In a virtual meeting, the Committee hosted its fifth and final day of public hearings on the Children’s Amendment Bill [B18-2020]. A total of 19 persons from various organisations presented their submissions and key themes addressed included:
Migrant, asylum seeker and refugee population in South Africa
For a foreign child, not having documentation and immigration status is the biggest threat to their long-term best interests. At present there is no easy pathway to documentation for foreign children. There is also a growing category of these children who have aged out of Child and Youth Care Centres that still do not have access to documentation and immigration status.
Early Childhood Development (ECD)
The challenges of ECD registration remain the biggest barrier for an ECD centre to gain full registration so they are eligible for the subsidy. Currently the registration process is lengthy, administratively burdensome and too costly. These ECD centres rely on the parents paying fees, but most parents in these communities cannot afford to pay the fees. Committee members agreed that the ECD sector has been treated as the stepchild of the education system as most ECD practitioners earn less than R1000 per month.
It was recommended that there be a one-step registration process for ECD providers. Conditional registration must be clearly stipulated when ECD providers cannot meet all the registration requirements. MECs must be obliged to support providers to meet requirements. It was suggested that ECD centres should get some kind of subsidy before they are fully registered. This will help them comply with all of the standards so that they can be registered.
Abandonment of babies
Abandonment of babies is a major social concern. Safe abandonment of babies is not legal in South Africa. If safe haven laws are implemented, this would reduce unsafe abandonment. It was urged that the criminal sanction be removed from safe abandonment, and that baby boxes be legalised as a safe alternative to unsafe abandonment.
Guardianship and powers of the Children’s Court
Although the Bill proposes that Children’s Courts should grant guardianship orders, clause 24 amending section 45 is problematic as it limits the Children’s Court jurisdiction to ‘guardianship of an orphaned or abandoned child’. This will mean that fathers and grandparents of children who are neither orphaned or abandoned, will be prevented from going to the Children’s Court to acquire guardianship. It was recommended that the phrase ‘orphaned or abandoned’ be deleted. It was commonly agreed that the Children’s Court should be empowered to deal with all cases of guardianship as currently this was only dealt with at the High Court which is costly and thus inaccessible.
Rights of unmarried fathers
The Commission for Gender Equality noted it has recently embarked on a systemic investigation following a number of complaints, mostly by unmarried fathers, who alleged a variety of challenges, including parental alienation and inability to play a meaningful role as father. Complainants said that the maternal preference rule is still applied in the judicial system.
There is an unnecessary distinction between married and unmarried biological fathers, who are expected to meet specific requirements. An unmarried father (especially if the mother is deceased) has to go through the Children’s Court to acquire parental rights and responsibilities. It was of the opinion that there is prejudice experienced by unmarried fathers and costly requirements they are expected to fulfill.
Child and Youth Care Centres (CYCCs)
It was urged that the Act should clearly stipulate how CYCCs should offer transitional support to youths who exit the CYCC. It was proposed that a standardised transition programme (for ages 16 - 18) should be established. These programmes should prepare these young adults to integrate into society and assume productive roles.
The discussion highlighted the dangers of having disparities in the legal age for specific cultural practices. There is lack of equality and prejudice towards the girl child. It is recommended that the minimum age for all practices referred to in section 12 should be raised to 18. There should be similar protection provided for girl children to refuse virginity testing, as there is in section 12(10) for boy children to refuse circumcision.
The Chairperson welcomed everyone present and all those who have supported this journey to create an environment for children, which ensures the minimum conditions for them to grow and become viable human beings, who constitute the foundation for the future of this country.
The Committee has listened to a number of submissions, which have been inspiring, others painful, touching and sometimes traumatising. The Committee will try to avoid being emotional to the extent that they omit to put their intellect at the centre of the whole process. This is a very important journey and the more that he has been involved, the more he appreciates the foundation phase programme, of building viable human beings for a future nation. This has opened his mind anew, and he is a better person for it and the other Committee members share the same sentiment.
Consortium for Refugees and Migrants South Africa (CoRMSA)
Mr Thifulufheli Sinthumule, Executive Director: CoRMSA, presented the following:
CoRMSA proposed that the following categories of children be considered in the Bill:
· Unaccompanied and separated migrant children
· Refugee and asylum seekers’ dependents
· Economic migrants’ dependents and stateless children (i.e., children that are not recognised in South Africa but also not recognised in their country of origin)
· Undocumented children both migrant or South African
· Orphans and adopted children.
· Section 1(b)(a)
Recommends inclusion of “care-giver” to read: counselling of a parent, guardian or caregiver of the child and, where applicable, the child;
The Act must be consistent in using the three parties (parent, legal guardian or caregiver) concerned for effective practical application of this Act.
· Section 1(b)(h)
Recommends the inclusion of the Department of Social Development (DSD) on the definition
· Section 1(b)(k)
Recommends the inclusion of “religious” in this subsection.
· Section 1(b)(v)
Recommends subsection (v) be reviewed to include “valid registration certificate”.
· Section 7(2)
Recommends the inclusion of “living” and “or special needs” in this section.
· Section 10(a)(e)(1A)
Recommends a family advocate or “magistrate” may in the prescribed manner issue a certificate.
· Section 14
Recommends the insertion and use of “or regional court” be consistent throughout this amendment (for accessibility in the instance when the high court cannot be accessed, especially in rural areas)
· Section 21(4)
Recommends that “domestic partner” be defined and included in Section 1.
· Section 24(c)
Recommends revision and insertion of the proposed categories of children to include all categories of children in need of care and protection.
· Section 78 (as inserted by section 4 of Act 41 of 2007)
Recommends that this section be reviewed or rephrased taking into account the powers vested on the embassy alone. Proposing that before the MEC makes the decision of allocating the funds should and must consult the relevant stakeholders to avoid challenges that may present (such as corruption).
· Section 150(d)(j) (of Act 38 of 2005)
Recommends the inclusion of “separated” for the section to read: “is an unaccompanied or separated migrant child from another country”.
· Section 98 (b)
Recommends that this section reads: “access to rehabilitation services for children living with disabilities and special needs”.
· Section 107 (d)
Recommends the inclusion of “religious”.
Scalabrini Centre of Cape Town submission
Ms Sally Gander, Head of Advocacy and Legal Advisor, and Ms Sindisiwe Moyo, Advocacy Officer, of the Scalabrini Centre presented a story that provided an example the practical barriers they see in their daily work with children. The submission emphasised the potential offered by the Bill for the migrant asylum seeker and refugee population in South Africa, particularly for unaccompanied and separated foreign children.
Ms Gander said that for a foreign child, documentation and immigration status in South Africa are vitally important for their wellbeing and for the best interests of the child. The practical experience is often a disconnect when it comes to the realisation of the "best interests of the child" standard. For a foreign child, lack of documentation and immigration status impacts their best interests and the best interests of the foreign children are often overlooked or are secondary. For unaccompanied foreign children who have been placed in Child and Youth Care Centres (CYCCs) and who do not have documentation, the practical reality is that they become a child in limbo between two government role players, DSD and the Department of Home Affairs (DHA). There are several mental health and psychosocial impacts.
· Clause 24
They urge that the Committee consider ensuring regulations are made about the interaction between the Children’s Act and the Refugees Act. The regulations need to show what actions the Children’s Court takes to have the positive effect that clause 24 is envisaging. This means when a Children’s Court adjudicates on a matter of an unaccompanied or separated migrant child, the court must be able to unequivocally order that the child be provided with documentation and immigration status by the DHA.
· Clause 82
They were pleased that the “unaccompanied migrant child” is included in this clause. It must be made clear that it needs to be “unaccompanied child” not “separated child” because they are different and that is the way that it is framed at the moment. An unaccompanied child should fall within the ambit of section 150, but in addition to this there would need to be specific steps that would need to be taken for the care management of such a child. One of the first steps is to ensure access to documentation and immigration status, which is in the long-term best interests of the child. At present there is no easy pathway to documentation for such a child.
They urge that this Committee and DSD engage with the Portfolio Committee on Home Affairs and DHA to create a special dispensation for children through section 312(b) of the Immigration Act, which allows for a category of visas to be created. They urge that a specific exemption permit be created for children.
The Chairperson referred to the example given and said that this reality does exist. He asked if the Centre meant that under no circumstances a child must be left without tools for accessing services for the right to grow.
Ms Gander agreed that under no circumstances should we prevent a child to thrive and one way we can open a door for an undocumented child without immigration status to thrive, is to ensure that there is a pathway to documentation and immigration status.
Ms Thandeka Rantsi, BRIDGE ECD Project Manager, submitted:
· Second Amendment Bill that advocates for true reform of the early childhood development (ECD) system, to take place sooner rather than later. Urged the Committee to commit to a clear timeline.
· One-step registration process for ECD providers and different types of ECD providers must be regulated accordingly. Currently the registration process is lengthy and administratively burdensome not only to ECD practitioners but officials who have to respond to the needs of those requiring registration. This is an indication of a flawed coordination system between government departments concerned but most unfortunate is the fact that the expansion of ECD services is denied for the estimated 3.2 million children under 5 who still do not access an ECD programme. A one-step registration process would simplify registration for all ECD programmes and could afford government the benefit of improving information systems of ECD services which would improve regulation.
· All children attending any type of ECD programme should be able to access the subsidy if they need it. The reality is that children, who the majority are in poor communities, need ECD services but caregivers are not in a position to pay exorbitant fees. A critical compromise in denying some children the subsidy is nutrition. ECD services are well placed to promote and provide the right type of nutrition. One can find that in an ECD centre where all children are Child Support Grant (CSG) recipients, only a third would be funded through the subsidy. This will compromise the quality of nutrition and other needs.
· It must be made clear that ECD providers can get conditional registration when they cannot meet all the registration requirements. MECs must support providers to meet requirements and report on their systems of support. Currently, there is no clear process for conditional registration. It is applied inconsistently across provinces, and is not being widely utilised.
· The infrastructure needs of the sector must be supported. Infrastructure remains a huge barrier in registering ECD services and ultimately qualifying for government assistance in the form of the subsidy. Practitioners lack the financial resources to build appropriate structures, as they are usually dependent on parents paying school fees.
Door of Hope Children’s Mission submission
Ms Nadene Grabham, Operations Director: Door of Hope, spoke about South Africa’s child abandonment crisis and the importance of adoption. Abandonment of babies is a major social problem. Of every three babies abandoned, two are found dead.
Door of Hope notes the Bill represents a missed opportunity to prevent unsafe abandonment and to get these children into family care as soon as possible. The Bill should include:
· protection measures to reduce and prevent abandonment.
· distinguish between safe and unsafe abandonment
· raise awareness on unsafe abandonment
· remove the criminal sanction attached to safe abandonment
· include and support the mother's right to privacy
· legalise baby boxes and savers as a safe alternative to unsafe abandonment
· implement safe haven laws.
Every child has the human right to family
· Door of Hope supports family reunification and adoption. Reunification should only be done if it is safe and, in the child’s best interest.
· The policy and Bill fail to provide adequate options for permanency to adoption for children born from unwanted pregnancies or those who are abandoned.
· Family reunifications and adoptions are taking longer due to DSD and DHA not issuing the needed documents timeously. All decisions on adoption and reunification have to be expedited as delays damage children (emotional trauma and negative psychosocial development).
Ms Grabham quoted Nelson Mandela, “There can be no keener revelation of a society's soul than the way in which it treats its children”
The Chairperson appreciated the quote and said that she made a very strong case. Government cannot allow itself to be an obstacle, even when children are not going to get a government subsidy where people of their own volition want to assist abandoned children who need adoption. Surely government cannot be an obstacle to that. The Committee hears and feels her pain.
Prof Ann Skelton - University of Pretoria submission
Prof Ann Skelton, Director: Centre for Child Law, University of Pretoria presented the following:
Privacy and protection of identity in court proceedings
· Clause 3
The protection of identity in court proceedings as the media attend and they tend to report in a sensationalist way and this can be very harmful to children. The media are often interested in high profile cases. Clause 3 has good intentions but it is not well drafted. It is very concerning that it has accidently taken out section 74 of the Children’s Act – which means that now NO children have protection. Prof Skelton asked the drafters to fix this problem. The wording of the Bill is not in line with the outcome of the recent constitutional court case on this issue.
Prof Skelton proposed alternative wording in her submission that will protect the identity of every child who is a party or a witness in court proceedings, but allows the person to waive that privacy once aged 18. (This law is about civil court cases not criminal matters).
· Proposed wording in section 12(11)
Prof Skelton supports the addition of the following in section 11: No child may be subjected to corporal punishment or be punished in a cruel, inhuman or degrading manner.
It is also important to provide clear referral mechanisms for parents to parenting programmes, and to ensure the state funds such programmes.
· Proposed amendment to section 24, and to section 45
Prof Skelton supports the Bill in that it proposes that Children’s Courts (magistrate court level) should be able to grant guardianship orders. However, clause 24 amending section 45 is problematic as it limits the Children’s Court jurisdiction to ‘guardianship of an orphaned or abandoned child’. This will block fathers of children who are neither orphaned or abandoned from going to the children’s court to get guardianship. It will also stop a grandparent who is looking after a child to get guardianship. It is proposed that the words ‘orphaned or abandoned’ be deleted.
Comprehensive legal solution to foster care
· Clause 82
It is proposed that this amendment be more precise. She proposed clearer text: “A child who has been abandoned or orphaned and is not in the care of a family member as defined in section 1”.
· In addition, one of the main reasons extended family members come into the foster care system is not that they need social work assistance but because they know the grant was a higher amount. For this reason, the Social Assistance Act regulations were amended to allow for an additional payment to relatives caring for orphans and abandoned children. It is understood that the current budget, now, does not cater for this additional payment for relatives who are caring for orphans and abandoned children. Prof Skelton expressed hope that the Committee can do something to ensure that this crucial part of the comprehensive legal solution falls into place.
Child protection register
The Committee should consider that instead of having a Child Protection Register that we should shift over to using the criminal record register, which is inexpensive and easy to access. It is encouraged that the Committee engage with the Portfolio Committee for Justice who is discussing this very same issue about the National Register for Sex Offenders.
Children in CYCCs referred by the Child Justice Act
· The effect of clause 87
This clause effectively ‘divorces’ children referred by the Child Justice Act. DSD cannot divorce itself from the hundreds of children in this category, unless a whole new framework is provided for this or in some other law – it will have dire consequences. This amendment must be rejected.
Ms L van der Merwe (IFP) thanked the Door of Hope for the amazing work that it continues to do, as it stands between life and death for many vulnerable children on a daily basis. The story that Ms Grabham underscored keeps on coming out in all the public hearings, especially those that have presented on adoption challenges – it really is one of dreams, hopes and futures of vulnerable children being deferred, due to a little paperwork that never arrives on time. It was very profound when she said that an abandoned baby is abandoned twice, first by their parents and then by the system, that is DHA and DSD officials who cause these delays in children going to their forever homes.
She agreed with the Chairperson that government can no longer be an obstacle to adoption. Therefore the Committee should seriously look at timeframes being built into this Amendment Bill so that the Committee can ensure that it holds to account officials who do not comply with timeframes they are supposed to adhere to.
In previous years before adoption became such a process bogged down in delays and red tape, children were able to be adopted before or around the age of six months. She asked if children can still be able to be adopted by six months, or what is the average age of a child being adopted. How long does it take? What is the average age of a child in their homes? What are the referral pathways? How do children normally get to the Door of Hope?
She asked if DSD understands their day-to-day challenges as an organisation, or does she get the sense, to which many have alluded about a general anti-adoption sentiment within the Department.
She asked about the resources required on a monthly basis to run a children’s home. How much is provided by DSD and how much do they need to source themselves? Considering many NGOs are currently struggling with funding, how difficult is it to source these funds?
She agreed with safe abandonment versus unsafe abandonment. The Bill misses an opportunity to look at decriminalising abandonment. There are baby boxes for mothers to leave their children safely but because they face being prosecuted for doing that, they rather choose unsafe abandonment. The Committee needs to look at safe haven laws as they do exist in other parts of the world. This amendment process needs to be looked to see how the Committee can safeguard the rights of mothers who want to abandon their babies safely.
Referring to the CoRMSA and the Scalabrini Centre submissions on the rights of undocumented migrant and stateless children, she does serve on the Portfolio Committee of Home Affairs and did see in the DHA Annual Performance Plan that there are moves afoot to regularise the documentation of children who are born to undocumented migrants or even stateless children. She asked if they were involved with refugees based at Paint City and Maitland.
Ms G Opperman (DA) referred to Door of Hope which said that 3500 children are abandoned annually. She asked if there was an estimate of how many babies were abandoned since lockdown in South Africa. She asked what prevents baby boxes from being legalised in South Africa. How can one through this Bill remove the sanction attached to safe relinquishment of babies?
Referring to the BRIDGE submission, it is mainly black women who own ECD centres, so indirectly DSD non-profit organisation (NPO) policies are further disadvantaging black women. She asked if they had a number of how many black women are hindered by these NPO policies. It said that some facilities charge R30 to R40 in the poorer communities, yet the lower the fee, the less one can upgrade infrastructure and the more substandard are the ECD services, which in turn prevents the ECD centre from getting DSD assistance through subsidy.
Ms A Abrahams (DA) referred to the example given by the Scalabrini Centre and asked how many children in their care are in the same position. She asked Prof Skelton how moving away from the Child Protection Register and using the criminal record register, would benefit children apart from it just being cheaper.
Ms B Masango (DA) asked CoRMSA if it has come across situations where practitioners who work with children do not possess certificates with the relevant professional bodies.
She asked Door of Hope how long it would take for a reunification to happen, from the time the family and the children’s home start engaging on reunifying the child in a children’s home. She noted that not only adoptions are being delayed but also reunification with families that come forward and are ready to unite with their children.
On clause 82 she asked Prof Skelton if this proposed wording should have not been in the Bill in the first place as Prof Skelton said she was consulted during the drafting of the Bill.
Ms N Mvana (ANC) asked Prof Skelton that where a child is under the father’s guardianship, perhaps due to the mother having challenges with depression, what is the process of reunifying the child with the mother and how long does it take.
Ms Grabham replied that the age of adoption is generally between six to nine months but it has now gone up generally to between nine and eighteen months and in some cases even up the age of two years old. These babies come to Door of Hope mainly through hospitals, the police and mothers or families that come to their door. She does not think that DSD understands this. She often gets the impression that to DSD it is just a name on a piece of paper, but at Door of Hope it is an actual little human being, an actual person who starts to smile, starts to crawl and take their first steps. It is a little baby that is growing into a toddler, and sometimes they get the impression that to the Department it is just a name or a number, and it is often felt that the best interest of the child is not considered in some of the decisions.
In terms of day-to-day resources, they have 65 babies in their care at this moment. They use between 12 000 to 15 000 nappies a month, about 100 tubs of formula, and 400 to 500 bottles of Purity or baby cereal.
Their annual turnover to look after their babies is around R10 million, they only get about R2.8 million from the Department, the rest they have to fundraise. In some cases, to fundraise they have to spend a bit of money, which is very difficult because they have to keep their money to buy food and nappies for their babies. It is said that you have to spend money to make money. They do rely a lot on social media to advertise their needs and to reach out to people to see if they can help with basic needs to care for their babies.
There are no safe haven laws in South Africa, but we desperately need safe haven laws. Unsafe abandonment will be reduced if South Africa has safe haven laws.
The 3 500 babies abandoned annually come from the statistics done in 2010. Unfortunately, they do not have annual statistics done by Statistics South Africa or by government. The criminal statistics category for abandonment also includes cases of abuse and neglect, so it is very difficult to say how many children are actually abandoned each year, as a lot of them are also abandoned in rural areas in rubbish dumps where they are most probably never found. The facts that they have are what they see in the news and what is shared with other children's homes.
On safe haven laws, the baby box is illegal. It is not written that it is illegal but because there are no safe haven laws, any form of abandonment is illegal, whether it is safe or unsafe. So, a mother that abandons her baby in a hospital can be arrested for abandoning her baby. So, if baby boxes are made legal and safe haven laws are implemented, no mother should feel threatened to leave her baby in a hospital or at a police station, because at the end of the day she is saving the life of that baby and not leaving it somewhere to die.
On practitioners who work with children, she replied that there were volunteers that came to Door of Hope who had to apply for a Form 30 to check if their name was on the sex offender register. On reunification some of them got them in one day but reunification should not take long at all
Ms Gander replied that services have been provided by the Scalabrini Centre’s welfare and advocacy departments who have sought such services from the refugees, asylum seekers and migrants at Paint City and Wingfields. The Adonis Musati Project and the UCT Refugee Rights Unit have also provided services for those groups. There are some members of those groups who have not wanted or who have not tried to access their services. She thanked Ms van der Merwe for the information about the DHA plans for regularisation of documentation.
Ms Gander replied that Lawrence House specifically focuses on children from migratory backgrounds and it has 25 children in that CYCC. There are many more CYCCs across the Cape Town Metro, the Western Cape and South Africa. This year alone, their children’s rights advocacy project has consulted on 40 cases so far, on documentation needs for children who have been deemed in need of care and protection and placed in CYCCs. This lack of access to documentation and immigration status is not only a challenge for children in CYCCs but there is also a growing category of children who have aged out of the CYCC system and who are young adults now who still do not have documentation and immigration status and do not have roots. There is a growing group of such young adults. The Scalabrini Centre has been involved in research in 2015 and 2017, where they looked at children in care who did not have access or had limited pathways to documentation and immigration status. In 2015 the survey came up with 109 children in the Western Cape, in 2017 there were 200 children across three provinces: Limpopo, Gauteng and Western Cape. There is limited capacity in the CYCCs so there could be gaps in that research which may point to higher numbers. 40% of these children had no documentation, and 27% were at high risk of statelessness.
Ms Gander said she is aware that DSD together with UNICEF has done an audit at the beginning of 2021, across CYCCs nationally, to understand exactly how many children fall into these categories. The audit results have not been seen yet but the Committee is encouraged to ask DSD for this information as it will give a picture of those numbers, which is believed to be quite high.
Ms Rantsi replied that from a recent DSD submission to the Inter-Sectoral Forum on the Presidential ECD Employment Stimulus Relief Fund, the numbers are reported at 164 000 ECD workers who are in unsubsidised programmes. It is deduced the majority of these workers are women. On NPO registration barriers, ECD provision is generally provided through NPOs as well as subsistence entrepreneurs. She is not entirely sure about the extent to which NPO registration is a barrier but the point is that the registration of ECD programmes as well as partial care facilities remains the biggest barrier for ECD services to gain the full registration required by DSD in municipalities, so they can be eligible for the subsidy.
Prof Skelton replied about using the criminal record system that besides the whole system working more smoothly, it would mean that staff would not be appointed without having been checked against the register, which is sometimes happening on a temporary basis as the register process is too slow. It also means that when the employer looks at the criminal record system, what they see there is every single criminal offence that the person has committed. When looking at the Child Protection Register it is a limited number of cases, it is where a person might have assaulted a child in the past, but would one not want to know if this person has assaulted a person in the past? Would one not want to know if this person has been convicted of raping an adult or has convictions for drunken driving? If one uses the criminal record system, which is already there and functional, that information would be available immediately. This would be a benefit for children as it would provide broader and greater protection for them.
Prof Skelton replied that civil society partners were generally satisfied with many aspects of the July 2018 version of the Bill, which was the version that was consulted and which she has been involved with. After that, the Bill disappeared into the Department and something happened, all kinds of changes were made, many of which are cause for concern. That is why, even though she was involved in drafting the Bill, she does not agree with the current version but she did agree with the previous formulation.
Prof Skelton replied that it is important to distinguish between guardianship and care, because guardianship is unconnected to care. Every child who is born in a marriage has two guardians, a mother and a father; and if they get divorced those guardians are still the guardians of that child, even though the child may live with one person, so guardianship is not really affected by where one lives. Therefore, if a child is placed in the temporary care of a father, it is possible for the mother to get the child back through the Children’s Court, to restore the child back to the mother’s care if that is in the best interest of the child at that time. It is hard to say how long that would take, but it would take several months of engagement at the Children’s Court. The advantage and the reason guardianship orders should be granted at Children’s Court is that it is generally quicker than if it were to be done at the High Court.
South African Catholic Bishops’ Conference (SACBC) submission
Ms Lois Law, Researcher, SACBC Parliamentary Liaison Office, presented the following:
· SACBC supported the inclusion and expansion of definitions, and changes in terminology, particularly where the definitions are more inclusive and comprehensive.
· Clause 10, the SACBC supports the (extended) rights of unmarried fathers.
· Clause 15, 46 and 47 on ECD programmes
These amendments are welcomed, however the SACBC has serious concerns about the provision and funding of ECD services, especially the impact of Covid-19 on these services and the failure of so many of these centres to reopen. There are also concerns for the administrative capacity of the Department of Basic Education (DBE) to take over the responsibility for ECD from DSD. The motivation for moving to DBE has not always been truly motivated, particularly for infants and children under the age of three.
· Clause 65 Part B of the National Child Protection Register
During the recent public hearings on the Gender Based Violence Bills it emerged that neither the National Register for Sex Offenders nor the Domestic Violence Register has been properly maintained, the same can be said for Part B of the National Child Protection Register. It would be sensible to make use of the one record that is already operational and updated, which is the criminal record.
· Clause 77 (F) on the care of abandoned children.
The number of abandoned children has increased considerably during lockdown, with many fatalities. There are clearly not enough or sufficiently advertised support services for women who have unwanted pregnancies. There is a tendency to villainise mothers who abandon their babies while they may have been desperate and run out of options. These mothers should be provided with viable options in a non-judgmental manner.
· Clause 117 on adoption
This is welcomed as a child parent needs to have various options available to her and explained to her so that she can make an informed decision. However, in the absence of a trusted parent/guardian this role could be assigned to a court. Child parents may have not disclosed the pregnancy so there might need to be an intervention from a social worker or medical practitioner. It is important to be cognisant that the pregnancy might be a result of a rape, and therefore the child parent circumstance should be the subject of a social work investigation.
· Clause 122 delete section 249 to delete reference to all fees that may be charged for adoption.
State social workers are added to the list of persons that any social worker can act as an adoption social worker. This is problematic since adoption is a highly specialised field of social work. Until now, adoptions have always been the purview of specialised adoption social workers.
Aftercare services may be performed by social workers and by social auxiliary workers as well. The provision of these amendments makes it very difficult for social workers in private practice to continue to practice. It is unlikely that these specialised social workers will be absorbed into the DSD programmes.
Adoption services defined in the present Act remain unchanged. The adoption process is complex and requires highly specialised social workers, and extending this role to all social workers places an additional burden on those social workers who already have extremely high caseloads and this will inevitably slow the whole process.
Submission by Mr Solomon Mondlane
Mr Solomon Mondlane, said that it was a pleasure to be part of the meeting. In February 2020, he was at the DSD, on a 11 day hunger strike and he was not attended to. He wanted to be assisted to get access to his children after the death of their mother. He was shocked that he was neglected for those 11 days, while Minister Lindiwe Zulu could see him down on the pavement through her window. He said that he is not someone who knows how the law is drafted but he will present what he wished he could see, and express the experiences that fathers have in South Africa, while mothers are also affected by this.
· The Children’s Act of 2005 categorises biological fathers as unmarried and married. This is problematic, because it means that unmarried fathers are labelled different from the other biological parent of the same child. Unmarried fathers must satisfy a certain super-magical image above that of the other parent of the same child, to assume his God-given parental rights and responsibilities for his own child. This kind of discrimination does not apply to unmarried mothers. This is gender bias at its best. This invites vultures who see an opportunity to use children as a tool to enrich themselves, placing the burden on the father while violating the rights of a child and abusing taxpayers' money and government resources.
· The Children’s Act must first and foremost redefine the term “in the best interest of the child”. This term has been misused by a network of corrupt social workers, NPOs, magistrates, institutions and lawyers to serve their own interests. Whereas one parent, the father in most cases, suffers and the children become victims. What is happening in South Africa mainly violates the rights of a child connected to that father.
· The Act must make it clear that a child is born of two parents. This should be taken into consideration before social workers label an innocent parent, the father in most cases, as violent, abusive, unemployed, mentally ill or a flight risk. It has been four years since he has seen his children, especially his eldest child. He has been labelled a ‘flight risk’ because his mother is Xhosa, his father is Mozambiquan and he was born in Swaziland. How can a father or a parent be a flight risk to their own child? It does not make sense at all. If one takes into consideration that a child is born of two parents, it should be 50/50 shared parenting, as this is 50/50 shared DNA. All complications should be removed that seeks to undermine one parent and makes the other parent more of a parent. Once there are loopholes in the law, it invites corruption, where people see an opportunity to make money. Allegations and accusations brought by one partner or extended family members during divorce or separation or at the death of one partner, must be investigated by the South African Police Service (SAPS) not the social worker. This is serious, normally social workers use fabricated information to push one parent, the father in most cases, from having access to his children. Most of these allegations are serious and they are unfounded. In most cases, social workers just believe what they are told and sympathise with the mother.
Social workers must operate within the law, they should not be biased and they must be transparent at all times. They must produce a warrant of some sort to acquire information from parents. His house was investigated by more than 11 social workers, and they all wanted to see every room in the house. Social workers should respect one’s privacy and not invade spaces. They should also make copies of their report available to parties. He had to fight for his report in court, against a social worker who did not want him to see what was written about him, the rightful father of a child. It was found that what they wrote in the report was in favour of him, but the way they acted was against him. They always side with the maternal parents. The mother of his children has long passed on, and he should have had full custody of his children without fighting with the grandparents. The grandparents should have applied to have shared custody of the children, which he would have not denied them because in African culture children can stay with grandparents but they should do so in the right way. He heard that the maternal grandparents of his children want to acquire the right to be foster parents and apply for the grant to support themselves. How do they become foster parents when the father is alive and wants his children?
Social workers must be investigated by SAPS whenever an accusation is brought against them. He said in the media that the Christelike Maatskaplike Raad (CMR) social workers are corrupt, but no one is listening to him, but when wrong accusations are made against him, everyone stands up.
In response to the Chairperson asking who the CMR social worker is, Mr Mondlane replied that the social worker is Ms H Swarts, and she must be investigated. He has been questioning the involvement of the Dutch Reformed Church. How can we have an apartheid institution running the operations of our children? The church that has been violating the rights of our people for many years is given funding by DSD to destroy the lives of our families and children.
Grandparents, both maternal and paternal, should be treated equally and should be treated as the second option when the parents do not meet all of the expected requirements. In his case, they should not remove the children just because the father is poor or lives in a rural area, that is not a good enough reason to take a child from a parent. In the case of the death of one parent, the child must automatically remain with the other parent, unless there is evidence that the parent abused the child. This should apply to both married and unmarried couples.
He said that the words ‘married and unmarried’ should be removed because whether parents are married or unmarried, they are still parents of the child. A person should not be described by the status of being married or unmarried.
· The Act should make it clear that a child’s voice comes first. The child should be listened to. His son had told the social workers that he is in need of his father, but his son has been told that he is the stepfather and he does not know that his mother has passed away. The biological parents voice should always be equally considered, second to the voice of the child. Relatives and grandparents, both maternal and paternal, should always be considered third. He urges that maternal relatives, especially maternal grandparents should stop being made ‘superhuman beings’ in custody battles. They must know their position.
He is disappointed in the Chief Family Advocate who is handling his case now. Instead of following the events from 2017 up until now, she just sent an email which insulted him and his whole family. She said that he must be taken for clinical assessment, without any reason. He questioned the reason that he cannot get custody of his children. His family had taken this matter to court and trusted the law to intervene but they did not know that there was a web of corruption in the system. If they knew that, they would have taken the children by force, because the children were born in their family and have been with them since day one until their mother died.
Social workers should always consider the facts. Children matters should be prioritised at the High Court. The Children’s Court are failing children, very soon there will be an exposure of children who have been victimised by the CMR organisation for so many years. The media has been asked to bring this to life and soon it will come out. The Children’s Court is silent and they know that the Dutch Reformed organisation is abusing our children in South Africa. They must be held accountable. He had written to the Minister and she has been ignoring this call which is very important because children are being abused. He asked that all officials who work on children’s cases be thoroughly scanned.
· “The best interest of a child” cannot be defined in one sentence, it cannot be defined by one’s emotions but it needs to be defined by characteristics.
He emphasised that the focus of the “best interest of a child” should be on the family tree. In the family tree, the child is on top and is the main priority; on the right side beneath the child is the father and on the left is the mother, they are equal. On the right side of the father are the siblings of the father (i.e. paternal uncles and aunts of the child) and on the left side of the mother are her siblings (i.e. maternal uncles and aunties), beneath the father are his parents (i.e. paternal grandparents) and beneath the mother are her parents (i.e. maternal grandparents). This is the life of a child and what should define what is in their best interest.
Officials break the family tree when they erase one side of the family tree, mainly the father's side. He was charged R10 000 for clinical assessment without an explanation of why he needed to do so, and supervised visits are more than R600 per hour to see children that he has brought up. There are limited telephone calls, that are manipulated as his child’s voice sounds suppressed and he has been told the wrong information. His son is being kept against his will and he has been telling the social workers that he wants his father. Last year his son was locked inside the house and social workers have been chased away, this means that his child is kidnapped. The Minister has known about this case. His son is prevented from seeing his father because of the law.
Dr Monica Stach, Cotlands CEO, said Cotlands offers a variety of quality ECD programmes and workshops. Dr Stash emphasised the work done with toy libraries as it provides developmentally appropriate educational play materials to ECD service providers, parents or children. Cotlands is a proud member of the Toy Library Association South Africa (TLASA), for which she is the chairperson and it works with 12 other organisations in the country, representing 41 toy libraries and serving 17 139 beneficiaries. The work that Cotlands does benefits both children and the families that they serve. Amongst the list of benefits, Cotlands, importantly provides toys from the toy library to parents to play with their children. Cotlands feels very strongly about thinking through programmes for parents in their homes to give support to parents in their journey of parenting, while building their capacity. Parenting is a daunting task so as a collective the ECD programmes and Amendment Bill needs to address this.
To provide toy libraries access to funding against set norms and standards to ensure quality provisioning. Toy libraries should be able to access programmatic funding, which should be incorporated into a one-step registration process while promoting best practice principles for toy libraries.
Prioritise programmes that are easy to implement and impact more children.
Ensure that Provincial Department of Arts and Culture set up toy libraries in municipal libraries.
Government and civil society have the collective responsibility to build the capacity of qualified practitioners to deliver quality play-based early learning programmes, both centre and non-centre based. If we do not invest in the ECD workforce, poorer children according to research, are more likely to receive poor quality programmes. We need to create secure jobs for qualified ECD practitioners by providing them with a living wage and recognising them as a workforce.
To accelerate toy library services and training for parents to facilitate play in their home environment.
Amendments to the Bill specific to toy libraries.
· A simpler one-step registration process
· Ensure that the norms and standards consider toy libraries
· Provincial recognition of the role of toy libraries in the ECD space
· Building the capacity of ECD providers in the communities
· Providing training to parents
The Chairperson thanked Dr Stach for the stimulating, positive submission and innovative interventions mentioned.
Children in Distress Network (CINDI) submission
Ms Suzanne Clulow, Child Advocacy Programme Manager, CINDI, presented the following:
The challenge in South Africa is that due to backlogs in the foster care system and the provision of kinship care is coupled with foster care in the same system, many kin caregivers of children in kinship care are not able to access this support. The vast majority of children in kinship care are not able to access the foster child grant they are eligible for. The time of social workers is taken up in renewing and monitoring foster care placements and addressing the backlog in those placements. That means they do not have time to provide promotive and preventive services to kinship carers and the children.
There are challenges with formalising guardianship for children in kinship care and the child protecting system is currently not responding as it should to the needs of children in critical need of care and protection. This is because social worker time and resources in the system are taken up with addressing the crisis in the foster care system. Therefore, CINDI believes that decoupling foster care and kinship care and providing a top-up to kinship care givers will provide a comprehensive solution to the crisis in the foster care system. This would be in the best interest of the children living in kinship care.
The focus is on the amendments in the Bill on orphaned children in the care of kin to ensure that children are able to grow up in family-based care:
· In support of amendments to section 150(1)(a), with slight adjustment to the wording. It is suggested that it be changed to: “a child is in need of care and protection if the child has been abandoned or orphaned and is not in the care of a family member as defined in section 1”
· Propose that the transitional clause in section 159(2)(A) be amended to ensure that it is time bound and restricted to cases of orphaned and abandoned children in foster care with family members. The proposed text: “for three years of the date of commencement of this Act in relation to orphaned and abandoned children in foster care with family members, a court may extend an order that has lapsed or make an interim order for a period not exceeding six months on good cause shown, and if such an extension will be in the best interest of the child”.
· Propose that a new transitional clause be included to protect children already in foster care from losing their foster care grant. The proposed text: “notwithstanding the amendment to section 150(1)(a), an order placing an orphaned or abandoned child in foster care with a family member in terms of section 156 before or on the date of this Amendment Act, may be extended by the court in terms of section 159(2)”
· Support the proposed amendments to section 45(3) to guardianship.
· Propose changes to section 45(1) to make accessing guardianship easier for children in the care of kin. This would allow for applications to be made through the Children’s Court.
If these proposed amendments are agreed to, this will ensure that kinship caregivers have access to an adequate social grant, can access a range of promotive and preventive services they need, have options to formalise parental rights and responsibilities and children in need of care and protection are kept safe through a responsive child protective system.
Hollard Foundation Trust submission
Ms Ntjantja Ned, Hollard Foundation Trust CEO, said that the Trust's involvement in ECD for the last 15 years has been with the intent to enable the system to absorb children where they live. They have just signed a memorandum of understanding (MOU) with Department of Cooperative Governance and Traditional Affairs (COGTA), working with them and three district municipalities where the one-plan one-budget process will start. This is to get children on the agenda of government, from the bottom up. She was inspired by the Chairperson's opening remarks on 11 May, when he referred to Oliver Tambo saying that a nation that does not care for its young is not entitled to its future. She confirmed that the future is at stake. Talking about ECD is not talking about charity work, but it is about investing in the future and having a vibrant democracy to hand over to the next generation.
· To have a pro-poor ECD legislation that will decriminalise community-based initiatives and make them part of the model of how South Africa can reach universal access to quality ECD, as called for in the National Development Plan (NDP). This would be an ECD provisioning regime that focuses on child outcomes, to have children that are ready and stimulated to go to school and engage in the schooling system.
· To have a simplified regime of registration and acknowledgement that there are two models of registration, that is, those people who provide five-day (Monday to Friday) dosage to children and then those that provide part-time dosage to children. They all need support when they work and the emphasis must be on the children’s outcome.
· On norms and standards for buildings, safe spaces, health etc. they have seen evidence that when support is given to ensure that the outcomes for children are of high standard, whether this is in a backyard or a centre, with the same kind of inputs one gets the same kind of results.
One of the challenges that presents an opportunity to correct and contextualise is that legislation is blind to where children are. Legislation needs to recognise and be responsive to where children are. 80% of the children in ECD are in the hands of women, increasingly younger women who take the opportunity to learn ECD both as a service but also as an earning. We need a legislation that embraces and incentivises this.
A legislation is needed that will give more clarity and greater responsibility to bring the sphere of government closer to the children. Municipalities and government should be enabling and regulating to remove the barriers to accessing facilities for children.
There are a million children outside of the ECD system, and there are 60% of young people who are unemployed in areas that are most vulnerable. This opportunity of providing universal access to ECD services, and training people to provide these services provides a good opportunity to achieving universal access to ECD services.
The Chairperson said that Ms Ned has mapped out all the instances where the children are, which is very useful. These children are also in refugee camps and where families are in transit. Ms Ned has been part of the liberation struggle against oppression in this country and from a social worker and social service point of view, a lot has been leant from her.
Ms Opperman referred to Dr Stach and said that she had recently done a series on abandoned and vandalised government buildings and it was proposed that government buildings that are not in use should be utilised. She asked if there are current discussions on that proposal. It was said that the first five years are essential, and more than 3.2 million children under five years are not in an ECD programme. She asked if there are proposals on how to accelerate access to ECD programmes, especially in rural areas. She commended the CINDI network and said that a family for every child is something that the Committee should adopt – against the anti-adoption narrative in the country. What would be deemed as an adequate social grant; what should the top-up be?
Ms Masango asked if the Cotlands recommendation meant that toy libraries were registered separately from ECD centres or as ECD centres themselves. She asked CINDI if the transitional clause meant that there must be three years of transitioning from the time that the Act is passed. She found Mr Mondlane's point interesting about not describing a parent on the basis of marital status. She liked the hope that Ms Ned brought to the Committee, by saying that the incremental way in which ECD centres can be registered is doable based on the outcomes wanted, while building on the vision of what ECD should look like.
Ms Clulow of CINDI replied that the amount for an adequate kinship grant is suggested to be between the foster child grant and the child support grant, and definitely above what is recognised as the food poverty line. The proposal discussed is between R700 - R800. It had been proposed the transitional clause should be looked at as a three-year timeframe.
Submission by Ms Cecilia Mkhabela – Principal of an ECD centre
Ms Mkhabela said that most parents in her community are unemployed, they cannot afford to pay fees, some pay about R300 a month but many do not pay anything. From these fees, three meals a day must be provided for their children, so most of the money is spent on food. This means that the practitioners only receive about R700 – R800 as a monthly stipend which is not enough for them to live on. The practitioners work very hard five days a week. How can they look after the children properly if they are hungry?
She wants to get an ECD subsidy for the children in her care, but she must first register her programme. This is why she is supporting the campaign to change the Children’s Amendment Bill, because she forms part of the ECD workforce and she knows the struggle of ECD practitioners. It is difficult to comply with so many norms, standards and bylaws before ECD programmes can be registered. They have been negatively affected by those bylaws enforced by local government. For example, they were told they must have a stamped building plan which costs about R5000 or more, and they do not have that money. Covid-19 and the national lockdown made things even worse as they have been without income or relief of any kind since March 2020. This threatened the reopening of ECD centres because they could not afford the extra things needed, like the personal protective equipment and hand sanitisers. Even though her centre does not have enough resources, they still provide a safe space for children to play and learn.
Recommendations to government
· Government should consider the way that they set norms, standards and bylaws. These are too many and are too difficult for ECD centres to comply with. This means that even good ECD centres cannot be registered, which means those ECD centres cannot get the subsidy which could help them support children better.
· ECD centres should get some kind of subsidy before they are registered. This will help them comply with all of the standards, so that they can be registered.
She concluded by saying that ECD centres like hers play a very important role in their community. A child without a foundation is like a house built on sand by a riverbank. When they build up their children, they build up the country’s future.
Sisonke ECD Forum submission
Ms Lorato Doma, Sisonke ECD Forum chairperson, said that Sisonke is a supportive structure to ECD centres, currently they have 159 ECD principals, of which only 23 centres are receiving the Department subsidy. Twelve are receiving nutrition from the Department of Health and one is receiving a mental health subsidy. The ECD centres not receiving funding or assistance is due to challenges with compliance. They support the campaign to amend the Act because ECD centres are struggling to register. Therefore, they cannot access the subsidy and this impacts negatively on the quality of the service. The ECD centres find it difficult to register, it is also difficult for those doing partial care due to the difficult standards, that are not realistic to comply with. Municipal requirements such as approval of building control, building plan, fire safety and environmental health permits, all requirements need money. Compliance is very expensive for the poor. For this reason and because they are faced with Covid-19, the Sisonke Forum came up with the solution that they will increase the R250 fee by R50. Unfortunately, some parents cannot afford that as most parents are no longer working. Some parents are at home with their children because they cannot afford to pay more money as they are no longer working.
Some principals operate their daycare centres at home in their yard. Some of the requirements of building control is that ECD centres need to have a disability toilet and parking lot. Having a disability toilet in a small residential space is impossible. ECD centres cannot afford leasing agreements from municipal sites because it is very costly and ECD centres cannot afford that. The practitioners get less than R1000 and they work Monday to Friday, they cannot afford to give them decent stipends due to ECD centres not being registered and not getting subsidies – it cannot even be called a salary because it is not a salary. Many ECD principals are closing their centres due to low registration and expensive Covid-19 related requirements.
Government departments should align their processes and policies and not to confuse ECD founders with conflicting requirements, such as sick bay and isolation rooms. When one operates a centre in a standard sized RDP house, it is difficult to have a sick bay and isolation room. Funding must be provided first. So that ECD centres can use the funding to comply with the requirements.
· A one-step registration process for ECD providers. Different types of ECD programme providers must be regulated differently – a one-size-fits-all approach is not appropriate.
· All children attending any type of ECD programme should be able to access the early learning subsidy if they need it.
· Simpler, adequate health, safety and programme standards must be in place and must be assessed through one process.
· It must be made clear that you can get conditional registration if you cannot meet all the registration requirements. MECs must support providers servicing poor communities to meet registration requirements and must be required to report to the Minister on the progress achieved.
The Chairperson said that it was painful that out of the 159 ECD principals in the Sisonke Forum only 23 received subsidies and only 12 received nutrition from the Department of Health.
The Hope Exchange submission
Ms Charity Pote, Social Work Manager, The Hope Exchange, said that her PhD studies at the University of the Western Cape (UWC) focus on the social networks for youth that are aging out of residential care to promote their transition outcomes. Her contribution to the Amendment Bill has been propelled by her experiences with working with children and working in a CYCC, in addition to her current studies.
In South Africa there are about 21 000 children in 355 registered CYCCs; children are placed in these centres for care and protection. The placement is meant to be a short-term solution, but the reality is that about half of the children stay in these CYCCs until they reach the aging-out age of 18. At this age children are not prepared or mature enough to move out and live independently, so the Children’s Act Section 191(3)(e) calls on CYCCs to offer transitional support to youth exiting care. However, this section does not point out specific services that provide adequate transition support to youth. As a result, such services are largely underdeveloped
· The Act should give guidelines on what each programme should entail and this should act as the minimum standard to ensure that youth (+18 years old) will be properly prepared for the transition
· The Head of DSD should set the guidelines (minimum standards) of what these programmes should entail and that should guide all CYCCs.
Nelson Mandela Children’s Fund submission
Ms Konehali Gugushe, Nelson Mandela Children’s Fund CEO, made these proposals:
· Section 12 on social, cultural and religious practices
This states that every child has the right not to be subjected to social, cultural and religious practices detrimental to his or her well-being. However, the various practices that are allowed by the law to take place continue to put children in vulnerable positions and undermine their human rights. For example, the minimum age allowable for marriage for boy children is 18, while for girl children this is set at 16. There is lack of equality and prejudice towards girl children. While there are provisions of consent made for children who undergo these practices (i.e. circumcision for boys; virginity testing for girls), there is no provision made for girl children entrenching their right to refuse the practice, while section 12(10) gives this protection for boy children.
It is recommended that the minimum age for all practices referred to in section 12 should be raised to 18. There should be similar protection provided for girl children to refuse virginity testing as in section 12(10) for boy children and circumcision.
· Operationalisation of the National Child Protection Register
The Child Protection Register is not accessible enough for it to be used as regularly as it should. It must be extended to other offences, not only sexual abuse, similar to the criminal record register.
· Section 191 on children exiting alternative care
It is recommended that residential programmes need to prepare children for integration in society. Exit strategy should start as early as age 16 and an exit plan should be documented for each child. This plan should indicate what the child will do upon exit from the home or residential facility. It is proposed that a standardised transition programme (ages 16 - 18) should be established. Consideration should be given to allow an additional two years (up to 20yrs) should it be required to prepare children for integration.
· Promoting Child Participation
A key focus at Nelson Mandela Children’s Fund is to amplify the voices of the children by giving them platforms to learn, understand and engage on matters affecting their well-being.
The Nelson Mandela Children’s Parliament (NMCP) should be institutionalised as part of the entrenchment of parliament as a people’s parliament, and sittings of the children’s parliament should be standardised into the parliamentary calendar. Child friendly versions of legislation relating to children should be developed so that children can be taught about it in a manner that they can understand and use.
· The Children’s Amendment Bill (2020) is amending the Children’s Act 38 of 2005, however, there have been so many other Acts that have made amendments to this Act 38 of 2005. It is proposed that a whole new updated Children’s Act be enacted, instead of these “piecemeal” amendments.
The Chairperson said that Ms Gugushe’s submission was very informative especially about ensuring that children express an informed consent and reinforcing the emphasis that when children exit the CYCC that their transition ensures that they are ready.
Mr Modupi Mazibuko, Penreach Senior Change Agent, said that the Penreach ECD Essential Box focuses on supporting ECD centres from level one to three.
Level one focuses on management and governance, supporting ECD centres with information about the legal framework, providing support in registration and dealing with compliance. Once ECD centres meet the requirements of level one, they are then moved to level two, which focuses on health and safety. Thereafter, level three focuses on ECD service operations, how the centre can be improved by developing resources and engaging with ECD practitioners on the range of skills they need to meet the curriculum.
· A one-step registration process for ECD providers and different types of ECD providers must be regulated differently.
· All children attending any type of ECD programme should be able to access the early learning subsidy if they need it, which will support good nutrition essential for good performance.
· Simpler, adequate health, safety and programme standards must be in place. A simpler guide is needed that should use a developmental approach to support ECD centres.
· Conditional registration must be clearly stipulated, where ECD centres would be able to get support even if they are conditionally registered.
· On infrastructure, it proposes more simplified guidelines emphasising a more developmental approach to support ECD centres.
It is requested that there is adherence to strict and urgent timeframes to finalise this Bill due to the ECD migration from DSD to DBE. It is requested that the Committee consider adopting a regulatory framework on the ECD landscape.
Media Monitoring Africa (MMA) submission
Mr William Bird, MMA Director, focused on children’s right to privacy, particularly in the digital environment.
Children’s right to privacy is critical because to a large degree the current framing on children’s rights does not take into consideration the diversity and critical importance of children’s rights. The digital world has significant pros but also poses significant threats to privacy, in relation to children there are a number of areas that need attention.
Media Monitoring Africa has consulted to work with children to get their input, so that their views makeup the Digital Rights Charter. This dealt with children’s right to privacy online, the fact that their personal information needs to be protected and that their privacy and personal data must be safeguarded.
Where data is collected, children must be informed about how the data is collected and used. Consent to process a child’s data must be informed and freely given by the child or, depending on the child’s age and maturity, by the parent or caregiver. Children retain the right to withdraw their consent and object to personal data processing, taking into consideration any overarching public interest considerations. Children who are victims, survivors, witnesses or are in conflict with the law have the right to have their identity protected.
Ms Tina Power, Attorney at Power Singh Inc, said that while they welcome the recognition in the Bill of children’s privacy rights and the protection of their personal information, they are concerned that section 6A and the deletion of section 74 have conflated aspects of children’s privacy rights and as a result they are not adequately protected. Data protection and personal information differ considerably from identifying information.
Recommendation for a reconsideration of section 6A
· The Bill needs to explicitly set out that the right of privacy applies to both online and offline.
· There needs to be appropriate protections against harm in the context of data processing
· The right to children’s privacy should form part of Chapter 2 on General Principles in the Act.
· Section 74 should not be deleted but included in the expanded section on children’s privacy rights.
· Section 6A should be expanded.
Ms Abrahams thanked the Nelson Mandela’s Children Fund for the work they do, and the explanation for why they believe that some cultural practices such as virginity testing need to be at a minimum age of 18 years old. In engagements with the interest groups involved such as traditional leaders, what has their response been to the proposed increased age of 18 years for such cultural practices.
Ms Masango asked Ms Mkhabela how far her ECD centre is from being registered and what the outstanding requirements are.
She asked Ms Doma how many ECD centres operating within the Sisonke Forum had to close due to the registration challenges they faced.
She asked The Hope Exchange if it was not because the CYCC is a temporary care facility that there is no preparatory programme for young people that exit the facility. It seems that the only criteria for aging out of the CYCC is age. She asked what is contained in the exit report for the basis, other than age, that a young person is moved out at age 18.
She asked the Nelson Mandela Children’s Fund if it would help to have legislation that affects children to be taught at schools, so they become aware of what the law says about them. She asked if the Nelson Mandela Children’s Parliament is involved with the processing of the Bill.
Ms L Arries (EFF) said that the ECD sector has been treated as the step child of the education system. When one looks at ECD practitioners earning less than R1000 per month. This really needs to be looked at with a formal qualification and a regulatory council that ECD practitioners belong to. ECD principals should at least get a minimum loan secured by law. There are many schools that require no fees. This is a need for ECD as many parents cannot afford to pay the ECD monthly fees. If the country gets to a point of having no-fee ECD centres, every child in this country will have the privilege of quality education.
Ms Gugushe replied that some of these matters are quite sensitive to engage on. There are very strong views that protect the right to have those cultural practices and this is certainly not a proposal that those practices should be done away with. They do try to engage within the various dialogues to highlight the minimum protections that are required. Some of the areas where they work still have activities of Ukuthwala – where children are forced into marriage, even though it is illegal, societies still continue to do those practices. The fact that for a girl child, marriage is legal at the age of 16 puts them in that vulnerable state. They tried to highlight in the dialogues the dangers of having the age disparity.
On virginity testing and circumcision, they have seen that circumcision has gone through quite an extensive level of debate and there has been a lot of strife in regulating some of those practices, but to a lesser extent virginity testing. So they want to increase that dialogue and speak about how children are experiencing these cultural practices. Some children do appreciate these practices and feel pride that these practices are firm and that their identity is part of their culture, so they want these practices to continue. However, there are some children that say there are pressures that suppress their own views and compromise the quality of the consent they give.
The Nelson Mandela Children’s Fund does intend to plan dialogues to address consent, the quality of consent and the harmonisation of age. If the age of legal capacity is deemed to be 18, some of these practices being brought to children below that age really undermine the level of maturity that is required for them to engage. There has not been total agreement that there should be an increase in the age but there will be continual engagements in the various areas to make this case.
Teaching about legislation at schools would help. Schools remain the one avenue where children absorb a lot of information and get taught about society. We believe that it is essential that part of the curriculum prepares young people to understand how to operate and interact within society. The inclusion and teaching of legislation relating to children would certainly go a long way if it was included as part of the curriculum. This has already helped with the teaching of the Bill of Rights and it allows young people to engage with it, analyse it and understand it and therefore know how to apply it in their own lives.
Ms Gugushe replied that the child ambassadors of the NMCP were invited to give their input on the Bill when it prepared the written submission. At the moment they are also participating in various discussions. The Nelson Mandela Children’s Fund helps with organising these discussions and to prepare them, by getting them to understand the legislation and the proposals that have been made and then formulating their own thoughts. This is done in a manner that does not influence their thoughts but helps them to formulate their own thinking.
Ms Mkhabela explained her ECD centre registration application saying that if there was not such a long wait for the clearance certificate, she would have submitted her file to the Department. She had submitted the request for clearance for her practitioners in December but unfortunately she has still not received a response. By the time she gets the response, all the required certified documents for DSD will have expired as every document needs to be recently certified. She is only waiting for the clearance from Pretoria and then the file will be ready to submit.
Ms Doma replied that Sisonke Forum has nine ECD centres that have closed due to Covid-19.
Mr Bird noted that everyone knows the case of Lufuno Mavhunga who took her own life because of bullying. One of the key elements to this was that her bullying was recorded and shown for all to see. This emphasises why privacy really matters. It is about digital literacy, privacy and respecting children’s rights. Their submission might have sounded a bit abstract from other on-the-ground issues but this also matters in a clear and direct manner that impacts every person that has a child.
The Chairperson assured Mr Bird that to the Committee, the Media Monitoring Africa submission was not abstract.
Ms Pote explained that there are three types of placements besides foster care and cluster foster care. There are temporary safe care facilities that accommodate children for three to six months. If the child cannot be reunited with family or placed in foster care, then that child is transferred to a CYCC where the child can stay longer, for two years or more. Although it is meant to be short-term, about two years, in most cases children stay longer. When they reach 18, according to the law, they are then regarded as adults and therefore are supposed to move out. An exception is only given if a child is still schooling and the CYCC is willing to accommodate the child, then the child can stay up until the age of 21, but beyond 21 years old, no child can stay in a CYCC. This is why it is imperative for these children to be prepared for this transition. If a child stays between the ages of four until 18 years in a CYCC, the centre should prepare children for productive adult roles.
Submission by District Magistrate Jaco van Niekerk
Mr Jaco van Niekerk, Magistrate: Gauteng, said that he has been in the Children’s Court since the start of the Children’s Act.
· Definition of ‘serve’ in the Children’s Act.
The effect of the definition is that it requires all documents in terms of the Children’s Act to be processed in the Children’s Court by manner of service of a civil court, which is a very formal and at times a very expensive procedure. The Children’s Court often deals with parents, family units or people who know each other. There is often consent from people to have documents/court orders served by email or hand delivered by each other, which does work. The effect of the definition of ‘serve’ can hamper the magistrates as they are required to comply with the definition of ‘serve’. Involving a sheriff or official is very costly for those who cannot afford it. It is requested that the courts make this definition easier for the service of documents.
· Powers of the Children’s Court
The Children’s Court is limited in two aspects. Firstly, the powers of the Children’s Court are limited if there is a matter pending in another court, the Children’s Court cannot touch it for as long as it is pending. Secondly, Children’s Courts are limited in dealing with certain specified acts like guardianship, surrogacy, and dealing with a child’s property. There is provision in the Bill that gives some powers to the Children’s Court on guardianship but only in cases where children are abandoned or orphaned. This is haphazard and will cause confusion.
Since the Children’s Court is deemed as the specialist court when it comes to children, why is it limited? Guardianship is a challenge as there is a huge number of children affected and it creates immense problems as such applications need to go to High Court. Even though legal aid is provided to those who are indigent there are many people who earn more than R5000 a month, which is the cut-off point for legal aid. The Children’s Court needs to be given the power to assist people properly; it comes with great satisfaction to serve people who need the service.
The Bill seeks to introduce a definition for inter-country adoptions. There is nothing wrong with this definition especially as it is consistent with the Hague Convention definition of inter-country adoptions. The difficulty comes in the practical application of this definition. The differentiation between ‘national’ adoptions and inter-country adoptions is a lot vaguer than what people would like to believe. When looking at other conventions about adoptions, a crucial aspect is the ordinary residence of either the child being adopted or the prospective adoptive parents. There have been two relatively recent cases, where all the parties, both the adoptive parents and the child, have their habitual residence as South Africa, but one (either the adoptive parent or child) are not a citizen of South Africa. If this definition of inter-country adoption is allowed, the central authority would have to be involved to ensure that the other country also recognises the adoption.
The Chairperson asked Mr van Niekerk if he was worried about inter-country adoptions being legislated on and causing complications.
Mr van Niekerk replied that the insertion of such a definition may very well cause complications. Domestic adoptions must be consented to by the respective provincial heads; whereas the inter-country adoptions are consented to by the central authority. When everyone is a resident in South Africa, the central authority never looks at that and the insertion of this definition may insert a line between national and inter-country adoptions, this may complicate the adoption.
Commission for Gender Equality (CGE) submission
Mr Dennis Matotoka, Legal Researcher, CGE, presented the following proposals:
· Section 74
When it comes to the protection and publication of children’s information, CGE does not support the proposed deletion of section 74, this section deals with the rights of children in terms of the Children’s Court so that the information is not shared with outside persons. This section should be retained but extended to provide the same protection for children who are involved in proceedings in the High Court, because section 74 appears to be confined to Children’s Court only.
· Section 6A
CGE welcomes the insertion of section 6A which affirms children’s right to privacy and protection of personal information. Although it may not be necessary considering the listed laws already applied to all South Africans, including children. It is suggested that the insertion of section 6A cannot be a replacement of section 74, which serves its own necessary purpose.
CGE is currently looking at an investigation, following a number of complaints reported to the Commission mostly by unmarried fathers who allege a variety of concerns, including parental alienation and their inability to play a meaningful role as father in their children’s lives. They have cited a number of challenges, especially if the biological mother is no more. They often indicate that they are unable to get access to their children. It has been advised by the complainers that the maternal preference rule is still applied in the judicial system, where mothers are viewed as better parents than fathers. CGE has recently embarked on a systemic investigation to assess the extent to which these allegations are truthful – to what extent is the maternal preference rule still applied in South Africa. CGE will then develop a report to address the allegations that were brought to their attention. It is on this premise that the CGE was interested in the Bill, particularly the rights of unmarried fathers.
· Section 21
This section which deals with the way unmarried fathers can acquire parental rights and responsibilities in respect of their children has a negative impact and unintended consequences in practice. There is an unnecessary distinction between married and unmarried biological fathers, who are expected to meet specific requirements. An unmarried father has to go through the Children’s Court to acquire parental rights and responsibilities. This requires court proceedings which is often costly. CGE is of the opinion that there is some prejudice experienced by unmarried fathers and additional and costly requirements that they are expected to fulfill.
Another significant concern is that DHA often does not recognise the relationship between a father and the child, especially if the father was unmarried to the mother. They often refuse to allow an unmarried father to register the birth of their child; in essence this child will be denied their right to a birth certificate and constitutional right to nationality at birth. As a child becomes older it becomes progressively harder to obtain birth certificates. This is detrimental as the child would not be able to benefit as they would under normal circumstances, unless an unmarried father had the same rights as a married father.
CGE therefore welcomes an expansion of section 21, to the extent that it considers the unmarried biological father who at the time of conception or at the time between conception and birth, lives or has lived with the biological mother. This is where, according to the complaints, there is typically a rift between the maternal grandparents and the unmarried biological father.
· Guardianship is also a concern. High Courts are currently the only courts who can hear applications on guardianship. In South Africa kinship care is common in families; with children often living with their grandparents or extended family members, not their biological parents. While kinship carers may be primary carers they are not guardians and as such they cannot make important decisions about the child’s life. The Bill is an opportunity to address some of the kinship challenges that the courts ordinarily come across.
· CGE is disappointed that clause 47(b) reduces the existing obligation on MECs to fund ECD programmes, especially in underprivileged and poor communities. They now place a discretion on that obligation by using the word “may”. CGE strongly urges against this amendment.
· CGE urges that this Bill empower all Children’s Courts, which are far more accessible to ordinary people in South Africa, to hear matters of guardianship and not just cases where children have been abandoned or orphaned.
The Chairperson asked CGE if section 6(A) does not address the same purpose as section 74.
Mr Matotoka replied that section 6(A) applies to all persons in South Africa because it talks about the protection of personal information, which automatically includes children. CGE proposed that there should be a specific expressed provision that talks to the protection of children’s rights or personal information within the courts, taking into consideration the Divorce Act and the Maintenance Act. Section 6(A) does not make reference to the Divorce Act and does not make reference to the Maintenance Act. Exclusion of those specific Acts is detrimental to the privacy of the personal information of children in those matters. For this reason, CGE states that section 6(A) cannot be a replacement for section 74.
The Chairperson noted that Ms Gugushe said that the Bill still maintains a difference between the girl and the boy child in terms of cultural practices. He asked if CGE came across this in the Bill.
Mr Matotoka replied that they have not come across that, but CGE does see that children, irrespective of their gender should receive adequate protection from the Bill. Children irrespective of their gender should be put on an equal footing.
The Chairperson referred to the reduced obligation on the MEC and asked that Mr Matotoka provide more clarity.
Mr Matotoka replied that the Bill no longer makes it an obligation for an MEC to fund ECD programmes, it states that “an MEC may”, the term “may” does not mean “must”. This will mean that under certain circumstances the MEC may or may not provide funding for an ECD service. CGE believes that there should be adequate funding, because section 28 of the Constitution promotes the best interest of the child in every instance, there should not be “may” in such instances, this should be a mandatory requirement.
The Chairperson asked for clarity on his statements about guardianship in courts.
Mr Matotoka replied that guardianship is currently dealt with only at High Courts. The concern is that the process is quite expensive. Not everyone can afford litigation at the High Court. CGE therefore submits that the Children’s Court can be empowered to deal with guardianship because they are more accessible and less costly to ordinary persons in South Africa.
The Chairperson expressed his gratitude to all of the presenters who made the effort to put together high-content submissions that was highly informative and well researched. He thanked everyone from all over the country and said that without them there could not be hope to produce the outcome of a quality legislation that actually makes a turnaround to the environment in which children are living.
- Sisonke ECD Submission
- CINDI submission
- CINDI Presentation
- Skelton submissions
- Prof Ann Skelton Submission
- Penreach Presentation submission
- Prof Ann Skelton Presentation
- Ms Charity Pote UWC Social Work PhD Student submission
- Nelson Mandela Children's Fund: Annexure B
- Nelson Mandela Children's Fund submission
- Nelson Mandela Children's Fund presentation
- CoRMSA Submission
- CoRMSA Presentation
- Cotlands presentation
- Cotlands subsmission
- BRIDGE Presentation
- BRIDGE submission
- Door of Hope submissions
- Media Monitoring Africa submissions
- Media Statement: Conclusion of Hearings on Children’s Amendent Bill
- Diepsloot ECD submisssion
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