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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE, AND JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF CHILDREN, YOUTH AND DISABLED PERSONS
18 May 2005
CHILDREN’S BILL: DELIBERATIONS
Chairperson: Ms J Tshivhase (ANC)
Documents handed out:
Children's Bill [(B70-2003) Reintroduced]
Amended Bill: May 2005
Amendment to Clause 21: Parental responsibilities and rights of unmarried fathers
Trafficking in children
The Committee was briefed on amendments to Clauses 18 to 41 of the Children’s Bill. Several issues were flagged for further consideration, particularly the relationship between Customary Law and the Bill. The Department of Justice had agreed to meet with the Committee the following Monday, and it was hoped that this would resolve some of the associated problems.
It was agreed that there would be a shift from parental power to parental responsibilities and rights, but there was continued debate on a possible shift from the terms "custody" and "access" to "care" and "contact". It was decided that the Committee would read the original motivation for the change, to inform its decision.
The Committee expressed particular concern at the provision for automatic right of parental responsibilities and rights for unmarried fathers. Several Members pointed out that the situation was increasingly common, and that it had to be acknowledged in some way. This issue was also flagged, as the current wording seemed unclear.
The Committee also made a commitment to prioritise the Bill, and a decision was taken to extend working hours.
The Chairperson confirmed that the Committee meeting on Monday, 23 May 2005 would start at 10h00.
Ms R van Zyl (South African Law Reform Commission [SALRC]) introduced the proposed amendments, and reminded the Committee that the process was no longer a clause-by-clause deliberation on the Bill.
Chapter 3: Parental Responsibilities and Rights
This Chapter was originally Chapter 4, and had been renumbered after the combination of Chapters 2 and 3. It was also the Chapter most amended by the Department. The SALRC draft had tried to introduce new terms into South African law, but after investigation, these had not been felt to be useful. Three main terms were used in connection with parental responsibilities and rights, namely guardianship, custody and access. All terms were well known in South African law, and were used in several pieces of legislation and in international instruments.
The SALRC had proposed the substitution of contact for access, and care for custody. There were, however, no hard and fast reasons for the change, although one of the reasons for changing "custody" was that this could also be construed as imprisonment. The SALRC had failed to recognise that other legislation would have to be amended here. If this Bill moved away from the generally accepted terms, there would be disparity. The terms were also entrenched, and the courts had given content to them over time. After extensive discussions with the State Law Advisor (SLA), it had been decided to return to the terms "custody" and "access".
Clause 18: Parental responsibilities and rights
This Clause stated what parental responsibilities and rights were. It had been structured so that the actual content of what it entailed was in the Definitions Chapter. The definitions had however not been there to determine substantively what something as important as a right was. Effectively, by putting all the important content on parental responsibilities and rights in the Definitions, substantive law was placed in the Definitions. This content had been put back in the Bill itself. The Guardianship Act (to be repealed by this Bill) did the same thing, and it was decided that it was not advisable to go the route of Definitions.
Subclause (2) was new, and had been contained in the Definitions. The main difference was that, where the previous draft had used "care", "custody" was now used, and "access" was similarly substituted for "contact". It had also been added that parental responsibilities and rights included contributing to the maintenance of the child. Parental power, as it was called in the past, had not included an exact definition of contact, and it was thus stated in the first line of Clause 18(2) that parental responsibilities and rights "includes the responsibility and the right-", in order not to exclude any other part.
Subclause (3) dealt specifically with what guardianship entailed, and this had also been moved from the Definitions Chapter.
Subclauses (4) and (5) were new.
Mr M Waters (DA) raised a technical point; pointing out that the issue dealt with parental responsibilities and rights, but that Clause 18(2) listed the rights first and then the responsibilities. More emphasis should be given to maintenance.
Ms van Zyl replied that if these were listed in order of importance, guardianship was the most important. Access was not a right of the parent but of the child as it was a parental responsibility. If a distinction was to be drawn, access and maintenance would be grouped together. Courts would not give any less importance to the context of maintenance because of its listing. The problem with maintenance lay mainly in the implementation of the Maintenance Act, 1998.
Mr M Masutha (ANC) remarked that this was a classic situation of the law seeking to amend the common law indirectly. The Committee had heard the previous day that, if there was a conflict, this law would take precedence, but if there was no conflict, the two would work concurrently. The question again arose of the extent to which it was intended to amend the common law. There was clearly a shift from power to responsibilities. The impression created was that Clauses 19(2)(a) – (d) had captured the full concept of the old parental power concept, and outside it, there was nothing else. Legal uncertainty should not be created here. In addition, the 1984 Matrimonial Property Act had sought to abolish the established common law concept of marital power, and this had been expressly abolished. To what extent was the intention to abolish parental power, which included the concept of reasonable chastisement?
Ms van Zyl replied that, because parental responsibilities and rights were used often, and the drafters were sympathetic to the move from parental power, there was support for the change to parental responsibilities and rights, but it was not the intention to get rid of all case law, as it involved more than just access and custody, and this would be throwing away a lot of legal development. The idea was to use the term parental responsibilities and rights but that its content was supposed to be that of old parental power, but expressing children’s rights. 18(2) had thus stated, "includes", implying that all other things attributed to the relationship were not excluded. This would be confirmed with the SLA. The idea was to replace terms but retain all case law and work done on the concept of parental power.
Mr Masutha proposed a base for formulation, as it was clear that parental power was being abolished, but it was equally clear that there was no desire to get rid of the good within the concept. A possible approach could be to say that the concept of parental power was "hereby" abolished. Any responsibilities and rights between parent and child that formed part of that concept now fell within the new concept of parental responsibilities and rights. Or, over and above these, any other responsibilities and rights arising from the abolished parental power now fell within the concept, except where there was conflict with the Bill of Rights or the United Nations Convention on the Rights of the Child. It was important to state clearly that the Bill did away with parental power so that there was no confusion, but that the work done on the concept of parental power was not lost.
Mr N Godi (PAC) remarked that his understanding was that there was no substantive and mutual exclusiveness in relation to the ‘responsibilities and powers’ that would necessitate this approach. This should have been covered where conflicts were addressed, so that where the Act or any Section of the Act was in conflict with any legislation, this Section of the Act would prevail. This would seem to take care of Mr Masutha’s concerns.
Mr Masutha noted that a decision had been taken to deviate from that Clause, since not all the content of the Bill should have automatic precedence over all others. In this instance, parental responsibilities and rights were at the core of the Bill, but issues relating to education, health and other line functions might require other laws to take precedence over or indirectly amend this Bill. It had thus been decided not to have that Clause, and it was necessary to have some provision. In this particular instance, other laws referred to parental power and this law wanted to be part of this body of law. It was important to show clear intent.
Ms van Zyl replied that this was a very useful proposal. Conflict of legislation in the Bill also referred only to legislation, or statutes, and not necessarily to common law. There was also a need to try to reconcile the two, if possible. This should be addressed at the drafting stage.
Clause 19: Parental responsibilities and rights of mothers
Subclause (2) had been redrafted, as it had been confusing as it stood. This was accepted.
Clause 21: Parental responsibilities and rights of unmarried fathers
This Clause had been problematic, and changed the current legal situation in respect of the status of unmarried fathers. It was an attempt to be clearer and to bring in a conflict resolution procedure, and had changed quite dramatically. Care covered a number of daily tasks, and if the father were not living with the mother, it would be difficult to prove normal parental responsibilities. The reworked draft had added "in good faith" and "attempted", as there were cases where the mother refused maintenance, thus thwarting the father.
The Chairperson asked what the responsibilities were of a father whose child was conceived in rape.
Ms van Zyl replied that a parent was defined in the Definitions, and excluded gamma donors and instances where the child was the result of rape. She noted that "father" should also be defined.
Mr Masutha noted that the matter had been battled with by the judges in the Constitutional Court, and that it had effectively been left in the hands of the legislators. The first problem was that it seemed to move from the premise that a man’s demonstration of commitment was his financial contribution, and there were obviously inherent problems with this. The second issue was the timeframe. If someone was short by a day or a week, that person would be cut out. Currently, in common law, where a child was born out of wedlock, the child belonged to the mother unless the mother was a minor. This was underpinned by the legal perception of these children as "bastards". The Constitution did not recognise any relationship not blessed by the institution of marriage, and any other relationship did not trigger mutual responsibilities and rights. The Committee needed to decide whether it wanted to stick to that arrangement, but it was the function of the Department of Home Affairs to look at marriages.
The Committee should decide whether Members wanted to recognise a factual situation not recognised in law, of two people living together, contributing to a common household, both looking after the child, but not married. In that situation, should rights be given only to the mother? If the couple was separated, should equal rights be given in respect of the child? If it was left open, the child would be born into uncertainly. The common law position should be maintained and the father should be able to make a claim at a later stage. If the parents were living together, the father should have automatic rights so long as the family lived together. The 12-month clause would apply only to the second scenario, but timeframes might not be a good idea. Another common law principle was analogous, in that if somebody stole from you, you did not have an automatic right to recover the goods from the thief’s house. In this instance, if the mother dumped the child with the father, she could not just reclaim the child later, but would have to go to court. These were some permeations of the issue that should be catered for.
Mr L Nzimande (ANC) said that the Committee was trying to deal with anomalies in the times in which Members lived. Single parenting was more common, and he would agree with allowing the Bill to create new scenarios. He supported the new wording, as previously there had been no need for the father to identify himself. He agreed that there should be an option to recognise the anomaly of children born out of wedlock. There was no call to have timeframes, but there should be some standard to prove the father’s involvement.
Dr M Mabetoa (Chief Director: Child, Youth and Family, Department of Social Development) remarked that, when the issue was discussed, the problem had been to decide on criteria. It was correct that financial contributions alone were not proof of interest, and at least twelve months could be measured.
The Chairperson observed that grandparents sometimes supported the child, while the father claimed that he was doing so, and asked how this could be proved.
Mr Masutha said that these disputes were not dealt with under the current Child Care Act, but in common law and previous court judgements. The High Court, as the upper guardian of the child, had discretion, informed by the "best interests" principle. The court would not look at the matter rigidly if the best interests of the child would be best served by a different interpretation. The courts would not take kindly to the twelve-month period, as it was a discretional matter. In common law, the child belonged to the mother. The over-riding principle was flexibility, the best interests of the child, and, on balance, evidence should look at the best interests. The Bill could at best only provide guidelines.
Mr Waters agreed that the Clause should be more flexible. It was a very complex matter, but two unmarried people expecting a child was becoming more commonplace. The fact that the father stayed once he heard of the pregnancy proved commitment, and twelve months was unfair. It was also unreasonable to make it only for the period that the couple was together, as married parents could divorce. The father needed to retain his responsibilities and rights.
Ms van Zyl pointed out that the Clause addressed the situation where an unmarried father had no access to the child but was obliged to maintain the child. At present, a High Court representation would have to be made, and it would cost at least R20 000 to R30 000 to retain an advocate. The Clause tried to create a method for the unmarried father to get rights without going to court. It would not be a problem to add a provision for people living in a relationship as if though they were married. The probable scenario was two people who dated for a month, broke up, and then the mother discovered she was pregnant. There had been no intention to marry, but the father wanted to be part of the child’s life. The twelve months was not to fetter the court, but to avoid the need to go to court, but it was arbitrary and the drafters would welcome proposals. There had to be some way to give automatic responsibilities and rights. The requirement for a mediation process had also been inserted in Clause 21(3) and (4).
Mr Masutha noted that no comment had been made on the situation where the mother voluntarily abdicated her responsibilities to the father or the father’s family. There was no amount of certainty that it was possible to introduce a law to obviate the need to go to some forum. If there was no dispute, the provisions were not relevant. The law was there to help the person adjudicating, and at the end of the day, it was a matter for the court to look at the circumstances. The second issue related to the principle clause about gender. It was clear here that gender was involved, and this principle was in conflict, unless "matter" was replaced by "dispute".
Dr Mabetoa suggested that the Department go back and look at the Clause again.
Mr Waters asked whether the twelve months included the pregnancy. Ms van Zyl replied in the negative.
Mr Waters asked what the situation would be if the father contributed to the medical costs of the pregnancy and birth. Ms van Zyl replied that, in terms of the law, an infant was a child only after birth. Anything else would have to be stipulated.
Ms van Zyl asked whether the drafters should take out the current Clause 21(1) where the father could earn rights, and only put in that he did so if he lived with the mother, or otherwise it should go to mediation or the court.
Mr B Solo (ANC) felt that Mr Nzimande had said that the situation should be accommodated. Mr Masutha had argued that the wording was too rigid. He suggested the Clause be left intact, and the drafters look into the issue of rigidity and provide options. The Clause addressed a realistic situation. The Department should go back and look at the two scenarios and revert with options. As society changed, space must be left for it to do so.
Mr Nzimande asked whether the intention was to grant automatic rights, and noted the need to find a satisfactory formulation. The main problem was the period of twelve months. If the matter went to court, the Clause might not give a qualification in terms of the relationship itself.
Ms H Weber (DA) asked what would happen if, after twelve months, the father felt that he had done his duty and left. Would he still have a say in respect of the child?
Ms van Zyl pointed out the urgency to have the A version drafted, and noted that the issue had been flagged. The Chairperson nominated Mr Nzimande and Mr Solo to meet the drafters to consider this Clause.
Clause 22: Parental responsibilities and rights agreements
When this Clause had been discussed previously, the Committee had felt that it should be extended to include grandparents. A new subclause (1) had thus been inserted, and (2) had been amended to go beyond the biological father. New subclauses (5) and (6) had been inserted.
Clause 23: Assignment of parental responsibilities and rights to interested person by order of court
"To interested person" had been added for clarity. The Clause also provided recourse for people such as grandparents. The general rule was that the parent or guardian decided on access. This Clause provided a means to ask the court to grant specific people specific rights in respect of the child.
Subclause (1) was amended to delete "full or specific" as this was regarded as confusing. The subclause dealt with access or custody. Subclause (2) on guardianship had been removed, and (2)(a) inserted, stressing the best interests of the child. Subclause (5) stipulated that the granting of access to another person would not affect any other person’s access.
The Clause was agreed to.
Clause 24: Assignment of guardianship by order of court
This was a completely new Clause. The Department was in discussions with the Department of Justice in this regard. When the SALRC had initially drafted the Bill, it had envisaged Family Courts on regional and other levels, and saw guardianship being dealt with at regional level. Since there were as yet no Family Courts, the Department of Justice had requested that the status quo be retained. It had been widely felt that this was too high a level, and a new proposal had been made to the Department of Justice, that, if guardianship was to be taken away and given to another person, the matter should still go to the High Court, but where the child was alone, for example an orphan, the application should be able to be made at the Children’s Court.
The Chairperson asked whether the Family Courts included traditional courts. Ms van Zyl replied that there would be more clarity once the judicial review had been completed. Ms P Moodley (Department of Justice) said that traditional courts would not be Family Courts, but that the rationalisation of courts was still ongoing.
Dr Mabetoa pointed out that there had been a meeting to present the plea for guardianship to be accessible. The process needed consultation and this had been started. The Bill could be amended when the Section 76 Bill was adopted. The issue would be addressed further on Monday.
Mr Nzimande indicated that the period of consultation was past, and asked the point of not putting the provision in place now. The Chairperson concurred.
Ms Moodley pointed out that there were unfortunately ongoing investigations, firstly into the rationalisation of courts, and secondly into the raising of the civil jurisdiction of the lower courts.
Mr Waters asked how long it would take to complete the process.
Ms van Zyl replied that the new proposal to divide guardianship powers had only come out on Friday, and there had therefore not been an opportunity to consider it previously.
Dr Mabetoa suggested that, if any amendments were proposed, these could be considered when the Section 76 Bill was finalised.
Clause 26: Assignment of parental responsibilities and rights to parent-substitutes
When the drafters had checked the litigation on guardianship and parental responsibilities and rights, it had been found that the Matrimonial Affairs Act dealt with the appointment of guardians. Clause 26 as previously drafted was not in line with this, and the Clause had been re-drafted. One issue, thought to be to the detriment of children had been removed. In the previous version, the provision had been that the assignment "might" form part of a will. In the new version, this was an obligation. A will had to be lodged with the Master of the High Court, who would then oversee it. If the Department of Justice agreed to devolve the right to the lower court, the Master would have to give effect to that guardianship order.
The Committee agreed.
Clause 28: Who may approach court
Subclause (2)(a) had been amended to move the best interests of the child to the top of the list.
Clause 29: Court proceedings
A small amendment had been made to (4), since Chapters 2 and 3 had been combined into Chapter 2.
Subclause (5)(a) proposed replacing "professional" with "suitably qualified" person, as this was a better term. This had been done throughout the Bill.
Subclause (7) had been amended to refer to Clause 155(7) of the Bill. Various Clauses in the Bill called for matters to be referred directly to the Children’s Court (for children in need of care and protection). After discussions with Social Development, it was decided that the current practice was that not all children potentially in need of care and protection needed to be referred to the Children’s Court straight away. Social workers would first look at the relevant circumstances and make a judgement. The current Bill compelled the referral of a child straight to the Children’s Court. A Chapter had been added on early intervention, and to ensure the current practice could continue, Clause 155(2) had been amended.
Mr Waters highlighted the chronic shortage of social workers and expressed concern that they would be under more pressure if this provision were implemented.
Ms van Zyl replied that, currently, social workers were obliged to look at everything. The drafters were looking at instances where auxiliary workers could work under the supervision of social workers to try to address this problem.
Dr Mabetoa pointed out that this would be very pertinent in the Section 76 Bill, as youth and child care workers were involved at a community level.
Ms van Zyl remarked that the wording could be adjusted if necessary once all aspects had been considered.
Mr Masutha pointed out that when the Child Care Act had last been amended, child and youth care workers had not existed and the Social Workers Council had been undergoing transformation. It had been noted that even social workers were not equipped to deal with certain matters, and the advent of child and youth care workers also raised problems, particularly in respect of their training. This arose in the context of adoption, where a host of people could recommend it, and the idea was to contain this. The Department might need to look at what was envisaged in the curriculum for child and youth care workers. Care should be taken that people were not placed in positions for which they were not competent. It might be necessary to distinguish certain functions performed by certain categories of workers.
Clause 30: Co-holders of parental responsibilities and rights
A small amendment had been made to subclause (2).
Subclause (5) had been removed, as this now fell under Clause 18.
Clause 31: Major decisions involving child
This Clause had been totally re-drafted for clarity
Clause 32: Care of child by persons not holding parental responsibilities and rights
The only change to this Clause was in subclause (2), which cross-referenced Clause 129. It had also been found that the definitions of caregiver and primary caregiver were not clear, and the drafters had looked at the Bill to see what had been used in which instances. It had been decided to do away with primary caregiver, and if the Department of Justice agreed to lower guardianship agreements, it would be easier to appoint guardians; thus the notion of primary caregivers would become redundant.
Mr Masutha remarked that the concept of primary caregivers went back to the introduction of the child support grant. The rationale behind "primary" had derived from the question of what happened when more than one person was responsible for the care of the child, but it had been necessary to rank them. He did not know the implications of this change on the Social Assistance Act. He was concerned that people who ran crèches would be given too much power.
Ms van Zyl replied that great care would be taken in the definition of caregiver. She was aware of the use of primary caregivers in the Social Assistance Act, but the definition in that Act had differed from the definition in the Bill. This Bill did not refer to the Social Assistance Act in any way, and it was felt better to have only one term.
Mr Masutha recommended that the issue be flagged; pointing out that some concepts became part of everyday life. Once a particular name was adopted, it acquired a life of its own. Currently, common law primarily dealt with the situation and common law only knew custodians and guardians. He questioned what the Clause was seeking to achieve.
Clause 33: Contents of parenting plans
The way the Bill had been drafted made provision for co-holders of parental responsibilities and rights to agree on a parenting plan when there was conflict. That had not been changed, but there was a new provision allowing for the possibility of entering into a parenting plan before conflict. The trend in family law was not just to have custody and access orders, but parenting plans as well. There was still a system of compulsory parenting plans when there was conflict, but Clause 33(1) added the possibility of voluntary plans.
Clause 33(5) had been amended so that only in case of conflict, would the parenting plan have to be drafted with a mediator.
Clause 34: Formalities
A provision was added, requiring a voluntary parenting plan to be in the prescribed format and to have a copy, while a statement by a relevant person was required if there was conflict.
Mr Masutha noted that, ordinarily in law, the only contract that was invalid if it was not in writing, related to the sale of land, as long as the parties could show that there was such an agreement. Was the intention to acknowledge the situation where two parents made arrangements without any formalities?
Ms van Zyl said that, if the parents wished to register the plan, it would have to be in writing. There was no obligation on them to have a parenting plan if there was no conflict.
Mr Godi expressed concern that no room was allowed for oral agreements. Ms van Zyl disagreed, pointing out that "must" was used only for situations of conflict (Clause 34(2)).
Clause 35: Amendment or termination of registered parenting plans
It had been felt that parents should not be compelled to go to court to make minor changes to parenting plans; so provision had been made for this to be done through the Family Advocate.
Mr Masutha stressed the importance of the statement of the relationship between common law and the Bill, and Customary Law and the Bill. While the issue of the move from parental power to parental responsibilities and rights had been resolved, the second issue was the replacement of custody and access with care and contact. The shift was not necessarily bad, but the possible legal implication had to be considered. While the Department was looking at reformulating the clause on the shift from parental power to parental responsibilities and rights, it should not necessarily discard the new concepts, but see where else they were used, and reflect on a similar formulation for a shift to contact and care. It might be a good idea to make a language shift, and the country had already progressed from other degrading terms, such as "bastard". It was not a bad idea to try to civilise the law with new words, but it was important to ensure that this process did not cause confusion.
Mr P du Preez (Legal Advisor, Department of Social Development) pointed out that approximately two months previously, Ms van Zyl had been instructed to revert to custody and access. If it was decided to change the terms again however, this would be possible.
Ms Weber asked if care and contact were more universally used than custody and access.
Dr Mabetoa replied that custody and access were the terms commonly used. Any change to care and contact would mean that the Children’s Bill was the only legislation using the concepts. It would be necessary to check the possible impact on other legislation, such as the Divorce Act.
Mr Masutha reminded the Committee that even the term parental power was still commonly used. In fact, until the Children’s Bill was enacted, parental responsibilities and rights would not exist in South African law. In the same vein as the proposed clarification on parental responsibilities and rights, it would be possible to formulate a replacement of custody and access, but clarifying that any reference should be construed as a reference to that concept under the Bill, as defined.
Ms van Zyl pointed out that the term parental power was a common law one and not used in legislation as such. Custody and access could be found in many pieces of legislation and in case law. Because these terms were so frequently used in orders and international instruments, it had been felt it might be better to retain them. The issue could be re-examined.
Mr Solo queried the need to change again, if the issue had been looked at extensively.
Mr Masutha suggested that, before a decision was made on the matter, the Committee should consider a paper prepared by Judge Belinda van Heerden to have the benefit of the reasoning.
Ms Weber suggested that Judge van Heerden’s recommendations be accepted if these were the terms used internationally.
Mr Masutha said that he understood that internationally, and in law, custody and access were the terms being used. The original draft of the Children’s Bill had used care and contact. In light of the debate, the drafters had changed this to custody and access, and he suggested that the Committee read the original debates.
Clause 38: Effect of subsequent marriage of parents on children
Subclause (1) had been amended to include "at any time" as a point of clarity.
Clause 40: Rights of children conceived by artificial fertilisation
Subclause (3) had been amended to insert a cross reference to Clause 290, which was part of the Chapter on surrogate motherhood.
Clause 41: Access to biographical and medical information concerning genetic parents
Subclause (1) was amended to include the guardian of a child.
Mr Masutha pointed out that the Committee had dealt with trying to resolve issues of common law, but that there had still been no feedback on the proposed approach to the relationship between Customary Law and the Children’s Bill. The matter was very important in respect of Chapter 3, on parental responsibilities and rights.
Dr Mabetoa replied that the Department of Justice would be meeting with the Committee on Monday, and that they should be able to provide some information.
Ms van Zyl said that she was not sufficiently informed to say how Customary Law could be accommodated, and she had hoped to hear from a Customary Law expert at the workshop. It was hoped that the meeting on Monday would help with the issue. The drafters would look at the issues raised and make the requested discussion paper available. It was hoped that the Committee would have completed its work on the amendments by the end of the following week.
Dr Mabetoa reminded the Committee that the timeframe was tight.
The Chairperson ruled that Members should prioritise the Bill, and it was agreed that the Committee would apply to extend its hours to sit for the full day, as Bills would only be entertained until 2 June 2005, so more time needed to be added. The Committee resolved to apply to extend its hours to 16h45 for the following week.
The meeting was adjourned.