Children’s Bill: deliberations

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
23 February 2005
CHILDREN’S BILL: DELIBERATIONS

Chairperson: Ms T Tshivhase (ANC)

Documents handed out:
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

SUMMARY
The Committee met to consider the Children’s Bill as reintroduced on a clause-by-clause basis. Researchers from the SA Law Reform Commission provided accounts of public submissions where available. Clauses 229 to 238 were discussed and various issues were raised by Members including the rights of unmarried fathers, the status of grandparents, adoption within customary law, accessibility to Children’s Courts, requirements for consent and the motivation governing adoption procedures.

MINUTES
Mr P Du Preez (Department Legal Advisor) presented the Bill on a clause by clause basis and Ms L Stuurman (Researcher of the SA Law Reform Commission) and Ms R Van Zyl (SALRC) provided detail of public submissions.

Clause 229: Purposes of Adoption
Ms L Stuurman stated that a recommendation was to delete sub-clause (c) as it indicated a principle to be considered rather than a purpose.

Clause 231: Persons who may adopt child
Ms L Stuurman recommended that the term "permanency" be included in sub-clause 1(a)(ii) to provide more clarity.

Mr M Waters (DA) asked whether sub-clause 1(d) should refer specifically to the biological father as it appeared unnecessary.

Ms R Van Zyl responded that the biological father would have to comply with normal requirements when applying to adopt his child. A biological father would not automatically receive permission to adopt although in certain situations a speedy resolution was advantageous.

Mr Waters claimed that the principle that unmarried fathers had to earn the right to adopt was wrong.

Ms Van Zyl stated that the legislation was designed to address problems arising from short-term relationships but amendments should be considered to assist unmarried fathers to adopt.

Mr Waters asked whether unmarried fathers would have preference over other candidates.

Ms Van Zyl replied that the Children’s Court had to determine the suitability of potential candidates and all candidates would be assessed equally. A biological father could veto a potential adoption to another person in order to safeguard his own position.

Mr Du Preez stated that initially the Department wanted to protect the rights of the biological father regarding adoption but the Department of Justice felt the father should not receive preferential treatment. The Court would consult with all available persons including social workers to approve suitability.

The Chairperson asked whether the position of same-sex marriages was covered in the Bill and whether a couple comprising one biological parent could adopt the child in question.

Ms Stuurman responded that the position of same-sex couples was dealt with in the proposed legislation. Sub-clause 231(1)(a)(ii) included the possibility of same-sex adoption.

Ms C Dudley (ACDP) asked how the process to determine the suitability of a biological father would transpire in a reasonable manner.

Ms Van Zyl stated that a solution could be to add a sub-clause indicating that the biological father should receive preference.

Mr K Morwamoche (ANC) asked about the status of grandparents regarding the right to adopt. A traditional approach favoured the role of grandparents as custodians of offspring.

Ms J Chalmers (ANC) asked whether the biological father could remove his children from the custody of the grandparents in terms of customary law.

Ms Van Zyl responded that the proposed legislation allowed for a kinship caregiver to adopt as well as a family member other than the kinship caregiver. Preference would prevail with persons who provided a caring environment.

The Chairperson asked whether the adopted parent would qualify for financial assistance.

Ms Van Zyl replied that parents could apply for the normal social grant and caregivers would qualify for the foster-care grant.

Ms I Mars (IFP) stated that Members needed further information on customary law regarding the role of grandparents and adoption.

Ms F Batyi (ID) referred to a case where a grandparent could not receive social grants for adopted children.

Ms M Ngcobo-Mbere (Director-DSD) replied that the grandparent should receive assistance as the recognised caregiver.

Clause 232: Consent to Adoption
Ms Stuurman stated that the required consent of the child would be returned to the clause to expand the options.

Mr Morwamoche asked how rural people would be included within the legislation.

Mr L Nzimande (ANC) concurred that the requirement for the consent of the child should remain for the sake of meaningful legislation.

Ms Van Zyl stated that the Children’s Court and not Traditional Courts dealt with decisions pertaining to adoption. The role of Traditional Courts regarding adoption would be ascertained from Justice. Questions of access to courts within rural areas would also be considered.

The Chairperson asserted that the Bill was focused on urban and semi-urban areas to the detriment of the rural communities. Deep rural communities had to be included within the deliberations of the Committee and the scope of the proposed legislation.

Mr Du Preez agreed and stated that presently the legislation marginalised rural communities. Amendments were required to address this.

Ms I Direko (ANC) stated that legislation had to include all citizens in order to prevent ineffectual legislation. Deep-rural children had to be involved in deliberations.

Mr Nzimande stated that further detail was required from Justice regarding access to legal institutions within rural areas. The Bill was not excluding rural children per se. Institutions were available within most rural areas including social workers and magistrates. Accessibility to facilities should be improved.

Mr O Kellner (State Law Advisor) suggested that Traditional Courts could possibly be incorporated into the system to facilitate greater access. The Department of Justice would consider the role of the customary system.

Ms Van Zyl reiterated that no distinction existed between urban and rural regarding the adoption procedure. Deep-rural areas suffered from minimal resources and facilities. Improved service delivery was a priority in accordance with financial considerations.

Ms Direko reminded Members of the exorbitant travel costs existing in the rural areas which limited service provision.

Ms Mars stated that further information was needed regarding rural practices and powers of traditional leaders in order to make informed and relevant recommendations.

Ms Dudley stated that the withdrawal of NGO funding handicapped service delivery.

Ms M Magazi (ANC) suggested that an appropriate body be identified to investigate the rural context.

Mr Kellner recommended a synthesis of legal practitioners with traditional knowledge but could not state which body should be approached.

Ms Ngcobo-Mbere responded that the Departmental Steering Committee would consider the issue of rural access and acknowledged the shortcomings involving social workers in rural areas. Incentives were in place to encourage increased numbers of social workers to work in marginalised communities.

A Treasury representative advised Members to focus on improving the service delivery model rather than seeking to create further legislation that would over-burden budgetary resources. Additional finance could be procured following the completion of a plan.

Mr Waters requested information on the number of magistrate’s courts and their location to assist Members in determining needs.

Ms Makasi stated that recent study tours had revealed the lack of resources within rural areas.

Ms Chalmers added that creative thinking was required to address the problems such as the establishment of mobile units or courts that could visit certain regions at pre-advertised times attracting local residents. This initiative should be discussed at the upcoming Budget debate.

Ms Ngcobo-Mbere replied that the Department service delivery model was nearing completion. Members were reminded of the existence of multi-purpose centres where various services could be accessed.

Ms Mars stated that Members required details of these centres and their location to assist their oversight responsibilities.

Ms Dudley added that an inadequate budget analysis hindered meaningful response.

Mr Morwamoche stated that people had the right to choose which court they wished to utilise and all formats should be accessible.

Ms L Petersen (Parliamentary Liaison Officer) stated that Members should not assume different dimensions between rural and urban areas regarding children’s legislation. Adoption procedures were applied uniformly and the onus remained to protect the rights of children.

Mr Du Preez stated that the Bill did not seek to exclude certain children but he acknowledged an implementation shortfall in rural areas.

Ms Stuurman referred to a submission recommending the replacement of "clerk" with "presiding officer" in clause 232(5)(a)(I) as the clerk would have insufficient knowledge to make appropriate decisions. The task required a particular level of training.

Mr Kellner suggested that the presiding officer may not be available at all times due to work commitments and the clerk could therefore be appropriate.

Ms Van Zyl stated that Justice had requested the continuation of the clerk as the appropriate official but the issue was under review. The official involved had to have sufficient knowledge to make correct recommendations. The role of the presiding officer was preferred.

Ms Dudley agreed that the presiding officer was more effective.

Mr Morwamoche concurred with the legal advisor that the clerk would be more accessible as the presiding officer had other commitments.

Ms Magazi stated that the provision of consent was an important event that demanded a sufficient level of competency.
Ms Chalmers concurred that declaring consent for adoption was a life-forming event that necessitated legal experience.

Ms Dudley asked whether the adoption process would be stalled by the need for the presiding officer’s involvement.

Ms Stuurman responded that the process would not be adversely affected.

Clause 233: Freeing Orders
The Chairperson asked whether an adoptee parent could withdraw responsibility for the adoption after a period of time.

Ms Stuurman replied that grounds for rescinding an adoption order would be covered in clauses 241 and 242.

Ms Dudley asked whether a time-limit was imposed following the collapse of an adoption to organise a substitute.

Ms Stuurman responded that twelve months was allowed to find an alternative adoption. A child would be cared for by an adoption agency following the granting of a freeing order.

Ms Dudley referred to a Child Welfare statement that claimed that a freeing order would lapse after 12 months if no replacement adoptee parents were found.

Clause 234: When consent not required
Ms Stuurman stated that subclause 2(c) was ineffectual due to the low success rate in convicting rapists and the lengthy court procedure. The Children’s Court should have the power to determine whether rape occurred on the balance of probabilities.

Mr Nzimande sought clarity on the types of mental illnesses considered by the Bill.

Ms Van Zyl replied that the illnesses defined in the Mental Health Act would apply.

Mr Waters added that DNA analysis could determine the rapist father if the mother claimed to have been raped.

Ms Van Zyl stated that a rapist father would have no rights to the child. Abuse could arise where women sought to sideline fathers by claiming rape.

Ms Dudley questioned whether this requirement would open the door to manipulation of the process by vindictive women seeking to exclude a father from a child's life.

Ms Stuurman replied that the claims of mothers had to be substantiated in court and wild allegations would not suffice.

Ms Makasi sought clarity on the role of the police and acquired information from subsequent investigation in determining the possibility of rape.

Ms Van Zyl replied that information from police dockets could be utilised by the Children’s Court to determine rape on the balance of probabilities.

Mr Kellner stated that the onus on establishing whether rape occurred would cause delays in the adoption procedure. A woman who did not report rape at the time but subsequently claimed rape during an adoption process could be viewed with suspicion.

Ms Dudley asked how a man could prove his biological link to the child in order to assert his right to consent.

Ms Van Zyl asserted that the need to establish proof of rape would not increase the burden on the Children’s Court. The balance of probabilities was a principle used in civil law and various sources of information could be utilised.

Ms Chalmers stated that a conviction for rape was necessary to prevent a rapist from asserting rights over a child.

Ms Stuurman confirmed that a rapist could never exercise rights over a child conceived as a consequence of rape.

Clause 235: Gathering of information for proposed adoptions
Ms Stuurman referred to a submission from Johannesburg Child Welfare regarding the need for addresses of potential consent-givers. The recommendation was that names would suffice.

Mr Waters asked whether the reference to the "clerk" was appropriate given the earlier decision to make use of the presiding officer.

Ms Stuurman responded that the use of the clerk was acceptable as the prescribed responsibility was administrative in nature. No specific decision over the adoption process was involved.

Ms S Rajbally (MF) asked who would give consent in the case of an abandoned child.

Adv M Masutha (ANC) stated that the issue around the provision of addresses was discussed on numerous occasions within the Department of Social Development. The nature of "reasonable steps" was not easy to determine and the rights of natural fathers had to be considered. The inability to locate a father tended to delay the adoption process resulting in increased vulnerability of the child. The current approach was to place the onus on the father to provide contact details to ensure notification of the adoption procedure.

Ms Dudley asked where such information would be found.

Adv Masutha replied that the Population Register held such information acquired during applications for ID documents. Individuals were obliged to ensure that details were updated. Adoption procedures would be faster if this requirement was met.

Ms Dudley asked whether the wording required amendment highlighting the role of the Children’s Court in gathering information in addition to the clearly expressed roles of the social worker and father. The clerk of the court should follow up in the absence of adequate information.

Mr Waters stated that the court should take reasonable steps to find the father.

Adv Masutha stated that the identification of reasonable steps on the part of the court remained a controversy and a point of debate. The solution would be to clearly define the correct procedure thereby removing the doubt over reasonableness.

Ms Dudley asked whether current legislation pertaining to children or Home Affairs legislation should be consulted to determine appropriate steps.

Adv Masutha recommended that stipulations of the Bill and current childcare legislation be compared to identify procedure. The effectiveness of current legislation had to be determined.

Clause 238: Consideration of adoption applications
Ms Chalmers asked if the disclosure of genetic illnesses on the part of adopted children was a requirement.

Ms Van Zyl responded that the Adoption Register did not contain medical information but suggested that such information was important and would be added in future.

Adv Masutha stated that the declaration of medical information of children would contribute to a fair adoption process. Similarly, information of potential adoptive parents was crucial to ensuring safe adoptions. Decisions concerning the relevance of candidates would consider cultural background, ethnicity etc. but stereotyping had to be avoided. Wide-ranging information resulted in informed choices and successful adoption rates.

The Chairperson pointed out the dangers of adoption removing a child from a particular cultural or religious background.

Ms Mars referred to legal requirements concerning secrecy within adoption procedures and whether such practices were enforced.

Ms Magazi informed Members of cases where children started to question the identity of their parents. Disclosure of the parent’s identity was recommended.

Ms Makasi recounted an incident where the father of an adopted girl returned into her life after a lengthy period and demanded custody despite the care provided by the adoptive parents. A conflict ensued to the detriment of the child.

Adv Masutha stated that the issue of disclosure and non-disclosure remained a concern in practice although no distinction existed at the legislative level. The usefulness of disclosure was relative to particular scenarios such as the teenager or the newborn baby. Counselling should accompany disclosure as the child had the right to know the parent’s identity.

Ms Rajbally sought clarity on the rights of adopted parents vis-à-vis the biological parents when biological parents intervened to assert rights. She asked whether any protective rights existed for adoptive parents.

Ms Magazi asked whether adoption was a business decision or a moral act in the interests of the child. Members had to consider the motivation behind the adoption process. ‘Ubuntu’ within the black community encouraged a looser form of adoption where certain families would provide care to children on a long-term basis. The arrangement was common knowledge without secrecy requirements or stigma. Assistance to needy families served as the motivation for adoption.

Adv Masutha acknowledged that various cultural traditions had to be accommodated within the legal framework. Western societies tended to have a formal approach to adoption but some informal practices did exist.

Ms Ngcobo-Mbere highlighted informal adoptions that occurred in certain US states where the mother liaised with the adoptive parents beforehand to assess suitability and establish peace of mind. Available knowledge contributed to overall success.

Ms Direko stated that the traditional approach within South Africa was to adopt on moral grounds to alleviate the burden faced by large families.

Adv Masutha asserted that a primary concern was to avoid introducing financial incentives into the adoption process. Adoption intended to create a parent/child relationship although the role of grandparents should not be ignored. Custody rights served as an alternative to adoption and should be considered when appropriate.

The meeting was adjourned.