Briefing by South African Law Commission on progress with review of the Child Care Act

Members of the Drafting Team present:
Dr. E.W. Harvey, Department of Welfare
Ms. J Cronjè, Department of Welfare
Dr. B. van Heerden, past chair of the Team
Prof J Sloth-Nielson
Prof N Zaal, present chair
Mr Henegan, Chief Director of the South Africa Law Commission

SUMMARY
The purpose of this briefing was to inform the Committee about the work that the South African Law Commission has done on the review of the Child Care Act. The Drafting Team published the Review of the Child Care Act issue paper for which they held country-wide workshops to get input on the various issues raised. Currently, the drafting team is in the process of making an analysis of the original data acquired from the workshops. Additionally, there is a plan to have more workshops in the areas of substitute family care, residential care of children, and provisioning and governance.

MINUTES
Prof van Heerden briefly outlined the work that the drafting team had done up to this point. They had circulated the issue paper on the Review of the Child Care Act and then conducted country-wide workshops to gain outside input on the issue paper. She reported that multi-disciplined people were in attendance at the workshops. The consensus from the workshops was that the Child Care Act was too narrow in scope. People wanted a more comprehensive statute incorporating a wide range of children's issues. From the workshops, it was also realised that more research needed to be done in areas like parent/child relationships, child protection, street children, and HIV/AIDS. Consultation group discussions occurred, and 5 focus papers emerged from those discussions.

Prof Zaal discussed the current projects that the drafting team were working on. They are doing research in more specific areas now, and they are incorporating their findings into the issue paper. Further, they are making an analysis of the original data that was collected from the initial workshops. It has been decided that additional workshops need to be held in 3 areas. The areas include substitute family care (foster care/adoption), residential care of children, and provisioning and governance.

Ms Mbambo discussed the inclusion of women and children in the whole process. Many women and care givers attended the workshops and gave their input on the issue paper. It is recognized that the process has to have a child-focused platform. The drafting team worked to include children in the discussions, and their submissions will also be submitted for review. Finally, it was noted that the team interviewed people from all of the country to make sure that both rural and urban perspectives were heard.

Dr Harvey shared the role of the Department of Welfare in the process. Welfare helped to develop consultation papers on child care and protection (abuse/neglect), parent/child relations, HIV/AIDS, street children, and substitute care (adoption and foster care). He stressed that all of the above issues need to be looked at in the greater context of the development of social welfare. The best interest of the child is always paramount, and the child's cultural and religious background must always be respected. It is important to develop a local framework in which these issues can be approached. Finally, the role that the Department played was that it provided relevant policies and directives, helped in writing consultation papers, assisting at the workshops, and helping to fund and contract drafters.

Prof Sloth-Nielson briefly talked about provisioning and governance. She says that they have been taking a different approach to law reform. The drafting team went to great lengths to consult on the grassroots level, and to make sure that they had the provincial influence on decisions being made. There is a great push to ensure local government plays a role in the process. They also have a researcher monitoring Parliament to be sure that legislation goes through and that it can be implemented. There is a need to develop a structure to ensure that proper implementation on both the provincial and national level takes place, there must make the statute workable.

Finally, Dr Harvey discussed the role of the Law Commission. He reminded everyone that the role of the Commission is to give government advice in terms of law reform by acting as a law reform agency. In particular, the Commission help the drafting team get experts in the areas of concern, and it helped to find grants to support the continuation of the project. He made the suggestion that at some point the Committee needs to think of how to deal with regulations on children's issues. He stated that the Law Commission would be happy to assist in drafting this when the time comes.

Questions by members
Ms Rajbally (Minority Front) expressed her concern over street children, and wanted to know what programs were being developed to educate parents on how to protect rather than abuse children.

The drafting team replied that it was clear that the current system of alternative care dealing with street children was failing. There is a need for a system that provide better alternatives for all children. Legislation would help by providing better rights with regards to child care.

There was a question regarding the lack of resources in rural areas.

The drafting team responded that they hoped to create a position where there would be one person who could provide services rather than the current fragmented situation.

Ms Gandhi (ANC) asked about steps that are currently being taken on the issues of child abuse, sentencing, and culture/religion.

The team answered that they hoped to have a redraft of the issue paper by March, a discussion paper by the end of June, and draft legislation by August or September. Further, the current level of training of judicial officers was inadequate. The training would need to be inter-disciplinary. The team would be making radical recommendations on this topic.

Mr Masutha (ANC) stated that some of the areas that the team was working on needed to be strengthened and that the Welfare Committee should be playing a role in this legislation as well.

In reply it was said that there were assurances made that other initiatives were on the go (like a comprehensive social security system), and that they had wide range of people working on these issues. There was assurances made that other departments would be contacted to do their part in the process.

A member inquired into the areas of rape and abduction.

The team responded that there would be a longer discussion of rape as it relates to children at a later time. The hope was that with increased computerisation that a central recording system would be in place, which would help with the abduction problem. Further, new law required that children have their own passports that must be signed by both parents.

Dr Jessat (ANC) asked if the Team was working on the age of majority. The response was that the issue was being discussed.

Ms Newhoudt-Druchen (ANC) asked about what was being done in terms of the court system in dealing with deaf children and the feasibility of opening a home specifically for deaf children without homes.

The team noted her concern over the courts sensitivity to deaf children was noted. They said it will be incorporated into the training program that is developed. There was a concern over creating a house specifically for deaf children for fear that they would be stigmatized. However, the needs of such disadvantaged children will not be overlooked in the new legislation.