The National House of Traditional Leaders presented an oral representation to the Committee based on their written submission. Issues around male and female circumcision were outlined as well as guardianship, rights of unmarried fathers and female virginity testing were presented.
The Children’s Institute presented to the Committee. The presentation focused on the foster care crisis, the backlogs, duration of alternative care orders, prevention of regressive actions and rights of unmarried fathers. Proposals were made to strengthen the certificate process as well as issues around corporal punishment.
The Centre for Child Law presented their presentation to the Committee. Corporal punishment was outlined in terms of the Bill and proposed amendments were made in this regard. Children’s privacy was discussed and various proposed clause amendments were outlined.
The Department of Basic Education presented to the Committee. Amendments were suggested in relation to chapters five and six of the Bill specifically. Various proposed changes to the Bill were presented to the Committee.
The Western Cape Forum for Intellectual Disability presented to the Committee. Key problems were outlined as well as the absence of the mention of special care centres in the Bill. Various recommendations and suggestions were presented regarding a number of clauses.
The Committee requested clarity regarding the proposal of parents being referred by social workers to programmes to address issues of corporal punishment. It was suggested that social workers did not have the capacity to fill this function. It was asked why there was a rapid decline in the uptake of the Foster Care Grant. It was noted that Treasury had not budgeted for the eligible orphans to receive the top-up and that the Committee should try and engage with Treasury in that regard. It was asked what the presenter’s views were on international adoptions - specifically given the risks of child trafficking. It was asked how children with disabilities were excluded from mainstream schooling when there were provisions in legislation to ensure their inclusion. Clarity was requested regarding the preemptory Bill. It was asked what the presenters views were on the proposed Second Amendment Bill that was outlined the day before, with reference to early childhood development. It was asked what the proper disciplinary approach was, in the absence of corporal punishment.
Bayakhanya Foundation presented to the Committee. The best interests of the child were presented as well as timeframes relating to children in the alternative care system. The law and policy mandates were outlined. Further issues around the Bill were presented.
Wandisa Specialist Child Protection and Adoption Agency presented to the Committee. The focus of the presentation was on the proposed priorities of the Bill, reunification, return and integration to families as well as unification through adoption.
The Centre of Social Development at Rhodes University presented to the Committee. Various key points were presented and elaborated on, specifically the proposal for a differentiated approach, infrastructural support, responsibilities relating to health and safety and the simplification of the registration process.
The Equal Education Law Centre presented to the Committee. Problematic amendments were presented as well as proposed recommendations per clause.
The South African National Civic Organisation presented to the Committee. The presentation focused on foster care, general observations and the key issues that were raised in their submission.
Jelly Beanz presented to the Committees. Various observations were outlined, corporal punishment was discussed and issues around offender registers and fathers rights and responsibilities were presented.
The National Adoption Coalition of South Africa presented to the Committee. A brief overview was given, as well observations relating to the adoption process, implications of delays and proposed amendments.
Abba Specialist Adoption and Social Services presented to the Committee. Key problem areas were outlined as well as the impact of the amendments, prevention of improper financial gain and accreditation.
The Committee highlighted the impact of the delays on children that resulted from the system. It was suggested that safe abandonment be considered. It was suggested that timeframes needed to be built into the Bill. It was noted that there seemed to be a ‘anti-adoption’ sentiment in the Country. It was asked what the Committee could do to deal with the delays relating to placing children into permanent care. It was asked what the highest priorities of the sector were. The Committee requested clarity regarding the implications of the KwaZulu Natal Court judgement.
Mr Avanda Godongwane, an adult who had gone through the child and youth care centre system presented his experiences to the Committee. It was emphasised that there was a lack of sufficient transitional guidance and support when exiting the system at the age of 18 years. The administration burden was highlighted in terms of extending the grant and application process to tertiary institutions. He proposed various recommendations relating specifically to the transitional process.
Ms Elke Day, a Private Adoption Social Worker and adoptive parent and her 19 year old daughter presented their accounts and recommendations to the Committee. Comparisons were drawn between the institutional context of alternative care and adoption. It was highlighted that adoption facilitated greater trust and a sense of being secure, as opposed to the institutional context.
The Committee appreciated the first-hand accounts and comparisons. It was suggested that the Committee visit the Walter Sisulu Child and Youth Care Centre. Issues around age of maturity were noted. The gap between legislation and implementation was emphasised as a significant issue.
National House of Traditional Leaders Presentation
Ms Nondumiso Ngonyama presented her oral presentation to the Committee.
- Do no support female circumcision
- Support male circumcision of boys under the age of 16 years
- Customary guardianship should be inserted into the Bill
- In as much as there were rituals and practices taking place at initiation schools in accordance with the customs and traditions – it would be against practice to circulate photos thereof because they were considered sacred.
- There should be prohibitions against taking and circulating pictures of maidens reed dance.
- Privacy should be ensured by not publishing sensitive/sacred information.
- Serious moral decay in society
- Unmarried fathers should have parental responsibilities and rights over the child.
Female Virginity Testing
- Female children are required to provide consent for tests to be done.
- A female child of 12 years starts menstruation and can fall pregnant
- A female child who gives birth is a mother, they were no longer children
- Preserving virginity through virginity inspection of females
- The pieces of legislation that were being discussed and deliberated on should not be the vehicle to encourage morality.
Children’s Institute Presentation
Ms Paula Proudlock and Mr Mbonisi Nyathi presented the presentation to the Committee.
- Orphaned & abandoned children in the care of family members: Sections 150(1) (a) & s159
- Parental responsibilities and rights of unmarried fathers: Sections 21 & 21A
- Positive parenting: Sections 1; 12, 18, 110(2); 114 (1) (a); 144
The foster care crisis
- Early 2000’s: relatives caring for orphaned children were encouraged to apply for foster care.
- Foster care system is a labour-intensive system with lots of checks and balances because foster care is alternative care.
- The system could not cope with the number of cases.
- In 2011 over 120 000 children lost their FCGs and a further 300 000 were at imminent risk. The High Court ordered DSD to design and implement a comprehensive legal solution by 2014.
A decade of chasing the backlog
- At first DSD delayed on the required law reform and instead focused on trying to fix the problem ‘administratively’.
- A decade of DSD using the scarce resources of the child protection system to ‘chase the backlog’ of expired foster care orders.
- This impacted negatively on social worker and court time needed to provide protection services to abused and neglected children.
- It has also resulted in a steady decline in foster care numbers due to fewer new foster care placements being made.
Duration of alternative care orders – s159
- S159 of the Act provides that alternative care orders can be made for a max of 2 years and that the court can extend them for a further 2 years at a time
- Due to the high number of children in the foster care system - this legal requirement cannot be met. This has necessitated the five High Court orders since 2011 aimed at preventing FCGs from lapsing.
- The Bill proposes an amendment to s159 (new 2A) to allow for alternative care court orders that have expired to be brought to the children’s court for extension after they have expired.
- We oppose this amendment
- it is simply delaying the backlog to another day
- does not ensure that the child’s FCG remains in payment during the period of expiry of their court order.
- It will disadvantage the 23 000 children in CYCCs who need regular review of their placements
Prevent regressive action
- Most of the 300 000 children in the foster care system are orphaned children living with relatives. Once the bill becomes an Act, they will be at risk of losing their foster care orders and consequently their FCGs.
- When their case comes back to the court for review in terms of s159, the children’s court will review their case against the new criteria in the amended s150(1)(a). Magistrates may interpret this to mean that existing foster care placements of orphans with family members must be terminated.
- This needs to be explicitly prevented as would constitute regressive action for the children and families already in receipt of the FCG.
- A transitional clause can prevent this happening
PRRs of unmarried fathers – s21
- Section 21 sets out the circumstances when an unmarried father is considered by the law to have automatically acquired PRRs.
- For example if he lived with the mother at the time of the child’s birth, or he has paid damages or consented to be identified as the child’s father on the birth certificate.
- It also provides for a mediation process if there is a dispute, and court review of the mediation.
Proposal to strengthen s21 certificate process
To strengthen this amendment we make two proposals:
Enable Children’s Court’s to also provide s21 certificates
- Family advocate’s office does not have a presence in all areas, especially rural towns. But almost every rural town does have a Children’s Court.
- Capacity constraints often hamper the Family Advocate office from meeting the demand and there are long waiting lists. Ensure children whose mother has died or abandoned them can also benefit from the advantages of the s21 certificate process
- The proposed certificate process currently does not cater for a situation where the mother has died or has abandoned the child with the unmarried father. The section should be amended to include these circumstances.
- The CI provided expert evidence to both the High Court and Constitutional Court (ConCourt) showing that corporal punishment is violence and it can have serious and long-lasting effects including driving an intergenerational cycle of violence.
- The ConCourt declared that the defence of reasonable chastisement is a violation of children’s rights and that any form of corporal punishment, no matter how light, is assault
Therefore this bill should include:
- A clear prohibition of the use of corporal punishment
- A specific obligation on the state to provide parenting programmes to support behaviour change e.g. learning positive discipline techniques
- A clear referral mechanism for corporal punishment cases from the justice system to the welfare system- child protection services are better placed to investigate reports and assess the needs of children
- A mechanism for referring parents to prevention and early intervention programmes–criminal prosecution should be a measure of last resort, reserved for serious cases and repeat offenders
Centre for Child Law Presentation
Ms Isabel Magaya presented to the Committee.
Corporal Punishment in the home
- Currently the Bill has no provision on corporal punishment and the Centre for Child law proposes that a new definition be inserted.
- We proposed the definition used by the UN Committee on the Rights of the Child (Gen Comment Nr.8).
- It also reflects South Africa’s National Child Care and Protection Policy (Oct 2019) as approved by Cabinet.
- “Corporal punishment or physical punishment means any punishment in which force or action is used and intended to cause some degree of pain or harm. It involves, but is not limited to hitting children in any environment or context, including in a home setting, with the hand or instruments such as a whip, stick, belt, shoe or wooden spoon. It can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair, or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion.”
- Inserting a new definition will also mean proposed changes in s12(11) “No child may be subject to corporal punishment or be punished in a cruel, inhumane and degrading manner.”
Corporal punishment: Rationale for proposed changes
- Criminalisation of parents for using corporal punishment should be considered a last resort.
- Where corporal punishment constitutes physical abuse according to s110(1) of the Children’s Act, social workers must follow the process outlined in section 110(8) of the Act and must report the possible commission of an offence to the police.
- The intention of the proposed amendments to the Children’s Act is to enable parents to be referred to parenting courses and other early intervention programmes.
- Imprisoning parents for hitting their child is in most instances not in the best interest of the child.
Children’s privacy and clause 35 deleting section 74 [not supported]
- Extremely concerned to see that section 74 was deleted in tis entirety and that the new clause in section 6A does not provide for the protection of privacy of children in children’s court proceedings. – it is assumed that this was an oversight
- NBI the current Bill has removed the protection of privacy for children subject to children’s court proceedings
- The July 2018 version of the Bill also removed section 74, but section 6C in that Bill covered the protection of all children appearing in all courts.
- This current version of the Bill does not do so, thus leaving children subject to children’s courts unprotected.
Department of Basic Education Presentation
Dr Janell Kotze presented the presentation on behalf of the Department of Basic Education.
- The suggested amendments in relation to chapters 5 and 6 of the Bill will have possible implications and impact on the DBE, once the ECD function transfer from DSD and DBE has been finalised.
- DBE therefore has a direct interest in the outcome of the amendment process on chapters 5 and 6 as the future custodians of the ECD function.
- The analysis and comments provided here are done from the perspective of becoming responsible for the implementation of the chapters 5 and 6 in so far as they relate to ECD services and programmes.
- Paragraph J of the Bill defines an ECD as a centre that provide an ECD programme for more than six children from birth to school-going age.
- Concerned that ‘school-going age’ will likely cause confusion among many. It will be beneficial to define school-going age and ensuring that this definition is aligned to the age of admission in the BELA Bill.
- The DBE has always strived to increase equity in service provision. This is a value that we would like to further pursue in the ECD sector
- We would therefore suggest that reprioritisation is not made discretionally by MECs, but rather that it is made preemptory in order for the MEC to take the reprioritisation seriously.
- The function shift will result in both the Ministers of Basic Education and Social Development being responsible for Chapter 5:
- If partial care facilities that provide ECD services are excluded from chapter 5 and integrated into chapter 6, it could mitigate potential future confusion.
- It is therefore proposed that ECD is fully covered in a single chapter in the Children’s Act.
- It is clear that the ECD sector has struggled under the burdensome bureaucratic processes.
- In order to avoid ECD registration being regulated more than once in the bill, it is proposed that Part I and Part II is integrated to enable the development of a streamlined registration process.
Western Cape Forum for Intellectual Disability Presentation
Ms Vanessa Japhta presented to the Committee.
- 1.Constitutional violation of their right to:
- 2.Violation of a court order (Case18678/2007)
- To provide centres with:
- Funding for adequate staff and infrastructure
- Training and accreditation
The Bill is silent on special care centres
- NGOs (independent)
- Home or centre-based in RDP houses; shacks or containers without safe water and sanitation; rented accommodation and purpose-built facilities
- Some are partially funded by Departments of Social Development and Health
- Licensed by Department of Health
- Registered with DSD as NGOs or NPOs
- Some receive support from DBE outreach teams
- Draft a Chapter and related sections and clauses on special care centres, pertaining especially to centres that accommodate learners with disabilities of compulsory school-going age.
- Acknowledge that learners of compulsory school going age at special care centres are the responsibility of primarily the Department of Basic Education with support from other government departments
- nclude clauses articulating the coordination, obligations, roles and responsibilities of government departments in this regard, in particular, the role of the Department of Basic Education and provincial education departments (PED)
Provide clauses that:
- Define special care centres
- Compel the DBE to provide Norms and Standards for Special Care Centres within an immediate timeframe
- Regulate the registration, licensing, funding, resourcing and operations of centres
- Address the staffing at centres holistically and appropriately
Include clauses that compel the DBE:
- To cease its narrow interpretation of its mandate as being ‘the curriculum’
- To fund and resource special care centres adequately (including learner transport)
- To expand the current conditional grant to reflect the funding and resourcing of centres
- To conclude MOAs with centres
Include clauses that address:
- Funding of special care centre infrastructure
- Provisions for special care centres in private homes, businesses and properties not owned by the NGO to be relocated to the campus of the local public school with access to ALL the resourcing of public schools, and eventual inclusion of learners and staff in that public school in all respects.
- Department of Basic Education, with the support of the Department of Social Development, to re-locate learners to a public school when a special care centre is closed.
- Education and Social Development Ministers and MECs and their departments to prioritise and accelerate education for learners of centres at schools
- Revise the current Bill
- Include special care centres for children with disabilities in the Bill
- Adopt a developmental and asset-based approach to the Bill
- Specify coordination, departmental roles and responsibilities
- Explicitly state DBE’s primary role for providing education to ALL children
Ms L van der Merwe (IFP) stated that while she might disagree with some of the issues expressed by the House of Traditional Leaders, she supported the importance of the House of Traditional Leaders in protecting the rights of children. She appreciated that the House did not support female circumcision.
She referred to the proposals made by the Centre for Child Law, regarding corporal punishment and having to refer parents to programmes or interventions by social workers. The reality was that there were not enough social workers. Was the proposal to refer families/parents for parenting programmes with social workers, a feasible proposal?
She appreciated the proposals made regarding the rewording of clauses – specifically in relation to the rights of the father. It was mentioned that there was a rapid decline in the uptake of the Foster Care Grant – why was that? It was also stated that only a third of eligible orphans were currently receiving the top-up. Treasury had not budgeted for the top-ups that they needed to implement in terms of the amendment that had been passed. As a Committee they needed to engage with Treasury in that regard as a matter of urgency.
There were varying opinions relating to international adoption and whether it was in the best interest of a South African child. Research suggested that many families that did adopt children and took them abroad, they often adopted children with HIV Aids or with disabilities. Did they think that international adoption was in the child’s best interest? In terms of the children living with disabilities, they needed to consider the challenges that the sector was facing – specifically around the regulation of registration and funding of operational staff of such institutions. Currently, children with disabilities were excluded from mainstream schools – she had thought that was no longer allowed. She was under the impression that they should be able to participate in mainstream schooling.
Ms B Masango (DA) stated that she was intrigued by the oral presentation made by the House of Traditional Leaders in terms of the observations around considerations of children and adulthood. She asked whether there was any insight into temporary placement of children for the two year period. In terms of the Centre for Child Law, they had spoken about transitional legislation to avoid things falling through the cracks – what form would such transitional legislation take? In 2000, what in their research, had caused the increase in the number of children needing to enter the foster care space? She directed her question to the Department of Basic Education, with respect to the preemptory Bill, she asked for more clarity as to what this meant. She requested clarity regarding the presentation relating to children with disabilities and the Amendment Bill, specifically the existing Bill being silent about children with disabilities.
Ms A Abrahams (DA) referred to the presentation made by the House of Traditional Leaders and agreed with Ms van der Merwe in terms of not sharing the same viewpoints, but if they kept children at the centre of the discussion they would come out positively at the end. She noted that the Gender Equality Commission was on their schedule for public hearings. It would have been interesting to hear from the Human Rights Commissioner and the Commission for the Promotion and Protection of the Rights of Culture regarding the clause relating to ‘virginity testing.’
With respect to the Department of Basic Education (DBE), she was happy that they were looking to streamline the processes with respect to early childhood development (ECD). She requested to know their comments on what they had spoken about the day before regarding the proposed second Amendment Bill and how they foresaw that unfolding once the migration was complete.
They had spoken a lot about the privacy and protection of children and their names being removed in court proceedings as well as in the media. They had also found that they got high profile/public figure parents who stood accused of child abuse - their names got publicised in court and the media. Once one knew the identity of a parent it was easy to identify the child. Were there any suggestions on how to protect the child in such cases.
Ms J Manganye (ANC) requested clarity regarding the point made in the presentation by the National House of Traditional Leaders regarding the issue of virginity testing at 12 years of age.
They spoke about unmarried parents and the rights specifically of the father to see the child. What about married parents where the father would not allow the mother to see the child? She wanted to check on that responsibility. Both of them had responsibilities. Most of the presenters spoke about corporal punishment – she wanted to understand the proper disciplinary approach they had spoken of.
Ms L Arries (EFF) raised the issue regarding virginity testing and giving consent for the test. She requested clarity as to who they defined as being minors. A Constitutional Court banned corporal punishment – would it not be a violation of the children’s rights to promote corporal punishment. Where did one draw the line in terms of tradition and legislation – she made reference to the ‘maidens dance.’
Chairperson Mr M Gungubele (ANC) asked that DBE explain the early childhood development clauses that were rejected. What emerged strongly the day before regarding DBE, was that stakeholders accepted that it may not be appropriate to entertain the amendment of the clauses. However the condition they had expressed was the urgency of the Second Amendment Bill. They had requested strict timelines in that regard. They had stated that it needed to be a holistic and urgent bill. They were pushing for a champion in that regard. They had highlighted the need for single registration and simplification of processes. They had stressed the need for easy registration. There were various presentations that highlighted the plight of children, particularly examples from the Western Cape. The issue of there being an incoherent regulatory system had been highlighted.
In terms of foster care, no child in South Africa should not have access to the benefits of foster care because of an incompetent system. The relationships between the law in place and the capacity at their disposal needed to be of such a nature that no child would be unable to access foster care. There could not be such issues that existed around renewal and backlogs. The other issue that was raised was that there were no resources to make sure that the intention of the Social Assistance Amendment Bill was taken care of.
Ms Nondumiso Ngonyama stated that the issue of the age of virginity testing had been raised by a number of the Members – regarding the 12 years of age recommended. The point she was trying to emphasise, was that at the age of 12, most children started to menstruate – ‘the chances of falling pregnant were high.’ If one fell pregnant at age 12, could one still be regarded as a child? They were no longer children then, they were mothers. They wanted to emphasise prevention, which was better than cure, to state that as long as the children consented to virginity testing, there should be no law that determined age. It was the willingness of the person. No one should be tested without giving their consent, whether she was three, seven or 12 years old.
Chairperson Mr Gungubele interrupted to state that when they dealt with age relevance in dealing with human development, it was not only cultural, it was psychological as well. It was the growth of mind as well as a number of other things. He was not sure whether Ms Ngonyama was suggesting that because a child could menstruate at 12 years, in terms of the physiological assessment, it necessarily meant that they should not be protected under the law and considered a child. When one considered the law, it was the ability of the child to reach a stage where they were aware of the consequences of the decisions they made. The protection of a child was not only based on the physiological stages. It was also on the growth level of a child and the maturity of the child.
Ms Nondumiso Ngonyama stated that she might not be able to comment on other aspects, due to lack of experience in those areas. A psychologist would be able to determine the maturity level of a child. They did not have those expertise. They were emphasising as Royal Leaders that, if they were talking about the protection of a child, the virginity testing formed part of protection as long as the child was consenting to it. Once one became a mother at an age that they regarded as not yet mature, it brought challenges relating to breast feeding, of ones life being cut-short as a child and becoming an adult prematurely. There were different ways of protecting a child – it differed from culture to culture as well as educational, spiritual or psychological background. There were a lot of aspects that needed to be considered when one spoke of protection. They were protecting children from becoming mothers before it was time.
She noted the question regarding the ‘reed-dance’ and dancing naked in public. She had previously mentioned the issue around moral decay. ‘When one saw the buttocks of a child, one should not be sexually aroused’ – because of the moral decay – there were children as young as five months being raped. The ‘issue’ of nakedness was the pride of a person – to say ‘look at me’ - not in a sexual manner. They were displaying their pride, the girls were displaying their pride of saying, that they had not been touched and they had made a vow to themselves that they would not be touched until a certain age. The bottom line was that one should not be discouraged on taking pride of herself, as long it was done with dignity and it was ‘not an everyday thing.’
Chairperson Mr Gungubele stated that he suspected that humanity was in a constant cycle of evolution and growth, adaptation and maturation. As they grew, they were learning things in a particular way and they were trying to adapt.
Ms Paula Proudlock responded to state that the decline in the foster care was cause by two issues, the one was that, if one looked at the profile of the children in foster care, the majority of them were older children. This was because it correlated with the profile of orphans who also tended to be older children. It took a long time to get into the foster care system, that the majority were older children. They were ageing out of the system quite rapidly. When they turned 18 years, they fell out of the system. Every year one would see between 60 and 100 thousand children fall off the grant at the age of 18 years. By March, 50 percent would come back on, based on the provision of the extension till 21 years, if they were still in education. At that end there was quite a lot of work that was done to get the 18 to 21 year olds back onto the system. This was a burden on social workers, the Head of Department (HOD) and the parents who needed to prove the children were still in education. There was quite a waste of resources occurring on that end.
On the other end, they saw a rapid decline in new applications, they were not sure why. She recommended that the next time the Committee called the Department, particularly the MECs in to talk about the backlog, they should ask them to talk about new applications and what was going on. Why was there such a drop-off in new applications? She could only speculate, one issue was that the Department might already be turning away family members who applied for foster care, when they had orphans in their care. They saw this in their fieldwork in the Eastern Cape. All the grandmothers they worked with there, who had orphaned and abandoned children, went to the social workers and there was no mention of foster care. They might be referring them away from foster care – which was unlawful. Those grandmothers and aunts would be legally allowed to foster. Until section 51(a) was amended by the Committee, the Department had no right to refer the grandmothers and aunts away from foster care.
Children who were in child and youth care centres should actually be in foster care. Foster care was a better form of alternative care than child and youth care centres. Social workers were not processing the children out of child and youth care centres. They were languishing there longer than they should.
In terms of the backlog – she would say it was mainly a ‘tick box’ exercise that was happening. There was no proper review or assessment of the children’s needs. For many children, that kind of assessment was not needed as they were living with a family for many years – there was no need to continually assess them every two years. For the past decade that was one significant waste of resources. She would suggest that the Committee ask the Department to report on how many of the orphans with family members had been converted into what was called ‘permanent foster care.’ In terms of section 186(2) of the existing Act, social workers and the courts had the right to extend foster care placement until the child was 18 years old, so that they did not have to come back every two years and take up the social workers and the courts time and put the child at risk of losing their grant. How many of the orphans in foster care had been put into permanent foster care? She realised that this was the Department’s preference as well – but she asked whether they had convinced social workers to do this.
Ms Isabel Magayo responded to Ms van der Merwe’s question regarding the shortage of social workers. Their take on this, was that early intervention was the responsibility of the Department of Social Development. If social workers were freed from administrative responsibility they could then focus on the referrals, since it was part of their mandate. The problem was that it was more about a lack of funding for parenting programmes. This needed to be addressed with provincial treasuries and the Provincial Department of Social Development. There was a relationship between intimate partner violence and corporal punishment. There needed to be a connection of the dots in implementing a broader range of programmes that could address violence in society. It was not only about corporal punishment. Once the Department worked around their administrative issues and the workload for social workers in terms of administration, they would be in a better position to state what would be feasible.
She then addressed the question by Ms Abrahams regarding privacy and protection of children in court proceedings. Their take on this, was that the criminal procedure provisions in terms of the Criminal Procedure Act applied. The Act prohibited the publication of the identity details of children who were victims or witnesses. These provisions in the Criminal Procedure Act resulted from a Constitutional Court Judgement – they were currently finalising the amendments. There were protective mechanisms of children who were in domestic violence situations. Their identity would not be identified. In terms of Ms Arries question – she requested clarity on the question around the Constitutional Judgement and the infringement of children’s rights around corporal punishment.
Clarification of questions
Ms Maganye clarified the question, as she had also raised it. If there was a different punishment – she wanted to understand what that ‘different punishment,’ would be. She had also requested clarity regarding married couples rights in terms of the children.
Ms Isabel Magayo responded to state that with regard to other forms of punishment – they advocated for positive discipline. There should be a way for parents to discipline their children in a way that did not use violence. It was the responsibility of the Department to help parents with positive discipline methods. They realised that parents felt disempowered to discipline their children. There were other ways of disciplining children without using violence.
Pregnancy and sexual activity did not determine maturity. People developed differently, there were some children who showed maturity at the age of 14 years etc. In terms of the Act, they should operate under the assumption that everybody under the age of 18 years needed care and protection and guidance. Those that could exercise greater decision-making could be supported – did not mean they could be left to their own devices. Pregnancy was not a determining factor of maturity or responsibility. With the cultural or traditional communities, a conversation needed to take place that spoke to their reality. When they said ‘child protection’ in those terms they needed to see what that would like. Cultural relativism and human rights were two things that they needed to work with when they were determining what was appropriate in terms of the assistance children needed.
Ms Vanessa Japhta stated that the fact that children with disabilities were currently excluded from school and refused admission to schools, was a violation of the Constitution. It was also a violation of the South African Schools Act which compelled the MEC for Education in each province to find a place for each child. In terms of the numbers of learners, who were excluded, DBE had conflicting reports in 2016. They had said around 600 000 children with disabilities were out of school and later said there were about 200 000. Thus, they were not sure. As far as children at special care centres were concerned, DBE reported at the beginning of 2020, that they were supporting 11 thousand learners at special care centres nationally. They admitted this year that they were supporting about six to eight thousand children. DBE had admitted that the reason the numbers fluctuated was because learners were unable to pay fees to the centres. This was likely because the centres were not adequately funded. DBE was not funding them. Their proposal to amend the Bill, was due to the other laws not being sufficient. They were thin in terms of considering the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 and Schools Act. DBE had found room to manoeuvre round those laws and regulations as well as the Constitution. It should not be necessary for the Act to stipulate this. The reason they were asking for the Act to stipulate DBE’s responsibility for education at those special care centres was because DBE had found loopholes, what actually constituted a violation of those laws and the Constitution.
Ms Janell Kotze addressed the question regarding the Preemptory Bill. The one aspect they had spoken about was the function shift that was eminent, the two departments had been working toward the function shift. They hoped that the proclamations would be signed shortly by the President and Premiers. This would only take effect from 1 April 2022, the start of the next financial year. They were waiting for chapters five and six.
In terms of the Second Amendment Bill, they had discussions with the Department of Social Development. They were in support of that intention and they had also suggested, that because the two chapters would become their responsibility from the next financial year, that DBE should be taking the lead in this process. They realised the need for urgency, especially given the impact of the pandemic on the sector. They realised that they had no time to waste in terms of supporting the sector.
They agreed with many of the issues that were raised the day before, in terms of streamlining and simplifying the business processes and being clear and transparent about the business process regarding registration. One of the considerations they were taking into account, was that if the Second Amendment Bill process happened, they would be clear about the timelines. They would communicate and be transparent with the sector.
Regarding the holistic understanding of chapters five and six and understanding the context of the ECD sector and thinking through the amendments in those terms. They needed to ensure that the amendments were not haphazard but comprehensive.
Ms Paula Proudlock referred to the transitional clause. Parliament would need to add that into the Bill. If it was not added to section 159, then around 300 000 children could lose their foster care grants. The Committee would need to propose an amendment. They had proposed some suggested wording for section 159(2)(b) on slide 14 which the Department could look at.
Bayakhanya Foundation presentation
Ms Debbie Wybrow presented the Bayakhanya Foundation’s presentation to the Committee.
Children’s Amendment Bill 2021 & Child Care & Protection Policy
- Desecrates children’s rights
- Concretise fault-lines
- Technical briefing
- Our written submissions: “Fatally Flawed”
- Change.Org petition > 56 000 signatories
- Filtered information
- Content Advisor’s Brief
- Factually incorrect information
Best interests of the child
- Every child has the human & Constitutional right to family
- Child’s best interests are paramount (top priority)
- Other factors secondary
- Subsidiarity is also secondary
- Our Constitutional Court has confirmed this
- But Policy and Bill put child’s interests second?
Timeframe for a child
Critical for child
- Delays damage development
- Windows of opportunity close
Our laws and policies must:
- concurrently explore all care options //continuum of care
- invest domestically in family preservation, reunification, local adoption
- simultaneously strengthen inter-country adoption systems
But instead of international best practice of continuum of care, this Policy & Bill:
- Delays decision-making
- Promote sequential approach
- Satisfies rights of others before assessing what is best for child
- Puts the child’s best interests second
- Prejudice the child by disregarding critical timeframe
Permanency and protection
- Permanent better than temporary placement
- Adoption pro-actively embraces unification
- Gives child rights, including permanent care in a family setting
- Child belongs for life - even after turning 18
But instead of promoting adoption, this bill & policy does the opposite:
- Side-lines adoption by making it the last resort
- Pushes for less permanent care, leaving child with fewer rights, less protection or permanency
- Promotes foster care, kinship care, guardianship, temporary safe care and institutionalisation
- Ignores global research that foster and kinship options are less beneficial than adoption
- Fails to differentiate between the child’s rights in adoption, guardianship, parental responsibilities, foster care
- Make no provision for permanency where parent/s are unable or unwilling to care (unwanted pregnancies, abandoned children, those with special needs)
The Bill and Policy
- Fails to provide for safeguards vital prior to placing children
- Fails to provide for transitioning
- Fails to provide for post placement monitoring and support
- Prioritises the rights of adults to acquire rights
- Suggests automatic acquisition of parental rights without considering effect on children
- Is devoid of the trauma-informed approach necessary to understand the child’s inherent trauma from previous violations
Wandisa Specialist Child Protection and Adoption Agency Presentation
Ms Renata Milan presented to the Committee.
It is suggested that it is reworked to include details relating to:
- Abandonment being prioritised as a major social crisis
- What can be put in place to reduce and prevent abandonment
- The differentiation between safe and unsafe abandonment
- How to best legalise the option of relinquishment for safe ‘abandonment.’
- Ensure options counselling is accessible to all birth mothers in crisis
- The criminal sanction attached to safe abandonment must be removed.
- Guidelines in respect of documentation of children whom have been abandoned.
Reunification, return and reintegration into family care and deinstitutionalisation
- Clarification is required in the legislation as to what reunification, return and reintegration mean and how they will be implemented in practice.
- The law should be development to ensure that reunification:
- Is always viewed through the lens of the child’s best interests
- Is within a reasonable child centric timeframe
- Only takes place after professional assessments have been completed in which the initial cause for removal or alternative placement has been resolved.
Unification through adoption
- Adoption is a specialised field, a lifelong decision that needs to be made based on the best interest of a child.
- It is therefore critical that adoption practices are handled by trained, experienced, professional adoption social workers.
- Children’s best interests are realised through permanency and security which adoption provide.
Centre of Social Development at Rhodes University Presentation
Ms Nicci Hayes presented to the Committee.
- Differentiated approach (rather than one size fits all)
- Differentiated approach regarding qualification (ECD sector should be ‘fair game’ for training institutions to make money from). Academic qualifications should not be seen as the ONLY valid form of training and skills development (should consider articulation with the Vocational Skills Stream of the DBE.
- Guaranteed infrastructural support and accountability measures.
- Who is responsible for setting Health and Safety standards and responsibility for ensuring that those standards are met?
- Simplification of registration process
Equal Education Law Centre Presentation
Ms Asiphe Funda presented on behalf of the Equal Education Law Centre.
Unfortunately, the Bill misses this opportunity, in that, amongst other things:
- It does not refer to the concepts of ‘inclusion’ and ‘inclusive programmes’ with any degree of specificity so as to ensure a common understanding of these terms and to improve implementation.
- The words ‘inclusion’ and ‘disability’ are used throughout the bill without being defined. They are sometimes used interchangeably and other times to refer to distinct concepts.
- We recommend that these terms be defined to promote clarity and certainty and to incorporate all aspects of diversity.
- (1)‘Early childhood development, for the purposes of this Act, means the process of emotional, cognitive, sensory, spiritual, moral, physical, social and communication development of children from birth to school going age or in the case of a child with developmental difficulties and disabilities, until the year before the child enters school.’
- We recommend a deletion of the following words which appear in clause 45(1) of the bill: ‘…in the case of a child with developmental difficulties and disabilities, until the year before the child enters school.”
(a)”Maintain a record of all the early childhood development programmes registered in the province with specific mention of inclusive programmes.”
- It is not clear what is meant by ‘inclusive programmes.’
- We recommend that a broad definition for ‘inclusive programmes’ be included in the Bill.
South African National Civic Organisation (SANCO) Presentation
Ms Gail Walters and Sylvia Stevens presented to the Committee. Various case studies were outlined.
- One parent would have up to 4 children – even thought there was grant – it posed practical issues.
- Many children who did not have birth certificates (only birth details – which were often inaccurate).
- In terms of Grade R and 1, there were a number of children who experienced domestic violence and the issues were coming into the classroom. They brought in the SGB (who could not understand most of the problems). They then sought assistance from Social Development. The mother was not willing to speak about the father’s behaviour. Focus groups were proposed to highlight the issues.
- If a social worker was working closely with schools, even though social workers were supposedly allocated – there was nothing.
- Found children wondering streets alone.
- Issues relating to emotional maturity after youth pregnancies.
- Cultural issues were being expressed by communities – in terms of polygamy, young marriages etc.
- These were workshops they would take further.
- Exchange of sexual relations for substances (predominantly drugs not alcohol).
Issues raised in the submission
- Belief that family members taking care of children should be considered in terms of financial support.
- The rights of unmarried fathers – they should be afforded an opportunity to participate. They need support and training.
- Recommendations were made regarding nutrition – particularly within schools and in households.
- Recommendations were made regarding the ECD registration process – to improve efficiency.
- ECD should be considered as a form of prevention
- Bullying within schools and society should be addressed.
- Chapters relating to the severity of punishments – they agreed with the protection of the child.
Jelly Beanz Presentation
Ms Edith Kriel presented to the Committee.
- Significant concerns about the dysfunctional child protection services.
- Too many children slip through the cracks in the system and are not protected as is their right.
- Children’s Act as proposed by the Bill has to be accompanied b the urgent reorganisation and coordination of the child care and protection system.
- Unchecked violence against children will perpetuate the continued cycle of gender based violence across generations.
S5 in the existing Children’s Act, none in the Bill
- All role players, including designated child protection organisations are brought into the system to improve coordination and mutual accountability. At present, NPOs and civil society organisations providing services are not mentioned in the coordination section (5) and yet provide the majority of services provided for in the Act.
- Step 1: Banning of corporal punishment by the Constitutional Court
- Step 2: Section 1(g) guiding the behaviour of the child in a humane manner using positive parenting and on-violent disciplinary methods
- Step 3: Section 144: Education and awareness-raising programmes concerning positive parenting are implemented
- Step 4: Section 144: programmes promoting positive discipline at home and in alternative care are available.
- International research indicates that the cost benefits of offender registers are poor and contribute little to the protection of children.
- This register has a poor track record in terms of prompt screening and response to queries
- The register is, in part, duplicated by the National Sexual offenders Register
- It does not record all offences that could place children at risk such as multiple offences related to drunk driving or assaults that indicate poor self control.
- The register is expensive to maintain, involving poor use of scarce resources, both material and personnel.
- We recommend the use of the Criminal Offences register and therefore a police certificate on offences which will protect children further.
The provision to facilitate contact between fathers and children
- System neglects to include fathers
- Benefits of including fathers: research supports the benefits of father’s involvement in their children’s lives.
- Including fathers impacts on Gender-Based Violence (GBV): we need to be creative and make use of all resources and efforts to include fathers.
- Including fathers from the point of conception to be involved with their children will improve empathy which will influence GBV.
National Adoption Coalition of South Africa Presentation
Ms Susan Krawitz, Vice Chairperson of the National Adoption Coalition South Africa, presented to the Committee.
There are two major factors impacting on the efficacy of the mandate of the Children’s Act, No 38 of 2005 as amended, in terms of adoptions:
- A lack of direction, capacity and infrastructure
- An underlying anti-adoption sentiment.
Statistics provided by DSD indicate that adoptions have declined over the years. However, our records show that this is certainly not due to fewer children in the system, but rather more likely due to an increase in administrative delays and bureaucracy.
- Form 40: sexual offences clearance
- RACAP: The register of adoptable children and parents
- Section 171 placement order: transfer of a child into alternative care
- Section 239 (1)(d): An application for an adoption order and letter of recommendation
- Application and finalisation of adoption at Children’s Court
- Registration of adoption at DSD
- Name change at Home Affairs.
Implications of delays
- Administrative procedures lose sight of the best interests of the child
- The first 1000 days in the life of a child are crucial to their development.
- Delays compromise care and can be potentially life-threatening
- Many children in care have special needs due to the circumstances of their antenatal care and birth
- The child may become too old to be matched and they therefore become un-adoptable.
Proposed amendments to the Children’s Act should commit to the following three principles:
- A rededication to serving the best interests of the child
- The prevention of procedural delays
- A focus on adoption as a successful placement option for a child.
Abba Specialist Adoption and Social Services
Ms Katinka Pieterse presented to the Committee.
Key Problem Areas
- Adoption Competency: Addressing who may provide adoption services with specific reference to the inclusion of social workers in the employ of the Department of Social Development(DSD).
- Delays: It is the experience of many that in more recent years procedural delays have been the major factor impacting the low number of adoptions that are being recorded annually.
- Regulating of consideration and fees charged for professional services: The issue of fees and whether adoption service providers have unreasonable financial gain from this, and suggestions that there is a fine line between adoptions and the sale of children.
Impact of amendments
- Delays with the statutory placement of children into the care of adoptive families
- Delays in the issuing of Form 30’s by the National Department of Social Development for prospective adoptive parents verifying that their names do not appear on the Child Protection Register (“CPR”)
- A lack of permanency planning for abandoned and adoptable children which leads to abandoned children and children without permanent family care options remaining in Institutions for years, rather than being considered for adoption.
- Extensive delays in issuance of Section 239(1) (d) of the Children’s Act (38 of 2005) which requires the Head of the Department of the Provincial Department of Social Development to provide letter of recommendations to the Court regarding each prospective adoption.
Prevention of improper financial gain and regulating of professional fees in Adoptions
- Most accredited DCPO’s & Adoption Social workers charge a nominal adoption fee as prescribed by Section 249.The income derived from these fees enables DCPO’s to employ (and retain) experienced social workers, and to cover general operating costs. Partial subsidies paid by the State for the rendering of child protection services are inadequate and not applicable to adoption social workers in private practise.
- The charging of professional fees are strictly regulated. There are allegation Allegations of charging of unreasonable fees are made. Should there be any issues regarding unreasonable fees that are charged in relation to an adoption, there are mechanisms in place via the Council, DSD and courts to monitor, regulate and to take corrective action. These should be implemented.
Accreditation to provide inter-country adoption services
- Accreditation to provide inter-country adoption services and receiving prescribed fees for professional services rendered
- The Hague Convention on Inter-country Adoptions (“HCCH”) which South Africa has acceded to recognises that inter-country adoption offers a permanent family to a child for whom a suitable family could not be found in a country of origin.
- According to the Register on Adoptable Children (“RACAP”) the number of children in need of adoptive placements outweighs the number of screened fit & proper adoptive parent.
- Feedback from accredited organisations suggests that children presenting with specific special needs and older children are rarely adopted nationally, but often find adoptive parent’s through inter-country adoptions.
- Fees charged for inter-country adoptions have been capped and are strictly regulated
- While legislation is imperative to ensure children are safe and that any new placements have been thoroughly screened and vetted, the bureaucratic delays that impede adoption at every step of the process need to be minimised.
- Legislation needs to ensure that the parties involved in facilitating adoptions are held accountable so that children can be placed into their family as soon as possible.
- The goal of legislative changes should be upholding children’s best interests, facilitating permanent family care and allowing children to be placed in that care as early as possible, specifically in the first thousand days of life to optimise attachment and the child’s ongoing physical, emotional and social development.
- This is especially true in instances where children have experienced the trauma of abandonment.
Ms van der Merwe stated that she had visited a number of orphanages during the recess that had just passed. Once one had engaged with babies that had been abandoned and one was faced with the reality that it was the system that had failed them it was astounding. A system that was meant to protect children was actually causing the delays. In so doing they were denying children the opportunity to go to families who were willing to raise and love them. The red tape and delays around adoption was causing the slowing down of adoptions. She suggested that as a Committee who were tasked with protecting children, they should take a dim view with regard to the fact that it was the system meant to protect children that was delaying the process of adoption. She was not only referring to the Department of Social Development but also to Home Affairs and Justice.
She suggested they should seriously look at some of the proposals that were made in terms of making sure that the Amendment Bill enforced compliance with timeframes. It could not be, that children could be adopted before they were six months old, but then stayed in children’s homes or safe houses for longer and longer periods. Timeframes needed to be built into the Amendment Bill. Having served on the Portfolio Committee of Home Affairs, she could confirm that once the process reached Home Affairs, where the name and surname change needed to take place, it could take up to two years.
It was highlighted in the presentations that there was generally a negative or ‘anti-adoption’ sentiment within South Africa. What could they do as a collective, as Parliament and people who served on the Committee to change the anti-adoption narrative? What could be done in terms of communication or education. It was stated in the presentations that local adoption could take up to two years – what was the current timeframes relating to international adoptions? How long did that take? Did the negative anti-adoption sentiment lead to wilful delays at the Department of Home Affairs, Social Development and Justice?
With respect to inter-country adoption, most children with disabilities and HIV and Aids were adopted by other countries. When they spoke to some people, it was stated that they were not in favour of inter-country adoptions due to the issue of child trafficking. She was led to believe that families who adopted children in South Africa, that were from other countries, went through a double screening process. They were screened in their country of origin and they were screened in South Africa. This meant that those families were more than suitable and safe for children.
They did need to take into account that the Country was facing a social worker crisis – there were not enough social workers. At the end of the day, the social workers may not have the skills, the time and nor capacity to deal with more relating to adoption. She directed a question to Abba, at some point they had experienced a cut to their funding as a result of non-compliance – in terms of the requirements to submit to DSD - how did this impact their services? Had the situation been corrected?
They needed to relook at section 249 in terms of the issue of the complete deletion of the prescribed fees. Two things were coming out, that the organisations professional bodies did not have the capacity to regulate the fees and that it might have unintended consequences which could lead to the exploitation of mothers and children. The proposals that were put forward by Abba in terms of section 249 – should be looked at.
Ms M Sukers (ACDP) emphasised the issue regarding the delay in placing children into permanent care. For everyone that worked on the ground and worked with vulnerable children, they were at the forefront of the bureaucratic processes that delayed children from being placed permanently. They saw the shame that mothers experienced when they decided to give their children up for adoption. It was a crisis in many communities that were as she called it the ‘drug talent pipeline’ or the ’gangster talent pipeline.’ Vulnerable children that did not have a safe haven, whom were emotionally impacted by the failure of the services and system, whom became targets for people who would misuse them. In their need for survival, they then needed to do horrible things that impacted them.
They had dealt a lot with the technicalities around the Bill, she wanted to hear what should be the areas of focus during this period, specifically until the proclamation of the Bill? What were the highest priorities? What were the social imperatives that they as legislators and the sector as a whole should be focused on? In terms of the options available, and the window of opportunity that was spoken about – where children had no options. What should they be doing to deal with the deliberate and wilful delay of putting children into permanent placements? She spoke from experience. She asked that the Committee be provided with a run-down of the judgement in the KwaZulu Natal (KZN) case – what did it mean and how could they use that judgement? Specifically, how did it help to deal with the bureaucratic challenges. The attitudes in Social Development prevented vulnerable children from being placed permanently. She asked that they be provided with that information.
Ms Abrahams referred to the proposed amendment of section 239, regarding the letter the provincial HOD was supposed to provide. The Court could proceed with the adoption without the letter. What were the contents of that letter – if it could simply be dispensed with? Would the social workers report still bare weight on that adoption? By dispensing of the letter were they not removing the responsibility of the provincial HOD?
She addressed a question to Jelly Beanz, she noted that it was stated that the presenter would like to see drunk driving charges on the child protection register as well – was she referring to drunk driving charges where children were in the vehicle when the accident occurred or the person was pulled over?
There was a lot of emphasis placed on the overburden and under-capacity of social workers in government. She was looking at SANCO’s submission, they had about 19 social workers that were mentioned in their submission. Listening to all the social workers on the platform – from the NGO space – highlighted the need to hear from government social workers. Would it not be in the Committee’s interest to hear firsthand accounts of social workers within the government system – to hear their own personal experience on their case load etc? Randomly selected social workers – so that they could get an honest account of the pressures that they were facing with respect to their workloads in the child protection service. When SANCO mentioned that sometimes the children were placed with foster care parents who had eight to ten children - who made the placements? Were those placements made by social workers in the NGO space or were those placements being made by the government social workers? She addressed Wandisa, it was a moving presentation, one did not forget the phone calls regarding abandoned children. In her career she had only received such a phone call once from the Golden Acre and it still haunted her. She thanked them for their strength in having to deal with such situations on a regular basis.
She asked whether they had watched Carte Blanche on the Sunday before, there was a segment on NGOs.They had a real problem of placing children who were in need of protection.
Ms Masango stated that whilst they had labelled the Amendment Bill as a comprehensive legal solution to foster care, it was important that they gave attention to each of the issues that were being raised. One got the sense, that each of the different areas could have been amendments of their own. In terms of the cost of R238 billion that was spent on violence against children – was there a document in this regard that could be communicated to the Committee. She was not disputing it – she just wanted more information on the issue.
There had been a reference to destruction of children’s lives in terms of the delays in the adoption process. What were some of the ways in which children were ‘destroyed?’ This should be a lesson to them, even as parliamentarians, to make sure that they did whatever they could to avoid those things happening. Wandisa spoke about 3.7 million children that had no parents – were these children at risk – that needed assessment by social workers – ‘what category of children were they?’ In terms of the inter-departmental coordination mechanisms – It was clearly not working optimally and as a result it was affecting children negatively. It was asked that the White Paper that was mentioned be shared with the Committee.
Where were the most gaps in the childcare and protection system – with reference to the Jelly Beans presentation? Were the gaps being adequately addressed in the Bill they were presently processing? With everything being equal and everyone doing their work – what was the length of time that it should take for an adoption to successfully take place.
Ms van der Merwe stated that there was a comment made in the Wandisa presentation regarding the need for legislative change. She had specifically referred to safe abandonment versus non-safe abandonment. The presenter had spoken about legislative change that was needed in this regard. South Africa did not have safe haven laws, whereas countries such as Namibia, Canada and the United States (US) did. Did they think that this was something that Parliament should consider?
Ms Debbie Wybrow spoke to how the anti-adoption narrative could be changed. This had to do with empowering society at large and decision makers on key things. The first being that the interest of the child was the first priority – to be able to do that, everyone needed to be able to understand what ‘best interest’ meant and the order in which one applied it. The other two things that were related to that, was that they needed to ask for expedited timeframes because everyday was a day lost for children who did not have family care. There were ways of incorporating that – for example through the section 7 amendment – which asked specifically for permanency of children to be prioritised and expedited timeframes to be applied. The anti-adoption narrative was based on ignorance, people not understanding how many checks and balances there were to protect children in relation to adoption.
In terms of the inter-sectoral breakdown. In terms of the professional fees story, she was physically present in the National Assembly at the time, there were very specific reasons why section 249 and 250 were phrased as they were. She agreed with the submissions made by colleagues that both of the sections needed to be retained. In terms of the cost to the Country, the study was done by Save the Children in 2015. She would share that link with the Committee. There was a cost to standing up for children.
Ms Asiphe Funda stated that the Education White Paper 6 was available on the DBE website and other websites. The White Paper aimed to provide a framework for establishing inclusive education and training systems and detailed a funding strategy for inclusive education in South Africa. It was critical, because the implementation phase from 2001 to 2021 was coming to an end – and there was a need for a review of the legislation to regulate inclusive education in South Africa.
Ms Edith Kriel expanded on her statement regarding driving, her comment was that people who had charges of drunk driving or assault against them – displayed a lack of impulse control and responsibility. The relevance was not necessarily whether a child was in the vehicle at the time. In terms of the gaps – there was a lack of inter-sectoral coordination – that was where children fell through the gaps. Often what was meant to be a coordinated process was person driven versus being systemically driven. If policy and procedure could speak to making it a systemic process versus a person driven process – that would be really important. There needed to be more accountability to social workers regarding poor quality services – relating to intake and crisis relating to children. The focus needed to be on the quality of services versus the quantity of services. They needed to find ways in which to hold people accountable – not in terms of the number of children that they were helping - but the manner in which they were actually helping children.
Ms Susan Krawitz referred to the safe haven laws, there was a need to look at those. They would support making it safer for people to abandon children. They did not encourage abandonment but supported making it safer for those children to survive. In terms of the 239 letter, the content of the letter stated that the Department of Social Development had no objection and would support the recommendation to the adoption. There was a question regarding special needs children and the time it took. Those timeframes were even longer than national adoptions because there were additional processes and procedures. It must be clearly stated that inter-country adoptions were very carefully monitored. There were feedbacks for five years. Examples of children being trafficked – facts were required in terms of statistics. Inter-country adoption was extremely difficult and a heavily monitored process. The ‘us and them’ attitude amongst the Department, the CPOs and the private practitioners really needed to be addressed. They were all there to address the needs of children, the special needs of children and children’s best interests. There were campaigns to educate people around adoption – there needed to be more of that happening.
Ms Katinka Pieterse responded to the question regarding social workers in the Department of Social Development. The number of social workers was a crisis across South Africa – not only with respect to adoptions. From their side, they had a strong opinion that it was a positive for social workers to enter the adoption space. Especially given that there were many adoptable children, and many who were not finding ‘forever families.’ Social workers were generally not familiar with the procedures and were generally ‘scared’ of adoptions. The Department had done quite a lot to prepare social workers to ensure that they were trained and to some extent be able to move into the space. They were emphasising the importance of not doing this in a rushed manner because of the pressure of policy, law and timeframes. There needed to be a clear plan of how social workers would fit into the structure across the provinces. They needed to ensure that the social workers who entered that space were not setup to fail – they needed to be properly trained and supported.
Mr Avanda Godongwane Presentation
Mr Avanda Godongwane presented his personal account and experience of the system.
- Lack of proper guidance and transition from the foster care system into adulthood (the end of the foster care grant at 18 years of age)
- Continuum care was not taken seriously on the ground
- The Act did not hold anyone responsible after leaving the system of alternative care
- Teenagers that were about to leave the alternative care system had unique needs
- They needed to be recognised and given greater priority through the transition process. – Would allow for them to thrive.
- The programmes and services while they were in the Child and Youth Care Centres (CYCC) – must compliment the programmes rendered outside the system. (should include self-developmental programmes, academic support, social skills and training).
- Psychological and mental support should be provided
- Continuum care should not be a year or less – it should be greater than that.
- Children’s Act must give clarity around support services that are to be rendered to children leaving the CYCCs.
Ms Elke Day’s Presentation
Ms Elke Day and her adopted daughter presented to the Committee. The presentation focused on Ms Elke Day’s personal and professional experience, both as a private adoption social worker and mother of an adopted child. Her adopted daughter shared her personal account and experiences of institutional and adoptive care.
- Every child had the right to permanent family care, adoption was the best place, outside of biological family care.
- Everyday spent in an institution, no matter how well-run it was, was one day too many in the life of a child.
- Impacts emotional and psychological development – requires nurturing family.
- Children develop their sense of right and wrong in the context of the relationships with their primary attachment figures. (where this was absent anti-social behaviour occurs i.e lying and stealing etc).
- Recommend improvement of timeframes.
- Perceptions around adoption – people hear that it is a long and difficult process.
- There were many roadblocks along the way to adoption – that could be eliminated.
- Bureaucratic processes rob children of the window of opportunity that existed in the first 1000 days of life.
- With the increased burden of poverty and COVID-19 the Country faces a great challenge – there would be many more children coming into the system.
- Adoption should be seen as the primary placement option when children were abandoned and the family could not be located.
- There seemed to be a negative view of adoption – depending on the social workers involved.
Personal account of her adopted daughter
- 19 years of age
- Being in a children’s home and foster care, one felt very insecure because there was no certainty about what would happen next
- There was no consistency of people in such institutions – personnel were on weekly rotations and there were volunteers – impacts trust.
- When she got adopted, she experienced a sense of relief – felt safe and secure
- Not enough was done to reunite her with her birth family – despite her birth family having tried. – insufficient rehabilitation took place in terms of her biological family – she would have been submitted to more abuse and trauma than what she had previously experienced because there was nothing in place to help biological parents to do better.
Chairperson Mr Gungubele stated that the speaker had highlighted the need and role of a quality continuum programme – they needed something from which to jump to acquire independence. The second presenter’s daughter had highlighted the contrast between living in the orphanage and an adoptive home. She highlighted the instability of living in the orphanage. There was also a high level of uncertainty about the future. They had shared their experience about the environment of uncertainty regarding their future. They had also presented the interventions that were there.
Ms Abrahams asked how old the young man was who had presented. Walter Sisulu CYCC – that was the same NGO that was mentioned on Carte Blanche on the Sunday before, they were struggling with funding and placements. She suggested that they look at that CYCC.
She highlighted the issue that was highlighted earlier in the meeting regarding maturity. Sometimes when one was 18 years old, one was still not mature. In the Act it stated that once one was 18 one was deemed an adult. In some cultures, one only got the key of the house when one hit 21 years – and even then one was still a child in some communities.
In terms of CYCCs, and hearing about the plan that was supposed to be put in place. The year before, she had expressed herself regarding this very issue. A safety plan for orphaned and vulnerable children exiting CYCCs. The response one got from the Department – it highlighted the alternative care programme and the provision for independent living programmes. It stated that the living plan for the child had to be reviewed every six months and put in place 90 days prior to the person being discharged. It needed to be tailor made. Hearing from the young gentleman what was happening on the ground – it seemed as if the legislation and regulations were not being implemented properly. It was not resulting in the desired outcome. South Africa had great laws and legislation, it was just how they implemented them and put into practice independent living and exit programmes. They needed to look into why it was not being implemented properly and whether it resulted from capacity challenges.
Ms Mvana stated that a child who reached 18 years as long as he or she was still at school, must be provided with assistance. Skills transfer was necessary, without that, the child could not move as they would be dependent.
Ms Masango appreciated the presentations and how clearly the Act and policies impacted children on the ground. She also highlighted the importance of the implementation of legislation – this was emphasised during the presentation. The two presentations came after hearing about the significant role that was played by adoptions – as a form of permanent placement in the life of a person. She had never considered that the only constant in an institution were the buildings. The people that worked there came and went. There was uncertainty. They needed to ensure that the Act translated properly into implementation. They could not blame the Act later when things were not happening in the way that they should.
Mr Avanda Godongwane stated that he was still struggling. His life was very difficult. He asked whether there was any chance of him getting help form DSD. It was the only place that he knew of that was there for him while he was growing up. Was there any chance of the issues he was experiencing be fixed regarding his studies and the various administrative requirements.
Chairperson Mr Gungubele stated that they would link up with the HoD to check whether there was any advice that could be given.
Ms Elke Day stated that at the end of the day, they wanted children to have the best opportunities. The more they could get children out of children’s homes and into adoption the better. Adoption offered a support system and made a huge difference in comparison to children growing up in institutions. The sooner they could get children out of institutions, the better. She noted that there were more families willing to take in younger children. The older the child got in the system, the less opportunity for permanent adoption because families were aware that there was trauma and other issues that came with it.
The meeting was adjourned.
- Children’s Institute, UCT submission
- Children’s Institute, UCT presentation
- DBE presentation
- Jelly Beanz presentation
- Jelly Beanz submission
- Centre of Social Development at Rhodes University presentation
- Bayakhanya Foundation NPC presentation
- Bayakhanya Foundation NPC submission
- Western Cape Forum for Intellectual Disability presentation
- Media Statement: Parental Responsibilities of Unmarried Fathers Come up on Day 2 of Public Hearings on Children’s Amendment Bill
- Wandisa Child Protection & Adoption Agency NPC submission
- Wandisa Speaking Notes
- Centre for Child Law (the Centre) presentation
- Centre for Child Law (the Centre) submission
- Abba Specialist Adoption & Social Services (Abba) presentation
- Abba Specialist Adoption & Social Services (Abba) submission
- NACSA submission
- Western Cape Forum for Intellectual Disability submission
- Equal Education Law Centre (“EELC”) submission
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