those areas of the current legislation and ensure that the intent of the Act to protect the children served was more effective and efficient.
Mr M Paulsen (EFF) asked if the administration costs covered the adoption costs, and whether these costs were regulated. He questioned whether the use of social media was not more suitable for advertising purposes instead of newspapers and suggested that the Department should also consider the use of social media. He urged that the Department should also be involved with helping NGOs with the adoption processes.
Ms Kopane said the Department should also be given the opportunity to address some of the issues which had been raised by the presenters. She asked for CWSA’s view on the notion that only whites and Indians were adopting orphans. She posed a question to the Department regarding a case where the former Minister of Social Development, Ms Edna Molewa, was taken to court by an organisation in 2013 in the Free State, asking what stage that case had reached.
Ms Raphuti asked what an adoption process costs, what the time frame for processing adoption documents was. She urged that both the Department and CWSA should work with the Department of Police. She added that a timeframe for processing adoption documents should be prescribed for NGOs and parents.
Ms Mogotsi said the Department should help the NGOs and NPOs with funding for advertising. She added that n her view, use of social media was not viable because people living in the rural areas did not have access to internet, and there were some people who did not have even have phones.
Ms Julie Todd, Director, Child Welfare, noted that the maximum fees for adoption were R36 000 and they were regulated by the Act. She made it clear that NGOs were not funded by the Department, but they were subsidised, and the fees for adoption were not generated for printing and advertising purposes.
Ms Caroline Mokhele, National Advocacy Committee, Child Welfare SA said NGOs were more accessible to people, hence the public preferred to work with them, rather than with the government. They also ran a more cost effective service than the Department. An honest and mutual partnership between the NGOs and government was needed, and this had to be transparent. As the present moment, the Department allocated money to NGOs and the NGOs were forced to comply with the terms of the Department.
Mamelani Projects submission
Ms Carly Tanur, Founding Director, Mamelani Projects, said that section 191(3)(e) of the current Act used the word ‘may’, and in her view this limited the service provided, and the focus on ‘when leaving’ excluded the preparation aspect of “Transitional Support”.
Mamelani Projects fully supported the proposed amendments that permitted the extension of an alternative care placement to enable a young person to complete his or her education and training.
Young people also needed support to manage the transition from the Child and Youth Care Centres. Prior to disengaging from alternative care, a young person should be exposed to a programme that developed the skills they would need to cope with in adult life. For this reason, her organisation proposed that a young person should be permitted to stay in care until such time as s/he had completed such a programme.
She recommended that section 176 of the principal Act be amended as follows:
‘(b) the continued stay in that care is necessary to enable that person to complete his or her grade 12, higher education, further education [or] and training or vocational training.’’; as well as learnerships and internships.
And by the addition of the following subsection:
(4) prior to leaving care a young person should participate in a transitional support programme that prepares and assists him or her with the transition from alternative care. In addition, after-care services should be provided that continue for at least 6 months after the young person has disengaged from that alternative care
Mr Gerald Jacobs, Programme Manager, Mamelani Projects, said research done by the Department of Social Development had identified young people in alternative care as being at a higher risk of dropping out of school, being affected by low educational achievement and learning disabilities, being challenged by limited social skills and additional emotional and behavioural difficulties. After having been cared for within an institutional setting, where all of their basic needs are met, it could be an extremely challenging adjustment for them when returning to an under-resourced community where they suddenly need to meet their own needs .
The outcome was that after years of stability in the care system, many found themselves facing the same challenges that forced them into alternative care in the first place. It was all too common that young people who had been identified as children in need of care by the state, were not adequately supported in their transition to adulthood. Mamelani suggested it should be the state’s responsibility to ensure that the resources that had been invested into children who had been identified as being in need of care and protection, should also be directed towards interventions that ensured that they were equipped and prepared. Mamelani also suggested that minimum standards be introduced for these kinds of interventions that could guide Child and Youth Care Centres in what they needed to put in place, along with the necessary skills and resources to be made available for these interventions to be successful. This would improve the long-term outcomes for this group.
Ms Mogotsi commented on the well-presented report, but she was worried that the six months period was too long. She noted that issues of capacity were important, and whether the Department would provide extra assistance to the young children that left alternative care.
Mr Paulsen commented that the presentation did speak to real life problems, but he was not sure whether the six month period taken to transition a child was not too short. He proposed that a longer period should be allowed, to help the children equip themselves with skills to take care of themselves.
The Chairperson clarified that the use of the word ‘may’ allowed for the Department to have full discretion as to whether it was still necessary to place a child in alternative care.
Mr Mabilo said the report was clear about the notion of self-development, and self-development was also good for education.
Mr Jacobs replied that the idea of independence created a challenge. It had been noted that after a child had left a youth centre s/he often needed more assistance. It was for this reason that the proposal was made for a longer period for self-development. He suggested that building support networks and making resources available would be an opportunity to sustain themselves – the way that young people were supported through their transition was also important.
Centre for Child Law (CCL) submission
Ms Zita Hansungule, Project Co-ordinator, Centre for Child Law, said sections 151 & 152 must be read within the broader framework and context of Chapter 9 of the Children’s Act; this included the principle of keeping the child as stable as possible and recognising the importance of keeping the family together. The CCL supported the new section 151(2A), but suggested that the provision in 151(2A)(b) should be extended, to include children. Section 152(2) states that it was the obligation of the social worker to ensure the matter was brought to the attention of the Children’s Court and Department. CCL submitted that the phrase ‘the removal and’ should be included before “placement“, as the matter is placed before the children’s court for review before the expiry of the next court day after the removal and placement of the child in temporary safe care.
The amendment of section 152(2)(d)(ii) should allow that the presence of the parent or caregiver, wherever reasonably possible, should be extended to the child. The amended section 152(3) ensures that police officer refers a removal to the social worker before end of the next court day following day of removal and regulates the process a social worker must follow after receiving police referral.
The CCL submitted that section 152(3)(b)(i) was unclear and would create confusion in respect of when exactly the social worker must place the matter before the court . The words “next court day after placement of the child” makes it seem as if the social worker must ensure the matter was reviewed by a court on the same day that it was referred to the social worker from police. It also seemed as if the intention was that police would not place a child in temporary safe care and that this would be done by social worker on referral. The child may not be kept at police station, and should be taken to a “place of safety” by the police. Amendments to sections 152(3)(b)(i) must be made, as a social worker must ensure ‘removal and placement’ is reviewed by a court before the end of the next court day following the day of referral from police to social worker.
Adoption has been designated as a speciality that has to be registered with the Council in terms of section 17C of the Social Service Professions Act. Section 17C(2)(a)(ii) requires an adoption service provider to submit proof that he or she conforms to the prescribed minimum requirements, while CPOs and private social workers who provide adoption services are required to have a specialisation qualification registered with the Social Services Professions Council before they can get accreditation in terms of section 251 of the Children’s Act.
The amendment of the definition of ‘adoption social worker’ argues that there will be increased access to adoption services. CCL expressed the hope that this would be free, as many considered adoption services extremely expensive, especially where private social workers were used. Specialisation that protects the child and ensured successful adoptions ensured that there was a lesser risk of breakdown of the adoption.
The CCL recommended that the following sections should be worded as follows, as to remove confusion:
Section 230 – Adoptable child should be amended in (f) to read: “the child is the stepchild of the person intending to adopt”
Section 242 – Effect of adoption order should read: “(2)(e) does not automatically terminate al parental responsibilities and rights of the parent of a child, when an adoption order is granted in favour of the spouse or permanent domestic life-partner of that parent”
Section 230 – Adoptable child – to read “(g) the child’s parent or guardian has consented to the adoption in accordance with section 233, unless consent is not required in terms of section 236”
Ms Mogotsi asked if there were suggestions for who is going to accredit the speciality of adoption. She also wanted to know what accredited a social worker speciality, and whether there were modules taken at university. She asked if the CCL felt that the adoption process in South Africa was done properly.
Mr Paulsen asked if the need for specialisation was due to the lack of skills in social workers not knowing how to carry the process out. He wondered if the cost of adoptions did deter black people from adopting?
Ms Hansungule said that the next speaker would be speaking to most of the questions which had been asked by the Committee.
National Adoption Coalition of South Africa (NACSA) submission
Ms Rene Ferreira, Adoption Social Worker, Department of Social Development, said that the Children’s Act 38 of 2005 and Social Services Professions Act had all acknowledged adoption as an area of speciality. Adoption is an “ethical minefield of complexities” which affects and alters the destiny and future life of all parties involved; the child, the mother who gives her baby up for adoption and the new family who is adopting the child. There are a number of complex ethical issues; the rights of the birth mother are terminated, the adopting family has to pay a heavy fee to adopt the child and the child is often faced with challenges of difference in culture. The Act should represent the rights of all three parties, focusing on the best interest of the child.
The current state of adoptions in South Africa is that there has been a decline in the number of registered adoptions; a 50% decline since 2004, an increase in abandonment and pregnancy, there is not enough accessibility of adoption services in the rural areas and the speciality requirement and fees become a burden to families and social workers. There had been poor collaborations between the Departments of Justice, Home Affairs and Health, a lack of trained adoption social workers and limited resources.
The hope of government, in the planned amendment to the Children's Act, is to simplify the complicated and lengthy adoption process in South Africa. However, the part of the process that it was trying to fix was in fact not broken, and there is no evidence that this amendment will fix those parts of the process that are. No one disagreed that more social workers are needed for adoptions, but it was clear that South Africa could not afford to further compromise on the standard of adoption. The NACSA aims to be part of the solution for adoption in South Africa, and therefore was in full support of the amendment to the definition of “adoption social worker” to ensure accessibility of adoption services, but was not of the opinion that a new category of service providers without the necessary accreditation (section 251), expertise and monitoring was the only solution.
NACSA had consulted extensively with various adoption stakeholders, and respectfully wished to make the recommendations for an addition to the definition of “adoption social worker” as proposed, and an additional amendment of Section 251 to address independent accreditation of specific adoption units within the department. NACSA was in support of this principle, and within the context of existing structures providing some safeguard within the DSD and organisations, it could be reasoned that these two categories of adoption service providers should not be required to meet the very stringent requirement for speciality as set by the Social Services Professions Act.
The Chairperson said there were adoptions within communities where family members ‘adopted’ their relatives’ children, and these ‘adoptions’ did not go through the legal approach. She added that adoption was an idea of Ubuntu.
Mr Paulsen asked what kind of support the NACSA offered to women who decided to give their children up for adoption. The Department had heard that 3.5 million orphans were without families and wondered how DSD planned to decrease this.
Ms Kopane asked what was meant by the reference to the prescribed fees (Reg 107), and why black people were not coming forward to legally adopt their relatives’ children if they were caring for them.
Ms Ferreira replied that the birth mother would be assisted with counselling so that she could make an informed decision whether she still would like the child to be adopted. There was also a therapeutic process for the birth mother to find out how the child is doing, so that the mother could have closure. The number of 3.5 million children mentioned at the beginning of the presentation did not only refer to the number of orphans but rather the number of children who were vulnerable. There were a number of questions which came up from black parents when they wanted to adopt, and the common one was the question of whether culture would be a problem and whether the ancestors would accept the child. She added that she believed that children should be taken care of by their extended family members. The only place in the Act where fees were discussed was in regulation 107 and the question was what would the reasonable fees be to ask, according to activities that had to be undertaken. The challenge was that there were not any clear guidelines, so people ended up having different interpretations of the guidelines.
Southern African Catholic Bishop’s Conference (SACBC) submission
Ms Lois Law, Researcher, SACBC said the Conference welcomed the Bill, especially those aspects which aimed to make the adoption process easier and cheaper. However, it had a few reservations. The proposed inclusion of public sector social workers as adoption social workers in clause 1(a) was welcomed, as it ought to address the high cost of private adoptions, which had previously made it very difficult for those without financial resources to adopt. However, it did have concerns regarding the expansion of the definition of an ‘adoption social worker’ to include government social workers who did not necessarily have any specialised training in this field.
There was no provision for an adoption grant. This discouraged potential adoptive parents who did not have the financial resources to adopt an infant. Others may choose to remain foster parents, since the Foster-Care Grant was higher than the Child Support Grant. This could result in long delays in the alternative, permanent placement of children in need of care and protection, and thus compromised the ‘best interests of the child’. There remained a profound disjunct between the rights and services promised to children in terms of the Children’s Act, and the number of social workers available to actually implement the Act and provide the necessary services. While the Department of Social Development had taken steps to train additional social workers, all newly graduated social workers required further supervision and in service training.
The Conference noted the attempt made, in clause 2, to tighten up the procedure to be followed when a child had to be removed to temporary safe care. The provision requiring the interim order to be placed on the court roll for review within 24 hours was well-intended, but it may be difficult to achieve in practice. The proposal that the child concerned, as well as the relevant parent, guardian or care-giver must be present at such a review was welcome. However, it was vital that despite the need for such matters to be speedily settled, sufficient time would be allowed for an accurate assessment of the situation, which may include getting expert opinion; medical reports; and consultation with other family members and educators. All of this could take some time to obtain.
The Conference also welcomed the extension of foster care placement beyond the age of majority in order for the child to pursue further education and training. However, it suggested that the proposed new section 176(3) should end with the words ‘upon good cause shown’, and suggested that the stipulation that the condonation application must be submitted within three months of the end of the year in which the child turned 18 should be omitted. The amendment of clause 6 would allow the courts to widen the exclusion from biannual assessments and renewal of the foster care order to include children living with prospective foster parents. This would both reduce the load on the Children’s Courts and allow social workers the opportunity to focus on more urgent matters.
The Committee did not ask any questions as the documents were submitted late and hence did not have enough time to read the comments.
The meeting was adjourned.
- National Adoption Coalition presentation
- Jo’burg Child Welfare presentation
- Child Welfare South Africa presentation
- Centre for Child Law presentation
- Children’s Institute presentation
- Mamelani Projects presentation
- Mamelani Projects submission
- Southern African Catholic Bishop’s Conference – Parliamentary Liaison Office