Children’s Bill: Joint presentation by Departments on the Interdepartmental Steering Committee

Social Development

18 January 2005
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Meeting Summary

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Meeting report


19 January 2005

Ms Tshivhase (ANC)

Documents handed out:
Children’s Bill and Related Legislation: Implications for State Departments and Other Institutions, Part One: Justice
Children’s Bill and Related Legislation: Implications for State Departments and Other Institutions, Part Two: Office of Rights of the Child (OCR)
Children’s Bill and Related Legislation: Implications for State Departments and Other Institutions, Part Three: Home Affairs

Departments present
Home Affairs, Legal Aid Board, Department of Provincial and Local Government, State Law Adviser, Department of Social Development, Office of the Rights of the Child, Education, Labour, Correctional Services, Justice

This was the first of a three day joint presentation by the member Departments of the Inter-departmental Steering Committee on the Children's Bill. They were responding to policy issues identified by the Social Development Portfolio Committee. Presentations were given on behalf of the Department of Justice, the Office of the Rights of the Child and Home Affairs.

The Chair opened the meeting and welcomed all attending.

Dr M Mabetoa (Department of Social Development, Chief Director, Children) asked everyone present to introduce themselves, and described the background to the presentations. In 2004, the Social Development Portfolio Committee had deliberated the Children's Bill and had identified a number of policy issues, which the Interdepartmental Steering Committee was asked to address. Workshops were held in December 2004 and January 2005 to consider the gaps in current policy and legislation, propose a collective government response and reach consensus on the roles and responsibilities of each department.

Dr Mabetoa informed the committee that a service provider had been appointed to cost the Children's Bill. Cornerstone had costed the Child Justice Bill and would provide costings for the section 75 Bill by mid-year.

Ms Ronel Van Zyl (South African Law Reform Commission) gave a presentation on the Department of Justice and Constitutional Development’s response to the Children’s Bill and Related Legislation issues (see documents handed out).

Dr M Mabetoa added that the Department of Social Development are setting up a unit to investigate the violation of Human Rights, this is a cross-cutting issue, not exclusively affecting children. There will be a committee that deals with these issues, which will include representatives from the Human Rights Commission, and the Public Protector.

Mr P du Randt (Chief Director: Court Services, Department of Justice and Constitutional Affairs). The Bill as a whole will require staggered implementation. The Magistrates Commission will still be in charge of the Magistrates Courts, and the Lower Court Management Committee referred to in the presentation would assist, it is not a policy-making body, nor could it make decisions that would be binding on Magistrates Courts. The Justice College is the training arm and trains not only magistrates but clerks, and prosecutors.
The Department is appointing court managers, who will manage the administration of courts, and deal with complaints from the public.

The Department has received a policy directive from the Deputy Justice Minister, about the issue of the two registers contained in the Children's Bill and the Sexual Offences Bill. He feels strongly that there should be two separate registers, although, the Children's Bill register is broader the Sexual Offenders Register is extremely necessary. This will be deliberated by the Justice Committee, but it was proposed that the two committees work together on the issue.

Mr P du Randt said that malpractice surrounding Inter-Country Adoptions could be curtailed if a fee structure was introduced that made the activity not profitable.

Legal representation was dependent on costing, but the Legal Aid Board is already dealing with more civil and family court matters; they are also running training on Children’s Court matters. There are no major problems with legal aid legislation, but implementation is the vital issue.

In connection with the recruitment of Family Counsellors they need to take heed of the challenges, that the Department of Social Development and others have faced, i.e. there are not enough social workers to deal with the problems. Many of them receive lucrative offers to work overseas and there is huge competition between the departments for trained staff.

Mr P du Randt suggested that the committee has joint sessions with the Portfolio Committee on Justice, that the Deputy Justice Minister has expressed the view that they should be invited to his presentation on the 2nd February. The Child Justice Bill is still under consideration by the department and it is not known when the Portfolio Committee will start its deliberations.

The Children’s Protector is not feasible due to lack of finances and capacity. The new Human Rights Unit in the Department of Social Development should liaise with the specific unit in the Department of Justice and Constitutional Development that deals with the Chapter 9 institutions. They should find a linkage between the two units to co-ordinate work on Human Rights. Restorative justice must be part of the framework.

Ms Tshivhase, the Chair, thanked the presenters and invited members to ask questions.

Mr M Waters (DA) asked about the time frame for the roll-out of the Family Courts; there are five now and another five to be opened by 2007, how many would there be in total and how long for the full roll-out?
He noted that the Children’s Protector has been dismissed on the grounds of cost, and enquired as to the monetary cost of having the Child Protector. Would the money being spent on setting up a Human Rights Unit in the Department of Social Development be better spent on a Child Protector? Does the Public Protector have the manpower to investigate complaints about abuses of children’s rights? And how long will these investigations take? He asked if the Children’s Protector would be better placed to ensure that children get the services they deserve.

Adv M Masutha (ANC) attended the interdepartmental workshop, as an observer, to assist in clarifying the policy gaps identified by the portfolio committee. Certain policy issues and legislative proposals put forward in the Law Reform Commission draft Bill were turned down by Cabinet, because of financial implications or various reasons related to making policy. He explained that the ANC component of the committee understands that it is not their role, as the committee, to subvert those policy choices, and substitute them with their own, because their understanding is that the committee makes law, they do not determine policy. That’s why theyidentified the gaps and had the departments report back on potential solutions.

He gave the example of the Children’s Protector, the committee had concerns not just about the finances, but about a possible duplication of roles. It is the Public Protector’s role to ensure clean governance, and the Human Rights Commission advances Human Rights. Under section 14 of the Bill police and social workers have full authority to enter premises where children are in need of care, or where their rights are being violated. What would a Children’s Protector do in addition to this?

Adv Masutha noted that the existing Child Care Act does not tamper with customary law, it creates parallel institutions. The concepts of custody and guardianship are common law concepts and matters are settled in the High Court. Is this Bill going to change the relationship between common and customary law, or does it envisage creating another parallel system? The Courts must not be confused. The Masters Office operates on the basis of common law, when dealing with a deceased person’s estate, it appoints guardians and custodians of children and determines who has parental rights and responsibilities. This approach is different to how the issues would be resolved under customary law. The decision to have either a guardian (common law) or a curator must be resolved in the best interests of the child.

Adv Masutha requested a more detailed briefing by the Masters Office to discuss these issues, which should include a note on whether they recognise child headed households when administering estates.

Adv Masutha agreed that the Child Protection Register must be discussed by both committees.

On Inter-Country Adoption he asked how the new Bill would deal with foster parents who apply to leave the country with some spurious reason, but with the true intention of adopting the child overseas. He stated that there must be consensus on who needs to give consent for adoptions, whether it be the Department or accredited NGOs. Lawyers alone should not be able to facilitate an adoption, there must be an accredited agency to approve adoptions. The service should be regulated and no child should be adopted outside the country without consent.

Adv Masutha agreed that staggered implementation of the Bill makes sense, but there must be a plan which includes start and end points for the roll-out of services, with associated costings that are budgeted for in the MTEF. He asked if there is a plan in the pipeline, on how to stagger the implementation.

Ms S Rajbally (MF) asked about the awaiting trial period. During a visit to a prison the committee had witnessed 48 to 49 children in one room. What is being done to shorten the time that children must wait before they go to trial?

On inter-country adoptions she asked, how South Africa monitors what is happening abroad?

Ms B Shabalala (Department of Justice, Chief Director for the Promotion of Rights) responded that Family Courts are specialist units providing all services to vulnerable groups in one place. They handle children’s issues, divorces, maintenance, and domestic violence. Courts perform these functions already, but not in one holistic unit. Family Courts are models of best practice to all courts, they require the reallocation of staff, changing the work flow, in a professional structured fashion. She cited the example of maintenance implementation plans, they are being piloted in Johannesburg, and the best practice model will be rolled-out to all courts.

The Masters Office is due to appear before the committee in early February.

Ms S Rajbally (MF) given that the Child Justice Bill deals with children awaiting trial she agreed that the committees should take action jointly to look at getting children out of prison including producing local, provincial and national plans. There could be a framework in the Child Justice Bill, but in the interim community courts should prioritise child issues. Target should be three months with a six month maximum waiting period, cases where there have already been delays should be fast-tracked.

Ms Tshivhase, the Chair, asked how the department relates to traditional practices. Minor cases could be dealt with at a lower level.

Ms B Shabalala replied that the tradition courts can deal with some matters. In 2005 the Department will focus on alternative dispute resolution mechanisms, and is developing a interim policy framework. The Child Justice Bill is the best long-term solution.

Ms P Moodley (Department of Justice, Acting Director) told the committee about the diversion programme. Where a child admits guilt, shows remorse and has a guardian, the case review team, can for example divert the child from prison to community service, but this is only done with serious offences. She repeated that the Family Courts are a blueprint for how courts should function, in terms of case flow management systems; however, the current infrastructure does not favour new systems, new structures will have to be put in place to facilitate a new system.

Ms Ludwabe (ANC) asked why abusers were released the next day, when children were in prison for months.

Ms J Chalmers (ANC) said that in her rural constituency there are lots of small towns with one social worker performing multiple jobs including probation, they can make a huge difference, but that the shear volume of work prevents social workers from performing well. She asked if the Department of Justice could fill the gap, to support social workers by using paralegals.

Mr P Du Randt (Justice) replied that there is a proper implementation plan, and all departments are completing a costing exercise, with time frames, responsibilities for each sphere of government. Diversion plans in the Child Justice Bill include more probation officers and social workers, the plans would double or even triple capacity, and the Department is talking to NGOs. Provincial budgets also include money for more staff.

Ms R van Zyl (SALRC) said that the courts tend to follow common rather than customary law. Therefore, the Bill amends common law, e.g. the Bill changes the position on parental rights and responsibilities especially for natural fathers.

Adv Masutha (ANC) common law cannot be amended indirectly. He enquired about how previous common law institutions were abolished. And whether the Bill is clear on any such repeal.

Ms van Zyl (SALRC) suggested that the State Law Advisors and the Department of Social Development address the question. Inter-country adoptions are not approved by accredited bodies, but rather by a central authority. There is a register for all adoptions, and that inter-country adoption was always a last resort. The entire process is monitored, prospective parents are investigated, children are matched by social workers, the application goes through the Children’s Court, the whole process is registered.

Adv Masutha (ANC) asked if there is a Hague Convention monitor, and if it the Hague Convention permits inter-country guardianship, as this could lead to trafficking.

Ms S Rajbally (MF) asked for the rate of inter-country adoptions. Is the Department in touch with the receiving countries, do they get reports on how the children are keeping?

Ms P Moodley (Justice) explained that the Hague Convention would close the inter-country adoptions loophole. The argument put forward by attorneys is that applications through the High Court are subject to a higher standard of protection, a magistrate in Children’s Court affords less protection. The fees for adoption through an NGO are R19 000 and for a lawyer in the High Court it is R25 000.

Ms A Muller (Department of Social Development) when adoption goes through in other countries, the authorities liaise, there are constant negotiations, but they said they need stats on guardianship cases.

Ms van Zyl (SALRC) Clause 24 states that when non-South Africa citizens apply for full parental rights and responsibilities, it must be regarded as an inter-country adoption, it will close the loophole of guardianship applications leading to adoption in another country.

Ms B Shabalala (Justice) said that the Children’s Protector has not been costed yet. However, an analysis of other similar institutions in other countries indicates that it would require huge budgets, lots of manpower, and infrastructure which is not yet available, possibly requiring billions of rand.

Dr Mabetoa (Department of Social Development) said that the Children’s Protector would be included in the costing exercise.

Ms van Zyl (SALRC) presented the response of the Office of the Rights of the Child to the Children’s Bill and Related Legislation

Ms M Randtla (Office of the Rights of the Child, Director) explained that the ORC’s oversight function is derived from sections 83 and 84 of the Constitution; it has executive authority because it is part of the President’s Office, and is answerable to the nation. It oversees the work of the Executive, it helps the President to answer questions on whether the Executive is fulfilling its mandate to deliver. However, the ORC is accountable to other structures, Parliament oversees the ORC. The departments of Social Development, Health, Justice, etc. are responsible for delivery, and the ORC tracks that delivery. She said that it is difficult for lead department to co-ordinate activities of other departments where joint implementation is necessary; because of its executive authority the ORC is better placed to co-ordinate delivery. It can facilitate integrated work and the mainstreaming of a child focussed approach. The ORC is building capacity within government structures, creating focal points for children’s rights. Five new ORC’s have been established in the provincial Premiers’ Offices, four still remain within the Department of Social Development. The ORC will advocate for the implementation of the Bill. They can co-ordinate an integrated implementation through mainstreaming and advocacy; it was established to ensure that the Executive can track implementation and performance.

Ms J Chalmers (ANC) how do you monitor your own performance? Are you improving children’s lives?

Adv M Masutha stated that Parliament and the Human Rights Commission both have constitutional authority to oversee the work of Departments. He asked how the ORC perceived their own role in relation to other institutions whether it was complementary or different. There is an obligation under the UNCRC to produce five yearly reports, he wanted to know who collates and authenticates the report, the departments or the ORC? How do you reflect the state of the nation in terms of children’s rights, is there annual report on the state of delivery.

Ms M Randtla (ORC) said the ORC ran internal annual performance evaluation exercises, which are complemented by external monitoring, e.g. portfolio committees monitor the ORC. As for their oversight role she said their work compliments the other structures, such as Parliament and the SAHRC, they unite mechanisms within government; they cannot stand alone. The ORC is just finishing the 2nd UNCRC report. The first report was submitted in 1999 two years after ratification of the Convention. The ORC co-ordinates the process but the report is submitted by the Department of Foreign Affairs. All national and provincial departments take part in the process; the ORC is responsible for planning, identifying issues, co-ordinating submissions. The departments write a draft report, which the ORC reviews and send to the responsible Minister, it then goes to Cabinet before submission to the UN. In addition, they evaluate the performance of the Government on the delivery of children’s rights through periodic reports, most recently gaps in delivery were identified in the ten year government report.

Adv Masutha (ANC) the Convention does not require the process to written into legislation, however, there are domestic requirements to report. The Constitution creates obligations to children, and this has been reinforced by cases such as Grootboom. At present there is no instituted integrated reporting mechanism. Should the ORC be set-up in legislation, and should a reporting framework be covered in the same legislation? He said this is a policy question that requires clarification.

Ms van Zyl (SALRC) presented the response of Home Affairs to the Children’s Bill and Related Legislation; issues covered the right to name and nationality, documentation, refugee children, illegal unaccompanied foreign minors, trafficked Children, and child pornography. (See documents).

Ms Tshivhase, the Chair, invited members to raise questions for the officials to answer in the next session.

Adv Masutha (ANC) raised the issue of documentation for unaccompanied minors both illegal and legal. A precondition for the issue of documents is providing proof that you have South African parent. He enquired as to what happens if they cannot demonstrate parentage? And if temporary documents could be issued whilst the matter was investigated?

The Chair, enquired about the policy dealing with fake IDs, and issuing IDs in rural areas.

Adv Masutha described meeting a group on the study tour who were deemed by Home Affairs to be from Mozambique. The whole community was marginalised, because people can not prove that are South African. People give up because they cannot articulate their case, and the issues remain unresolved. He asked how Home Affairs investigate such matters and how they resolve such cases.

Ms Tshivhase, the Chair, outlined a case where more than three mothers were being paid benefits for one child, and the same ID was being used to claim benefit in more than one province.

Adv Masutha asked if children’s fingerprints were taken by Home Affairs when the birth certificate is issued or only when an ID is issued; and if taking fingerprints would enable Home Affairs to trace their birth certificate or place in the population register.

The committee agreed to accept answers on the following day.

The meeting was adjourned.


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