The Portfolio Committee was briefed by the Department of Social Development on the various clauses of the Children’s Amendment Bill [B18 – 2020]. In a virtual meeting, the Department’s specialist in legislative drafting and review presented a quarter of the clauses at a time, in a page-by-page fashion, for the Committee’s consideration.
Members raised their concern over the Department’s capacity to take over the adoption processes from private agencies, as this had the potential to create a backlog in child adoptions, resulting in children languishing in foster care homes and orphanages. The Committee requested that the Department brief them at a later stage on the intended amendments to the adoption processes.
The Children’s Court would now deal with cases involving the guardianship of children as a means of alleviating the burden of the High Court. However, the High Court would maintain its jurisdiction to deal with all legal matters.
The Bill was commended by the Committee for making provisions for children with disabilities, such as including a sign language interpreter for children in court. It also commended the Department for updating the Child Protection Register, and the overall rigour which it had shown in dealing with the amendments to the Bill.
The Chairperson asked if the parliamentary advisors and the Departmental legal advisors had convened to discuss whether it would take a comprehensive route in the process of passing the Children’s Amendment Bill, or if it would use the foster care provisions only. The Department confirmed that it would go for a comprehensive approach, and estimated that the process would be concluded and referred to the National Council of Provinces (NCOP) by June 2021.
Discussion of clauses 1-15
After Adv Luyanda Mtshotshisa, Specialist: Legislative Drafting and Review, Department of Social Development (DSD), had presented clauses 1-15 of the Bill, Ms B Masango (DA) said that the definition of an orphan seemed to have been amended, and had the potential to be interpreted in multiple ways in clause one. She asked for clarity on the definition. What was the actual age of marriage, as per clause six?
Ms A Abrahams (DA) asked if clause ten gave way for review of the mediation by a court, as it was unclear. Clause 12 stated that a child, if mature, may express its views regarding parental responsibility should parents divorce -- who decides a child’s maturity?
Ms D Ngwenya (EFF) asked if any of the clauses made provision for the authorisation of youths being married traditionally, other than being married at the Department of Home Affairs. Clause ten stipulated the rights of fathers if present at the time of conception and/or birth, but did the clause consider reasons for unions being broken, such as the father being a threat to the child and mother's life? Did the clause regarding inter-country adoption consider the potential for children being trafficked?
The current definition of an orphan was when both parents were deceased, according to the current legislation. However, this would be amended to consider one parent being deceased.
The maturity of a child had been determined by common law, such as a child of 16 years old being able to open an insurance policy, and a 14-year-old being able to witness a will, which was common law that was in existence. The Bill sought to determine a set age of maturity.
The prohibition of marriage of children included marriages registered at Home Affairs and traditional marriages. The Children’s Act stipulates that no children under the age of 18 years may get married. Previously, guardians were able to grant permission for children under the age of 14 years to get married, but this had been removed from the legislation.
The amendment Bill sought to ensure that families were preferred to any persons who wanted to adopt a child. However, national and inter-country adoptions were still permitted, granted that the prospective adoptive parents meet the requirements as per the Children’s Act. The adoption industry was against this amendment, but the DSD continued to pursue this as it was a means of child protection against child trafficking.
The clause pertaining to parental responsibility, where a father was living with the mother at the time of conception and/or birth, came from the approach that the father automatically assumes the responsibility of the child. There were instances where mothers had been raped, and other circumstances where the father had posed a danger to the mother and child, which did not warrant him parental responsibility. In these cases, the courts would have to be engaged in revoking the father’s parental responsibility. However, in traditional cases, the father would automatically assume parental responsibility rights.
The Chairperson asked if the interests of the child would supersede anything at all material times, depending on what was presented to the court? If this was the case, then issues where a child’s protection was compromised, the court would revoke rights of parental responsibility. Adv Mtshotshisa confirmed that this was the case.
Ms L Arries (EFF) said that in her community, children were adopted for the wrong reasons and they ended up living in a bad state. The amendment should limit the number of children a person could adopt to ensure that children who were adopted, were taken good care of.
The Chairperson said that the court would always take into account the wellbeing and protection of a child, depending on the information presented to it.
Adv Mtshotshisa concurred with this, stating that the courts and the DSD were aware of persons adopting children for financial gain, hence the preferential adoption by family members.
Discussion of clauses 16-30
Ms Masango asked what matters that were previously handled by the High Court would be referred to the Children’s Court. The clause was vague, as it seemed as if only matters pertaining to orphaned and abandoned children would be referred to the Children’s Court.
Ms Ngwenya commended the Department for its efforts in being inclusive of disabled children by incorporating sign language in child services. Did the amendments to section 45 mean that people who found bonded children may be granted guardianship while other processes such as foster care were being pursued?
Ms L van der Merwe (IFP) commended the Department for their provisions for disabled children. The amendment of clause 35 provided avenues of recourse for parents who had a child being withheld from them by another parent, and she asked what recourse was available. Were children being limited to the consideration for adoption by family members? Lockdown had resulted in an increase in abandoned children, and in some cases, children had been left on doorsteps, making it difficult to track their biological parents. The approach to limit children to adoption by family members was a negative approach, especially in cases like this.
The Chairperson said that general adoption made in favour of family was problematic, as an abandoned child was often from dysfunctional family dynamics, so this needed to be clarified.
The Amendment Bill was trying to relieve the High Court by referring cases related to children to the Children’s Court. However, the High Court would maintain its jurisdiction to deal with any issue.
The Department was not saying that adoption should be done away with. Instead, favour must be given to adoption within families to assist the Department in ensuring child protection. There was often a fine line between adoption and the sale of a child, and the Department was trying to prevent this.
There was no specific recourse in terms of the amendment of Section 35. Recourse would be determined by the parents, and the court would decide if the recourse was just and ideal.
Clause 24, which amended Section 45, did not mean that abandoned children may not be placed in the guardianship of a person that found them. However, the Department was also not saying that just because a person had found a child, that they should keep the child. The determining factor was that the child was being adequately taken care of, and was in a suitable environment.
The Department aimed to have children adopted nationally rather than internationally. Should there be no persons willing to adopt a child nationally, then the child may be adopted internationally. There had been an increase in abandoned children during the lockdown. These children needed to be on the Child Protection Register. There had been 90 children registered during lockdown. The Department was working with non-governmental organizations (NGOs) on intervention plans in this regard.
Discussion of clauses 31-42
Ms Masango asked if the amendment was seeking to grant the Children’s Court all guardianship cases or only cases where children had been abandoned. In clause 35, 4A, which sought to amend Section 78, there had been a change in the wording from “must” to “may” -- what was the reason for this? She asked for clarity on the existing legislation on adoption which seemed not to be rigorous enough, as the adoption process prioritisation had changed from family being considered first, to national adoption and lastly international adoption.
Ms Abrahams said clause 35 no longer allowed for funding for partial care facilities that partially complied with funding conditionality, and would not include private homes and businesses. How would rural areas be capacitated with this amendment? For example, farmers in rural areas who had facilities would not be eligible for funding, although they were one of the few facilities providing child services to their particular area, but operating from their homes.
Adv Mtshotshisa said that the intention of the amendment bill was that all issues pertaining to children, including guardianship and other matters, would be dealt with by the Children’s Court, but the High Court would still deal with these matters as per its constitutional capacity.
There were gaps in the system surrounding adoption. The current acts did not specify that family should be considered first for adoption. There was a fee charged by practitioners for adoptions which was not stipulated in legislature. The Department was concerned that adoption was seen or construed as a business, so it sought to remove fees involved in the adoption process by practitioners and agencies. There was no distinction between adoption and the sale of a child when there were fees involved. The Department was therefore taking over this role as a child protection measure.
Legislation did allow for inter-country adoption, and there was a method to scrutinise such adoptions to prevent children being trafficked. This was an area of adoption where it was difficult to ensure that children were not being trafficked after they had left the borders of South Africa.
Partial care and early childhood development (ECD) facilities were often in the backyard of a house. Once such facilities were funded and the homeowner passed away, the infrastructure may not continue being used for child services, and the funding then went to waste. This was the reason funding of such facilities was currently being contested.
Ms van der Merwe asked for clarity on whether adoption processes would be done solely by the DSD, to avoid fees charged by agencies. There was an existing crisis in the limited number of social workers, and if the agencies closed down, there was a possibility of children languishing in foster care and orphanages. The fee of about R40 000 charged by agencies were for counselling, social workers and the other support services which were needed. Why did the Department not work with these agencies? The possibility of a backlog of child adoptions could be catastrophic.
Adv Mtshotshisa said that the agencies would not be closed down, but like other welfare services enshrined in the Constitution, it should be free. By charging R40 000, it limited the people that could adopt children.
The Chairperson said that as much as R40 000 may limit the people who were able to utilise adoption agencies, the potential for a backlog in adoptions needed to be considered. Furthermore, the fees charged by agencies were for additional services such as psychologists and social workers, which were essential.
Adv Mtshotshisa said that the Bill did not state that agencies should stop providing services, but sought to take over the services so that adoption was accessible to people who wanted to adopt. NGOs charged a fee for an adoption agreement to be reached, but the Department also subsidised these NGOs. If the Department had money to subsidise NGOs, it could take over the service without taking the rights away from practitioners such as social workers in private practice and lawyers dealing with issues of child adoption.
The Chairperson said that government needed to ensure that the interests of the children at all material times were taken care of. It was thus the government’s responsibility to see the realisation of this intention. Child adoptions that had gone through private agencies were due to the government’s lack of capacity to deal with the adoption process. The Department would need to demonstrate that the government had the capacity to deal with this process should the agencies be closed. He suggested that the Department present to the Committee its ability to take over this service fully at a later stage.
Adv Mtshotshisa agreed that a meeting could be arranged to address the Committee on the planned amendments to the adoption processes.
Discussion of clauses 43-60
Ms Abrahams said that there had been a few interactions regarding the placing of ECD in the portfolio of the Department of Basic Education (DBE), and requested that this be work-shopped outside of this meeting. The Children’s Amendment Bill had been costly to pass, and there was uncertainty of how it would fit in with the migration to the DBE and what it would mean for school curricula. During lockdown, the ECD sector had stated that what worked in affluent areas did not necessarily work in townships and rural areas -- did the new legislation properly address this? It was concerning that this sector had not been included when the Bill went out for public comment. Clause 48 introduced the word “protection” in the amendment to section 94. Why was the word “nutrition” not included, considering that it was a part of the Department’s funding policy?
The Chairperson asked Ms Abrahams if there was a distinction between protection and nutrition. She said that was the clarity she was seeking, as the clause was adding “protection” to the wording, whereas it already stated that “security” was part of the wording. Was there a distinction between protection and security?
Ms Ngwenya said that there were already many ECDs that were not registered, and this needed to be looked into. The proposed new procedures and requirements for ECD centres to be registered should not result in more ECD centres going unregistered, as this would take the DSD many steps back. Monitoring and evaluation within the DSD district offices was necessary to curb fraudulent activities of the personnel overlooking processes when registering ECD centres.
According to clauses 52 and 53, the Member of the Executive Council (MEC) for Social Development may assign the performance of some or all of the functions to a municipal manager, and to effect minor consequential amendments. This may be problematic, as municipalities did not perform as expected. Would municipalities be able to adhere to this new clause, considering the current state of municipal management? Would this result in more corruption within ECD centres?
Adv Mtshotshisa said that the differences in ECD needs between affluent areas compared to townships and rural areas could be dealt with in greater depth in the Bill. The ECD sector had not been included for comment during the public participation process, but this was an incidental matter and more administrative, rather than substantive. The clauses pertaining to ECD centres were not introducing anything new. The registering of an ECD centre was the same as registering a partial care facility, and thus more administrative than substantive.
The Department’s belief was that nutrition was included in the term ‘protection’. If a child was suffering from famine, the child was not protected, so nutrition went hand-in-hand with protection. If the Committee preferred “nutrition” to be explicitly stated, then this could be added.
Clause 46 sought to amend section 92, which were requirements for ECDs. The requirements had already been in effect, so it was not creating any burden for ECD applicants. The DSD was not a stumbling block for facilities being registering, but the mushrooming of illegal facilities was an issue. This issue usually lay with municipalities and the expectations of their role.
The issues of fraud that may ensue due to the registration of ECDs was because they were multi-sectoral in nature. People wanted to comply with registration, as seen by the amount of applications which the Department had received, but they got frustrated by all the red tape. For instance, there were municipalities that took about three years for rezoning certificates to be finalized, and it could cost between R60 000 and R100 000. If these requirements were changed, then the lives of children were being risked, as the buildings of ECD centres may not comply with the building regulations and other bylaws of municipalities.
Discussion of clauses 61-90
Ms Masango asked for clarity on clause 82.
Ms van der Merwe said that clauses pertaining to the National Child Protection Register, which dealt with persons unsuitable to work with children, were commendable. In the past, people complained that the register was not up to date. Once it had been updated, what would compel employers, schools and ECDs to check that employees were not on this register? Would there be consequences for employers that were found to have employees working with children, but were not on the register?
Adv Mtshotshisa said that clause 82, which sought to amend section 150, aimed to deal with comprehensive legal solutions and giving clarity on abandoned children and those who should take care of these children. This provision had extended the current clause to include a register of children who had have been victims of trafficking, and were unaccompanied from a migrant country.
He agreed that employers who did not check employees against the register needed to be penalised. There needed to be a stipulated timeframe for when employers should recheck their employees against the register to ensure that they had not been newly added to the register.
Discussion of clauses 96-119
Ms Masango asked for clarity on the intended amendments to Section 234.
Adv Mtshotshisa stated that the amendment would add “or a family member” to the current list which regulated post-adoption agreements.
Discussion of clauses 120-150
Ms Masango asked for confirmation that there would be a discussion that would pertain to adoptions. She also requested that a breakdown be provided of the R32 billion to be spent on ECDs, as per the memorandum of the Bill.
Mr Linton Mchunu, Acting Director-General, DSD, stated that the query regarding the memorandum would be followed up, and the Department would brief the Committee on the various questions that had arisen surrounding the adoption processes.
The meeting was adjourned.
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