Children’s Amendment Bill [B13-2015]; Children’s Second Amendment Bill [B14-2015]: Department response to public hearings

Meeting report

Apologies were received from the Minister and Deputy Minister. There were only four MPs in attendance as there were many apologies due to illness and personal matters. The Chairperson therefore stated that the presentation from the Department of Social Development would be received but decisions would only be taken at the next meeting when more MPs would be present.

Department of Social Development’s proposed amendments in response to the public hearings
Mr Siyabonga Shozi, Director of Legal Services: Department of Social Development (DSD), said the purpose of the presentation was to brief the Committee on the Department’s response to the various proposals made during public hearings on the Children’s Amendment Bills B13-2015 and B14-2015, which had been held on 2, 4 and 23 September 2015. The Department had since prepared a matrix of responses to all individual submissions submitted to the Portfolio Committee. The focus of the presentation was to highlight the critical issues flagged by DSD from the various proposals made through the submissions.

The first critical issue discussed during the public hearings was the definition of ‘sexual offences’. The definition did not take into consideration sexual offences that were in place prior to the promulgation of the Sexual Offences Act 2007, nor did it refer to sexual offences as provided for in the Sexual Offences Act, 1957. It was important to align the definition with the provisions of these Acts in order to cater for offences (like rape) that were committed prior to the promulgation of the Acts but could still be covered by the two Acts. DSD therefore suggested that the Committee should consider an expanded definition of ‘sexual offences’ that would cover both common law offences and offences under the 1957 Act (see document).

The second critical issue raised by many organizations was in relation to clause 2 of the amendment to Section 120 of the Bill that focused on the inclusion of offenders in the National Sex Offenders Register. The clause did not properly align to Section 50 of the Sexual Offences Act, mainly because at the time the Children’s Amendment Bill was introduced, the Sexual Offences Bill was still in the process of being passed. DSD therefore proposed to the Committee to properly align the clause with section 50 of the Sexual Offences Act, as it would be a beneficial step to take for both pieces of legislation. Section 50 of the Sexual Offences Act required that a person who was a child at the commission of the offence could only be included in the register on application by the prosecutor. The court would only be able to make an order after considering a report by the probation officer. An opportunity would also be given to the child to address the court. The language used in the section was very important as it referred to ‘addressing the court’ rather than ‘making a legal representation’. The Portfolio Committee on Justice had advised that making a legal representation would involve a lot more formal process than addressing the court. It was therefore necessary to follow the suggested formulation. The section also provided that the court would make an order for the child to be included in the register if compelling reasons exist that would justify making such an order. Overall, section 50 shifted the onus from the child to the prosecutor and the inclusion of the child into the register would no longer be automatic, but on the request of the prosecutor, which was a progressive innovation introduced by the section.

In reacting to the issues already raised, the Chairperson noted that there was no department could come up with an enabling Act or policy without the participation of other departments. As the rights of children were specifically within DSD’s mandate, the Committee had a duty to ensure that laws to protect these rights were put in place, were strictly adhered to, and the effects of such laws on the children were carefully considered. The Committee also had to invite other departments’ input that could contribute to fulfilling this mandate, where necessary.

Mr Shozi continued by noting that two persuasive proposals had been made to the amendment to section 120 on the addition of offences already listed in section 120(4), based on the concern that there were serious crimes committed that children were still vulnerable to. These were offences in terms of the Prevention and Combating of Trafficking in Persons Act, as well as offences in terms of the Films and Publications Act. DSD had no objection to adding the offences, and therefore suggested that the Committee should consider the addition of these offences as proposed.

Concerns had also been raised about the relevance of the National Child Protection Register (NCPR), in the light of overlaps with the National Register of Sexual Offenders (NRSO). It was submitted in the hearings that the registers should be done away with and the use of information from criminal records should be adopted instead. The Department did not believe this proposal would be a good option to adopt, despite the problem of duplication. The proposal did not take into consideration that the ambit of the Children’s Act surpassed criminal convictions only. There were other tribunals and forums empowered to determine the suitability of people who could work with children or not. Sourcing the information from the Police would limit the ambit and the reach of the Children’s Act. In terms of other possible amendments to section 120, some organisations queried the propriety of the Department to empower other forums other than the criminal court to make findings on child offenders and decisions on whether to include children in the register. The Department reflected on this observation and agreed that that children would only be included in the register once found guilty of serious offences, and such offences would be tried through the criminal justice route. As far as forums and disciplinary hearings were concerned, the Department would need to reconsider the option to empower such forums to include children in the register.

There had also been an amendment to section 122(1) of the Bill, as a new paragraph had been inserted to make provision for registrars of the courts concerned to forward particulars of persons convicted, as contemplated in section 120(4A), to ensure their inclusion in the register.

The Department said it was not deemed necessary to amend section 121, as the appeal procedure would cater for findings made in terms of section 120(1), and not section 120(4A). Mr Shozi said that a person deemed unsuitable to work with children in terms of section 120(4A) would have to appeal against the conviction itself if they so wished, and the outcome of such an appeal would determine whether the deeming remained or not.

In section 150 concerns were raised by NGOs about the word “ostensibly,” which was considered vague and more confusing that the word that was previously used in the section. They also questioned the desirability of the amendment. Many organisations had raised various legitimate issues about the foster care system, most of which required policy reconsideration and formulation. Organisations raised various issues legitimate issues about the foster care system most of which require policy reconsideration and formulation. The Department said it is currently addressing issues on foster care outside of these amendments. The Department proposed the removal of the word “ostensibly” The Department pointed out that courts previously interpreted the section differently, until a Gauteng high court presiding over a matter prescribed the appropriate wording that should be followed in defining children in need of care and protection. The court proposed the following wording: “a child will constitute being in need of care and protection if such a child has been abandoned or orphaned and does not have the ability to support him or herself…” After several deliberations and processes, it was suggested that the word ‘ostensibly’ should be used. On the second issue, most of the organisations submitted that the amendment was not desirable. A number of points were raised by these organisations for the Department’s consideration. However, the Department pointed out that the rationale behind the amendment was to clarify the interpretation of the clause, rather than introducing new clauses.

The first concern raised in the Second Amendment Bill (B14-2015) was the definition of ‘adoption social worker’ in clause 1. The organisations were of the view that the definition gave the impression that DSD would permit all social workers working within the Department to handle adoptions, regardless of their experiences, skills and trainings. DSD therefore proposed an expansion of the definition to include a provision that the adoption social worker must be one that had a specialty in adoption services and was registered in terms of the social service profession Act.

With regard to the proposal on accreditation, it was noted that the Department was yet to reach a consensus on the necessary requirements for accreditation.

In terms of clause 3 that addressed the issue of ‘removal without court order’, it was noted that the clause currently required a designated social worker to take a matter of a child removal by a police official to the court for review before the end of the first court day after the child was placed in temporary safe care. The Department did not foresee the consequence of that clause, as it could mean that the social worker would only have one day to refer the matter to court. The correct phrasing of that clause should be for the social worker to take the matter to court on the first court day ‘after’ the referral by the police official, rather than on the day of the referral.

The last critical issue raised was for the Department to consider the inclusion of learnerships and internships as forms of training that would justify leaving a person to remain in an alternative care beyond the age of 18 years. The Department suggested to the Committee to consider the the inclusion of the said proposal in the amendment to section 1. As regards the Children’s Second Amendment Bill [B14-2015], an extension had been made to the definition of “adoption social worker” in the employ of the state to enable them to get accreditation, in terms of section 251, to provide adoption services, to have a specialty in adoption services, and to be registered in terms of the Social Service Professions Act, No 10 of 1978. There was a change to Clause 3 amending section 152 which addressed the removal of a child without a court order. There was also a proposed change to Clause 5 amending section 176 in order to include learnerships and internships as other forms of training which would justify allowing a person to remain in alternative care beyond the age of 18 years, as they were omitted from the current proposal.

Discussion
Ms L van der Merwe (IFP) proposed that Members should only ask clarifying questions, but not take decisions since there was no quorum.

The Chairperson supported this, saying that the Members present could not make binding decisions on behalf of other Members.

Ms Van Der Merwe asked how the alignment of the registers would be facilitated and the control measures in place to ensure offenders were checked against the registers.

Ms B Masango (DA) enquired about the feasibility of harmonising laws relating to children, rather than relying on the Amendment Bills, referring to other laws or incorporating the provision of some other legislation in some instances.

Ms V Mogotsi (ANC) commended the expansion of the definition of “sexual offence” by the Department. She suggested a committee meeting with the Justice cluster to assist the Committee in making informed decisions on the Bill. She sought clarity on the alignment of the main issues of the Bill as regards “clause 2,” as well as an explanation on what forum was being referred to in terms of section 120. She also suggested that simple words which were easily understood by the public should be used in bills.

The Chairperson said that a meeting with the Justice cluster would be impossible until a collective decision had been taken by all Committee Members.

Ms van der Merwe said that the word “ostensibly,” as used in the Bill, appeared to be vague and subject to different interpretations and as a result, loopholes might be created in the system.

The Chairperson said that legal advisers within Parliament were expected to help the Department effect enabling legislation, which was the prime objective of Parliament.

Ms Connie Nxumalo, DDG for Welfare Services, DSD, said that in terms of registers and overlaps, the process was still between the two Ministers, and a progress report could be presented if the Committee deemed it fit. The Department had made proposals on how sexual offences committed against children would be managed and a team had been put in place to handle those issues. Mention was made of children with disabilities. The Department was awaiting political response to the proposals that had been made and an endorsement by the Ministers before making a decision on how to implement the option they choose.

As regards the harmonisation of legislation affecting children, she said that the Children’s Act was the principal Act that dealt with issues relating to children, while the other legislation only supported the Children’s Act in various provisions. The Children’s Act was also very clear about the need for organisations, departments or companies that dealt with children to check the register before appointing any staff. The penalty for not checking before appointing a staff member against the register was the main issue that should be looked into. Currently, organisations were left to determine whether or not to comply with this requirement. The Department had to give clarity that appointed staff members were expected to be checked against the register. DSD was currently find ways to stiffen the laws on this.

Ms Van der Merwe expressed her satisfaction with the DDG’s response. South Africa had good laws, but enforcement had always been a major challenge. She asked why many social workers were employed without being checked in the register and why there appeared to be no penalties or consequences for non-compliance of employers who did not check employees against the register.

The DDG clarified that penalties were in the current legislation, but they required prompt and effective enforcement.

The Chairperson said that Committee Members needed to amend their oversight priorities in order to be proactive in their approach to dealing with issues brought to their attention.

Mr Shozi said that it was possible to harmonise the laws. The South African Law Reform Commission was currently handling a huge project that would review the entire statute book for state, and the Department was currently consulting with them because the relevance of the legislation relating to social development was under consideration.

In response to Ms Mogotsi’s inquiry, he explained that the forum could be any forum which possessed a legal standing. He said that the word “ostensibly” would be substituted with the wording proposed by the high court, as the word “ostensibly” created more problems than solutions.

The Chairperson inquired about the final proposal for “ostensibly”

Mr Shozi said the Committee should consider deleting the word “ostensibly” in the Bill.

Mr Nathi Mjenxane, Parliamentary Legal Adviser, said the harmonisation of laws was a constitutional principle in terms of chapter 3 of the Constitution, and was regarded as the only means of optimising the efficiency of legislation. He confirmed that it had become standard practice to use simple and unambiguous language that could be easily and better understood, and interpreted by the people it was meant to affect.

The Chairperson said that the Committee would consider the inputs from discussion with legal advisers as regards the interpretation of the Bill.

Ms N Sonti (EFF) sought clarity on the checking of employees against registers.

The Chairperson replied that employers should check the registers when employing staff, and there should be strict penalties for non-complying employers.

Ms Mogotsi noted that most of the organisations were concerned about the capacity of the specialised social workers to handle adoption cases. Requesting specialised social workers for adoption purposes only would send the wrong message about government. She wanted to know what body or organisation was responsible for the accreditation process, especially since the accreditation process had to align with the mandate of other relevant disciplinary or regulatory bodies and the Council.

The Chairperson agreed with Ms Mogotsi and suggested that the accreditation process for adoption should be exempted from being a private matter done by private persons or non-governmental organisations (NGOs), since it would become very expensive and not affordable for those who would like to be part of the adoption process. The Department had proposed that the social workers that were already registered with their council should undergo additional training for accreditation, and also to be able to manage adoptions. The issue of adoption was critical for DSD to consider, especially since the Department relied on NGOs. In essence, the laws in place were being relayed through the perspectives of the NGOs. It was therefore important to consider what the original provision of the law was on the adoption process and what it entailed. Although the Bill will be passed, the Portfolio Committee would still need to consider the issue of adoption more critically, especially because it had become so easy to put up children for adoption and it seemed that “there were many children waiting to be bought”. It was suggested that the professional body in charge of accreditation of social workers should be invited to the Committee to make a presentation that would clarify all the pending issues around qualification of social workers.

The issue of curriculum development of social workers was also critical to consider, as it could not be excluded from the participation of the public, especially since the curriculum was important for shaping the social workers. Curriculum development required the involvement of the community, even at the stages of early childhood development.

She suggested that the sector education training authority (SETA) and other organizations responsible for training social workers had to be invited to the Committee to clarify the issues already raised. It had been discovered that most of the social workers trained by the SETA were on learnerships. She sought clarity on the Sector Education Training Authority (SETA) responsible for the training of social workers.

Ms Mogotsi said that there was no SETA responsible for the training of social workers.

Ms Van der Merwe supported the Chairperson’s proposal on the need for the Committee to engage the council about social workers as the issue was very complex.

The Chairperson mentioned that the Department needed to engage on the inputs and resolutions from the social workers’ indaba which had been held in Kwazulu-Natal, as well as from professional bodies.

The DDG said that many organisations had raised the fact that if government social workers were to handle adoptions, they would also be required to go through the relevant training and accreditation process, and the sector could not afford to handle all these. This led to further engagements with the Council, who also opined that accreditation of government social workers by the Department would result in an expensive process requiring the services of an outside body to conduct such accreditations. Many social workers performed generic functions and the Department then agreed on conducting further training that would augment the skills of the social workers without necessarily going through a different accreditation process. Areas of specialisation had been proposed as part of the training to be given to these social workers. Adoption and substance abuse would also form part of these areas of specialisation that would be introduced.

It was also indicated that social workers were trained by only 16 universities in the country. No other organisation was involved in their training. The Department was however willing to give details of any association that the Committee would like to invite (including the Council) to deliberate on the training and curriculum used for social workers, where the need arose. The Department would be willing to present on their readiness plan to implement the adoption amendment and the other amendments in the Bill to the Committee on another day.

The Chairperson noted that the Committee was mostly involved in traditional rural work but because of the dynamism of the society, more attention had to be paid to external organisations and stakeholders involved in “carrying out the duties” of the Committee. It was also important to take note if these organisations complied with the norms and values of the Committee. The curriculum development level should be interrogated. There was also a need to engage universities responsible for the training of the social workers, and also to expose the marginalised groups whose views had been sidelined in the past. The curriculum development of social workers should be directly influenced by the culture of the relevant communities. The Committee would continue to engage the Department in clarifying issues of curriculum development and training until it was fully capacitated to make a final decision on the matter.

Ms Van der Merwe sought clarity on why there were varying payments or fees for adoptions. She raised the point that the submissions mostly said the delays in the adoption process were caused more by the red tape and untimely issuing of documents by DSD and less by the fees.

Ms Mogotsi said that the Bill had highlighted the need for the Committee to deal with adoption. She felt the Committee needed a day just to discuss adoption matters. She expressed her satisfaction with the removal of children without a court order. She asked about the time frame for the process to address the broader reform of the kinship care and foster care system, as highlighted in the Departmental input about the consolidated inputs. She noted that government was doing well with all the grants but not the foster child grant. There were 1 million orphans not getting the grant.

The Chairperson noted that NGOs were allowed to make contributions to the amendment process but most of them did not speak to the specific clauses that required amendments. For instance, the young people’s forum was more worried about the existence or non-existence of a number of registers, which was not the key focus. The focus was on the inclusion of offenders in the register. The issue raised by the Department involved a ministerial advisory committee or task team conducting investigations on how the foster care programme was being managed, and then submitting a temporary report to the Minister. The details of the report would provide insight, grant the Committee an opportunity to review the foster care system and decide on whether or not the system was the preferred one. A case was raised by the Minister at the last engagement of the Committee with the Minister on a mother who fostered a number of children but after her death, her husband had sexual relations with one of the children who was 16 years old, and attempted to make her his wife. Investigations revealed that the child’s refusal to the demands of the man resulted in severe beatings that left blisters on her body. It was agreed that more investigations still had to be done on the case and proper steps had to be put in place to protect children who were being fostered. Although this matter was not directly in line with the current discussions on adoption, it was still necessary to consider the viability of the foster care system at another meeting.

Ms Van der Merwe agreed with Ms Mogotsi’s comments that the broader kinship care reform process was relevant to the Amendment bill. She asked why the Department wanted to amend section 150(1)(a) now instead of waiting for the Third Amendment Bill.

The Chairperson recommended that vital questions should be brought into the discussions of the Committee, as the questions currently being asked were merely for the sake of clarity, and no decisions could be made without a quorum. The Committee’s role was to state its understanding of the responses given by the Department and also urge the Department to include the issues raised by the Committee in the amendments under consideration.

The DDG indicated that the decision of the Committee on whether to amend section 150 or not was immaterial to the Department. Through the amendment to s150(1)(a), the Department was trying to clarify what the judgment means. With regards to the broader policy debate on foster care reforms, she clarified that DSD would be coming back to the Committee with a Third Amendment Bill. The Minister had appointed a ministerial committee that was currently investigating the management of the foster care system in the country. That committee was to produce a full report by the end of March 2016 that would highlight policy positions or proposals on how to improve the foster care system, address social workers, and other matters that would make the system more efficient in totality. During the hearings there were calls from civil society for a kinship grant – yes we heard those. What we are saying by the amendment is let us accommodate the foster care grant for now DSD indicated that some of the research work highlighted in the submissions were ones the department had commissioned after acknowledging that there were problems within the foster care system. Amendments would be made to the legislation and also the social assistance legislation, as there was no way a new grant could be introduced without amending the latter. A policy that would inform the amendments would be needed, as Cabinet needed a policy in order to approve these amendments. It was for this reason that the entire foster care system was not raised, since a policy would be needed for the amendment of the legislation.

She agreed that adoption was expensive and there were delays in the screening process. This was linked to the refusal of courts to hear a case without receiving a document from the Department stating that the prospective adoptive parent had been registered. However, the delays did not constitute a general problem. The Department was responsible for reviewing the adoption fees every year. It was also considering the accessibility of adoption to all in the forthcoming Third Amendment Bill.  The process of making adoption accessible and affordable had prompted the idea of equipping government social workers to facilitate the adoption process. Government social workers would be empowered to handle adoptions, rather than employing organisations. The Third Amendment Bill would address accessibility and fees for adoption.

The Chairperson noted that there seemed to be an element of opportunity on the part of organisations tasked by the Department to make presentations. She expressed worry about the organisations that believed they could influence the Department in engaging with the Committee on important issues, as though the Department was not within the jurisdiction of the Committee. The Department was part of the South African government and together with the Committee, was saddled with responsibility of representing the public interest. The questions raised by the Committee were to ensure that the Act to be passed was one that could protect the interest of the people. The supporters of the Department had to realize that the Committee was only making sure that no stone was left unturned. There seemed to be a battle of ideas, but it should be noted that some ideas had been suppressed over the years, ideas that comprised of norms and values that were never heard in the functions of power. The Committee could not therefore allow the Department to drift with the popular opinions of people, while neglecting the disadvantaged categories of people. Laws would be reviewed where necessary, and consideration would be given to the marginalised groups of people. The process had therefore allowed various stakeholders to bring forth relevant information. It was however important to consider which organisations and stakeholders were involved in this participation, in order to avoid a situation where the system of government favoured only technocrats who were not informed by political inputs that considered the interest of the people. It was for this reason that the Committee decided to interrogate the inputs provided by the Department. The responses from the Department revealed that the entire process was academic as it involved professors in the various universities, and did not consider the voice of the rural people. The Committee would include the clauses that were necessary and delete unnecessary clauses in the amendment.

The meeting was adjourned.

[Apologies: Ms Tsoleli, and Ms Malgas (due to illnesses); Mr Mabilo (bereavement); Ms Wilson and Ms Mogotsi (were attending another committee).]