Implications of Children’s Amendment Bill in relation to adoption services: DSD briefing, with Minister

Social Development

17 February 2021
Chairperson: Mr M Gungubele (ANC)
Share this page:

Meeting Summary

The Portfolio Committee held a vitual meeting to receive a briefing from the Department of Social Development on the implications of the Children’s Amendment Bill in relation to adoption services.

The presentation from the Department of Social Development (DSD) shared the costs of this, as well as the Department’s intentions and recommendations. The Bill would cost around R30 billion, increasing to R32 Billion in the following years and then R58 billion by 2029.

Key elements presented were around amendments to adoption clauses to the Children’s Amendment Bill as well as inter-country adoptions and capacitating the Department, who would be extending its adoption services as per their constitutional mandate.

Members questioned the efficacy of the amendments, particularly in relation to the capacity of the Department. For over ten years, there was a decline in adoptions.  Covid-19 also had an undeniable impact on the state of child security and adoption services, teaching members that coordination with the private sector was key to supporting the adoption process.

Members felt that there was a lack of communication around the process of adopting children, especially vulnerable children in need of love, care and support. Though Department accredited this to increasing capacity, Members associated this decline with decreasing performance and over reliance on external organisations, who were carrying out the governmental mandate funded by the Department. 

The proposed bill amendments as well as the state of child security and adoption services, would be debated in subsequent hearings. Over all, the Department’s expressed the importance of its commitment to the children’s best interest over everything.

Meeting report

Introductory remarks by the Chairperson
The Chairperson opened the virtual meeting, welcoming Members, support staff, Minister and delegates from the Department of Social Development.

Upon request, the Committee Secretary announced the apologies received from Members and the Department, and also read the agenda, which was adopted by the Committee.

The Chairperson said that they were beginning on a path close to the hearts and minds of South Africa – the state of safety of children, ensuring their access to dignity and services. This was done against the background of many challenges in South Africa. Children were becoming casualties of difficult circumstances. This had a bearing on the prosperity and harmony of the country, which was supposed to unleash its potential and be a leading nation amongst the world. One of the key challenges, which were an advantage to the Chairperson, was that they were dealing with many stakeholders. If they were monitored and watched by stakeholders who were proactively making contributions, this added value to the process. He trusted this would remain imperative as they continued to amend the Bill.

Minister’s Remarks
The Minister of Social Development, Ms Lindiwe Zulu, was invited to share introductory remarks. The Department needed to speed up the process so that the protection and rights of the children were also protected. They needed to amend both the legislation and the practise of adoption was clear. Adoption services were closely linked to the wider child-protection network, for which the Department of Social Development (DSD) had the legal mandate. Children were of paramount important in the adoption process. They needed to give dignity and hope. They also needed to walk together with stakeholders, especially where they were finding difficulties. Without any fear of contradiction, she said the Bill did not seek to exclude the accredited adoption service provider; hence they needed to continue to talk to each other.

Adv Luyanda Mtshotshisa, Specialist: Legislative Drafting and Review, DSD, and his team delivered the briefing. As a team member presented, he shared that there was an element that was not in the presentation: the costing of the Bill. It would cost around R30 billion, increasing to R32 Billion in the following years and then R58 billion by 2029.

Key elements presented were around amendments to adoption clauses to the Children’s Amendment Bill as well as inter-country adoptions and capacitating DSD, who would be extending their adoption services as per their constitutional mandate. This also meant capacitating more social workers.

During the presentation, the Chairperson interjected to ask Adv Mtshotshisa to clarify what he meant by “other services were an extension of DSD”.  There were various interpretations of this – one conventional interpretation was that DSD would facilitate the adoption services, not because it was originally responsible for this. The Chairperson asked for clarification of whether this was the case or if they were an extension of DSD as they said.

Adv Mtshotshisa clarified the correct version. He said that the DSD itself had a mandate to deal with adoption services (as part of a constitutional mandate to provide welfare services). For a long time, DSD had been doing exactly this in terms of the statutes in the Children’s Act (2005). However, when the Children’s Act was promulgated, there had been an exclusion of these services. As such, adoption services were provided by external organisations and funded by the government. Therefore, the organisations were an extended arm of DSD in the sense that they were doing what DSD was supposed to be doing or were being funded to perform this function.

Just before they provided recommendations, the Chairperson asked for clarification on matters of “balance”.  He said that as government, their primary interest when adoption services were at play was the interests of the child. Whatever else happened, his understanding was that the DSD’s primary focus was to ensure the best interest of the child.

Adv Mtshotshisa agreed and continued with the presentation.

Further along in the presentation, the Chairperson asked if there was any difference subordinating all other interests to the interests of the child or balancing all other things with the best interests of the child. Was this the same thing?

Adv. Mtshotshisa replied that DSD’s understanding was that there was nothing that was more important than the best interests of the child. In the provisions of the Constitution, the rights of the child were of paramount importance. He did not want to describe this as a subordinating or balancing priority, but rather as an overarching priority.

Ms L Van der Merwe (IFP) said that whatever they did needed to be in the interest of the vulnerable children. The decline in adoption (approximately 50%) over the past ten years spoke to some of the challenges she had experienced personally. The adoption process was cumbersome, painful and difficult. As an example, she had contacted two adoption agencies because she wanted to adopt. It would take her three up to six months just to get an appointment with one of the adoption agencies. When they amended legislation, they were trying to correct a mischief. In this case, the mischief they were trying to make was to make adoption more accessible, easy and friendly. This was welcome, though the presentation became contradictory when the Department said it would utilise current social workers working internally. What the Department was saying was that it would use the social workers already there in order to be accredited to be adoption social workers – though on the other hand, the Department already knew that the internal social workers were either not enough or were already overloaded, overstretched and overworked (hence the foster care crisis). 

In her view, she was of the opinion that if DSD was to make adoption more accessible and friendly, then it needed to have a discussion to say that it needed dedicated internal social workers that would attend specifically to adoptions. She could not say that because there was a drop in adoptions that somehow, they were doing a good job and their capacity was there, and it would not be a problem to deal with adoptions. The true reason there was a drop in adoptions was because people were not finding the service or process easy. They needed to look at the 9 000 social workers trained by the state and sitting at home, to bring them into the system and make sure they had dedicated people to look after adoptions in DSD.

On a second point, when the Department spoke about deleting Section 249 in its entirety, she was grateful that they had cleared the fees that adoption agencies could charge and were not excluded from. Though, when they deleted Section 249, which stated that no person could give cash or kind for the adoption of a child, there was no protection. Unscrupulous people wanting to adopt that did not want to wait the three to six months could go about ‘buying children’ with other people. The Act was particular in that contravening this section meant that you would be held accountable, fined or jailed. The DSD was thus removing a section that provided protection. The South African context meant that many were impoverished and faced difficult circumstances. What was the reason this section was removed? She believed it should stay.

The Chairperson asked if Ms van der Merwe did not think the Child Trafficking Act did cover this.

Ms van der Merwe said that she understood that there was duplication in sections 249 and 250, though the section that was to be removed should still remain. Finally, she said that going forward, they needed to make sure once they remove it (if they did eventually amend the Act) the Social Workers in DSD offering this service do communicate a clear plan of how people could adopt and approach DSD. There was a lack of communication around the process of adopting children, especially vulnerable children in need of love, care and support.

Ms L Arries (EFF) said that Ms van der Merwe raised her point on Section 249. Since they were prioritising the best interests of the child, how would they ensure that, if they remove Section 249, which included a clause about compensation to the biological mother in subsection two?

When the DSD included medical compensation for the mother, this included surrogate mothers. Often mothers had to give up their children because they did not have the financial means to raise the child. The Department needed to be mindful that the mothers were people who were forced to give up their children purely because of their circumstances. Ms Arries did not think that removing Section 249 would give justice to unborn children.

Concerning international adoption, she wanted to know at which stage the Act applied and how long it would take for the child to be entitled to citizenship in the adoptive country. Could this decision of the court be revoked at any given point, if the child was not happy or for any other reason?

She also asked about Section 138. There were many fathers of children that were foreign nationals, who were taking these children out of the country, where they had non-convention agreements. How did the Act protect the children starting again in other countries such as Egypt? She personally knew of a number of children outside the country. It was difficult to bring them back because there was no agreement in place.

She was also concerned about social workers. This was worse after Covid-19; with the impact of the virus there was a need for more social workers. Psychosocial support was highly needed. The adoption process was very long. How could the DSD ensure these processes are shortened?

The Chairperson requested that if a question was already asked, it was not necessary to repeat it because it was already tabled and would be answered.

Ms A Abrahams (DA) was cognisant of the limited time, and as such what she brought up was not the entirety of her contribution on the matters discussed. She thought that they needed to be realistic on South Africa’s state of social protection, which was far from perfect. There was still so much work to be done, as evidenced by the sexual offences and crime against women and children. She cautioned DSD against saying that South Africa had a great social protection safety net, because it did not.

The Chairperson asked if this input was legal or political.

Ms Abrahams said that this was purely observation. While they were extracting some quotes from the convention, she felt they were leaving out quotes that did not support the proposed changes. For example, she wanted to see the quote that said that inter-country adoption was the last adoption. She did not believe that this was the exact quote used in the article. It was critical for the Committee to receive an in-depth report on the state of adoption in South Africa – not just by government, but also academics and professionals, especially on the statistics.

The Chairperson said that there were issues that would be taken care of by public hearings. The Committee was specifically dealing with the clause as articulated by DSD, along with its approach. As such, matters requiring subsequent hearings could not be answered by DSD and would be dealt with in the hearings.

Ms Abrahams noted the Chairperson’s point, though she argued that in order to understand the impact of the legislation that they would be agreeing or disagreeing to, they needed to understand the state of adoption in South Africa. Not everyone in the Committee had the full, in-depth picture to be making such critical agreements or disagreements on legislation.

The Chairperson was not sure if Ms Abrahams understood him. She raised a genuine question. They were raising an item with many stakeholders and experts and it would be dealt with during hearings.

Ms Abrahams agreed and said she understood that the Committee would be dealing with these matters for a month. On slide 15, she asked about the statement that the private sector could render adoption services where required. Did this mean that DSD would request assistance from a specific organisation? Did this not remove the public’s freedom of choice? Without repeating her other colleagues had said, if COVID-19 had taught them anything, it was that they needed to be working with the private sector (as the proposed legislature did).

Ms A Motaung (ANC) said that the majority of South African children adopted internationally were black. Some were also received from other countries. Besides India, did the DSD have working agreements with other countries? At a high level, what were the key areas of such agreements? How did these working agreements ensure that core elements of the United Nations Convention of Rights were to the best interest of the child, i.e. the right to life, survival, development and respect for the views of the child?

Ms J Manganye (ANC) said that some of the amendments of clauses that were left by mistake before were so relevant, especially the Act about the Director-General having the last words. This would ensure that even adoptive parents or biological parents were covered – for example, instances where biological mothers gave children up for adoption without the father being aware, though the father could have taken custody of the child. It was therefore important for them to look at circumstances at home first. Though Article four would not completely wipe out human trafficking, it would certainly decrease trafficking. It was alleged that some were adopting ‘very quickly’ and these might be traffickers. This would be taken further at public hearings.

Ms N Bilankulu (ANC) said that Clause 130 sought to address Section 261 (adoption of a child from the Republic by a person in convention of country). At what stage would the amendment to withdraw applications take force, because Article 4 of the Hague Convention clearly stipulated the requirements for inter-country adoption? In this context, at what stage would Article 19 (the transfer of the child between central authorities of both states) of the Convention be considered in the withdrawing of the applicant?

Mr D Stock (ANC) spoke to Clause125, which sought to amend Section 2(52) on advertising. He asked how the amendment would ensure that agencies were not continued as provision of the Principal Act that benefitted them in the past. He also asked about Section 130: to what extent, if any, did this amendment take into consideration or harmonise Article 20 on the relationship between the central authorities of the Hague Convention, on inter-country adoption (Article 15)? Article 16 of the Convention was thoroughly met to prevent undesirable situations that might lead to the withdrawal of applications. What was the link, if any, of these applications to Article 21(1AB) on the transfer of adoption being in the interest of the child of the Hague Convention?

Ms B Masango (DA) said that her understanding was that the adoption was one of the protection services provided by government. As such, amendments to the Act would help in fast tracking and smoothing the adoption process was that more and more were moved away from foster care. This would ensure the child’s best interest, while ensuring that there are no bottlenecks in child-protection services.

It was said in the presentation that South Africa (SA) had a “very strong social protection for children“, which Ms Masango was concerned about. Though she did not have the exact statistics, SA had very high rates of child-abandonment, institutionalisation of children and child abuse. She failed to link the presentation to the fighting of the foster care crisis and protecting children with their best interests at the centre. She then asked about the facilitation role of government. It was said that the protection service had been offered by non-governmental organisations (NGOs) and the government wanted to take it over. Ms Masango asked why and what were the problems or concerns of DSD in the way its partner NGOs were carrying out the service. Were the 230 registered social workers registered or accredited? One would want to know they were accredited – which would speak to the specialisation and protective element of the adoption process. She also wanted to know what data they had on the decline, which DSD had interpreted as capacity or competence. She argued that the DSD was not taking care of the children as well as they should.

The Chairperson asked that matters previously raised not be repeated. He said that the issue of the data and whether they were doing well as South Africa had been strongly raised before.

Ms Masango noted this. She continued by asking whether the deletion of Section 249 would provide sufficient time for the regulatory body, such that there were not gaps in DSD as they took over this work. As far as Clause 124, the DG was empowered to withdraw accreditation. Given that the adoptive services were returning to the government, was this not a conflict of interest? Should there not be an independent regulatory body which would look at accreditation and de-accreditation and so forth?

Ms N Mvana (ANC) where the 230 trained social workers mentioned would be located? Out of the 114 child protection organisations that were accredited, was this the whole country?

Ms G Opperman (DA) said that according to the general household survey of 2018, there were approximately 2.3 million orphans, of which 55 000 were living in child-headed households all within adoptive age. How would the bill impact on these children? The Prevention and Combatting of Trafficking Persons Bill was passed In July 2013. What extra jurisdiction did it give the Department through the courts? What mechanisms were in place to monitor South African children in foreign countries to prevent human trafficking? Though they were saying it was the last resort, in the past 10 years there had been about 1 500 of these children (inter-country adoptions). What was the overall financial cost for the South African Council for Social Workers (SACSSP) social workers, and how many of these have been capacitated or deployed in the Northern Cape?

The Chairperson warned that they were not formally debating the Bill yet. These were mere clarity-seeking questions to orientate parliamentarians such that they could raise informed, intelligent questions to stakeholders as the coming hearings took place. So far, Members were posing clarity-seeking questions and they should continue to avoid a debate before they had gotten there.

Adv Mtshotshisa responded to questions.

Timeframe of adoption process
The Deprrtment understood that the timeframe was a ‘little bit long’ and would have to see how best to deal with it – looking at the adoption processes itself. It might need to introduce guidelines to this effect. It understood that the past mischief needing to be cured as a defect with the amendment was based on the fact that the whole adoption process was not accessible. Accessibility came in different shapes and sizes. He understood the case being made that accessibility included human resources. The Department was also looking at accessibility in terms of the fees being charged by people in the process of adoption. Hence, it had said the function/service would be rendered by DSD itself where the fee issue would no longer be a concern, as it would not be involved altogether. For example, if someone wanted to adopt a child and was frustrated by the lawyer or psychologist fees, that person could adopt through DSD. This was how the mischief was being cured. It also understood that capacity needed to be improved. From time-to-time things changed either for better or for worse.

Regarding deleting 249 and potentially not providing protection against the sale of children, the Chairperson had been correct in his statement that there were other pieces of legislature taken into account with this issue. For example, the Constitution was the supreme law of the Republic that provided against slavery. This provision alone in the Constitution was already affirming the sale of a person was a criminal offence. Whether this protection was in the Children’s Act or not, it was already covered in the human trafficking legislation. The removal of section 249, therefore, was taking into account that there is a Constitution in the Republic that spoke against slavery.

The Department was aware of shortcomings in the adoption process, hence the provision saying the Minister needed to create or develop regulations so that it could see where it was at in the process and what could be shortened in the adoption process.

Safety net
He did not say that the protection of children as in making sure children could not be stolen or something similar. Ms Masango had alluded to this. When he said South Africa had a comprehensive social security net, he was indicating that at least the country had something like the social assistance legislation in South Africa, which took care of every child. There was the entire social security system protecting the child, as in making sure child-headed households were taken into account, foster care grants, child-support grant and similar. This was the comprehensive social-security safety net.

Crime statistics
DSD was not saying that children in South Africa were safe. The presentation was saying children were better off in South Africa, comparatively. Stats from around the world indicated that in Australia, an estimated 20 000 children were reported missing every year (Australian Federal police Co-ordination Centre). In Canada, approximately 45 288 children were reported missing each year, and an estimate of 100 000 in Germany. In India an estimated 96 000 children went missing each year. He continued to share the statistics from Spain, the United Kingdom and the United States. He concluded that South Africa was better off comparatively.

Hague Convention
Looking at paragraph two of The Hague Convention Preamble, it was stated that family should be considered first, then nationally then international adoption. The preamble needed to be considered with Article 4(B) of the Hague Convention, which said that inter-country adoption should be considered after domestic possibilities were considered. The best interests of the child needed to be taken into account – for example, the challenges of the domestic versus foreign country. The challenge with inter-country adoption was the aftercare service, during which it might be found that things were not going the manner in which the two parties had concluded. In this space, the central authority needed to come in and apply to withdraw the agreement for adoption. Legally speaking, when a child is adopted, it belongs to this family, though fortunately inter-country adoption indicated that if there were challenges the convention took precedence over legislation.

Registration and Accreditation of Social Workers
Part of DSD’s mandate was to accredit childcare organisations that offered adoption services, as per Section 251. The central authority may register child protection organisation, which was practice across departments and legislation across the country. It was not unique for the DG to have this power in DSD only, but also in health, education etc.

The Chairperson followed up with the statement made that the DG could withdraw accreditation. It was curious as to how they would navigate the potential to abuse power. Another point was when they said fees would be taken care of by regulatory bodies; was this discretion or regulation? He avoided a debate by requesting responses in writing.

The DSD team was thanked and excused. The Committee proceeded to the next agenda item, which was its programme.

Committee programme term one 2021

Ms Abrahams asked whether there would be any further report backs from the South African Social Support Agency (SASSA) and the Deputy Directors-General (DDGs) in the programme before them.

The Committee Secretary said that at the previous Committee meeting (03 February 2021), it made the resolution that the DSD and Post Office needed to present updated action plans in a month’s time.

Ms Arries said that a month was a bit late. With the oversight visits Members were doing, there were many challenges. She did not know how things would be handled with, especially because there were towns with no SASSA offices and officials were working out of car boots. This was serious. In some towns like Mossel Bay and Knysna there were no assessment doctors. The presentations looked nice on paper, but the reality was that targets were not always reachable. A month was not a reachable target.

The Chairperson said the Committee was trying to ensure DSD had time to solve the things that Members interrogated. This did not stop Members continuing accountability to the Department or the Chairperson’s office in the meantime.

Ms Masango asked for clarity on the difference between the national and provincial public hearings.

The Chairperson clarified the difference. He explained that the public hearings would be held in a different way. The oral submissions made came from different organisations across the country and those hearings were thus categorised as national hearings. Provincial public hearings included the Public Education Office (POE) going to various provinces to liaise with interested stakeholders on DSD’s behalf. The types of hearings were termed this way but not necessarily prescribed as such.

Mr Stock moved for the adoption of the programme, seconded by Ms Manganye.

The programme wa adopted.

Consideration and adoption of minutes
The minutes of 02 Dec 2020 were adopted.

The minutes of 20 Jan 2021 were adopted.

The 03 February DSD and SASSA Action Plan was adopted.

Ms Bilankulu pointed out that there was a certain pay point where people did not receive their grant. SASSA officials had blamed the network and the Post Office, and vice versa.

The Chairperson said that Post Office was an agent of SASSA. He said Members should escalate matters where SASSA was not responsive. Accountability was a non-partisan issue. Although he did not want to perform oversight on behalf of political parties, there were certain issues where he, as the Chairperson, needed to draw attention.

The Chairperson wished Ms Ngwenya and Ms Sukers a speedy recovery. He also thanked the Members, Minister, DSD and Committee support staff for attending the meeting.

The meeting was adjourned.

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: