In a virtual meeting, the Minister and Department of Social Development (DSD) gave a briefing on the Children’s Amendment Bill with needs to be passed by Parliament before 27 November 2022.
During the discussion, Members pointed out that the big elephant in the room was the inadequate number of social workers and the detrimental effect this has on the services provided. The plans and goals put forward by DSD were futile without the provision of social workers. However, DSD replied that it had developed a strategy that would ameliorate this deficiency. Members asked DSD to distinguish Child Protection Units from Foster Care Units. DSD explained that Child Protection Units are the umbrella body and the Foster Care Units will render the services within the umbrella body. The purpose of this distinction and separation was to minimize the unprocessed influx of children into foster care through comprehensive assessments. The reason for not including the contentious amendment to Section 21 of the Children’s Act in Bill as passed by the National Assembly on the rights of an unmarried father was also raised.
This briefing was the beginning of the six-week cycle to process the Children’s Amendment Bill by the Select Committee.
Opening remarks by the Minister
Minister of Social Development, Lindiwe Zulu, was able to attend the meeting despite notifying the Committee of her unavailability beforehand. The reason she thought she would be unable to attend was due to network conditions and other ongoing virtual meetings she had to attend. After realising she had time and a good network she used this opportunity to join the meeting.
The Minister explained that she was participating in an important meeting in Geneva Switzerland on Halving Global Violence as she had been part of its task force Pathfinders. She was cognizant of the magnitude of this initiative as a relevant issue in South Africa, especially about violence against woman and children. This was a great platform to share the experiences of South Africa with the world and to learn from the best practices of other countries.
It has been a long journey since the Minister of Social Development was instructed by the North Gauteng Court in 2017 to prepare and introduce before Parliament a “comprehensive legal solution" for the challenges of the foster care system. The Portfolio Committee has exercised wisdom to separate and retain only the foster care-related clauses in the Children’s Amendment Bill as the due date for the court ordered legislation is 27 November 2022.
The Minister was certain that Members present in this meeting were aware of what happened in the National Assembly Committee on this Bill. Members of Parliament had walked out of the meeting and this had a detrimental effect on processing the Bill, caused delays and prolonged the process.
The Minister said her message to all Select Committee members is that the Department of Social Development is tasked with the responsibility towards children and bearing this responsibility in mind, the Department and Select Committee cannot afford delays when such important legislation needs to be passed. This stems from the fact that government is held to account by Portfolio Committee and Select Committee oversight processes. Delaying legislation would put the Department in a very difficult situation in as far as the court order placed on the Minister.
The clauses in this briefing meeting constitute a Section 76 Bill. Needless to mention, the remaining part of the original Bill will be duly processed, as a separate Bill. This approach does not present material issues neither to the well-being of the children nor the sector.
The Department in its briefing will delve into the rationale and the benefits of each clauses in this Section 76 Bill.
The Minister noted that other processes and tools are already in place to support and reinforce efforts towards realising a “comprehensive legal solution”. Amongst these was the National Child Care and Protection Policy approved by Cabinet and the Social Assistance Amendment Act which came into effect in June 2022.
Children’s Amendment Bill: briefing
Adv Luyanda Mtshotshisa, DSD Legislative Drafting and Review Specialist, outlined the progress in the processing of the Children’s Amendment Bill in line with the 2017 North Gauteng court order. The Bill was consulted in all nine provinces by the Portfolio Committee. Of the 146 clauses contained in the initial Bill, a large number of clauses had to be rejected for the purpose of channeling focus to only clauses relating to foster child care due to the deadline.
The North Gauteng High Court mandated the Minister to put in place the necessary mechanisms, structures and resources to ensure that the foster care system operates in a sustainable and effective manner.
Adv Mtshotshisa detailed and explained the clauses in the Bill (see document).
Ms N Ndongeni (ANC, Eastern Cape) asked about the scope of child protection. She asked how DSD will ensure that all children are protected as proposed in the Children’s Amendment Bill.
Secondly, she asked about the effects of advocacy for children’s privacy. How can DSD ensure that the protection of information for a child will not hamper on parental rights and responsibilities? Lastly, she asked about the contentious issue of leaving out the amendment to Section 21 of the Children’s Act in this Bill and the Department intends to address the issue.
Ms D Christians (DA, Northern Cape) inquired about the amendment to the rights of an unmarried father curtailed by Section 21 of the Children’s Act. She was greatly concerned by this gap in the Bill regarding an unmarried father’s responsibilities and duties to the child. This was brought up in the Portfolio Committee.
She pinpointed a factor which she found to be problematic yet was not addressed. This was the unfunded non-governmental organisations (NGOs). This was problematic particularly in provinces because one of the amendments in the Bill is to establish well-resourced Children Protection Units. This establishment leaves out NGOs and their important role in this matter. She asked the Department to provide sufficient information on this so that Members can provide guidance on this to the public at large.
Another great concern for her was the low number of social workers. This concern was triggered by clauses 4, 5, 7 and 13. These clauses specifically speak about social workers and the mechanisms that need to be put in place to ensure that the projected processes for a comprehensive legal solution are realized. However, currently, there are 17 500 social workers in the country and 70 000 social workers are needed. How will the Bill address this backlog because without sufficient social workers, no efficient or comprehensive work will be done?
Ms S Luthuli (EFF, KZN) was also concerned about the low number of social workers and asked how DSD intends to alleviate this deficiency to ensure that the Children’s Amendment Bill is adequately implemented.
Secondly, how will DSD address the infrastructural challenges social workers face in implementing the Children’s Act?
Lastly, she asked how the current adoption cases are handled by the DSD. Equally important, she asked whether these proposed amendments are likely to cause any further delays.
Ms R Kekana (ANC), Chairperson of the Portfolio Committee of Social Development in the Gauteng Legislature, said she is reluctant to engage the presentation at this stage because it would be premature for her to do so. She sought clarity about the expectations for the process going forward, particularly the provincial legislature briefings. She also asked if the provincial briefings will be held virtually or physically.
Ms B Engelbrecht (DA, Gauteng Legislature) sought clarity on what really distinguishes the Child Care and Protection Units and Child Foster Care. The presentation spoke about how Child Care and Protection Units will replace Child Foster Care, and she asked for the differentiation between the two. Secondly, she asked what will happen to Foster Care Units in the near future? Is there a place for them in the future or are they just going to be removed from the system?
On the streamlining of Cluster Foster Care Schemes, she asked what distinguishes this from the foster care home currently present in the county? She also asked what the meaning of “streamlining” was in this particular context.
Ms Engelbrecht asked about the extent to which non-responsive social workers are the root cause. How does the Department intend to mitigate a situation where there is a low number of social workers available, yet their workload and responsibilities are increasing?
Lastly, she asked how the Children Protection Unit (CPU) will prevent children from being placed in foster care.
Ms N Konza (ANC), Chairperson of the Eastern Cape Social Development Committee, inquired about the upcoming legislative process in the provinces and the specific dates and timelines. She was particularly referring to the six-week cycle of upcoming provincial briefings, public hearings, and involvement of the provincial legislatures.
Ms G Swaartboi-Ntombela (ANC), Chairperson of the KZN Social Development Committee, asked for clarity on the presentation. According to the chat-box, Free State Legal Advisor Ms Khuzwayo had asked if the presentation was not an old one. For example, clause 13 amending section 185 as presented did not concur with clause 13. Secondly, clause 13 was the last clause in the presentation yet the Bill goes right up until clause 16.
A question was in the chat-box from the Free State Legal Advisor noted three versions of the Bill had been circulated: B18-2020; B18A-2020; B18B-2020. Which of these Bills was intended for today’s meeting?
Minister and Department response
Minister Lindiwe Zulu, the Minister of Social Development, thanked the Select Committee members for the questions. Prior to the answering of questions, the Minister found it important to inform them that the presentation’s focus area was on the clauses of the Bill before them today. If Members felt that some clauses were not thoroughly explained during the presentation or the responses, then those would be responded to after the meeting through written instead of verbal responses.
Mr Peter Netshipale, DSD Deputy Director General (DDG): Community Development, chose to answer the big question – the lack of appointment and recruitment of social workers, because it results in not having enough of them.
According to the DDG, the Department has embarked on a journey which ought to reach its specific targets. A strategy has been developed to bring this initiative to fruition and it entails collaborating with Treasury and other governmental departments. Through this strategy, the Department is very optimistic to the extent that they are certain of providing the required number of social workers consistently in each province on an annual basis.
DDG Netshipale asked Adv Mtshotshisa and Ms Cekiso to answer the remaining questions. If they cannot provide adequate answers now, then those responses will be in writing instead.
Adv Mtshotshisa addressed Section 21 of the Children’s Act. The intention behind the DSD amendment of section 21 was section 9 of the Constitution that states no one may be unfairly discriminated against based on marital status. Unmarried fathers are discriminated against by virtue of being unmarried, yet they play a pivotal role in the lives of their children.
However, the understanding of this has been blown out of proportion in a number of comments that have been received. For instance, there were motions and initiatives to include issues of custody, automatic custody of children during divorce cases and visitation rights. These matters were related to issues that needed to be addressed by the courts.
As a result, this had an impact on traditional leadership and thereafter, challenges emerged. These challenges were grounded on the doctrine of the trias politica (separation of powers) because the Department on its own cannot legislate issues of custody because doing so would infringe on the judicial arm of the state.
Traditional leaders, as required by the Rules of Parliament, need to be consulted prior to legislation being passed. For instance, it is renowned in some traditions that a father is obligated to pay a certain amount for damages when impregnating the unmarried mother of his child. The fulfillment of this obligation will permit the father visitation, access and parental rights and responsibilities to the child.
Thus engagements between DSD and the Department of Justice need to precede this legislative amendment. For these reasons, talk about automatic custody is a challenge because the courts have a significant role to play in regard to determining the stability of a father prior to being conferred with the custody of a child.
These issues need to be clarified prior to their legislation. This, however, will require more time spent on consultations and this would affect the time left for the Department of Social Development to comply with the North Gauteng High Court order. This is not insinuating that consultations with traditional leaders will be a waste of time.
On protection of children, the Bill intends to protect children. The whole general purpose of the Act is child protection. The Amendment Bill is working to ensure that it does indeed protect children.
Children’s privacy is part of the remaining separated clauses in the Bill. There are so many laws that are already covering children’s privacy, and it is very important that we are cognizant of this so that the pieces of legislation on this are harmonized instead of being duplicated. There is the Protection of Access to Information Act and also the Protection of Personal Information Act (POPIA) was passed not so long ago. These pieces of legislation are taken into account whenever DSD is dealing with protecting the privacy of children.
On issues of adoption, these are clauses which may also be linked to foster care, although not directly linked. There is a process that needs to be followed on adoption, and these processes take a very long time. Therefore all other clauses will therefore be dealt with in a bigger Bill.
On the presentation not being updated to include all the clauses as passed by the Portfolio Committee, Adv Mtshotshisa said that some of these clauses were included by the Portfolio Committee when the A list was being proposed. For instance, the Portfolio Committee agreed on the amendment of section 45 as a consequential amendment for inclusion. There was also the amendment of section 160(cA) which talks to the regulations. This clause was also not part of the Bill as introduced by the Department. The number of clauses therefore had been increased by these consequential amendments.
When the DSD presentation speaks to clause 13 or 12, then these are the clauses that the department had introduced. The Portfolio Committee then debated on these clauses and there were consequential amendments that therefore increased the number of clauses.
Ms Neliswa Cekiso, DSD Acting Chief Director: Child Protection, replied about the Child Protection Units. On how long it would take for these Children Protection Services to be established, this process was dependent on the development of the regulations because the regulations actually unpack how the Child Protection Units will function.
She emphasised that Child Protection Units are actually proposed on the basis of ensuring intensified early intervention through social working practitioners, and not necessarily social workers. This includes the child protection organisations which are rendering child protection services.
On the difference between Child Protection Units and Foster Care Units, the former is an umbrella body for all the child protection services that will be rendered, and the latter is one of the services that will be rendered within the Child Protection Units.
The reason for this is to minimise the flooding of the foster care system. As a result of this, thorough assessments will be done to ensure that all children are channeled into the different programmes they need and not necessarily a random placement into foster care.
The establishment of Child Protection Units, therefore, will prevent the influx of children taken to foster care without thorough and comprehensive assessments. That said, no child will be lost within foster care, or to put it more succinctly, “no child will fall within the cracks” because there will be close monitoring of children.
On the streamlining of Cluster Foster Care Schemes, DSD has observed how foster care systems are not utilized in accordance with the prescripts of the Children’s Act. As a result, some organisations are not complying with the requirements of child and youth care centres, because they tend to make those facilities – foster care schemes, which is not consistent with the prescripts of the Children’s Act. The purpose of this provision is to strengthen the application of the concept – Cluster Foster Care Schemes – so that provinces implement them as they are intended.
Adv Mtshotshisa explained the three different versions of the Bill:
- B18B-2020 is the version of the Bill intended for today’s meeting. It was the final version as debated in the National Assembly.
- B18A-2020 was the Portfolio Committee amendments.
- B18-2020 was the initial Bill tabled in Parliament.
Ms Marcelle Williams, Committee Secretary, replied about the programme for processing the Bill by the Select Committee on Health and Social Services. The B version of the Bill [B18B-2020] was referred to the Select Committee last week. She explained the six-week cycle of the Bill:
- Today's briefing is the first meeting of the six-week cycle.
- The next step in processing this Bill is Committee members go to their provincial legislatures next week to brief them on this Bill. This briefing will be done in conjunction with DSD assistance.
- The provincial legislatures will hold public hearings on this Section 76 Bill. Legislatures will have a programme for when they are holding public hearings and in which areas.
- Thereafter, a negotiating mandate will be formed by the provincial legislature
- The negotiating mandate will come back to the Select Committee – this would be Step 5.
- The finalization of the Bill and the six-week cycle will be Step 6. This will entail the Select Committee receiving a final mandate from the Provincial Legislature on the Bill. Those are all the steps of the six-week cycle.
The Chairperson replied that the answer to whether this cycle will be held physically or virtually will be discussed between the Select Committee members and the relevant Provincial Legislature.
Minister Zulu thanked the Chairperson for providing the platform for this meeting and thanked the Select Committee members for their participation and contributions to the meeting.
Ms Swaartboi-Ntombela plead that when the briefings are done in the provinces that only one version of the Bill is presented – if possible. The purpose is to avoid confusion since three versions of the Bill were circulated.
The Chairperson confirmed that Parliament's legal team would ensure it is done.
The meeting adjourned.
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