The Department of Social Development and six of the nine provinces briefed the Committee about progress in meeting the court order deadline of 28 November 2019 to ensure foster care orders for thousands of in children in foster care who received foster care grants, do not lapse. This matter had been running since 2011 and had been extended in 2014 and 2017 by the North Gauteng High Court because the backlog had not been eradicated. The court ordered the Department to extend the foster care orders administratively. Due to the Department not making progress in eradicating the backlog, an order agreement between the Department and the Centre for Child Law which was the plaintiff, provided an interim regime for management of foster care orders which was due to lapse on 28 November 2019.
The 2017 Court Order found that the delays by DSD in amending legislation to find solutions and for putting in place mechanisms, structures and resources to ensure that the foster care system operates effectively were unconstitutional, unlawful and invalid. DSD was to provide for an interim regime for the continued payment and management of over 200 000 foster care orders that were due to lapse. DSD was also directed, within 15 months of this order, to prepare and introduce before Parliament the necessary amendments to the Children’s Act and the Social Assistance Act to produce a comprehensive legal solution for the foster care system. Any foster care order which lapsed was deemed to be validly in place for 24 months. This court order lapses on 28 November 2019.
In its progress report, the Department said it had submitted the Social Assistance Bill to Parliament on 16 March 2018 and the Children's Amendment Bill on 19 February 2019. However, Parliament had not deliberated on these Bills as the Fifth Parliament rose in mid March 2019 for elections. Provincial departments have been encouraged to implement the interim regime that deems that all the affected foster care orders are valid. It listed many challenges. The Department is faced with a shortage of social workers and social work supervisors. The inadequate budget also met lack of budget allocation for NGO partnerships, there was a lack of an integrated information management system; provincial autonomy meant implementation is done differently; there had been varying interpretations of the legislation by magistrates; social work administration and case management processes were not standardised across the provinces; lack of inter-department collaboration; and inconsistent high-level application of the oversight function across provinces. The Occupational Specific Dispensation impacts the appointment of social worker supervisors as it requires qualified social workers to have at least 10 years' working experience. It noted some of the interventions it had done such as convert the social work scholarship fund into 566 social work positions for three years from 2017.
The reports from the provincial MECs for Social Development did not provide confidence that the provinces would meet the court order deadline.
The Committee doubted the deadline would be met as the provincial departments did not appear to have the capacity, especially with the current budget cuts. The Deputy Minister agreed that the Department would submit monthly reports on the progress made in the eradication of the backlog starting in two weeks' time.
The Chairperson welcomed the Members of the Executive Council (MECs) of the Provincial Departments of Social Development from and Deputy Minister of Social Development, Ms Hendrietta Bogopane-Zulu. Apologies were noted from Gauteng MEC, Ms Thuliswa Nkabinde-Khawe, and Western Cape MEC, Ms Sharna Fernandez.
Department of Social Development
Ms Hendrietta Bogopane-Zulu, Deputy Minister of Social Development, said DSD will brief the Committee on progress, challenges and future plans on the implementation of the North Gauteng High Court order to address bottlenecks in the foster care system and the foster care backlog in particular.
Ms Connie Nxumalo, Deputy Director-General: Welfare Services: DSD, said foster care is a statutory intervention programme that is legislated in the Children’s Act for implementation by the provinces. The foster care system targets children who are found to be in need of care and protection by the Children’s Courts, placing them in the care of a foster care scheme, unrelated person or a family member other than their biological parents.
Background to the North Gauteng High Court Order
In 2010 the South African Social Security Agency (SASSA) submitted a national list of 299 076 foster children with lapsed foster care orders who received foster child grants. This resulted in the Centre for Child Law taking the Minister to court to find legal solutions to the overburdened foster care system. A court order was issued by the North Gauteng High Court in 2011 instructing the Department to extend the foster care orders administratively until 31 December 2014. This was extended until 31 December 2017 since the backlog of lapsed orders was not completed. However, in 2017, some provinces were not in a position to eradicate the backlog and revert back to the provisions of the Children’s Act.
North Gauteng High Court Order, 2017
In November 2017, the North Gauteng High Court found that the delays by DSD in amending legislation to find solutions and for putting in place mechanisms, structures and resources to ensure that the foster care system operates effectively are unconstitutional, unlawful and invalid. It granted a court order by agreement between Centre for Child Law and the Department that provided for an interim regime for the continued payment and management of over 200 000 foster care orders that were due to lapse. DSD was also directed, within 15 months of this order, to prepare and introduce before Parliament the necessary amendments to the Children’s Act, 2005, and/or the Social Assistance Act, 2014, to produce a comprehensive legal solution for the foster care system. Any foster care order which lapsed was deemed to be validly in place for 24 months. This court order lapses on 28 November 2019.
Progress in Implementing the High Court Order
In complying with the court order which expects DSD to provide a comprehensive legal solution to the foster care system, DSD submitted the Social Assistance Bill, 2018 to Parliament on 16 March 2018. It developed a Child Care and Protection Policy. The Minister submitted a Children's Amendment Bill to Parliament on 19 February 2019. These clauses in the Children's Amendment Bill form part of the Department’s comprehensive legal solution:
• Clause 60: This amends Section 105: Quality assurance of child protection services;
• Clause 84: This amends Section 142: Establishment of a well-resourced designated child care and protection units with quality assurance units
• Amendment of Section 150 of Act 38 of 2005: Clarification of an abandoned or orphaned child that is in need of care and protection; and
• Clause 94: This amends section 159: Provides discretion to extend lapsed court orders or issue interim orders.
• Clause 102: This amends section 186: Revised timeframe for monitoring of foster placements by social service professionals and further supervision services by the Children’s Courts;
• Clause 93: This amends Section 157: Promotion of placement of abandoned and orphaned children in adoption
The provinces are implementing the interim regime that deem all affected foster care orders as valid. Further, the provinces are taking the matters to the Children’s Courts for extension of these orders to have a duration that extends beyond 28 November 2019. The cases taken to court are inclusive of the new court enquiries for placement of children in foster care. Tables were provided of the court orders that must be taken to court by November 2019 and projections of those expiring in 2020 which will assist in planning.
• The shortage of social workers, social work supervisors and canalisation officers inhibits the provision of foster care services. The Occupational Specific Dispensation (OSD) impacts negatively on the appointment of social work supervisors because it requires social work supervisors to have 10 years working experience, which results to non-compliance to a ratio of 1:12 supervisor to social workers. The social workers rendering generic services are carrying high case-loads which is non-compliant up to a ratio of 1:60. This results in officials feeling overwhelmed, burned out and some social workers eventually leaving the profession. There are also insufficient tools of trade, however some provinces have made strides to provide tools of trade, office space and appointment of social workers and supervisors.
• There is an inadequate budget allocation for NGOs rendering child protection services to DSD, and this results in NGOs scaling down their services and some even closing down, transferring their cases to DSD, which leads to increased workload.
• There is a lack of an integrated information management system that has resulted in inefficient management and decision making for improvement of foster care services; and limited interfacing of information with other departments.
• Provincial autonomy meant implementation is done differently; there had been varying interpretations of the legislation by magistrates; social work administration and case management processes were not standardised across the provinces; and inconsistent high-level application of the oversight function across provinces.
• Social work administration, such as record keeping and allocation of card systems, and case management processes are not standardized across the regions in all the provinces.
• Inter-department collaboration lacking - Some of the requirements for the implementation of the legislation impacts negatively on the implementation of the foster care programme as there are dependencies in the execution of the roles and responsibilities within the foster care value chain. For example, some district surgeons refuse to examine children without birth certificates. The time-frames for issuing an unabridged birth certificate by the Department of Home Affairs, including payment of unabridged certificate fee jeopardises the foster care process.
• Monitoring and evaluation - there is inconsistent application of oversight function for the foster care programme across provinces. In some provinces oversight role is at HOD/DDG level which provides accountability whilst some have it at coordinator level
The department is developing an integrated Monitoring and Evaluation framework for foster care aimed at strengthening the monitoring and evaluation of the programme. An Electronic Foster Care Monitoring Tool has been developed and rolled out in all provinces. This tool has a warning system for foster care orders that are due to lapse and a database of children in foster care. The tool provides the capability to be used as a management tool by the social workers and the supervisors. An Alternative Care Information Management System is in the process of being developed that will make provision for the migration of information collected through the Foster Care Monitoring Tool.
National office in collaboration with provinces conducts quarterly provincial monitoring meetings with SASSA.
Provinces are implementing various measures in an effort to implement foster care programme of action and to ensure compliance to the Court Order due to lapse in 28 November 2019. Direct provision of oversight and monitoring of the implementation of the foster care Project Plan and the Court Order for the extension of the foster care orders on a monthly basis by SASSA Regional Executive Managers and the Head of Provincial Departments. Shift in focus from administrative foster care to provision of therapeutic social work intervention. In most provinces SASSA shares its resources with DSD such as conducting home visits as a team. DSD asked National Treasury to convert the scholarship fund into conditional grant so it could employ social work graduates that are not employed. This commenced for three years in 2017 and facilitated the appointment of 566 social workers. DSD engaged veteran social workers to assist DSD with strengthening the social work force and to assist with the supervision of social work graduates.
DSD requested the Committee support the Children’s Amendment Bill and to mobilise resources to appoint more social workers and provide tools of trade.
Provincial Departments input on the Foster Care System backlog
Ms Mamiki Qabathe, MEC Free State: DSD, said the Free State foster care backlog as at July 2019 is 8630. It estimated that it would not be able to meet the November 2019 deadline meaning that the foster care grants may lapse. Extension orders have already been reported and brought forward to the Children’s Court.
Ms Mokone Nthongoa, HOD Free State: DSD, added that it had established joint sessions with SASSA and the judiciary to try and find ways to process foster care cases faster and timeously.
Ms Martha Bartlett, MEC Northern Cape: DSD, said Northern Cape has a backlog of 1391 cases. Social workers are overworked; one social worker serves more than 10 000 cases. The major challenge is found in the rural areas where one social worker is expected to serve 10 villages.
Ms Nkakareng Rakgoale, MEC Limpopo: DSD, said all provinces faces similar challenges. As at August 2019 Limpopo has a backlog of 6568 foster care cases with the majority of the cases in the Sekhukhune and Capricorn areas. Social workers are forced to focus their attention on the foster care backlogs and this may lead to backlogs in other processes.
Mr Thandi Shongwe, MEC Mpumalanga: DSD, said there is a challenge with an inadequate budget and insufficient social workers to process foster care cases. There are 305 unemployed social workers in the province, and the plan is to employ all the social workers within three years. The Mpumalanga foster care backlog in August 2019 is 1323 cases that need to be dealt with by November 2019.
Ms Thembeni Mhlongo, Head of Department, Gauteng: DSD, said the migration of clients during the holiday season to their homelands has affected the delays in the processing of cases. As at August 2019 the Gauteng backlog of cases is 6520.
Ms Ntombi Baart, Head of Department, Eastern Cape: DSD, said the provincial department does not have enough social workers to deal with the backlog. There are huge backlogs in Port Elizabeth and Mthatha. As at August 2019 the Eastern Cape backlog is 8651. It believes that the backlog will be decreased to 6000 cases by November 2019. In addition, it has purchased additional vehicles.
Ms M Sukers (ACDP) asked if the national department has the capacity to deal with the backlog they are currently facing. None of the provincial departments committed to putting timeframes for when and how the backlog will be eradicated. How many social workers are currently employed by DSD, and are there knowledge experts who advise DSD on how it can deliver on the commitments it made?
Mr D Stock (ANC) said the court order informed DSD that it needed to introduce to Parliament amendments to the Children’s Act and the Social Assistance Act. However, a legal solution means DSD will need to employ more social workers to implement the provisions yet DSD has reported that there is a shortage of social workers. He does not foresee how DSD is able to meet the obligations of the court order when there are not enough social workers to implement the Acts.
Ms B Masango (DA) said the backlogs are uncontrollable. The Department is unable to deal with the backlog due to the lack of resources. The provincial departments do not have resources to deal with the backlogs either. She is not confident that DSD will meet the November 2019 deadline. The department must present a budget that will be sufficient to deal with the backlogs.
Ms D Ngwenya (EFF) said the November 2019 deadline will not be met. Human and financial resources have not been put in place to eradicate the backlog. DSD must submit monthly reports with time-frames on how it plans to eradicate the backlog. Has the Social Assistance Amendment Bill been withdrawn, and has the Children’s Amendment Bill been tabled in the Sixth Parliament? There are unemployed social workers who are sitting at home, who have informed the Committee that they are willing to volunteer their time. The veterans will not help to deal with the backlog.
Ms A Motaung (ANC) asked where do the unemployed social workers expect to gain work experience if DSD relies on the work of the veterans. The reality is that homeless kids end up being abused when they are not placed in homes. She asked for DSD to explain the Kinship Grant.
Ms N Bilankulu (ANC) said National Treasury must brief the Committee on when it will increase the DSD budget. As long as there are challenges of the Department being under-staffed, lack of value chain and a budget, the backlog will not be eradicated.
Ms N Mvana (ANC) said the backlog will not be eradicated by November 2019. By the time the Sixth Parliament ends, the backlog must have also been dealt with. The veterans cannot replace young qualified social workers. DSD must be honest with itself and the Committee.
Ms A Abrahams (DA) asked how many veterans will be employed and how will they be paid and can it confirm if the 566 social workers are currently employed? DSD is forcing NGOs to close down by taking away their adoption agency fees, yet DSD is complaining about the workload. There needs to be a plan of action for when DSD does not meet its backlog, and the plan must be presented to the Committee. There is no mention of the comprehensive legal solution in the Children’s Amendment Bill.
Deputy Minister Bogopane-Zulu responded that the veterans are not getting a salary, but rather a stipend. DSD has approached National Treasury about the possibility of increasing its budget, without any success. She confirmed that the 566 social workers have been employed. The requirement that social workers must have 10 years work experience is not a requirement from DSD; but was added by the OSD.
The Chairperson asked that the Department speaks directly to the questions that were asked: will it meet the November 2019 deadline? Does it agree to submit monthly reports on the time-frames and progress made with the eradication of the backlog. Can the Committee be confident that DSD will meet the deadline?
Deputy Minister replied that DSD has no objections to the requests by the Committee to submit reports. DSD can provide an updated report to the Committee in two weeks' time.
The meeting was adjourned.