Children’s Amendment Bill: Department of Social Development response to submissions by stakeholders; with Minister

Social Development

16 March 2022
Chairperson: Ms N Mvana (ANC)
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Meeting Summary


In a virtual meeting of the Portfolio Committee, the Department of Social Development (DSD) gave a briefing on the responses received in all the oral and written submissions from stakeholders during public consultations on the Children’s Amendment Bill.

Members asked several questions on the rights of fathers and 50-50 parental access, as fathers had raised concerns during the public hearings about the need for men to prove that they were fit parents, while women did not have to do the same. Some mothers were also abusing the children’s grant, while the fathers did not have the 50-50 right of access. It appeared unfair to fathers. They also questioned how the 50-50 parental rights would be implemented in the case of same-sex couples who had artificial insemination, since there would be three parent individuals involved.

The Committee noted the urgent need for Child Protection Services to prevent acts of unsafe abandonment. They commented that the presentation had been silent on the issues of abandonment and baby savers. While the DSD had mentioned in the presentation a proposal to manage adoptions in-house, Members were concerned about the capacity within the Department, and if there were enough social workers for the work.

The Department had proposed measures to address the link between child trafficking and adoption. However, Members commented that the Department had not provided any proof of such a link, and there was no record of any trafficking that had occurred. They also asked the Department for proof that service providers were charging exorbitant fees for doing adoptions.

Another area of concern involved the deletion of Section 249. The Committee asked how the removal of that section would suddenly stop the illegal sale and trafficking of children, and asked what the Department was doing about street children who could easily be trafficked and exploited.

Members noted that the Department had still not yet responded to written questions on foster care backlogs. There were questions as to whether one qualified for government financial support when one adopted a child, as was the case with foster care grants. 

Meeting report

The Chairperson said that following the reports received from other departments, including the Departments of Health and Home Affairs, this meeting would receive responses from the Department of Social Development to submissions made on the Children’s Amendment Bill.

Minister's opening remarks

Ms Lindiwe Zulu, Minister of Social Development, indicated that there was a special Cabinet meeting, so she would only make remarks and hand over to the Acting Director-General of the Department, Mr Linton Mchunu, and senior managers of the Department.

Pursuant to the people-centred democracy that was established in1994, the Portfolio Committee on Social Development had conducted public hearings on the important Children's Amendment Bill in May 2020, and from September to December 2021. The amendment sought to address several weaknesses in the broader Child Care and Protection system, particularly the foster care system. Members would recall the order by the Gauteng division of the High Court in Pretoria in November 2017, in the matter of the Centre for Child Law and the Minister of Social Development. The amendments were the basis for the creation of a comprehensive legal solution to address menacing foster care challenges. Public hearings were inherent to the inclusive and participatory essence of society as mechanisms by which active citizenship could be brought to fruition for the people who were at the foreground the constitution. The people of South Africa were to be the primary sculptors of laws that Parliament attended to. Substantive engagement with the diversity of communities effectively strengthened the institutions of democracy.

The apology was tendered for the Deputy Minister, as she was in hospital. The Minister and the Deputy Minister were grateful to the Chairperson and the Committee for taking on board the people’s needs in this important legislative process, which was intended to secure South Africa's future -- the children. The state of South Africa's children was a serious matter, which ought not to be a party political issue, as it was a common interest to all. There was a need for purposeful collaboration to radically improve the state of children.

She reassured the Committee that she was treating the outcomes of the hearings with the greatest respect. The Department must direct heightened levels of seriousness and urgency when attending to the outcomes of the public hearings. When it previously appeared before the Committee, Members had been unhappy with some issues. The Department was back, and in pointing out the weaknesses in the work, the Department appreciated the Committee’s oversight over the Executive. She had asked the Department to thoughtfully attend to the numerous technical and substantive service implementation challenges that children, parents, communities, practitioners and partners had raised in the public hearings. Specific questions had been posed by South African children. To these specific questions, quantifiable and implementable responses were necessary. The Committee and their support staff had committed themselves to ensuring that the needs of the children of South Africa were properly recorded and transmitted to the Department for sufficient responses. She expected nothing less in the presentation.

She thanked the Committee for their personal investment in this process, and asked them to receive the Department's response to the national and provincial hearing on the Children's Amendment Bill for due consideration. She apologised for having to leave early, but she was sure to get the necessary briefing afterwards.

The Chairperson thanked the Minister for the opening remarks and said Members understood the work she was set to do. She wished all social workers a happy National Social Work Professional Day. The Committee had not been happy with the previous presentation made by the Department, and hoped that this one would go well. She asked the Acting DG to make the presentation.

Department of Social Development submissions on Children’s Amendment Bill

Mr Linton Mchunu, Acting Director-General (DG), Department of Social Development (DSD), thanked the Chairperson for congratulating all social workers on the Social Work Day the previous day. Social workers continued to do much hard work daily. While it was celebrated on 15 March, the Department considered everyday as an important day.

He appreciated the indulgence of the Committee regarding the previous challenges faced with the Department’s presentation. They were now confident that they had done the right thing. Numerous consultations had taken place with the content adviser and the legal team to ensure that the report was detailed, dealing with all issues raised in the public consultations.

The DSD had submitted three documents to the Committee. The first was a high level analysis with context of the submissions and the categories that made the submissions, including private persons, refugees, migrant groups, professional associations, academic institutions, traditional leaders and faith-based organisations. These were all critical to the work of the DSD and issues raised in the submissions. Most issues that emerged surrounded adoption and foster care, parental responsibility, Early Childhood Development (ECD), children’s rights, children with disabilities, unaccompanied and separated migrant children, among others.

The second attachment was the presentation on observations from the DSD. The final attachment was an elaborate matrix dealing with details of the clauses, recommendations from the DSD, and responses to matters raised through the process. The process had started in May 2020 and concluded in December 2021, and all submissions were taken note of. The Children’s Amendment Bill sought to address some of the gaps in legislation.

Adv Luyanda Mtshotshisa, Specialist: Legislative Drafting and Review, DSD, presented the responses of the Department to the key issues raised. These were:

Funding should be provided to deserving organisations on time so that they could function fully.

He said the Department made every effort to fund organisations that meet the funding requirements to enable the delivery of services, but the amount of administration involved in the disbursement of funds creates impediments, which create bottlenecks in the system. This resulted in the Department not paying the organisations on time due to manual processing of the transfer payments.

To address the challenge outlined above, the Department had developed the DSD sector funding policy that guides the officials on the process of funding organisations. To eliminate a lot of time-wasting on continual administrative work, the department was developing a payment system that would simplify the payment process in all the provinces.

There was a general shortage of child and youth care centres in the country.

Provinces were encouraged to implement section 192 of the Children’s Act by ensuring a sufficient spread in the province of properly resourced, coordinated and managed child and youth care centres. Stakeholders were encouraged to foster children in a family environment, rather than in an institutionalised environment such as a child and youth care centre.

Family reunification process was a challenge. The child that was unified with his/her family would go back to the same family and the challenges would always be there because the family was not rehabilitated.

As soon as the child was placed in alternative care, the social service professionals should start having sessions with the family to rehabilitate them in preparation for reunification. Reunification services involved strengthening families to be able to care for and protect their family members through the implementation of a reunification care plan and permanency plan. It was a process that must be planned, implemented and monitored to ensure the success of reunifying members with their families of origin. Family reunification services refer to services delivered to the family and its members to address the risk factors that necessitated the removal of the family member. Regular contact should be established and maintained.

Adoption process was too long

The Department acknowledged that there had been challenges regarding this matter and accepted that these recommendation letters be issued within 30 days of receipt of a report. The Director-General had written to the Heads of Department in this regard.

Children who turn 18 years and had to exit alternative care (child and youth care centres) were left with nowhere to go. Most of these children ended up living in the streets. The DSD should ensure that all child and youth care centres had exit plans for these children.

The DSD had exit plans for children leaving alternative care. Preparing exit plans for children in alternative care was part of the permanency plan, and amongst programmes that were in place were independent living programmes which were specifically designed to empower children exiting alternative care. There were also other youth empowerment programmes to accommodate young people who exited alternative care.

The foster care backlog was very high; hence, applicants wait very long for their applications to be processed and cases to be heard in court.

There were a number of systemic issues impacting non- finalisation of foster placement. The comprehensive legal solution, and putting mechanisms, systems and resources in place, were amongst the measures to manage the foster care backlog.

Foster care grants were not used for the intended purposes of improving the welfare of the children. Some guardians misused foster care grants meant for orphaned children by not spending them on the needs of these children. Parents who were alleged to misuse foster care grants should be prohibited from receiving the grant. The Department needed to strengthen its monitoring systems and visit foster families.

Where foster parents were abusing the foster child grant; such acts must be reported to the South African Social Security Agency (SASSA) for investigation. There must be intensified supervision of foster placement by social service professionals as required by Section 186 of the Children’s Act 38 of 2005'

Concerns raised on Early Childhood Development (ECD)

The Department of Basic Education (DBE), the DSD, the Department of Cooperative Governance and Traditional Affairs (COGTA), the South African Local Government Association (SALGA) and the ECD Intersectoral Forum, had established a technical task team to address issues raised during public hearings on the Children’s Amendment Bill. All the concerns and submissions on ECD clauses had been addressed and incorporated into the Children’s Second Amendment Bill. The ECD migration improvement plan seeks to address structural and institutional challenges experienced by the sector. Lastly, the ECD conditional grant and the stimulus package address some of the funding challenges.


Ms L van der Merwe (IFP) wished the Deputy Minister well, and aligned herself with the Chairperson’s comments in appreciating the work of social workers. She asked why the Department was not supporting a proposal for a traditional clause to protect existing orphans on the foster care grants from losing their grants. She did not believe that justice had been done to the issue of the rights of fathers. Parental alienation had been raised during the submission, but was not in the presentation. Parental alienation was a form of abuse. What specific corrective action was the Department proposing?

On the matter of 50-50 access, it was raised during the submission that men had to prove that they were fit parents, while women did not have to go to the same lengths to do that. What corrective measures were proposed to ensure 50-50 access for contact and care was entrenched, upheld and respected.

On sections 105, 107 and 167 on safe child abandonment, the services that were being rendered for abandonment were preventative of the act of abandonment, but would set in only once the child was found alive. There was an urgent need for Child Protection Services to prevent the act of unsafe abandonment. The Minister had spoken about the need to put children first. Why was the presentation silent on abandonment and baby savers, yet it had been raised during the public submissions? Mothers wanting to safely abandon their babies should not continue to be criminalised. Many other countries had decriminalised this. A baby saver was not alternative care, and was not meant to be a mechanism used to save a child from unsafe abandonment. It did not qualify as alternative care in terms of Section 167 of the Act. Would the Department agree on the need for further amendment with clauses to legalise safe abandonment of children? If not, why? If the Department did not agree on the need for further amendment, consultation would need to be done with the Parliamentary Legal Adviser for guidance.

Ms van der Merwe said she was passionate about adoption. The presentation had referred to a lack of social workers in the country to implement the Children’s Act. The Committee had addressed this on numerous occasions. Yet the Department had also mentioned in slide 18 that they wanted to manage adoptions in-house. How were they planning to take over all adoption if there were not enough social workers? If social workers were already overburdened, how would they have the capacity? There had been discussion about freeing up some social workers to attend to issues of foster care and child protection services. The Acting DG had said the Department was actively engaging Treasury for more money to employ social workers, yet the current situation was that there were not enough social workers, and taking all adoptions in-house would worsen the situation. On the link between trafficking and adoption, the Committee had consistently asked the DSD for proof of the link between national and international adoption of children being used for child trafficking. Members had also asked the Department for proof that service providers were charging exorbitant fees for doing adoption, yet no information was forthcoming. When she had submitted a written question to the DSD, the Minister had responded that they were not aware of any link between child trafficking and adoption, with no record of any trafficking that occurred. It was said that the example being put forward was about the Russians and Chinese.

There had been only 250 inter-country adoptions since 2010, which was a very low number. Why did the Department think that removing section 249 and making adoption in-house would prevent trafficking, yet there was currently no linkage evidence? The international treaty required that the laws have checks and balances. Private adoption agencies were complying with the law. It was concerning those social workers were not specially trained on adoption, as they received only introductory information on social work. Why was the Department trying to break something that was not broken?

She said removing the entire Section 249 would be problematic and would have unintended consequences. It would open the door for unscrupulous individuals who profited from adoption. The current Children’s Act said “no person may give or receive, or agree to give or receive any consideration in cash or kind for the adoption of a child.” Deleting the clause would inadvertently facilitate the sale of a child. If the problem was with the fee, was it not possible to just delete the section with the fee, unlike deleting the entire section? The Committee would probably need to get a legal opinion on this. Section 239 (1d) gave 30 days' to ensure that letters were issued to solve the delays. However, there were no consequences added if provincial heads failed to comply with this. What consequences could be added to the amendment bill?

Ms B Masango (DA) wished the Deputy Minister a speedy recovery, and thanked the Department for the presentation because it delved into the issues. However, Members still wanted to hear about the matrix. She asked about the decline in the number of adoptions, and the need for adoption. The Department had focused only on the decline in inter-country adoptions, with the reasons focusing on domestic possibilities of family-first, about children who were abandoned, and whose parents could not be traced. What was the Department’s response on children without family? There was a need to separate between inter-country and national adoption, and consider the South African context as opposed to quoting what was happening in other countries where there were different circumstances. For example, the issue of abandonment was huge, yet in considering family-first, an abandoned child did not have family. How had that been filtered into the responses of the Department? It was concerning to hear the Department say that adoption was a last resort. Did that mean institutional or permanent foster care with unrelated people was preferred to adoption?

She asked the Department to share with the Committee statistics of research that was quoted during the presentation, to be considered during the formal stage of processing the Bill. On using Russia as an argument for having changed the law, she said although South Africa was a signatory to international treaties, some issues were uniquely South African. Would the country change the law just because Russia said Russian children must be raised in Russia? Would it be right to say South African children must be raised in South Africa, regardless of the challenges being faced by the country? There was no argument made based on the situation in South Africa.

Ms G Opperman (DA) asked about the capacity assessment report. It had been said that there was a need for 70 000 social workers to implement the Children’s Act. There were currently only 17 500. In the previous year, there were 9 000 unemployed graduates, and the DSD had hired only 3 465 of those. The presentation mentioned other social service practitioners. Which ones were these? How many other social service practitioners were there to stem this big shortage of social workers? On the declining number of adoptions, Ms Masango had spoken about the national versus inter-country adoptions. Could there be a monetary reason for the decline in adoptions? When one adopted in South Africa, did they qualify for grants, as it was for foster care? How many adoptions did Departmental social workers close the previous year?

On the 50-50 biological parental rights, would the amendments not say 50-50 unless not found fit and proper, as and when decided by the courts? The current situation was that there were many mothers abusing the children’s grant, while the fathers did not have the 50-50 rights. Since funding for the ECD was at the provincial level, would the Department give a breakdown of budget cuts provincially?

Ms A Abrahams (DA) said Parliament had recently been debating the socio-economic challenges, inequality and unemployment in South Africa, which could be a breeding ground for child exploitation. The Act was centered around child protection. However, what was said in the presentations during Committee meetings often did not translate to impact and improvements on the ground. Acts may be changed with the best of intentions, but would be of no impact if there was failure to implement. Care needed to be taken on the removal of the adoption fee so that civil society organisations (CSOs) that help the state to carry the burden were not sidelined, because the courts and the DSD often struggled with capacity. Children then became like a commodity in the country, as seen with the abuse of the Child Support Grant.

During the presentation, the Department had said nothing would change, and adoption agencies would still operate. Would the agencies access the children in child and youth care centres (CYCCs)? Would DSD be funding and supporting the agencies?

On the example of China, another reason why China saw a decline in adoption was the end of the one child policy in 2015. While the policy was there, there was an increase in child abandonment, with disabled or girl children often abandoned. There was a massive difference between South Africa and China. China had the financial means to adequately support their orphaned and abandoned children, while South Africa could barely fund CYCCs. While comparing their statistics, it was important to note that each of the countries had their own historical context. Would the DSD still do accreditation of adoption agencies? The Committee had previously asked for a breakdown of the exorbitant fees. In the previous presentation of the Department, it had been mentioned that the conditions of Section 249 would work to the advantage of mothers and children. How would this work to their advantage? How would the removal of the section suddenly stop the illegal sale and trafficking of children? She was of the view that if somebody wanted to sell their child, they would still do it underground on the black market. The criminality of child trafficking needed to be separated from people trying to assist the state. What was the DSD doing about street children who could easily be picked up and exploited? These children were very vulnerable, yet the focus was on just one aspect of child trafficking. Members had asked the Department for more evidence-based references, and two references had been cited. After she did quick a reference check, she could see only the reference from 2010. Could the Department provide those references?

 On the institutionalisation of children, she asked if the Department had done an audit on the CYCC's bed space and funding. Provinces were doing their budgeting, and all provinces had taken massive budget cuts. She was of the opinion that cuts would be seen through the social welfare budgets annually. Was there funding and capacity to keep the children institutionalised? Having many other questions, she said that when these were submitted in writing, the Department seldom returned with responses. Members were still waiting for an update on foster care backlogs. While it was not in the Act, the abuse of child support grants had come up in the public hearings. Using the grant for other things was a form of child abuse. She pleaded with the Department to have a more visible and aggressive campaign on how to report the abuse of the child support grants. Would the Department provide a written response on the shortage of social workers per programme, which had been mentioned verbally?

Ms L Arries (EFF) asked about the recent high court judgment on parental rights of same-sex parents, which gave equal rights in cases where artificial insemination was used. Since there would then be three people involved in the parental share, how would this be implemented, since the Act was referring just to the biological parents? What were the rights of the social father?

Ms J Manganye (ANC) joined other Members in wishing the Deputy Minister a speedy recovery. She thanked the DSD for the presentation since it had clarified questions from the public hearings. Every country needed to be proud of its own people. Grants were there to help people who were struggling, although they may not always be recognised.

She said government wanted the adoptions to not alienate other agencies. She supported one section which said there was a need to put South African families first. In the past, families would adopt strangers, who then became part of the family. She felt strongly that adoption needed to be done by the country’s own social workers, in line with the presentation. However, during the public hearings, more voices were from agencies, while the social workers were silent.

There was a need for rethinking on fathers, because the father was needed not only to take responsibility after the death of the mother. Fathers needed to have the right to their own child. Currently, it was not possible for a child to get an identity document (ID) if their mother did not have one or was not a citizen of the country, while the father was South African. This would cause a child to grow up with anger towards the father. The issue of fathers need not be aggravated.

Mr D Stock (ANC) thanked the Department for the detailed presentation which had clarified issues raised during the public hearings. He asked the DSD to share case studies on how adoption was handled in different countries. Was the approach relegated to the private sector or the CSOs, or was it government that played an active role? He was persuaded by what the Department had said on adoption, because it was not the entire clause being removed. He supported this.

Ms Manganye referred to the issues of fathers needing to be reconsidered, and said it was important to deal with the root cause of the challenges faced by children and mothers. The Committee needed to be convinced on the issue of fathers.

The Chairperson asked about fathers. What was the role and function of the Committee, if it could not act on the proposed amendments? What did it mean if the DSD said there was nothing they could do about the adoptions, while referring to what the Department of Justice and other departments had said? What should the Committee then do? Probably in the following meeting, when the Committee considered the amendments clause by clause, Members would make comments on clauses that still needed more flesh. Otherwise the presentation was clear.

 When the Department said they did not know the non-governmental organisations (NGOs), it would mean there was no database. It was a simple and straightforward process to get this information from provinces. She was not happy with the 50-50 parental rights, much as it said responsibility had also been given to fathers. Most of the fathers in the public hearings were crying tears, saying the women only needed them when they wanted the fathers to pay support and maintenance in court, which was unfair. Mothers were also crying tears, because court judgments were taking too long, also favouring the fathers more than the mothers. However, the 50-50 needed to be scruitinised.  

On age categories, she remembered a meeting with Prof Ann Skelton, and said that the ages were still not aligned. How was an adolescent or an adult categorised? The different ages of 14, 16 and 18 years were still there. The Department had not agreed on how this would be approached when working with other departments. There must be collaboration between the sister departments.

In the presentation, the Department had said they would wait to hear from Members about the ECD question. This was the exact reason for the joint meeting with the Department of Basic Education (DBE) -- to have integration, and for the DSD to answer questions from communities. In the next meeting, Members would have to consider the Bill clause by clause.

DSD's response

Mr Mchunu thanked the Members for their input. The issues raised by Ms Masango and Ms van der Merwe as being silent in the presentation were covered in the matrix, and he asked for guidance as to whether the Department should go into detail on it. He assured Members that the matters were covered in the matrix. On the NGOs, when Adv Mtshotshisa talked about not knowing the NGOs, he was referring to the fact that NGOs emerged on a daily basis, and as a matter of principle, the Department had a database of NGOs. However, sometimes it was not possible to know which ones needed funding support unless the NGO expressed it. He confirmed that the Department had a list of NGOs since the DSD was the custodian of NGOs.

Mr Stock apologised for raising a question in the midst of the Department’s responses, as he should have raised that issue as part of his submission. The matrix was quite detailed -- about 88 pages. Since this was not the stage of clause-by-clause deliberation, he proposed that the Committee agree to have the Department return in the next meeting to deal with the issue of backlogs and the details of the matrix. That would also give Members an opportunity to become accustomed to the details of the matrix.

The Chairperson thanked Mr Stock for suggesting a way forward. She said the Acting DG would probably comment on issues raised by Members, so that clause by clause would be dealt with in the next meeting.

Ms van der Merwe said the presentation was quite lengthy and some questions would have been forgotten. She asked if Members would be allowed to submit written questions so that the DSD could respond before Members dealt with the Bill clause by clause.

The Chairperson said it was always accepted for Members to write questions to the Department through the Secretary. No one would be stopped from asking questions. She acknowledged that the presentation had indeed been too long. She asked the Acting DG to comment on the suggestion.

Mr Mchunu said it would take about 30 minutes for the Department to respond to all the questions raised in the meeting. He agreed with Mr Stock’s proposal to probably have another day for clause by clause consideration. However, that would take an entire day, since it was a lengthy process. The Department would be able to respond to questions raised in the meeting in 30 minutes. The Department was also ready for a clause by clause meeting.

The Chairperson said not every clause would need comments, as there were only few clauses where comments would be made. The Bill was not a once off activity. There was a need to build on it, since it would be used for a long time until amended again. The Committee must leave a legacy with this amendment. If one day was not enough, the time may be adjusted to cover more ground on the day. Dates would be considered and the Committee Secretary would communicate with the Department. Members who had additional amendments could submit through the Committee Secretary so that they would be addressed when dealing with the clauses.

Mr Mchunu said the Chairperson’s direction was helpful.

The Chairperson asked if the Acting DG was clear on the 50-50 parental responsibility which most Members had questioned. Members were also interested to learn about the adoptions. It was, however, clear during the presentation on the reasons for the decline in adoptions, and probably Ms Opperman had just missed them.

Ms Lindiwe Ntsabo, Committee Secretary, provided a procedural process for the way forward. The Committee was currently in a consultative process, with the Department responding to issues raised by all submissions of stakeholders. Mr Stock’s suggestion was important -- to have the Department take the Committee through the matrix in the following meeting. The matrix had suggested the clauses for when the Department would table the Bill to Parliament. It would provide what stakeholders had said about the clauses and the Department's comments on the particular clauses. The Committee would then be able to take a decision during the clause by clause stage. The process would also capacitate Members to familiarise themselves on issues, and the Department’s stand on particular clauses. The Committee had power in terms of the Constitution, to amend, reject or appeal the Bill.

In the following meeting, the Department would explain the clause by clause of the matrix to prepare the Committee for deliberation. In the next process, the Committee would go clause by clause, with the legal adviser taking the Committee through. The Committee would then pass it into an Act after agreeing on the particular clauses. Where Members needed more information or guidance, they could request the legal adviser of Parliament to research and provide guidance on whether a particular process was in line with the Constitution. The Department would then be able to implement the consequences if Parliament proposed a particular process. The current process was not for discussion, but for clarity-seeking questions. Another opportunity would be there during the clause-by-clause discussion.

The Chairperson said the Committee was therefore on track in the process.

Ms Masango thanked Ms Ntsabo for the clarification. Following remarks by other Members and the Secretary about the way forward, there was a need to have responses to the questions, since this was the last platform for organisations that asked questions to get responses from the Department before the formal stage. She requested that the Department respond to the questions.

Ms van der Merwe thanked the Secretary for the guidance and the input from Ms Masango. The Committee would not be doing justice to the process if the answers to the questions asked were not given unless Members suggested going through the matrix and getting the answers in the following meeting. After this, the Committee would then ask for a legal opinion on some sections. She had earlier indicated that a legal opinion would be necessary on the deletion of Section 249 as proposed by the Department, and on the issue of baby savers. The responses in this meeting would guide the Committee before the formal clause by clause deliberations.

The Chairperson said that was what the Secretary had said. The following meeting would be to get the matrix and the answers. After that, the Committee would then go clause by clause. She asked the Secretary to repeat.

Ms Ntsabo said it was as suggested by Mr Stock. It was important for the Committee to consider the matrix and the outlined proposed clauses in the Bill. The guidance was to have a session of a similar nature the following week where the Department would take Members through clause by clause of the matrix. Similar questions would also be raised from that session. She asked the Chairperson to give guidance on whether to get responses in the meeting or to let the Department prepare responses for the next meeting where they would firstly respond before presenting the matrix.

The Chairperson said the Department had indicated that they were ready to respond, but she thought it was not fair. If Members felt that they wanted to get answers right away, it would be done.

Ms Masango said the responses would be given right away, and use the next meeting for the matrix.

The Chairperson said she was flexible, and the meeting would go ahead to receive responses.

Department's responses

Mr Mchunu said the Department was ready to respond to the questions. When he spoke previously, he had been providing an overview on the issues raised one by one. On the ECD clauses where the Chairperson had raised a concern, the Department was able to respond to all the issues. It was only that it would be dealt with in the Second Amendment, but the Department was ready to respond to any specific questions

Ms Neliswa Cekiso, National Director: Child Protection, DSD, responded to the question on abandonment in relation to Section 150, which deals with orphaned children in the care of family members. The DSD had supported that part because Section 150 considered it, and had provisions to ensure other control measures were in place so that children were not lost within the child protection system. They received the basket of services such as the community-based prevention and intervention programmes, and the implementation of the extended Child Support Grant. The part that the DSD was not supporting was section 159 on transition mechanisms, because it was already catered for in Section 148. The judiciary had the power to make extensions based on the assessment of children that were still in alternative care. These two aspects were also covered in the matrix provided.

On approving safe abandonment, she said there were safe havens, and the Children's Act made provision for temporary safe care for not more than six months. This was to ensure that if a child could be reunified with a family or was eligible for adoption or foster care or to go to a children's home as part of alternative care, such a child should not stay longer in temporary safe care.

On the concern raised about the Act being in place, but not transferable to the implementation, she said that was why there were provisions of national and provisional strategies. This was for sections that required resources, mechanisms and systems in place to ensure that the Act would be implemented in totality and impact people's lives. DSD had strategies in place which needed close monitoring.

On the audit or studies conducted at CYCCs, the DSD had done a study in 2010 and 2012 to consider issues of registered facilities. As of September 2021, the Department’s audit in the quarterly assessments and monitoring of CYCCs showed there were 449 facilities nationally. The distribution of facilities was as follows:

Eastern Cape 2,

Free State 59

Gauteng 165

KZN 78

Limpopo 21

Mpumalanga 22

Northern Cape 11

Northwest 7

Western Cape 62.

These registered facilities were within the context of the three different programmes offered: temporary safe care; programme reception care development not in the family environment; and secure care for children with emotional behavioural and psychological difficulties. These secure care facilities were not about children in conflict with the law.

On distribution according to bed capacity for temporary safe care, she said the bed capacity did not indicate the actual number of children in temporary safety. The total bed capacity was 3 387, but the number fluctuates since it was dependent on the movement of children, as it was earlier indicated that children should not be in temporary safe care for more than six months. However, it was also dependent on the courts to finalise the placement of children. For the old children's homes, bed capacity was 15 552. For secure care for children with behavioural, psychological and emotional difficulties, the capacity was 912. As such, total bed capacity for CYCCs nationally was 19 801. As of September 2021, the actual number of children in temporary safe care was 2 522 children, against the bed capacity. In children's homes, the total was 13 240 children, while in secure care it was 551 children against the bed capacity of 19 801. The total number of children in CYCCs for all three programmes was therefore 16 313. Importantly, the establishment of facilities in different provinces was based on the assessment and needs identified by the province. Since the bed capacity was 19 801, with the actual number of children at 16 318, it indicated that there were some spaces in the facilities to accommodate the children. However, the courts also determined if a facility had a suitable programme for a particular child to be placed in that facility.

An official from the Department responded to the question on how children were removed from the streets. She referred to the definition of a street child according to Section 150 (1c), which defined a child in need of care and protection. The section states that a child in need of protection was “a child who lives or works on the streets or begs for a living”. A street child was listed with other categories of children in need of care and protection, including abandoned, abused and neglected children. The process of removing children from the streets was the same as those of the other categories defined in Section 150 (1). Section 151 spoke about removing children by court order, which happens to children on the streets. Section 152 gave details of how to remove children from the streets without a court order in the instance where the situation was very threatening to the child.

An official from the Department responded to the question on social workers. There were approximately 78 000 social service professionals registered with the Council. Of these, 35 000 were in NPOs, CSOs and the private sector, while the Department and provinces had 17 508. Between October and the end of the financial year, there were 3 473 social workers on contract basis, with most employed in Gauteng (1 026) and KZN (967). He needed to confirm the figures for auxiliary social workers, but the number was approximately 25 492.

Mr Mchunu added that those were figures of social workers who were actively operating and working.

An official from the Department responded to questions on adoption. He said there was no monetary assistance similar to the foster care grant when one adopted a child. However, where the parents required assistance, they were eligible to apply for the Child Support Grant.

On the reasons for the decline in adoptions and why the presentation had focused on inter-country adoptions and not domestic, she said the decline covered both programmes. The presentation had focused more on the inter-country to give a context and background to the sending of South African children to other countries.

He said there was capacity within government to render adoption services, with 509 social workers registered with the Council to render adoption services. The DSD had a number of trained social workers to drive the service.

Responding to the request for the Department to provide a list of countries benchmarking where the government was taking the lead on adoption services, South Africa was the only country in Africa with a hybrid model offering both government and private services. Outside Africa, in countries like Australia, most adoptions were being rendered by the government.

On the inter-sectoral nature of the adoption process, the DSD was involved from the initial stage of screening, offering counselling, matching parents with children, facilitating bonding and placement. Other government departments -- for example, the South Africa Police Service (SAPS) -- did the tracing and generating police clearances, which was a process requirement. Afterwards, the matters were presented to the presiding officer. Where the presiding officer was satisfied with the report from the social worker, an adoption order was granted. The matter then returned to DSD to register the cases in an adoption register for it to know how many cases were there and how many children had been adopted. At the end, the parents were directed to the Department of Home Affairs to effect name changes. There were various players involved.

Adv Mtshotshisa responded to the question of age. The DSD had taken note of the ages and what a child could do at a certain age, and was of the view that it was not a matter that could be legislated for the Act. This was because there were different age requirements for different transactions across the sectors. For example, a 14-year-old could witness a will, a 16-year-old could consent to sex according to the Sexual Offences Act, a seven-year-old in the law did not have criminal capacity, a 16-year-old could take a life policy, as allowed in the Insurance Law. As a result, it was not easy to specify ages in the Children’s Act, but to let the status quo remain. To amend the legislation because of the age issues would need guidance from the Law Reform Commission on a harmonisation of the differences.

On the funding for the NGOs and NPOs in the Department's system, it was not easy to tell provincial Members of Executive Councils (MECs) to provide funding to NGOs as it was dangerous to do so, since there were many new emerging organisations. This was what had been referred to in the presentation, not that the Department did not have a record.

The deletion of Section 249 (2b) on the charging of adoption fees was from the submissions. The deletion was for the particular section, and any other such provision as a consequential amendment, and not to delete the entire section 249, since the other provisions were fine.

On the reference to China and Russia as examples, the DSD was not saying South Africa needed to copy them, but rather to draw lessons from what other countries had identified. A bad situation need not take place before the DSD could act. The nature of the Department was proactive and preservative. It was better to prevent any possible trafficking. While there may not be a study conducted by the Department on the link between child trafficking and inter-country adoption, it would not be wise to wait for a case to occur to then begin amending legislation. Prevention was better than cure, and the Department wanted to act earlier. One child lost to trafficking was one too many.

Deleting section 249 did not mean that child protection organisations would not be able to do adoption cases, but rather that the Department could deliver the same services so that a parent may have options, since private services were very expensive. While there may not be proof of the amount of money involved, websites of the child protection organisations did show the fees for transacting cases. The Department had developed guidelines for inter-country adoptions, and there was a requirement for the child protection organisations to submit audited financial statements to the DSD for monitoring the possibility of misusing adoption money.

Ms Masango apologised for raising a further question. She had missed the response to the question she had raised on abandonment. The response had said that for a baby abandoned at a Door of Hope Children's Mission, a family could be found. Could the DSD confirm if that was the response?

An official from the Department said he had been responding in relation to adoption and the consideration for inter-country adoption where there was no family. If a child was abandoned, it did not mean that they did not have a family in the country. As such, the first option was to give the child to an extended family, rather than moving them to another country.

The Chairperson thanked the Department for the responses and excused them so that Members could deal with minutes.

Adoption of minutes

 The minutes of 16 and 23 February, and 2 and 4 March, were presented and adopted with amendment.

The Chairperson thanked Members for their participation, since it had not been an easy meeting. She asked the Committee Secretary to send a get-well message to the Deputy Minister. She thanked the Committee staff for always doing a sterling job.

The meeting was adjourned. 

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