Children’s Amendment Bill: DSD response to submissions from stakeholders; with Minister

Meeting report

Opening Remarks
The Chairperson made brief opening remarks.

The Committee Secretary noted those in attendance as well as an apology that was submitted.

The Chairperson noted that the Deputy Minister was not well. The Committee had sent her a sympathy card. She suggested that Members call her, as she was currently in hospital and would appreciate this.

Ms A Abrahams (DA) stated that many of the Members received the document packs the day before. The pack received, was 415 pages. She knew that the Committee Secretary had sent out another report that was 530 pages. She assumed that the Committee would be working from the electronic copy, the 530 page version and not the printed copy. Did the Department have a copy where the additional 115 pages had been highlighted? She had started working through the 415 page document, and now there was a 530 page document. Was there a copy that highlighted the additions?

The Chairperson stated that the Department needed to provide the Committee with whatever had been added, it was not a question of clarity.

Mr Linton Mchunu, Acting Director-General (DG), Department of Social Development (DSD), stated that the Minister was in a Cabinet meeting and was unfortunately unable to attend this meeting. The latter part of the longer document, which was sent some time before, dealt with Early Childhood Development (ECD). The shorter document did not contain this. It was the same document but because it was agreed that the ECD aspects would not be dealt with – it was removed. It was the same document, with the exception of the last 115 pages.

He appreciated the comments that had come from the public, both written and oral. The Department was able to get a better grasp on the challenges relating to children. Comprehensive discussions had taken place with the provinces and various stakeholders. This culminated in the matrix that the Committee would be taken through. The matrix touched on every aspect raised in the public comments.

The Chairperson appreciated the explanation about the removal of the section about ECD. The report was very long, the Committee would likely not finish going through it during the meeting. The intention was to adopt previous meeting minutes at the end of the meeting.

Consideration and adoption of the agenda
Ms J Manganye (ANC) moved to adopt the agenda.

Ms Abrahams seconded the adoption of the agenda.

The agenda for the meeting was adopted.

Briefing on the stakeholder submissions on the Children’s Amendment Bill
Adv Luyanda  Mtshotshisa, Specialist: Legislative Drafting and Review, DSD, took the Committee through the public submissions on the Children’s Amendment Bill. He presented from the beginning of the consolidated matrix to page 50, before taking questions.

Clause 1
Clause 1 seeks to amend section 1 of the principal Act by substituting and inserting new definitions i.e. ‘‘early childhood development centre’’; ‘‘family counsellor’’, ‘‘inter-country adoption’’, ‘‘regional court’’, ‘‘separated migrant child’’ and ‘‘unaccompanied minor child’’. This will align the principal Act with current family and child law practice. Consortium for Refugees and Migrants in South Africa (CoRMSA) believed that the Act needed to be consistent in using the three parties (a parent, caregiver and legal guardian) concerned on the affairs for effective practical application of this Act. The Department agreed that this proposal be supported because some children were cared for by a caregiver who might want to adopt a child.

Clause 10
Clause 10 seeks to— (a) amend section 21 by providing clarification regarding a father who is not married to the mother and who was living with her at any time between the child’s conception or birth. He will automatically acquire parental responsibilities and rights in respect of that child; (b) further clarify the circumstances under which the father may acquire full parental responsibilities and rights in respect of a child; (c) further amend section 21 by the insertion of subsection 1A, in order to clarify that the family advocate may, in the prescribed manner, issue a certificate confirming that the biological father has automatically acquired full parental responsibilities and rights in respect of the child; (d) align the current terminology or definitions i.e. social service practitioner; (e) further delete subsection (3)(b) which provides that any party to the mediation may have the outcome of the mediation reviewed by a court.

Childline South Africa recognised the importance of fathers and actively supported and promoted the importance of fathers’ participation in the care of their children. Childline advocated for and provided mediation processes when parents found it difficult to agree on parental rights and children’s lives. The Department agreed that mediation in matters pertaining to care and contact should be promoted when parents found it difficult to agree on parental rights and children’s lives. Psychosocial support should be provided in high-conflict cases. 

The Commission for Gender Equality argued that the rights of unmarried fathers had negative unintended consequences in practice. It was an unnecessary distinction to make between married biological fathers and unmarried biological fathers who must first meet legislated requirements. It highlighted that the Department of Home Affairs did not recognise the family relationship between a child and their father, who was not married to their mother and so refused to allow an unmarried father to register the birth of his child. The child might be denied the right to their birth certificate and constitutional right to nationality from birth. Unmarried biological fathers who fell outside the limited provisions in the Children Act that allowed for automatic acquisition of parental rights and responsibilities must enforce their section 21 rights in court which could prove an impractical and prohibitively expensive barrier for a large number of unmarried fathers in South Africa. It was proposed that the word “and” between subparagraphs (ii) and (iii) of section 21(1)(b), be replaced with “or”. This would clarify that the requirements in (i) –(iii) should each be considered independently and that each case should be determined on its own unique facts. This suggestion was supported by the Department.

See consolidated matrix responding to all submissions by stakeholders for more information.

Discussion
Ms L Arries (EFF) asked a question about page two, DSD proposed a definition for ‘caregiver.’ When DSD spoke about ‘care’ did that include, mental, physical and financial care? On page three, it spoke of the temporary care of children. She asked for clarity about the use of the word ‘temporary.’

Ms Abrahams asked a question about page eight. The debate about ‘must’ and ‘may’ had taken place quite often among the Committee Members. Why did DSD decide to use the word ‘may?’ Page 21 outlined the aftercare definitions and services – she asked that the DSD explain how the matrix be interpreted. When the Department stated ‘agreed’ to the recommendation – would the Department copy and paste the recommendation as it stood? Would the Department come back to the Committee with its own written clause proposal? On page 42, there were quite a few instances where the Department agreed with the recommendations but it would not be part of the Bill. On page 43, it stated that it needed to be understood that this was ‘a new insertion that did not form part of the Bill’ and that the Portfolio Committee agreed that the Department take care of the ‘new proposals that did not form part of the Bill.’ How would these be attended to?

Ms B Masango (DA) referred to page five; it spoke about the recommendation that came from CoRMSA, where the Department stated that it was ‘returning the clause’ because the proposal was not supported because the definition was aligned with the Social Services Professions Act. This referred to the certificates that were no longer valid. If the proposal was not supported – how would the problem of practitioners operating with invalid certificates be solved. On page 26, it spoke about ‘married father’ – what bearing did labelling a father ‘married’ or ‘not married’ have, when the mother was not labelled. Why did this need to be referred to when people were the biological parents of the child?

Ms Arries stated that the father would automatically acquire rights and responsibilities in respect of the child. There were situations where unmarried fathers were in a relationship, but at the time when the lady was pregnant, she might be involved with someone new. Would the biological father still retain parental responsibilities and rights? She asked for clarity on such a scenario.

Ms Lindiwe Zulu, Minister of Social Development, said she wished to explain some issues, especially those raised by Ms Abrahams. In the previous meeting, she had tried to outline the process. The Bill was before the Committee, this session was for the Department to respond to comments and make recommendations. There was no role to be played by the Department going forward. The Department’s role was to consult at the executive level and then incorporate whatever public comments were received and introduce the Bill to Parliament. What was suggested by the Department and what was recommended was not cast in stone. During the formal stage of the clause-by-clause deliberations, there would be a parliamentary legal advisor and State law advisor to advise the Committee. If the Committee did not want to agree on what was proposed by the Department – the onus was on the Committee. The role of the Department was to provide clarity. The Committee could change the Bill.

Mr Mchunu stated that the Department could respond, however, he was worried given the guidance of the Minister, that the Department should simply relay its observations as the Committee would deliberate clause by clause. He suggested the Department could proceed and conclude the inputs from its side. At a later stage of the meeting, the Department might respond to those questions.

The Chairperson asked that Adv Mtshotshisa respond to the questions of clarity. The issue of ‘may’ and ‘must’ was explained the previous time, perhaps some Members had not gotten the answer. It was simply a question of clarification on the matter. She suggested some of these be responded to.

Adv Mtshotshisa responded to the question of ‘may’ and ‘must.’ This was an interpretation issue. There were instances in law where ‘may’ meant ‘must.’ In this particular case, it was stated that if there was a finding that a child was in need of care and protection, then the person concerned may… This meant that once there was such a finding, something needed to be done. It was often risky to use the word ‘must’ in these circumstances.

The issue of ‘copy and paste,’ was where suggestions were made by the various organisations that commented and taken on board by the Department. There were two approaches that the Department used. When there was agreement that a clause had to be amended, the Department often copied that suggestion (if it was in agreement with the suggestion). Where there was a need for modification, the Department would have to explain or redraft on the extreme right of the document, in a ‘more defined fashion.’ Although there was agreement, the Department might need to look at that clause and amendment again.

He responded to the issue of married and unmarried fathers. A father was a father in all respects. There was a distinction that needed to be drawn in order to clarify the issues that were challenged under certain circumstances as was provided for in the matrix. There were instances where unmarried fathers were not automatically allowed to acquire parental rights and responsibilities. There were instances where fathers still needed to pay for damages or where the circumstances around the pregnancy were a challenge. The nature of society was so diverse and cosmopolitan, it did not allow for the automatic acquisition of rights and responsibilities. The Department had indicated that the distinction being drawn was not between married and unmarried fathers, it was to take into account that married fathers automatically had those rights by virtue of being married. In the case of unmarried fathers, there were some circumstances where they might still need to pay damages etc.

Briefing continued
Adv Mtshotshisa continued presenting from page 50 to page 150 of the consolidated matrix document.

Clause 6
Clause 6 sought to amend section 12 which was intended to align the prohibition of genital mutilation with the new definition. The clause further prohibited any marriage of a child.

The Catholic Institute of Education promoted and supported quality education for the common good through the spiritual, intellectual and professional formation of leaders and teachers in Catholic schools. It was committed to justice and compassion. It offered a Catholic perspective in its engagement with society as it worked in solidarity with people most in need. The organisation recommended that section 12(d) takes into account the new section 2A, as amended by clause 12(a) and inserted after a prescribed manner, “taking into account the views of the child where the child was of sufficient maturity and mental capacity.” The Department noted that there was no ‘Section 12(d) in the Act.’ The Department was not supporting the issue of removal of age of 18 years in relation to the marriage clause, the Department believed the stage of development of the child is taken into account.

Clauses 14, 23 & 24
CoRMSA recommended that in section 25 (14), the insertion and the use of “or regional court” should be consistent throughout the amendment to avoid confusion and delays in contemplating whether the regional court could be involved in any children’s matter. It proposed that this subsection be revised to read: “Subject to section 45(4), when an application was made in terms of section 24 by a non-South African citizen for guardianship of a child, the application, if heard in the High Court or Regional Court, may be referred to a children’s court having jurisdiction, to be dealt with as if it was an application for 7 5 10 15 20 25 30 35 40 45 50 an inter-country adoption for the purposes of the Hague Convention on Inter-country Adoption and Chapter 16 of this Act or, in exceptional circumstances, as if it was an application for guardianship.’’ This proposal was noted by the Department.

Children in Distress (CINDI) proposed amendments to sections 24 and 45(1) (c) to make it clear that the children’s court could hear all guardianship matters and not just cases involving abandoned and orphaned children. It thus recommended that section 24(1) read as, ‘Any person having an interest in the care, well-being and development of a child may apply to the High Court or the children’s court for an order granting guardianship of the child.’ This was supported by the Department

Clause 25
Scalabrini commended the changes included in clause 25, but strongly encouraged the definition of ‘exceptional circumstances’ as used in the amended clause. With regard to clause 21, amending section 40, the organisation argued that while this clause provided for significant improvements in respect of giving effect to the Constitutional Court judgment in J and B v Director-General: Department of Home Affairs, Minister of Home Affairs & President of the RSA (CCT 46/02), the title of the section should not be changed to remove the wording pertaining to the rights of the child. This was a vital part of this section and the interpretation thereof and should remain as part of the Act. The Department did not support the proposal. The citation was incorrect. The correct clause was clause 14. It was not necessary to define ‘exceptional circumstances’ as it was used in its ordinary meaning and would not cause any conflicting interpretation.

Section 213 of the principal Act
CoRMSA proposed the amendment of section 213 of Act 38 of 2005, as inserted by section 10 of Act 41 of 2007 - Section 107(d): include the word “religious” in order to include and cover all beliefs and not to discriminate against children with different beliefs other than the spiritual belief. This would be in line with section 9 of the South African Constitution. This subsection must or should read as: cognitive, religious and spiritual;’’ and. This was supported by the Department, clause 107 would be amended to include the word ‘religion.’

Corporal Punishment
Professor Ann Skelton, Stellcare Stellenbosch and District family services, South Africa National Child Rights Coalition (SANCRC), Emthonjeni Family Tree, Save Children South Africa, World Vision South Africa, Sonke Gender Justice, Children in Distress (CINDI), Jelly Beanz, Centre for Child Law and the Children’s Institute submitted that the Bill should insert the definition of corporal punishment to read “corporal punishment or physical punishment means any punishment in which force or action is used and intended to cause some degree of pain or harm.  It involves, but is not limited to, hitting children in any environment or context, including in a home setting, with the hand or instruments such as a whip, stick, belt, shoe or wooden spoon.  It can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, caning, forcing children to stay in uncomfortable positions, burning, scalding, or forced ingestion”.

This definition is in line with the National Child Care and Protection Policy and the United Nations Convention on the Rights of Children (UNCRoC).

See consolidated matrix responding to all submissions by stakeholders for more information.

Discussion
Ms L van der Merwe (IFP) asked for clarity about slides 63 and 101, where it referred to ‘corporal punishment.’ What would be the harm in including a definition of ‘corporal punishment?’ In that slide, it clearly stated that the definition was in line with the National Care and Protection Policy and the United Nations (UN) Convention on the rights of a child. There was currently a Basic Education Laws Amendment (BELA) Bill before the Portfolio Committee on Basic Education – which proposed a definition of ‘corporal punishment.’ This was meant to be included in the National Schools Act. This was done because the education sector had learnt that the Constitutional Court judgement had not resulted in changes in behaviour on the ground. The teachers had not read the Constitutional Court judgement so many were not aware of exactly what corporal punishment involved. However, teachers were guided by the rules and regulations of their sector. Therefore, what would be the harm of including a definition, so that it could follow the lessons of the Department of Basic Education?

Ms P Marais (EFF) had a concern about child marriages and the implementation of the Bill in relation to this. These things did not filter through onto the ground from bills. When one considered where the majority of these activities were happening – how could it be ensured that the Bill was implemented in the smallest towns and rural areas?

Adv Mtshotshisa responded to the issue raised by Ms van der Merwe. Section 10 of the South African Schools Act prohibited corporal punishment. The Act was promulgated before the passing of the Constitutional Court judgement. The challenge was, if the Department defined ‘corporal punishment,’ it might create the impression that corporal punishment was the only punishment that was prohibited, as contemplated in the Children’s Act. This would be problematic. Even if the punishment was not corporal, the mere smacking of a child was outlawed in South Africa. A child could lay a case of assault against a parent if that happened. In the case that landed up in the Constitutional Court – which abolished reasonable chastisement – the father had insisted from the lowest to the highest court that he was only ‘chastising’ his son. However, the way the father did this was considered to be assault – Grievous Bodily Harm (GBH) or something of that nature. All forms of assault from minor to corporal were outlawed. The Schools Act predated the passing of that particular court judgement.

He responded to the question about child marriages. He noted the concern, however, it was an implementation and awareness-raising issue. If there was legislation indicating that no person under the age of 18 years may be made available for marriage, it meant that a person who got married under that age would be violating that piece of legislation. If there was a sanction attached to it, that person would be committing an offence in terms of the Children’s Act and would be dealt with in that fashion. When this legislation was ready, there was a need to do a lot of awareness-raising so that the issues were known to communities. 
The Chairperson left the meeting, Ms Manganye took over as Acting Chairperson.

Briefing continued
Adv Mtshotshisaa continued to present the consolidated matrix from page 150 to 310.

Corporal Punishment Continued
The Children’s Institute submitted that it was important for the Bill to have explicit reference to corporal punishment – the most common form of cruel punishment – to make it absolutely clear that corporal punishment by parents/caregivers is prohibited. This mirrors the principles in the National Policy. It is necessary to increase public awareness and correct implementation of the Children's Act. Childline South Africa viewed sections 4, 5 and 6 of the Bill, amending S 7,8 and 12 as positive developments as it protected all children regardless of disability, nationality and gender. It, however, proposed that the Bill ensure the implementation of the ban on corporal punishment and support positive parenting. It should also ensure that restorative justice principles were applied when corporal punishment was reported. The Department did not support this, as the Constitutional Court judgement dealt with the matter.

The Centre for Child Law did not support an amendment to section 105. It submitted that the wording of section 105 be clarified to reflect that service providers may offer some but do not have to offer all of these services and that organisations offering prevention and early intervention services were not necessarily required to register as a child protection organisation. Clarity must be sought with the Department concerning the registration of child and youth care centres, child protection organisations (and the impact on social workers employed there) as well as social workers employed at municipalities. DSD contended that this was not always possible and could be made a matter of law as in this Bill. This was based on the fact that some parents may not be fit and proper parents. Furthermore, parenting agreements and parenting plans may be drafted to address care arrangements between parents.

Section 167
Engo CYCC stated that child and youth care centres only admit children with temporary safe care orders in terms of section 167(2)(a).  This placement was temporary and subjected to an assessment period of three to six months. This section was confusing when read with Section 173 (b)(ii), as 167(2)(a) did not specifically indicate that this referred to temporary safe care orders. The inclusion of the amendment for the time period was supported as it was experienced that children were admitted into care without the needed court orders.  It would be beneficial to clarify that this section referred to temporary safe care orders.

CoRMSA suggested that section 150 be amended by insertion of the word “separated” for this subsection to include refugees and migrants. This subsection should read: “is an unaccompanied or separated migrant child from another country.” This was supported, however, the Department suggested that this be a new insertion under section 150(2)(c).

Section 156
Give a Child a Family supported an amendment to section 156 (1)(cA) in that it would provide the option for the court to place the child in the care of a family member only if the court had found a child to be in need of care and protection. It submitted that it was important to formalise the practice of placing abused or neglected children in the care of family members, while the social services practitioners were attempting to provide services to the ‘reform’ biological parent. It, however, raised a concern that if the child had for example been orphaned or abandoned and was in the care of a family member, the child would not be found to be in need of care and protection by the court, and a section 156(1) (cA) ‘placement’ order could be made. [See section 156(4)]. It, therefore, recommended an amendment to section 46 to make it clear that the court could confirm or grant parental responsibilities and rights to family members.

See consolidated matrix responding to all submissions by stakeholders for more information.

Discussion
Ms van der Merwe observed that in the matrix, a lot of references were made to section 249, or clause 122, which sought to repeal clause 249. It was good that the Department was making it clear that private adoptions would go ahead, and communities could still charge adoption fees, as was normally done. It was an important point to make going forward, to reduce fears. She asked for clarity about the deletion of certain clauses relating to the prescribed fees. Would the whole clause be deleted, or only the reference to prescribed fees? She asked what would happen if DSD did not meet the turnaround times for the issuing of the prescribed forms. Was there a mechanism that could be built into these clauses? She had submitted a number of questions after the meeting held the week before, about the number of international adoptions etc., she hoped that these would be answered.

Adv Mtshotshisa stated that clause 249 would only be removed in part – where it referred to fees and any cross-references. The Bill did not state what should happen if there was no response within 30 days. It was open to the applicant to take the matter up further when the accounting officer did not comply with the legislation.

Ms Manganye asked that the questions posed by Ms van der Merwe the week before be responded to later in the meeting.

Briefing Continued
Adv Mtshotshisa continued to brief the Committee from page 310 onward.

Section 110 of the principal Act
The Children’s Institute recommended the amendment of section 110(2) by inserting the underlined word: Contents of Part A of Register 114. (1) (a) all substantiated reports of abuse or deliberate neglect of a child made to the Director-General in terms of this Act. This ensures that reports of corporal punishment will not be added to the child protection register unless a social worker has investigated and considered the child to be in need of protection. The Department supported this proposal.

Safe Abandonment of Children
There was a submission that Baby Savers aimed to save the lives of infants and were in the best interests of children. Legalising baby savers and implementing safe haven laws would reduce the number of babies being abandoned and left to die. The submission recommended that safe relinquishment in a baby saver should be legalised as an immediate solution for unsafe abandonment. Importantly, not all forms of abandonment should be legalised. Unsafe infant abandonment would still be illegal and prosecutable. Countries such as Namibia, Germany, China and some other countries have legalised child relinquishment in baby savers.

See consolidated matrix responding to all submissions by stakeholders for more information.

Discussion
Ms van der Merwe asked about slides 330 and 331, as they referred to ‘baby savers.’ DSD’s response was that safe relinquishment of a baby through a baby saver should be legalised as an immediate solution for unsafe abandonment. It also stated that not all forms of abandonment should be legalised. She noted that the Department said it agreed with the legalising of baby savers and safe haven laws – she requested clarity about this as there seemed to be a contradiction in an earlier slide. At the moment, if one left a child in a baby saver it was considered illegal. She agreed that not all forms of abandonment should be legalised.

Ms Neliswa Cekiso, Director: Child Protection, DSD, responded that when it came to the provisions of the Children’s Act, even the Amendment Bill, she did not think there was an issue of criminalising or decriminalising abandonment. In terms of other laws, abandonment was illegal. In the Children’s Act, which was about protecting the rights of children, that provision had been facilitated. The Children’s Act had already made provision for child and youth care centres, with temporary safe care places and persons who should then take care of those abandoned children.

Ms Masango stated that she had a question on a different issue. The safe abandonment that was being referred to by the public stakeholders, came out of the current statistics in morgues, where one in every three abandoned children lived. This meant that one was not talking about what happened to a child once it had been found in a dustbin, in a toilet or at the door of hope, one was talking about a situation where, a person who abandoned a child, would not be criminalised because they would know that the child should still have the right to live. What happened at the time of abandonment when a young lady said that she could not keep the child and would just leave it in a taxi or in a bathroom – that child could either live or die. That was where it was being asked if a safe option could be established for the wellbeing of the child, but which would also not pose repercussions for the person that abandoned the child.

Ms van der Merwe stated that a baby saver was not ‘alternative care’. A baby saver was something that was found on the side of a church, at a door of hope or at a child protection organization, where a mother was able to safely relinquish her child. The example was made, that this might happen in a hospital, but it could also happen when one was in downtown Hillbrow. Mothers could face legal consequences or criminalisation for doing so. The child was taken from the saver to a registered place of safety. A baby saver, therefore, did not qualify as alternative care in terms of section 167 of the Act. A baby saver did not qualify as ‘temporary safe care.’ What happened to mothers that wanted to safely relinquish their babies via a baby saver?

Ms Cekiso stated that support needed to be provided to pregnant women more generally. This was a gap that had been identified which required attention and intensification. There was an intersectoral approach to support children to avoid certain circumstances. The baby savers were basically a reactionary approach – not a proactive approach – when one considered early prevention and early intervention programmes. Awareness and education needed to be intensified, expecting mothers needed to know where to go when they experienced challenges with their babies.

Ms Masango noted that there had been a number of meetings that had taken place where members could not connect or were kicked out of the meeting due to internet connection issues. She requested that the Chairperson consider that meetings take place in person, especially for the clause-by-clause processing of the Bill. She believed that there was now an opportunity for the Committee to meet in person. 

Ms Manganye stated that it should not be difficult for that to happen.

Ms van der Merwe indicated that the responses so far were sufficient. The Committee needed to look at the clauses and consider how to make amendments; legal advice would be sought. On the issue of baby savers and relinquishment, no additional responses were needed. The Committee could seek a legal opinion on that, if necessary.

Adv Mtshothshisa stated that the bulk of the remaining pages were about ECD. There were about 100 pages left.

Mr Mchunu appreciated the insights and questions raised in the meeting. He asked if the meeting on Friday was still taking place.

Closing remarks
Ms Manganye appreciated the briefing and the issues addressed. She suggested that the Committee handle the minutes at the beginning of the next meeting.

The Committee Secretary stated that the meeting on Friday would go ahead as planned. She suggested that a meeting take place the following week to finalise the matrix and adopt the minutes.

Ms Manganye made brief closing remarks.

The meeting was adjourned.