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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
22 February 2005
CHILDREN'S BILL: DELIBERATIONS
Children's Bill [(B70-2003) Reintroduced]
Clauses to be added to the Children's Bill [B70-2003 Reintroduced]
Proposed Amendments: Clauses in section 76 Bill to be added to section 75 Bill
The Committee discussed clauses 30 to 154 of the Children’s Bill. No final decisions were taken of various suggestions made. There was a feeling that the public should be invited to make submissions on clauses that would be moved from the Section 76 Bill to the Section 75 Bill. The Department would reconsider the definition and components of the concept of parental responsibilities and rights. There was division on whether it should be compulsory for people who wanted to draw up a parenting plan to consult a Family Advocate or a Social Worker. A number of Members were opposed to artificial fertilisation. However, they agreed that the clause should not be deleted so that those who wanted artificial fertilisation could be legally protected. Children born as a result of artificial fertilisation would have access to genetic information about gamete donors but not his or her identity.
The Department of Social Development (DSD) was represented by Mrs M Ngcobo-Mbere (Director) and Mr P du Preez (Law Advisor). Ms L Stuurman (Researcher) and Ms R van Zyl represented the SA Law Reform Commission (SALRC). Mr O Kellner (State Law Advisor) and Ms L Petersen (Parliamentary Liaison Officer) also attended the meeting.
Ms du Preez presented the Bill clause by clause and Ms Stuurman highlighted comments that were made during the public hearings on each clause.
Clause 32: Care of child by persons not holding parental responsibilities and rights
Ms Stuurman referred the Committee to clause 129 of the draft Comprehensive Bill. There should be a link between clause 32 and clause 129. Clause 129 dealt with consent to medical treatment and surgical operations. The person referred to in clause 32 should also be able to consent to medical treatment and surgical operations.
Mr M Masutha (ANC) was of the opinion that clause 32 dealt with de facto custody of a child. He asked if the clause recognised the position affirmed by the courts that custody was a factual issue and not necessarily a legal issue. A person was recognised to have custody by virtue of having a child under his or her care. He asked if the clause was intended to affirm or depart from the court's position.
Ms van Zyl replied that the definition of a caregiver was related to de facto custody. The clause attempted to cover people who took care of children on a daily basis.
Mr Masutha asked what was the name referred to in the clause. He imagined the name custodian would be the most appropriate.
Advocate Kellner said that the problem arose from the concept of 'parental responsibilities and rights’, which was equated to the concept of 'guardianship'. In this case a person was not officially given rights but could still exercise them. It was not necessary to give a name to the person. One might call him or her a clause 32 person if it was really necessary to give a name to the person.
Mr Masutha asked if there was any real difference between a person who had been awarded custody and one who had custody without a court order granting custody to him or her. A close look at the clause would reveal that there was no real difference between the two.
Advocate Kellner said that the clause affirmed the prevailing legal position. The Committee was free to delete the clause if it did not consider it necessary.
Mr Masutha said that the law should be user friendly. People should be able to call the person referred to in the clause by name.
The Chairperson asked if a 'father' who had been living with and supporting a child he believed to be his child would be forced to continue to maintain the children even after he had discovered that the child was not his child.
Advocate Kellner replied that the mother would have to apply for a court order to force the person to continue maintaining the child. The court's decision would be influenced by the circumstances of the case. The best interests of the child would also be taken into account.
Clause 33: Contents of parenting plans
Ms C Dudley (ACDP) said that the word "must" in subclause (4) should be replaced by "may". One could get intelligent people who could put together a good plan. It was questionable why such people had to waste money on something they could do on their own. Ms Dudley later changed her mind and suggested that the word "must" should be retained. People should use all other dispute resolution mechanisms before going to court.
Mr Masutha felt that subclause (1) seemed to suggest that the clause would also apply to instances where co-holders of parental responsibilities and rights in respect of a child had difficulties in exercising their other responsibilities and rights and not necessarily parental responsibilities and rights.
Mr M Waters (DA) asked if subclause (2)(a) included guardianship. It would be preferable to include it if it was not covered by subclause (2)(a). Advocate Kellner agreed that it was included. Guardianship was a matter connected to parental rights and responsibilities.
Mr Masutha said that a person acquired guardianship through a court order or operation of law and not through an informal process.
Ms van Zyl said that a parenting plan would not determine guardianship. The idea was to allow parents an opportunity to talk the matter through before approaching the courts. However, guardianship could form part of the parenting plan.
Mr Masutha said that the people could only enter into a parenting plan if they were joint holders of rights and responsibilities. They could not enter into such an agreement if they held different rights and responsibilities.
Ms van Zyl said that the Department was confused by the way in which the concept of 'parental responsibilities and rights' and its components were defined. It would look at how to unpack it. The Bill referred to "care" and "contact" as opposed to "custody" and "access" respectively. It was unclear what the original drafter of the Bill had in mind when he used the concept of parental responsibilities and rights.
Ms Petersen said that many parents died intestate. The parenting plan could only be terminated by a court order. She wondered if the plan collapsed all together as a result of the death on one of the parties to the plan.
Mr Masutha opined that the Bill did not tamper with the law of succession and divorce. The surviving parties would exercise all rights and responsibilities. It was important to know the extent to which the Bill sought to amend the common law. The concepts of custody, guardianship and access were used in different legislation. He wondered if the Bill sought to repeal all references to the concepts wherever they appeared.
Ms Stuurman replied that there was a need to compare the terminology used in the Bill with terms used in other legislation. The difference in terminology could have great legal implications.
Clause 34: Formalities
Ms Dudley said that there was a shortage of social workers in South Africa. The costs of consulting the Family Advocate might be a problem to some people. She preferred the replacement of the word "must" with "may" for the purposes of clause 34(2)(b)(ii). She also asked why a statement was required in terms of this subclause. She felt that a mere signature by the Family Advocate or any other person listed therein should suffice.
Ms van Zyl replied that a statement was necessary to prove compliance with the requirements set out it the subclause. A statement would not be required should the Committee decide to use the word "may". It was important not to limit the powers to mediate to Social Workers and the Family Advocate. One could expand the list to any person who had the necessary qualification and experience.
Mr Masutha agreed with the suggestion by Ms Dudley. He wondered if the clause simply required a simple request for assistance. He also wondered if it was possible for parents to veto any plans suggested by the Family Advocate. He was concerned that the clause could give Social Workers certain powers which were not desirable for them to have. If the clause was about mere assistance in drawing up the plans, then the process had to be voluntary.
Clause 35: Amendment or termination of registered parenting plans
Ms Stuurman suggested that the Family Advocate should have the power to terminate or amend a registered parenting plan.
Ms Dudley agreed with the suggestion. People were more likely to terminate or amend parenting plans if there were conflicts between them.
Mr Solo said that the clause should be split. Amendment and termination should not be dealt with in one clause since they were not the same. The Committee should promote a culture of solving conflicts through other mechanisms instead of always running to the courts.
Ms van Zyl said that the SALRC recognised the need to use alternative dispute resolution mechanisms other than courts. The Office of the Family Advocate indicated its willingness to exercise the power to terminate or amend parenting plans.
Clause 36: Presumption in respect of child born out of wedlock
Mr Waters said that it would be difficult to prove that the person who was claiming to be the father of the child had sexual intercourse with the mother at any time when the child could have been conceived.
Ms Dudley said that the clause would be helpful to people who were staying together and the man was claiming that he was not the father of the child.
Clause 38: Effect of subsequent marriage of parents of children
Ms Stuurman suggested that the words "at any time" should be added after the word "other" in subclause (1).
Clause 39: Rights of children born of voidable marriages
Ms I Mars (IFP) ask for a definition of a voidable marriage.
Ms van Zyl replied that this was a specific legal term. However, she could not clearly define it. She promised to look at it and revert to the Committee.
Clause 40: Rights of children conceived by artificial fertilisation
Mr Solo said that African culture was opposed to artificial fertilisation. He was in no way saying that African cultural aspects should be incorporated into the clause.
The Chairperson agreed that African culture was against artificial fertilisation. The normal practice would be to marry the woman and have babies with her.
There was general consensus that artificial fertilisation was a taboo. However, the clause should be retained to assist those who might opt for artificial fertilisation.
Clause 41: Access to information concerning genetic parents
Ms Stuurman suggested that subclause (1) should make it possible for caregivers to access the relevant information. Some members of the Committee agreed with the suggestion.
The Chairperson said that in terms of African traditions, children were told who their biological parents were.
Ms van Zyl said that some of the issues relating to this clause were covered by other legislation under the Department of Health. The identity of the donor should not be disclosed if the donor wanted it to be kept confidential. The clause provided for access to information about the donor. It did not follow that the child had to know the name of the donor. There was no obligation on parents to inform the child that he or she was a result of artificial fertilisation.
Mr Solo said that there might be problems in cases where traditional rites had to be performed. In some cases it might be necessary to have the biological parents officiating in the ceremony. He referred to the Happy Sindane case. Mr Sindane found it difficult to accept who he was and this had disastrous consequences. Children should be told who their biological parents were.
Chapters 5, 6, 7, 8 and 9
Mr du Preez said that the whole of Chapter 5 would be dealt with by the Department of Justice. Chapters 6 and 7 would be moved to the Section 76 Bill. The major parts of these two chapters were already in the Section 76 Bill. Chapters 8 and 9 were already in the Section 76 Bill. The Department intended to move parts of Chapter 8 into the Section 75 Bill.
Chapter 10: Child in need of care and protection
Clause 150: Child in need of care and protection
This was the only clause under Chapter 10 in the Section 75 Bill. The rest of the chapter was under the Section 76 Bill. Mr du Preez said that the South African Police Services had requested that clauses 151 to 154 should be brought back to the Section 75 Bill.
Mr Waters said that during the public hearings, the Committee dealt with the Section 75 Bill. He asked if there were public comments on clauses in the Section 76 Bill that the Department intended to include in the Section 75 Bill. He also asked if people would be given opportunity to comment on the clauses that were coming back to the Section 75 Bill.
Ms Stuurman replied that the majority of submissions related to both the Section 75 and 76 Bills.
Mr Solo said that the Committee had extensive discussions on clauses that were to be included under the Section 75 Bill. Public comments were received on both Bills. The Committee had agreed to bring some clauses back on the basis of comments from the public. It was undesirable to reopen public hearings.
Mr du Preez said that the advertisement for public submissions was limited to the Section 75 bill. Most people commented on the SALRC version of the Bill and not the tabled Bill.
The Chairperson said that the agreement was that the Department would look at the Bill and incorporate all Section 75 issues into one Bill.
Advocate Kellner said that controversial clauses like the one that dealt with contraceptives could stay in the Section 76 Bill to allow people an opportunity to make comments. Ms Dudley agreed. She said that many organisations limited their comments to the Section 75 Bill.
The Chairperson said that it was up to the Committee to decide if it wanted to call for public hearings. She wondered if time would allow the Committee to conduct further hearings.
Mr Waters said that the Section 75 Bill was the only Bill that had been tabled. It was important to give people an opportunity to comment on some issues. He was, at the same time, concerned that the implementation of the Bill might be delayed if public hearings were re-opened.
Ms Ngcobo-Mbere said that the Department had conducted a workshop on the Bill and many people raised their concerns on various issues. She acknowledged that not all organisations attended the workshops. The Department had taken cognisance of the issues raised.
Ms Stuurman said that there was a submission that clause 150 should also refer to clause 68. This meant that a child could be considered to have been in need of care and protection if the referral was made in terms of clause 68.
Ms Bogopane-Zulu said that some children needed social intervention and not the court process. For instance, it was not necessary to refer street children to courts before they could be declared to have been in need of care and protection. She reminded the Committee that South Africa did not have enough social workers and it took four years to train a Social Worker. She suggested that some informal mechanisms that would not put an additional burden on the State could be used to assess children.
Mrs Ngcobo-Mbere said that auxiliary workers could conduct the assessment. Auxiliary workers worked under the supervision of Social Workers.
Ms van Zyl agreed that it would be preferable to refer some children to social workers. A Social Worker could investigate and decide if it was necessary to refer the child to a court process.
Mr Nzimande was opposed to the use of informal systems. He asked what would happen if people in the informal system did not comply with the laid-down requirements. He felt that the issue had to be left to the Department to iron out.
Mr Waters asked how the Sexual Offences Courts fitted into paragraph (i). He asked if cases of abuse would not be referred to the Sexual Offences Court.
Ms Stuurman replied that the Sexual Offences Court dealt with sexual offences. The children's courts were mainly concerned with child protection and not prosecution of crimes.
Clause 151: Removal of children to temporary safe care by court order
Ms Bogopane-Zulu was not surprised that there were no comments on this clause since people were not given an opportunity to submit them. She was of the opinion that some of the clauses in the Section 75 Bill might have to be amended when the Section 76 Bill was passed. She asked how the process of combining the two Bills would work.
Advocate Kellner said that the Section 76 Bill would amend the Act that would come out of the Section 75 Bill. The Committee could insert clauses in the Section 76 Bill to amend provisions already in the Section 75 Act.
Mr Solo said that the language of subclause (6) should be simplified.
Ms Dudley felt that it was dangerous to pass the clause without hearing the public's view on it.
Advocate Kellner said that the Committee was free to conduct hearings before passing the Bill. It could also ask people to comment even after the Bill had been passed but before passing the Section 76 Bill.
Mr Waters said that there were clauses on which people would not be able to comment. These were clauses that were in the Section 76 Bill and had been moved to the Section 75 Bill.
Ms van Zyl said that the Committee could ask people to comment on the Section 76 Bill and certain specified clauses of the Section 75 Bill. It was not desirable to open submissions on the whole Bill.
Ms Dudley asked if the Committee could not identify the clauses in question and request the public to comment on them immediately.
Mr Waters noted that the Committee would soon break for its constituency period. He felt that the public could be allowed to make comments during that time.
The Chairperson felt that it would be preferable to ask the public to make written and not oral submissions.
Mr Nzimande was opposed to requesting written submissions only. He said that he represented a rural constituency and some people could not write. It was preferable to invite such people to come and make their cases orally.
Clause 152: Removal of children to temporary safe care without court order
Ms Bogopane-Zulu asked if there were any established designated child protection organisation in place. She wondered if such organisations could not help with making referrals in terms of clause 150.
Ms Ngcobo-Mbere replied that the organisations were already overloaded with statutory work.
Clause 154: Siblings in need of care and protection
The clause would apply to all children in the household.
Chapter 11: Contribution orders
This Chapter was under the Section 76 Bill and the Department intended to include this chapter under the Section 75 Bill.
Chapter 12: Children in alternative care
This Chapter had one clause and would be moved to the Section 76 Bill.
Legal opinion on including some clauses from the 76 Bill in the 75 Bill
The Chairperson indicated that the Committee had received the opinion it had requested. The opinion was to the effect that the clauses in question belonged in the Section 75 Bill.
The meeting was adjourned.