Progress on New Child Care Legislation: briefing

Social Development

11 April 2000
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Meeting report


12 April 2000

Documents handed out
Project 110 - The review of the Child Care Act. Progress made since 1999

The South African Law Commission made the following recommendations:
- that the current system of parental rights be changed to a system of ''parental responsibility''. Components of parental responsibility will be defined in the new children's statute.
- introducing legislation which would ''ease the burden'' on fathers of children born out of wedlock, in that certain categories of fathers would have certain automatic parental rights.
- one court deal with all child, family, and domestic cases, instead of children's courts having a separate identity. This would include divorce cases. They feel that the High Court should only have an appeal and review function in respect of children's matters.
- a ''reporting'' requirement in the legislation to advocate child protection.

The SA Law Commission project committee could not reach consensus on the issue of banning corporal punishment in homes, and lowering the age of majority. Therefore, they did not make a recommendation to the committee, but drafted various proposals for the committee to consider.

The SA Law Commission hopes to have a draft discussion paper ready in June 2000. The consultation process will include 18 regional workshops on the discussion paper and draft legislation as well as workshops with children.
After comment has been received, a report will be prepared for the Minister of Welfare, who may decide to implement the recommendations made by the Law Commission.

SA Law Commission presentation on draft Child Care legislation
Professor Zaal, in his presentation on behalf of the SA Law Commission, made the following comments:
They are currently following a three pronged approach to difficult issues:
1) Organise a research report on the issue.
2) Use focus group discussions to ask questions on these issues.
3) Bosberaad: Here a team of eleven people get together and thrash out a definitive position on the issue at hand.

Professor Zaal went through a few of the issues which they had examined through this process:
Parent - child relationship
They had decided to move from the current system of parental rights to parental responsibility. The components of parental responsibility will be defined in the new children's statute, and the court will be able to allocate specific components of parental responsibilities to specific persons.

The rights of the natural father of a child born out of wedlock
Currently, he has to go to court to obtain rights in respect of that child, and it has been argued that the father is at a disadvantage. The project committee has suggested that the father in such circumstances get rights and responsibilities in respect of that child in certain circumstances. One example is if the father lives with the child's mother, or, has lived with her after the child's birth and has acknowledged paternity of the child and established a parental relationship with the child. The idea is that the natural father's burden in establishing parental rights will be eased, but that he will not be given an ''advantage that he can abuse''.

Ms Southgate (ACDP) noted that there was in fact a contradiction of the law in that fathers had a duty in respect of maintenance to the child, but did not have any rights in respect of the child. She referred specifically to the fact that the father has no right as to whether the child should be adopted or not.

Professor Zaal replied that the common law has a "verbal barrage of detailed provisions" on this issue. He pointed out that that one of the weaknesses of the Child Care Act was that laws on the same or similar issues were not put together in one place, they were in fact ''scattered''. The actual framing of the Act, he said, is very clumsy and he thought that it could be improved by placing all the provisions which relate to the same issues in the same place. This would make it simpler. Personally, he added, he would like the Child Care Act to be more readable (even readable by children).

He continued that there has been a Constitutional Court directive on this issue (from the Fraser case), and noted that the father has important rights. These include the fathers right to veto adoption and be considered first as a potential adoptive parent. The only instances where he will not be in the adoptive line is where he raped or assaulted the mother (this is regarded as a sort of ''moral punishment'', and is not in the Child Care Act), or where they cannot find the father (this is in the Child Care Act). The fact that the father loses his right to adopt the child if he assaults the mother may be considered unconstitutional because the mother does not lose her rights in respect of the child if she assaults the father.

The ''age of majority''
The question was whether the age of majority should be dropped to 18 years. However, there was a fear, especially in rural areas, that young people would be stripped of the protections that they enjoy if the age of majority was dropped. One specific fear was that many students in rural areas were about 18 years old, and if this was the age of majority then the onus would fall on the 19 year old to prove that he can still claim maintenance (example for university fees).

Certain options exist on this issue, for example leaving the age of majority where it is now and providing for the child to obtain certain rights when they turn 18. Another option is that the age of majority be reduced to 18, with certain empowering provisions which kick in at 18.

The courts
The project committee feels that a more holistic approach should be used. Thus, they feel that one main court should handle all child, family, and domestic cases as a court of first instance. Moving family matters between different courts was to the disadvantage of children, and it was described as the ''secondary systematic abuse of children''. In addition, this system was also a waste of costs (to have different courts dealing with different pieces of legislation). If there was only one court which dealt with all chidren's matters then that would be better for the children and it would save money.

They suggested that the child and family court should have two tiers; the first should be at district court level, and the second should be at regional magistrate court level. Fancy family courts (which Professor Zaal referred to as ''Rolls Royce courts'') will not be able to reach the vast majority of people who need help.

Training officers in these courts is an important matter. The training must be appropriate to deal with families and children, thus specialist training is a strong recommendation. They suggested that the High Court should have only an appeal and a review function in children's matters. Even in divorces where no children are involved, they suggest that the High Court should not be the court of first instance because it is too expensive. This is their recommendation although they realise that they might get some resistance from the High Court.

Child protection
The project committee had pondered what can one do in legislation for children who are at risk of being abused or neglected - before the abuse or the neglect happens. The committee had suggested that the legislation have certain ''reporting provisions'', and they also support the idea of offender registers. This, Professor Zaal said, is a legitimate area for legislation.

There is a difference between a suspicion of child abuse and a knowledge of child abuse. If there is a knowledge that abuse is taking place then there should be an obligation to report. There should also be an immunity clause, for example, professionals should be immune from reporting, in their professional capacity. One would not protect a mala fide reporter.

Corporal punishment
They had held a bosberaad on the issue: should physical chastisement in the home be unlawful? Overseas this had been done, but only as an educational step. There is no punishment for the parent, unless it is beyond reasonable chastisement. The term ''reasonable corporal punishment'' was not defined because they had felt that they could not have ''grades of punishment''.

Future plans
On the 12 and 13 May they will hold a bosberaad on the issue of customary and religious law impact, and on the issue of prevention and early intervention. They also hope to have a draft discussion paper ready in June 2000. The project committee has donor funding from the Nelson Mandela Children's Fund for 18 regional workshops on the discussion paper and draft legislation. The consultation process will also include workshops with children. In order not to lose the donor funding the consultation process will have to be finished by March 2001.

After the closing date for comment on the discussion paper, a report will be prepared for the Minister of Welfare, who may decide to implement the recommendations made by the Law Commission.

Ms Gandhi (ANC) said that the courts in rural areas lack the facilities that exist in urban areas. She asked what was being done about this.

To equip the courts in the rural areas, Professor Zaal suggested that they take adjudicators from rural areas and sit them down in city courts so that they could learn how these courts operated and worked. He described this as a ''crash course to rapidly spread a lot of expertise''. An alternative to this would be some sort of long-term training. He said that the court officers would benefit from multi-disciplinary training.

Ms Ghandi commented on the big workload of the courts in the rural areas and asked what could be done about this situation.

Professor Zaal said that a possible solution could be that one court could deal with more than one aspect, and a maintenance officer could also do other children-related work. He said that this could help with the overload problem.

Ms Rajbally (MF) asked a question relating to child support. She noted that when a child's father could not be found, a financial burden was placed on the state to support the child. She asked what measures were taken by the relevant authorities to locate the child's father.

The reply was that the new Maintenance Act makes provision for investigators to track down the maintenance providers. This part of the Act has however not been enforced yet. When these investigators do get appointed, hopefully their functions could be extended so that they can also be used to track down ''lost children''.

Dr Jassat (ANC) asked if the Act defines the concept of a ''natural father''.

The professor's reply was that South African law is not deficient on the definition of ''natural father''. To determine who the father is, they can use DNA to determine paternity. In terms of artificial insemination, the father is only legally liable for maintenance if he consented to the insemination. If there is ever a dispute as to paternity, then medical science can assist to establish the true paternity. Legally, the term ''parent'' includes an adoptive parent.

Dr Jassat clarified his question, pointing out that the definition had been excluded from the draft bill and he wanted to know why?

Professor Zaal said that the definition would be in the final bill. There were many definitions which were not in the draft bill, which would be included in the final bill.

An ANC member asked what would happen in the case when a girl fell pregnant, the father ran away, and that girl's mother (the child's grandmother) now had the responsibility of looking after that child. Who would have to apply for the grant, the mother or the grandmother.?

Professor Zaal said that the court system was very complicated and he felt that children and family courts should be more accessible. He said that the technicalities should be stripped away so that it would be easy for anyone to approach a court official to make their case. This way, the specific circumstances of people would be accommodated. Sometimes even the child should be able to approach the court and ask for help. This, he said, is a different vision of the courts to the current courts.

He added that he thought that there should be some kind of budget within the family court to allocate support to children in emergency situations, for example, emergency support between grants. He recommended that the Child and Family Court should have a reservoir of state funding which it could draw upon to make payments in certain circumstances.

Another member asked about child support grants. If the mother was not alive, and the father not available, could the grandparent apply.

Professor Zaal said that the question of whether a non-parent who is the primary caregiver can apply for a support grant is something that their attention has now been drawn to.

Dr Mbulawa (ANC) commented that the age of majority at 21 was too high and said that it could create problems, as children wanted to acquire their rights from 18. She suggested that they bring the age down to 18, but that they legislate some protective mechanisms for the child between 18 - 21, in respect of issues such as maintenance (specifically, for education).

Professor Zaal said that there was a difficulty with leaving the age of majority at 21. If they drop it then they will have to have a protective provision for persons between 18 - 21. If they leave it at 21, then they will have to have some kind of empowering provision for children between 18 - 21.

Dr Mbulawa commented that a child did not need parental consent to get an abortion. Professor Zaal said that it is true that a child can have an abortion without the consent of the parent. However, he said that they had not gone into the terrain of that Act, therefore they could not be critical of this. It leans strongly toward the area of children's rights. A good middle ground would be to have an age limit, so that the child has to be a certain age before an abortion can be performed without parental consent. He emphasised that this was not their brief so he could express no view.

A committee member commented that in the rural areas you find the problem that parents are not married, they have no jobs, and they cannot support their children. He said to Professor Zaal that the budget which he had suggested the courts should have could never be enough to deal with these issues in the rural areas. The member also said that it was difficult to report cases in the rural areas because the magistrates court is far from where people live.

Ms Chalmers (ANC) suggested that they get mobile courts to visit the rural areas. She asked what was being done to put the parental responsibility of foster parents on the fast track. This was especially important with the advance of AIDS and the consequent increase of orphans to foster care.

Professor Zaal said that urgency was always a factor. However, it is not a good idea to take out one specific piece of legislation and push it ahead of other issues.

Ms Tsheole (ANC) referred to the commission's suggestion, in their document, that reporting child abuse could trigger immediate removal. She asked if they were talking about the immediate removal of the child, or the perpetrator.

Professor Zaal said that it may sometimes be appropriate to remove the perpetrator and not the child and said that the family court should have the authority to do this. However, separating the children from their parents is a last resort. They are advocating the idea of different types of treatment for different types of people. For example, in some instances it may be better to provide counselling, instead of taking criminal action against the father.

Ms Tsheole commented that it was a Catch 22 situation. In many instances, the mother protects the father, even if she is the one who reported him, she is also often the one who bails him out.

Professor Zaal agreed, saying that sometimes the mother also needs counselling as did the father.

Ms Tsheole asked if they had considered that traditional authorities in the rural areas could play a role in respect of reporting cases.

Professor Zaal described this as a good idea, and referred the question to Mr Mtshali, a Children's court commissioner who was also on the panel, to answer the question. Mr Mtshali said that he supports this idea, and they have thought about giving these courts some power. Using these courts for this purpose would be cheap, and fast, as these courts are near to their (rural people's) homes. There will then be a duty on these courts to report to the magistrates' office.

Ms Cupido (DP) asked what the situation was in a case where a man raped or assaulted a woman, and as a result lost his rights in respect of their child. What happened if he (and perhaps his wife) wanted to support the child? What rights would he have in respect of the child?

Professor Zaal replied that the question had arisen whether the recent amendments (where the father has no rights in respect of the child if he raped or assaulted the mother) may be unconstitutional. It is a kind of ''moral punishment''. Can the father lose his rights because of an act that he committed, not against the child, but against the child's mother? It may be in the best interest of the child to at least have the parent considered to be a potential adoptive parent. To make it an absolute bar (as the current regulations do) may not be such a good idea. Also, there is a gender difference which comes in, example, where a mother assaults a father, she does not lose her rights. Thus, it could be argued that there is a double standard which comes into play.

A member asked the panel if they monitored the implementation of the Maintenance Act. She said that children still suffer in spite of this legislation, and asked if it was ''practically put in place''.

Professor Zaal replied that staff of the court should have special training. He said that they must not produce ''rolls royce'' legislation. This is legislation which is very detailed, and no-one can understand it. They are trying to come up with legislation that is clear, so that sometimes, even children can read it. What the legislation requires must also be financially attainable by the government.

The member also commented that sometimes a father was denied access because of a mother's attitude.
Professor Zaal said that the family court should have the power to trigger a family group conference or a mediation session. This is a non-adversarial way of trying to resolve the problem. Such a supportive process would result in more healing.

The member also asked for the panels view on corporal punishment.
Professor Zaal said that South African courts have mapped out a boundary between reasonable chastisement, and assault. There are various criteria which the court looks at to determine the difference, including, the motive of the parent, and whether the parent has done something to imperil the child. This system has been working.

Ms Gandhi asked about the protection of children from exploitative labour practices. She asked specifically if they looked at the UN practice, where children under the age of 14 cannot work. She also commented on how fragmented the different laws affecting children were. She asked how this would be treated.
There are some instances where child labour will be allowed, such as when it is in the interests of the child. Physical labour will generally not be in the interests of the child. It may be allowed where the work that the child is involved in is of a more empowering component. They would however be cautious in this regard.

Ms Gandhi said that they ratified the UN convention on this, therefore our laws on child labour must comply with it.
Professor Zaal assured her that he had looked at this convention, and, that they also ratified the African Charter on the rights of children. He assured her that they were constantly measuring their legislation against these charters.

Ms Gandhi also said that a problem with employees in the Welfare Department was that employees were transferring out of the Department as soon as they gained expertise. She asked what could be done about this.
He said that they could have a ladder of promotion, so that people would be able to move up in the department. This could provide an incentive to them to stay.

Ms Gandhi asked whether child sexual abuse cases could be dealt with by the child and family court (instead of criminal courts). She asked this in light of the fact that, giving evidence in a criminal court has been described as ''secondary abuse of children'' because the procedure is so emotionally taxing.

Professor Zaal agreed that the Child and Family Court should deal with the civil and the criminal side of the matter. This way, the child would only give evidence once and, it would save money too. The problem, however, was a practical one. It was essentially a policy commitment to have a separate criminal court procedure for child abuse. There is a separate sexual offence court because the children's court cannot impose criminal punishment.

Ms Southgate (ACDP) made the following comments:
- She asked them to ''tidy up the Act'' by putting provisions which relate to each other under the same heading.
- She asked that they put in more rights for fathers.
- On the issue of corporal punishment, she said that there must not be over-intrusiveness of the state in families. While she is strongly opposed to child abuse, and fully supports the reporting mechanisms, she believes that an outright ban on corporal punishment in the home is unjustified as it is overintrusive on the part of the state. The state should be prevented from interfering in the home because ''the family has its own autonomy''.

Ms Rajbally commented that there was a need for ground level education against corporal punisment. She felt that the line to take on the issue was grassroots education of parents.

Professor Zaal said that this issue had been earmarked as a tough one. As yet, they did not have a clear stance on corporal punishment.

A committee member commented that if corporal punishment was considered to be something which was criminal, then certainly, failure to pay maintenance should also be considered criminal. Another problem highlighted is when the father leaves, then the mother gets a welfare grant, the father comes back, but the mother still gets the grant. Also, if the child knows where the father is, could the child do a report.

Responding to these comments, Professor Zaal said that one cannot impose adult litigation on children. He agrees with the failure to pay maintenance being regarded as a criminal offence and the issue of investigators in the maintenance Act is an important thing.

The Chairperson concluded by asking that, in the future, the documents be sent to the committee in advance, so that committee members could have a more meaningful input during these sessions. He noted that he was pleased at the progress that the project committee had made since they were last there.


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