Children’s Amendment Bill: legal expert on harmonisation of age; Committee Report on provincial public hearings

Meeting report

In the first meeting of 2022, the Chairperson noted that the meeting was for the Committee to hear Prof Ann Skelton. The Department officials were present only as observers.

Harmonisation of ages
Prof Ann Skelton, UNESCO Chair in Education Law in Africa at University of Pretoria, drew on her experience and knowledge of the Children’s Act, in considering international and regional context.

Harmonisation of ages is not required
The UN Committee on the Rights of the Child does not require the harmonisation of age, and states parties have some leeway on where to set these lower/internal age limits. Thus, the UN Committee does not criticise states that have a different age from 18 for certain things such as:
- Age of sexual consent
- Age of criminal responsibility
- Age of medical decision making
- Age at which a child should consent to their own adoption.
Many countries have differing ages for these things

Age of marriage and age of sexual consent
There has been a global mobilisation against child marriages – and a call to set the age at 18 years, for both boys and girls.

The UN Committee does call on state parties to set the age of marriage at 18. However, the UN Committee does not call on states to raise their age of sexual consent to same level, and this sometimes creates confusion.

The UN Committee does not want to see children who engage in consensual sex to be treated as offenders.

Discussion
Ms L Arries (EFF) said there were children who became mothers as young as twelve years old. Children these days were maturing faster than the age of eighteen. Where are these young mothers classified since they have responsibility of a parent? Are they classified as minors? The age of consensual sex is set at the sixteen, but at this age a child can conceive and become a parent. Where is the line drawn with the age of maturity of 18 years?

Ms A Abrahams (DA) thanked Prof Skelton. She asked about intersex children. The Committee heard a submission from an organisation involved in intersex advocacy. It spoke about parental consent for medical operations for selecting the child’s sex. It was presented that such operations have long-lasting and at times irreversible emotional and mental scars when children grow. In hospitals, doctors still undertook such intersex operations with parental consent. The responsibility fell on the Provincial Health Head of Department to make the consent where the child does not have parents. Twelve years was the age when a child could consent to a medical procedure. What was the Prof Skelton’s view on intersex surgeries and the role of parents, doctors and the child involved?

Ms B Masango (DA) thanked Prof Skelton for the short and sweet presentation. Some of the comments from public hearings were from a protection position by parents and caregivers. They felt that they do not have a role to play in protecting their children because the law had gone ahead and set age limits. They felt helpless with no role to play to ensure that their children are protected such as from sexual interaction with older people. While looking at the best interest of the child, was the role of the parents ever considered in decisions on the age of maturity? Prof Skelton said if harmonisation was to be discussed, it needed to be based on evidence-based research. What form would that research take? It made sense to hear about evolving capacity, which meant there was no restriction for the children, caregivers and the law in dealing with this on a case by case basis.

Ms A Hlongo (ANC) also asked if parents were considered. From the public hearings, most of the complaints from communities were about child marriage.

Mr D Stock (ANC) appreciated the comprehensive and detailed briefing which clarified misunderstanding of the definition of the child at 16 or 18 years old. The Constitution was clear that anyone below the age of 18 was a child. Where does this put the Committee if it comes across any best practice based on the research conducted? What was the constitutionality of any other legislation that would come? Which one was superior? He appreciated that Prof Skelton indicated the international, regional and national practice.

Ms Abrahams noted that Prof Skelton said there is no need to harmonise the ages. At the beginning of every year, Members debate education, and the crisis in the schooling system, including high dropout levels. A child above 15 cannot be forced to go to school. The average child was in Grade 7 at that age. In the public hearings, parents were concerned that a parent cannot force a child over 15 years to go to school since they know their rights. Considering the current education crisis, would harmonisation not be necessary to help with the crisis in the education system and to empower parents? If a child was to drop out of school due to peer pressure at 15 years, that would set the child back. Was there not an argument to harmonise the ages for the purpose of improved education?

Ms M Sukers (ACDP) said Parliament was dealing with various pieces of legislation including the Basic Education Laws Amendment (BELA) Bill which had just begun, and the Children’s Amendment Bill which had just concluded public hearings. Harmonisation of the age was important for the Committee because it was asked about consistently in the public hearings. In one of the hearings, the comment was that the legislation is siloed. The Committee needed to be cognizant of the various pieces of legislation and their impact on the Children’s Amendment Bill.

Ms Sukers strongly proposed harmonisation because different pieces of legislation were being dealt with and there was a need for them to speak to each other. With the Epstein case overseas and high profile individuals getting away with a financial settlement, there was the observation of the impact of early initiation of children into sexual activity – that continued into adult life. The issue of informed consent was very important to the Committee. How were children protected in legislation? When would a child give informed consent? There were differing opinions on the interpretation of informed consent including when parents can give consent. Could Prof Skelton elaborate on informed consent and the consideration of the law. The country was facing a rise in abortions of children between the ages of 11 to 18. Thus informed consent and harmonization were important considerations.

Ms K Bilankulu (ANC) asked Prof Skelton to elaborate on the Constitution and culture when refereeing on the harmonization of age. The Constitution was silent about the diverse cultures. Some child marriages happened because of culture; parents would give consent for a child to get married. What would Prof Skelton advise the Committee to amend in dealing with child marriage?

The Chairperson agreed with Ms Bilankulu and said the Committee encountered many questions in the public hearings on the differences in age of consent. One department was talking about 16 years, while another was talking about 18 years. What advice would Prof Skelton give to the Committee?

Prof Skelton response
Prof Ann Skelton thanked Members for the interesting questions. On whether children were considered adults because they had given birth, she said it was interesting that the law stated that when one was married, one became an adult regardless of the age. However, since there was a Constitution with a Bill of Rights, the position was that even if the child gets married, they would still enjoy their protection as a child under 18 years. Where a girl below the age of 18 has a child and was unmarried, the girl would be able to make some decisions about her child, but the Children’s Act did not give guardianship to her as the mother until she was 18 years. Her parents would be the guardians until she is 18. There was recognition that the child does not have full capacity to make all the decisions in relation to her child, and would need the assistance of her parents. However, in some decisions it would be essential to consider her views such as giving the child up for adoption even if she is not the guardian. On the other hand, if the mother below 18 years was arrested for shoplifting, she would still be considered a child under the Child Justice Act, and a child under the Constitution. This was necessary because she still needed to be protected from the harmful effects of the criminal justice system. The issue was complex but there was the need for a balancing to recognise that children did at times get pregnant and needed to be able to make decisions about whether to get an abortion, or to give up the child for adoption. It would be important to recognise that while on one hand the mother should make decisions in relation to her child, on the other hand, if something befell her, like being caught up in the criminal justice system, she must be seen as a child. All this was recognised in the law. The Constitution was clear that anyone below 18 was considered a child, and all protections would be applied.

On the intersex question, Prof Skelton replied that the UN Committee on the Rights of the Child often gave advice to states to move away from unnecessary surgery for intersex children. Sometimes, surgeries were necessary, where for example a child cannot urinate. The kind of surgery which was considered unnecessary was where the sex is changed. That should not be done at birth or early childhood because it is not known what the person feels they are. Gender is mostly an internal issue which people have as their sense of identity. That can only be seen as the child gets older. Parents might think it convenient to raise a child with a particular sex and make a decision to have surgery that aligns with the sex of the parents' choice. This decision may also be because society was currently very binary. With time, people should be able to accept that it is not always a choice. As the child grows, they would demonstrate if they are a boy or a girl. All unnecessary surgeries should be delayed until the child can be involved in the decisions. Internationally, intersex children in their teens are demanding to be part of decisions about surgeries and hormonal treatments. At times they demand to transition to a sex of their choice. This was difficult because on one hand, it appears to make sense to stick with the current rule of delaying surgery until the age of 18. On the other hand, hormonal treatments would still have irreversible effects. Notably hormonal treatments are medical treatments, and not surgery. The law needs to allow doctors and parents to allow decisions about medical treatments to be made when in the best interest of the child with consideration of the child’s views, and within strong ethical standards. There also needed to be consideration that adolescence is a time of great change, where a person may later want to change a decision that they made at 14 years. However, the facts needed to be determined. This was a complex and new area in the law to be considered.

There were clear lines in referring to babies and early childhood. It was more complex in adolescents because of the tension between protection and growing autonomy. As a child rights lawyer, she knew that the tension or slight sense of contradiction could not be escaped. Doing so would be to harm children. The instinct of the law makers would be to go against that, but she urged Members not to do so.

On the frustration of parents not knowing their role, Prof Skelton agreed the point was interesting and understandable. Anyone who has parented adolescents knows how hard it is. Even with legal backup, it is difficult to parent adolescents because they are expressing their growing autonomy and the parent begins to lose control. Anyone who has been an adolescent knows how much the boundaries are pushed. Where one parent does not give the desired response, the adolescent goes to the other one. That was the reality. The solution would probably be to help people to strengthen their parenting of adolescents. The Courts already expressed an opinion on this, for example the Teddy Bear Clinic case, where the Clinic challenged the constitutionality of a child between the ages of 12 and 16 being charged under the law if they consented to sex. The Constitutional Court struck that down because it exposed children to too much harm for decisions that were not necessarily criminal decisions. In doing so, the argument of the State was that there was need for the legal process to assist with the payment of damages. However, the Constitutional Court did not agree saying payments could still be made without the law. The law would have to consider the effects of putting children in prison or taking them through the criminal justice system on issues that were not criminal. There was public law. While the law would allow children to have sex before they got married, a parent may choose to raise their children differently. This was a choice provided by the law. However, if something were to go wrong and the child had sex, the police would not get involved. Parents were allowed to bring in whoever they considered appropriate, including community elders or religious leaders, to help in explaining to the child why the parent felt that it was wrong. But no one would want the police being involved in such personal issues.

On whether parents were consulted in drafting the Children’s Act, Prof Skelton replied that there was a broad consultative process in the 1990s. She was part of that Law Reform Commission Committee, which included wide ranging consultation. While it would be tricky to try and include all parents, it is not possible to consult huge numbers of parents. The Department of Social Development (DSD) has an important role to play in helping parents to understand and navigate the difficult parts of parenting in the modern age. Consideration needed to be made to put efforts in that direction to ensure that parents who were struggling get access to good services to support them in their parenting.

On the process of getting evidence-based information for harmonisation, Prof Skelton replied that the Constitution was a good guide. In determining if something was constitutional, it was important to consider the law. What harm was being prevented through the said law? If the law passed did not solve the problem, there could be something less restrictive which would have been done to stop the change in the law. For example, on parenting, if there was to be a law to criminalise children for consensual sex because parents needed more help with their parenting, the Constitutional Court said “no” since parenting was a separate issue. The Constitutional Court considers less restrictive means rather than changing the law. For example, if a decision were to be made to raise the minimum age to access condoms from age of 12 to 16 which is the same as the age of consent, and this was challenged, the Constitutional Court would be interested to know the basis for this decision and the evidence considered. It would further want to know if the legal change was necessary, and if there was no other less restrictive change that could have been made to achieve the same purpose. This was important when making any decisions, especially if they would be retrogressive to previous rights gained.

Prof Skelton replied that the question about the constitutionality of the ages was a good and important question to examine. While the Constitution said a child was any person below 18, the Constitutional Court would not be upset if other ages were lower. The Constitutional Court would be worried if something were harmful to children and the age was set lower. There was an acceptance that there were different ages at which different things happened. The Court has dealt with age limits below 18 before. For the age of sexual consent, they did not say it needed to be changed. They were comfortable with it at 16 years. They did say children between the ages of 12 and 16 could have sex. However, that did not change the age of consent which remains at 16. As such, it is a crime if a person older than 16 years has sex with a child under 16. It was not a crime only if they were both below 16 and over 12 years. The age of 12 years was set because below that children were considered to be unable to make any decisions relating to sex. The law was clear on that. The child’s consent does not come in below this age, thus any sexual act would be non-consensual, and where it is penetrative, it is rape.

The Courts and the legal system were used to different ages and they did not have a problem with it. One good example would be the case on minimum sentences for child offenders who were 16 and 17 years old. A new Sentencing Amendment Bill was passed few years back, and it brought 16 and 17-year-olds into the realm of minimum sentences. This meant they could be sentenced to very long sentences, including life imprisonment. This was challenged by the Centre for Child Law, and the Constitutional Court willed that case, that it was not permissible to bring children into the realms of minimum sentencing. Interestingly, the Court did say ages below 18 could be set for certain things, but they needed to be evidence based, and there needed to be less restrictive means of achieving the same purpose. Children of 16 and 17 years could be given lengthy sentences, up to 25 years, but not as a minimum sentence rather as a last resort. This was what was in the Constitution and the UN Convention. The issues were complex, but the Constitutional Court was perfectly comfortable with lower ages at which one can do things.

On the age of education ending at 15 years, she agreed that it sticks out as a sore thumb. The reason for this was the rules of the International Labour Organisation (ILO) which sets the age of work at 15, hence the age for ending compulsory education was set to match that. However, the requirement was quite old. The law says the end of compulsory education would be the end of the year in which the child turns 15. On whether it would be necessary to raise the age, she said 16 was in fact a formal common age in the law. The law also mentions 12, 14 and 18. But 15 was weird because it was not seen anywhere else. This would probably be good to harmonise. However, there would still be need for evidence for it, and if there would be a less restrictive measure to achieve the same goal. Tidying up the statue book would not be a great reason for harmonisation.

On harmonising across the different laws, she said “yes” to the extent that there should be no contradictions in the laws which would make it difficult to understand how the other laws could work. An example was where condom access was allowed between the ages of 12 and 16, but engaging in consensual sex was a crime. That was solved by the Teddy Bear judgment, with subsequent legal changes. The law was designed to discourage children from an early sex debut, but if they were to do it, pregnancy and STIs need to be avoided. It was better to provide barriers to protect children under those circumstances.

On whether the Constitution was silent on culture, she replied that the Constitution did recognise customary law, and culture may be followed, provided it did not contradict the Constitution. The UN Convention on the Rights of the Child, and the African Charter on the Rights and Welfare of the Child were clear that the age of any marriage needed to be the same, even if it were marriage under customary law. The Customary Marriage Act also sets the age at 18, but other cultures were different. It was complex to try to conform to all international and regional frameworks, but the Committees were consistent in the feedback that they gave to states.

The Chairperson thanked Prof Skelton for the clear responses.

Ms Bilankulu said her question was not thoroughly answered as Prof Skelton replied it was a complex question. The question was not really complex because the issue she was raising was about child marriages which would mostly happen when parents want children to marry at an early age without the child’s consent. The Constitution was quiet about this. What would be the advice from Prof Skelton? But she understood that it was said to be complex.

Prof Skelton said she would respond to that. Under the law, children must always consent to marriage because the Children’s Act requires it. Such practices may be happening, but it should not be so. The age of marriage at 18 should apply to all kinds of marriage.

The Chairperson said the issues were indeed complex and Members had more questions to ask. However, the current issues would have to be discussed first, because the reality was that when communities ask the Committee Members, they cannot say, “We are not sure.” But they had to give such responses and explain that they needed to consult. The critical issue was the Constitution and the departments involved. Communities did ask how a 12-year-old would be able to consent to medical procedures. Prof Skelton had given clarity on some of the issues. She thanked Prof Skelton for the effort, as she had wanted to present the previous year and had been asking the Committee Secretary for a date, but the Committee programme had been tight. Prof Skelton was released from the meeting.  

Key Themes emerging from Provincial Hearings on Children’s Amendment Bill
Content Advisor, Ms Yolisa Nogenga, noted that these public hearings involved a total of 4095 attendees. There were 526 oral submissions; 38 child representatives from Nelson Mandela Children’s Fund, seven written submissions from learners with special needs.

The presentation noted 14 key concerns were raised at the hearings:
- Definitions
- Undocumented SA and non-SA children
- Parental responsibilities and rights
- Children’s rights to privacy
- Sufficient age or age of maturity
- Child marriages
- Partial care - Early Childhood Development (ECD)
- Foster care
- Adoption services
- Referral and placement in alternative care
- National Child Protection Register – Part B
- Implementation of the Bill
- Safe havens/baby savers
- Service delivery issues

The various suggestions and comments at the hearings were listed. For example:
Undocumented SA and non SA Children
- The submission was that Government should ensure all undocumented children are documented because they were born in South Africa. The Department of Social Development (DSD) and Department of Home Affairs (DHA) should work together to review and reconsider this matter in the best interests of the child.
- The Bill should provide a legal remedy to the challenge of registration of children born either from a non-South Africa mother or father. This should be aligned with Sections 21 and 22 of the Children’s Act 38 of 2005, as amended.

Parental responsibilities and rights:
- The Bill favours biological mothers over unmarried biological fathers. The Bill and Act are discriminatory in nature in that they categorize man as either a married or unmarried father.
- Some fathers are denied access to their children even though they support them financially. At times, they are excluded from decision-making that involves their children. For example, when the mother marries another man and changes the surname of the child to the husband’s surname.
- A number of recommendations were submitted and some were clause specific. These are captured in provincial reports.
- The Bill should prohibit changing of surnames of children without consent of the biological father.
- The law should make it possible for children to make decisions for themselves at the age of 18.
- Paternity tests should be done at no cost for those who cannot afford.
- The judiciary and family advocates should consider meritocracy when deciding on the PPR cases. It was further recommended that equal parental responsibility be granted to both mother and the father. This is in the best interest of the child.
- The Bill should include the principle of 50/50 parental rights and responsibilities.
- There must be equal access to the child even if the father is unable to pay maintenance support for the child.

Children’s right to privacy
- Government should protect both children and parents’ rights.
- Government should organise workshops and introduce programmes aimed at training parents and teachers to better discipline children without using corporal punishment.
- The Bill should further provide a platform for children to be allowed to be part of decision-making on matters affecting their lives.

Child marriages
- The amendments were fully supported. However, it was emphasised the Bill should clearly define the age restriction.
- Another view was that prohibition of child marriages may indirectly promote a fatherless society/absent fathers considering the high teenage pregnancy rate in the country.
- The Bill should also prohibit statutory rape and relationships of older men with minors. The Bill in this instance is silent about older men who cohabitate with younger girls.
- There should be a minimum age of consent to a marriage, and that the different laws that regulate age of consent in South Africa be reviewed.
- The Amendment Bill should allow child marriage (child marrying another child) only for the child who has consented to that marriage. Children should be allowed to marry at the age of 16. If not, the law must prohibit children under 18 years from engaging in sexual acts and falling pregnant.

Safe Havens/Baby centres
- New proposal: SA has a high rate of unsafe abandonment of babies. This is because it is a criminal offence to abandon a baby. Aim of Safe Havens is to save the lives of infants, in the best interest of children. Call for legalising safe abandonment through Safe Havens.
- Prioritize the adoption of abandoned children.
- The Bill should regulate that organisations working with babies should partner with the Department of Social Development. Failure to cooperate to result in closure of the organisation.

Discussion
The Chairperson thanked the Content Adviser for summarising the report, saying it was not easy since the public hearing took many months. She asked Members for additions to the report.

Ms Arries noted that in one of the provinces, a submission was made about the 'social father' who was in the child’s life from day one – physically, financially and emotionally ­– when the biological father was not there. Such a father figure did not have any rights. How would this be covered? This was raised in the public hearings but has been left out in the report.   

Ms Abrahams thanked the drafters of the Committee Report. She asked the Chairperson to excuse her ignorance, but asked for confirmation if adopting the report meant Members were agreeing to adopting all the recommendations.

The Chairperson said “Yes”. The recommendations had been put forward, and Members had an opportunity of adding or deleting any recommendation.

Ms Abrahams asked about the statistical analysis of the public participation. Were the numbers acceptable for Parliament to proceed, as the hearings were conducted during Covid-19 restrictions which limited the number of attendees?

Ms Abrahams asked if the Committee would make changes to the ECD section? Or would the Committee stick to the earlier recommendation to hand over all ECD changes to the DBE to carry out those changes in the Second Amendment Bill?

Ms Abrahams noted the recommendation to regulate legal fees for divorced parents wanting to get access to their children. Would the legal fraternity not argue that if a parent does not accept the legal fees they could use other methods such as Legal Aid, or find a lawyer more in line with their financial standing, than to regulate the entire legal fraternity on that?

Ms Abrahams referred to the submission that not allowing child marriage would lead to fatherlessness. While this submission came up in the discussion and the comments needed to be noted, there was need for caution.

The Content Adviser clarified that the process of Committee deliberations on the public input would come later. The Department would appear before the Committee to respond to the submissions that were made. It was premature to discuss the comments now until the meeting with the Department of Social Development where Members could deliberate on what was raised.

Ms Abrahams said there were still people in marriages were there was fatherlessness, and she felt that the association of child marriages and fatherlessness needed not to be included in the recommendations. She said she was happy with the inclusion of Baby Safe Havens. She had been reading a dissertation titled “The Legal Regulation of Infant Abandonment in South Africa” which would be constructive to that discussion. On the exist age from foster care and from child and youth centers, individuals over the age of 18 were not within the mandate of Social Development. However, there was a department that focused on youth, and it would be interesting to hear what that department was doing to protect the 18-year-olds once they exit the system. Every morning, there was news about a woman and child murdered in the Country. Automatic access by fathers was for the rights and responsibilities part. However, the discussion of most of the fathers was that while they have the rights and responsibilities, they did not have access. This needed to be considered. Where the mother has protection orders in place, or if any of the parents appears on the child protection register, the automatic access would need to be determined by the courts.  

Ms Manganye said in Free State, a Social Worker said the Province had an MOU with the Ambassador of Lesotho for the children to get documentation. Was this the correct understanding? If it was so, it would mean there would be a province doing its own thing even if it is not recommended by the Government to do whatever documentation with Ambassadors, while other countries would say their ambassadors are not given such an opportunity. Was this legal?

Ms Bilankulu thanked the Content Adviser and the team for the presentation. The Content Adviser had said the Committee needed to wait for the Department to raise the questions with them. However, she needed to clarify on the petition. Slide 45 said a petition had been sent to Parliament, but it did not reach the Committee. Were there no consequences since it had been said that there was a petition signed by many people to stop the bill? The Committee did not receive the petition. Would it not be a problem where the Committee does not act to respond to such a petition?

Ms Masango said she had questions but after the question by Ms Abrahams and the response from the Content Adviser, she changed her mind because she needed clarity. Her understanding was that this meeting was for the Content Adviser to present the deliberations of the public hearings because Members were there at different times. These were like minutes of meetings. Having listened to the presentation and read the report, Members would then agree if it was a true reflection of what happened during the public hearings. That would then be the basis of adopting or not adopting the report. Any other information would be gathered during the profiling of the information while interacting with those who drafted the bill. She said she was not going to ask any questions, because she needed her views to be considered.

Mr Stock said he was partly covered by Ms Masango’s comments about the aim of the meeting. While standing to be corrected, he said his understanding was that the meeting was to adopt the report presented by the Content Adviser as a reflection of the activities during the public hearings. Following the adoption, the report would then be tabled in a later meeting where Members would ask on the recommendations. If this was correct, he proposed that Members move to adopt the report as a true reflection of the meeting.

Ms Manganye said she agreed with the previous two speakers and this was why she had raised the contribution from Free State was missing in the report. It was important to raise contributions from the hearings which were skipped before the report was adopted. She agreed 100%.

The Chairperson said she was also confused on the process for discussing the Bill. What was the Committee supposed to do now? Her understanding was that the process would be as explained by Ms Masango, Mr Stock and Ms Manganye. Could the Content Adviser explain what was supposed to happen? For the report, the Committee would probably only add things that appeared to be missing. For the adoption process, she thought Members would add, discuss, delete where need be, and then finally adopt. She asked the Content Adviser to respond.

Committee support staff responses
The Content Adviser said the Committee Secretary would better respond to the query on procedure. However, the inputs from Ms Masango, Mr Stock and Ms Manganye were correct. Ms Arries talked about a submission that was left out. She remembered the submission and would add it to the report. She was not aware of the Free State contribution raised by Ms Manganye. She was not present at that public hearing as her child was unwell, but she did go through everything. She would follow up on it since it was important. Amendments would be made after consultation with colleagues.

On the status of the ECD process, the advice was that the legislative process would continue with all the inputs received. Nothing would change on the decision that was made.

She referred to the petition raised by a member of the Bayakanya Foundation, a Western Cape adoption centre, who asked what had happened to its petition submitted to Parliament. The petition had called for the Bill to be withdrawn even before consideration by the Committee because Bayakanya Foundation felt it was unconstitutional. The committee support team was not aware of that and follow up was made after the hearing. It was established that there was correspondence between the stakeholder and the Office of the Speaker. The petition ended at that level. It was never referred to this Committee through the normal processes of Parliament. The Legal Adviser was aware of this and would comment on the implications.

The Committee Secretary replied that this meeting was part of the consultation process where the Committee received information on the public participation process. The meeting was to check if the content of the Committee Report was a true reflection of what transpired during the provincial public hearings. Thereafter, the Committee would adopt it. If some information was omitted, it would be added before adoption. The contents of the report would be useful during the formal stage of the legislative process, since this was still the informal stage. DSD would appear before the Committee to respond in the following meeting. SALGA and the Department of Justice would also appear to respond. This meeting was part of the consultation and information sharing process to capacitate Members to be aware of concerns raised in the public hearings. At the formal stage when dealing with the Bill clause by clause, Members would be mindful of the concerns raised. During the formal deliberations Members would propose accepting a recommendation of a particular stakeholder as a proposed amendment.

On the acceptable number of participants for public hearings, she was not aware if there was a set number for the public participation to be recognised. The public hearings complied with Covid-19 regulations of not having more than 100 people in the venue. The hearings were conducted in nine provinces and four districts. She thought it was a fair public participation process, but the Legal Adviser would elaborate if there would be litigation or challenges about that.

The Parliamentary Legal Adviser, Mr Nathi Mjenxane, replied that he did not have sufficient information on where the petition was. The petition had not yet been formally referred to the Committee. As such, it would be difficult for the Committee to apply itself to a document not officially tabled before it. In discussion with his colleagues in the committee support team, he was informed that the petition was referred to the Department for the consultation stage with the Executive. This was long before the Bill was tabled in Parliament. The support team would determine where the petition was. Should it be with the Executive, the matter would be upon the Executive to apply it. The petition may have been referred to the Office of the Speaker, but this was unconfirmed information. Follow up would be done by the support team. If it was indeed referred to the Speaker’s office, the implications would be different, since the petition would be within Parliament and upon the Speaker’s discretion to refer it to the Committee. The Committee was an extension of the National Assembly of which the Speaker was the presiding officer.

On the statistics for public participation, the current submissions meet the required threshold to proceed in the Amendment Bill process. He pointed the Committee to the guidance of the Constitutional Court in key judgments on public participation, the Doctors for Life 2006 judgment, and the Lamosa v NCOP Chairperson 2016 decision. They provide Parliament with the necessary guidance on the yardstick to test if public participation was discharged sufficiently as a constitutional responsibility of the Committee. Firstly, there was no barometer to test the sufficiency of public participation. The judgments were by the court’s own decision. There was no prescribed number of people who had to have been consulted. The Constitution granted inherent power to the Committee to determine its own internal mechanisms. The Committee would therefore determine its own programme for consultation considering all prevailing circumstances including Covid-19 and the Disaster Management Act and its regulations limiting the number of people in public venues who could be consulted. The standard from the decision of the Constitutional Court was that there needed to be reasonable and effective public participation in the view of the Committee. The Committee itself was the one to design a consultation programme and believe that such a programme was reasonable, effective and fair, having consulted all key stakeholders of the Bill.

Ms Hlongo said, based on the advice of the Content and Legal Advisors, she seconded Mr Stock in adoption of the report. She agreed that the submission from Free State be included in the report.

The Committee Report on the Provincial Hearings on the Children's Amendment Bill was adopted with amendments on the issues highlighted.

The Committee Secretary said since the comprehensive report on the nine provincial reports on consultation was adopted, this meant the Committee was also adopting the individual reports.

Committee Programme
The Committee Secretary said the following week the Committee would be briefed by DSD on its response to the public hearings. The Committee was also scheduled to receive a response from SALGA, but it had requested an alternative date. There would be briefings from Department of Home Affairs and Department of Justice to respond to the concerns raised in public hearings.

There was a request for a joint meeting with the Portfolio Committee on Basic Education to get a progress report on Early Childhood Development (ECD) migration from DSD to the Department Basic Education. The 9 March was set for the joint meeting. This meeting would include provincial HODs and MECs to present their readiness for the migration.

Parliament's first term would end on 25 March 2022. Since the Committee may not complete processing the Children's Amendment Bill by then, it would be need to use other days such as Fridays, since the House Chairperson instructed all committees to finalise legislation in the current term. The Fundraising Amendment Bill would be considered in the second term.

The Chairperson thanked the Committee Secretary for the Committee Programme presentation.

Ms Abrahams appreciated the inclusion of the joint meeting on ECD migration.

Ms Masango said the Legal Adviser earlier outlined what would happen about the petition. She hoped it would not interfere with the processing of the Bill to meet its adoption deadline.

The Committee adopted the Committee Programme.

The Chairperson thanked everyone for their participation and ended the meeting.