Children’s Amendment Bill: Hon Masango (DA) briefing & Department response; with Minister

Meeting report

Opening

The Acting Chairperson of the Portfolio Committee on Social Development, Ms J Manganye (ANC), welcomed all to the meetings. Apologies were acknowledged and the Committee adopted the meeting’s agenda.

Minister’s remarks

In her opening remarks, the Minister of Social Development (DSD), Ms Lindiwe Zulu, thanked the Committee for the opportunity to present to the Committee. The Department appreciates and acknowledges the responsibility endowed by Parliament to protect and defend the rights of children. The Department continues to ensure that the rights of children and those vulnerable in society are protected. This presentation is aimed at highlighting the key amendments which are aimed at ensuring that the fundamental rights of children are protected.

Briefing by Ms B Masango (DA), Member of Parliament, on the Children’s Amendment Bill [B19-2023] – Private Member’s Bill

Ms B Masango (DA) took the Committee through the presentation. The Children's Amendment Bill (B19-2023) was presented to the National Assembly on 13 July 2023. Its primary objectives include introducing a new category of care, referred to as micro-partial care, aimed at regulating facilities responsible for six or fewer children during specific hours or temporary periods. The Bill addresses the current gap in the Children's Act 2005, which lacks provisions for regulating and protecting facilities with fewer than six children, potentially exposing them to health hazards and non-compliance with standards.

The Bill seeks to strike a balance by providing some regulation for micro-partial care facilities without imposing the same level of oversight as partial care facilities, recognising the potential negative impact on their operations. Importantly, the legislation excludes specific instances, such as family members looking after children temporarily, to avoid over-regulation in cases of community support.

The crux of the Bill lies in the expansion of regulations to cover facilities with less than six children. Notable clauses include the insertion of the term "micro-partial care" (caring for six or fewer children) and amendments empowering the Children's Court to adjudicate on matters involving such facilities. Additionally, the Bill empowers the Minister of Social Development to formulate a national strategy for the spread of micro-partial care facilities, emphasising consideration for children with disabilities or chronic illnesses.

The Bill outlines funding mechanisms, management requirements, and the obligation of the Minister of Social Development to determine national norms and standards for micro-partial care. Registration and renewal processes, along with conditions for operation, cancellation, and enforcement, are meticulously detailed. The legislation emphasises the responsibility of the provincial head of social development to maintain records, conduct inspections, and address issues such as serious injury, abuse, or death in micro-partial care facilities.

In conclusion, the Children's Amendment Bill is a comprehensive effort to extend regulatory frameworks to smaller care facilities, aligning with constitutional mandates to protect children. With prior endorsement by the Cabinet and approval by State Law Advisors, the Bill stands as a crucial step in preventing deplorable conditions for children in unregulated facilities. Its passage is urged to ensure the continued and enhanced protection of children as outlined in Section 28(2) of the Constitution. Failure to do so may expose many children to substandard conditions, emphasising the importance of voting in favour of the Bill in the current Parliament.

See attached for full presentation

Briefing by the Department of Social Development in response to the Children’s Amendment Bill [B19-2023] – Private Member’s Bill

Mr Luyanda Mtshotshisa, Legislative Drafting and Review Specialist, DSD, responded to the proposed amendments to Chapter 5 of the Children's Act, 2005 (Act No. 38 of 2005). In addressing the proposed amendments, it is acknowledged that challenges in implementation may arise, particularly in the registration and monitoring of facilities catering to a single child or fewer than six children. Considering existing human resource challenges, the DSD notes the potential difficulties in this process. The burden on individuals responsible for registering such facilities and the potential financial implications of zoning or rezoning for minimal occupancy are also recognised as significant concerns.

While acknowledging the rationale behind the Children's Amendment Bill, 2023, the Department highlights a lack of scientific basis for the chosen numerical threshold of "6" in defining a partial care facility. The concern is raised that setting this specific limit may inadvertently disadvantage facilities with fewer than six children. The Department draws attention to similar challenges in other parts of the Children's Act, such as the definition of a child and a youth care centre in Section 191.

In response to the proposed amendments, the Department suggests reconsidering the definition of partial care to encompass one or more children, eliminating the need for a separate definition of "micro-partial care." The recommendation is to consolidate these definitions to avoid redundancy.

Regarding conditions for registration, the Department advises against a predetermined list in the Principal Act, expressing concerns that such a list may not adequately cover varying situations. The Department suggests using the term "include/ing" rather than "relate" to provide decision-makers flexibility when determining registration conditions.

In conclusion, the response underscores the potential challenges in implementing the proposed amendments, emphasising the need for flexibility in the regulatory framework and a reconsideration of numerical thresholds to ensure fairness across different-sized facilities.

See attached for full presentation

Discussion

M L Arries (EFF) welcomed the presentation and indicated that this was a good Bill to be considered including the amendments. However, there is some concern about the financial implication of micro-partial care including those with more than five children in their private houses. On the regulations, will this not create a situation where people are not registered or non-compliant as per regulations resulting in children not being able to be housed? Assurance must be provided that the micro-partial care will not affect the children.

Ms L van der Merwe (IFP) thanked Ms Masango for bringing the presentation before the Committee as this is a valuable piece of legislation. It is the responsibility of members of Parliament to initiate legislation that will strengthen the current laws. As Members of the Portfolio Committee on Social Development, there is an added responsibility to protect the most vulnerable in our society, especially children.

Although this legislation is desirable, however, the concern is whether there are adequate resources to ensure the enforcement of the Bill once it has become law. The Bill proposes that the mechanisms of enforcement will include the inspections that will take place at the homes. However, these inspections will have to be done by departmental officials or social workers and the DSD currently has a significant shortage of social workers. There will be a need to look for ways in which the resources could be made available to ensure that the legislation is enforced including engaging the DSD, National Treasury, and other stakeholders.

Ms A Hlongo (ANC) thanked Ms Masango and concurred that it is the responsibility of the Committee to ensure that children are always protected and safe. She then proposed that since the Committee is busy dealing with the Older Persons Amendment Bill, the Private Memebr’s Bill must not be rushed but deferred to the next term because of time constraints.

Ms P Marais (EFF) expressed her thanks and support for the Bill brought to the Committee by Ms Masango. The only concern is the financial implications of the Bill, especially for families that are looking after children who might be found non-compliant with the regulations including nonprofit organisations (NPOs) working with children in low-income communities.

Ms M Sukers (ACDP) indicated that some communities do not have the facilities for children given the bureaucratic gaps such as the lack of social workers. This is concerning given the high number of child abuse cases without any forms of interventions in communities. There is an urgent need for expanded social services for children as children's rights are fundamental.

Mr D Stock (ANC) expressed gratitude towards Ms Masango for bringing the piece of legislation to the Committee. He agreed with the members of the Committee on the importance of prioritising the rights of children, ensuring that children live in safe environments, and are protected from social ills.

Currently, Mr Stock agreed with Ms Hlongo that the Committee has time constraints as the term of Parliament is coming to an end and other Bills have already been set in motion such as the Older Persons Amendment Bill. Therefore, the presentation of the Private Member’s Bill should be looked at and the process of setting it in motion should be part of the next term of Parliament.

Responses

In response, Ms Masango started by thanking the Members of the Committee and the Department for their engagement in the Bill. On the issues regarding registration and monitoring of one to six children, the Bill took into consideration that there are constraints in terms of human resources. That cannot be used as an excuse not to protect children or at least set systems in motion to ensure that there is a legal framework to protect children. The Bill indicates that the current social workforce should be utilised to investigate and inspect partial care facilities. This will ensure that there are no additional financial costs for the Department.

The rights of children and their best interests are at the centre of the Bill and discussions. This is because children are subjected to adverse environments. As lawmakers, there is a heavy Constitutional responsibility that the interests of the child are always protected, in the case of this Bill, looked after children. This is because the government cannot afford a situation where, due to the failure to regulate small facilities, children are mistreated and abused. It is good that the Department acknowledges the persistent shortcomings, especially the legislation gaps for facilities with less than six children.

Ms Masango added that the number of children should be reduced to have one definition of partial care. However, This is against the first point that the Department raised that it can be too onerous when there is only one child. Therefore, there is no consequence differentiating between micro and normal partial care by having two separate definitions.

Regarding the issue of enforcing the Bill once it becomes law, the children cannot be in danger and in compromising situations because of the lack of resources. It is the Committee, DSD, and other stakeholder’s responsibility to ensure that resources are pooled to ensure the protection and safeguarding of children.

The protection of children is something that cannot and should not be postponed. Therefore, as much as the Bill could be deferred to the next term, this does not mean it is not desirable. The process of putting the Bill in motion should ensue and the new government can continue this after the elections.

Regarding concerns raised about families and family members looking after children, the Bill excludes family members. Therefore, there is no fear in community members looking after children whose parents or caregivers are away. The Bill specifically looks at the regulation at a facility level.

Mr Mtshotshisa said that the DSD notes the comments provided by Ms Masango and the Committee and this will continue to be a matter of discussion moving forward. Regarding the cost of the Bill, Mr Mtshotshisa said it must be taken into consideration that the issue of contention in the Bill is part of a broader bill that is before the Committee which was already costed before being submitted to the Committee. However, because the Private Member’s Bill is being extended further, there will be a need for further costing to cater for the areas that were not initially considered.

The Acting Chairperson thanked the Department and the Committee for the engagement. She said that the deferral of the Bill should be decided by the Committee Members. It was decided that the Members of the Committee be given the opportunity to discuss within their constituencies and in the next week’s Committee meeting, a way forward will then be discussed.

The meeting was adjourned.