A summary of this committee meeting is not yet available.
SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE, AND IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF CHILDREN, YOUTH AND DISABLED PERSONS JOINT MONITORING COMMITTEE
20 May 2005
CHILDREN’S BILL: DELIBERATIONS
Chairperson: Ms J Tshivhase (ANC)
Documents handed out
SA Law Reform Commission: Amended definitions and Chapter on trafficking in children (Chapter 18)
Synopsis: Matters discussed by Committee on 17 and 18 May 2005
Extract from South African Law Reform Commission recommendations, Sections 220.127.116.11 – 18.104.22.168
Extract from South African Law Reform Commission recommendations, pages 652 – 653
A drafter from the South African Law Reform Commission introduced the amended definitions and chapter related to trafficking in children (Chapter 18). It was emphasised that the Bill included both cross-border and inter-country trafficking in children, and the removal of body parts had been included. Much of the wording from the United Nations Protocol to Prevent Trafficking in Persons had been used in the Chapter, and the Protocol was expressly included in it. Provision was made for international co-operation, and assistance for children who were victims of trafficking.
The Committee debated the Department to assume primary responsibility for assistance for and the repatriation of such a child. The Bill currently stipulated the Department of Home Affairs, but it was felt that the Department of Foreign Affairs would be the Department most involved, through its foreign missions and ambassadors. It was agreed that this issue would be reconsidered.
The Chapter prohibits trafficking in children outright, and behaviour facilitating trafficking in children. Particular note was made of the need to include all persons and forms of enterprise in the prohibition. A further clause provided for the removal of parental responsibilities and rights from a parent or guardian if the court found or had reason to believe that that parent or guardian was involved in the trafficking of their children. Considerable debate was held on the reporting requirements for victims of child trafficking found in the Republic, and it was agreed that the most likely agency for reporting would be the South African Police Service.
Definitions: Trafficking in children
Ms L Stuurman (South African Law Reform Commission (SALRC) introduced the amended definitions relating to trafficking in children.
This definition had been amended to include sale or supply to cover, for example, the kidnapping and sale of a child to a trafficker.
"Within or across the borders of the Republic" had been inserted for clarity that the Bill applied not only across the borders of South Africa.
"By means of" had been deleted to extend the range of the provision.
"To facilitate or secure the adoption of a child" had been inserted to include children being trafficked for the purpose of adoption.
This definition had been extended to define slavery or practices similar to slavery.
"removal of body parts"
This definition had been inserted.
Ms W Newhoudt-Druchen (ANC) asked for clarity on the wording of the definition of "traffic", as the child was in a position of vulnerability, not the person doing the trafficking.
Ms Stuurman replied that the definition referred to the vulnerability of the victim, as the child would not resist a person in a position of authority over him.
Ms Newhoudt-Druchen responded that it appeared confusing, as did the part regarding giving and receiving payment.
Ms Stuurman replied that this was the way in which it was formulated in the United Nations trafficking protocol, but that she would look at reformulating the definition.
Mr K Morwamoche (ANC) remarked that there had been no mention of immigration, but that trafficking also contravened the Immigration Act.
Ms Stuurman replied that this would supplement the protocol on organised crime and other protocols on immigration. The drafters had had discussions with the Department of Home Affairs and had undertaken to look at the protocol and see how it could be included, so the focus here was on trafficking.
Mr Morwamoche asked how the UN protocol would be implemented in respect of countries that were not signatories to the protocol. Ms Stuurman replied that this would be addressed in one of the clauses.
Chapter 18: Trafficking in children
Clause 280: Purposes of this Chapter
This clause had been submitted to the Department of Home Affairs for input. One of their comments on subclause (b) had been that it was unnecessary and should be deleted in light of clause 282, as it implied agreements should be deleted. The drafters concurred.
Clause 282: International co-operation
This new clause provided for co-operation between states in matters concerning trafficking in children.
Mr M Masutha (ANC) remarked that whereas in certain instances, this responsibility would locate within the competence of a Minister, given the fact that trafficking had implications across the board, the Department of Social Development might not be the best to lead the policy. The Departments of Foreign Affairs, Home Affairs and others were also important role-players. It made sense that agreements were concluded centrally in the Presidency.
Mr Morwamoche remarked that, in terms of the arrangement, the President had the power to delegate.
Clause 283: Assistance to children who are victims of trafficking
Subclause (1) had been amended to specify the Director-General of the Department of Home Affairs, instead of the Director-General of the Department of Social Development, as this function already resided within the Department of Home Affairs.
Subclauses (3) to (5) had been inserted, and the drafters had provided an option for substituting subclauses (4) and (5).
Clause 283 covered instances where South African children had been trafficked, for example to the Democratic Republic of the Congo. If the relevant authority informed South Africa that they had the child, but did not have the funds to relocate him, they would keep the child in safe care until the child was fetched. It was already happening in practice, and social workers in particular were given permission to escort children back to South Africa. The way the clause had been formulated pertained only to cross border relocation, and it should be broadened to include inter-country trafficking.
Ms H Bogopane-Zulu (ANC) asked for clarity, as subclause (1) indicated the Director-General of Home Affairs, and this did not make sense, because, in countries without Foreign Affairs offices, anything happening to citizens was the immediate responsibility of the Ambassador.
Ms Stuurman replied that, when the Department of Home Affairs had been consulted, they had said that they were only there to play an assisting role, and that the Department of Foreign Affairs should play a leading role. The Department of Homes Affairs could approach the Department of Foreign Affairs if they needed assistance.
Ms I Mars (IFP) said that, if a South African child was found in a foreign country, and the government was made aware of this, it would automatically refer the child to the South African mission in that country. The foreign mission would then follow through on contacting Home Affairs, but in the first instance, the Department of Home Affairs would not be dealing with the issue for the government.
Ms Stuurman replied that subclause 283(1)(a) would fall under the Department of Foreign Affairs, but that subclauses (1)(b) and (c) were clearly in the jurisdiction of the Department of Home Affairs.
Ms Bogopane-Zulu reiterated that the subclause should be re-worded. The Department of Foreign Affairs could not dictate to Social Development on this issue, as they were there to look after South African citizens in foreign countries. In practice, the country would take a child to the foreign mission. Was the issue money and budgets, as Home Affairs would only make the necessary documentation available, but the other tasks would be performed by the Department of Foreign Affairs?
Ms Stuurman suggested looking at particularly identifying the respective roles of the Departments of Home Affairs and Foreign Affairs, and re-drafting the subclause accordingly.
Ms Bogopane-Zulu queried whether this was desirable, suggesting the drafters check in terms of the Immigration Act, for example, and cross-reference. This would include, for example, the case of a Xhosa speaking child being allocated a Xhosa speaking social worker, and the Department of Social Development allocated social workers. It was important to leave room for flexibility.
Mr Morwamoche remarked that, in terms of the Immigration Act, the Department of Home Affairs worked under the Department of Foreign Affairs.
Mr M Diko (UDM) said that it needed to be made clear, as the Bill was looking for the best way to protect a child.
Mr Masutha agreed but raised a practical issue. 31 May 2005 had been set as the deadline for completion of the Bill. The biggest challenge was posed by issues relating to the functions of other Departments that might not be adequately applying their minds to this process. In informal contact with the National Treasury, concerns had been raised about some financial issues, and the need to establish whether any matters had financial implications. These would have to be cleared with the Department before the Bill was passed or they could affect the ability to meet the deadline. The Committee could not pass the Bill until there was buy-in, particularly where there were financial implications.
Ms Stuurman replied that the Bill had been drafted, bearing the cost implications in mind. The Bill was a function of the Department of Social Development, and she offered to discuss it with the Department.
Mr Waters stressed the importance of the issue.
Mr Morwamoche asked why the Bill should be delayed because some issues fell under the Department of Foreign Affairs.
Ms Stuurman offered to draft an alternate position, and discuss this with the Department of Foreign Affairs.
Mr Masutha suggested saying that currently the Department of Foreign Affairs was performing this function, or was otherwise obliged to fulfil this service. The Bill sought to create the proper legal framework for clarity. He asked the opinion of the Committee whether a new burden had been created to avoid problems with the National Treasury.
Dr M Mabetoa (Chief Director: Child, Youth and Family, Department of Social Development) agreed with Ms Bogopane-Zulu, emphasising the need to finalise the clauses. A proper directive was needed when the Department spoke to the Department of Home Affairs.
Mr Waters remarked that it was clear that the Department of Foreign Affairs already had to support destitute citizens in foreign countries, so there was really no option.
Ms Mars said that the Department of Home Affairs was involved in escorting citizens home, but that foreign missions would have to contact the Department of Home Affairs if there was a need for repatriation with an escort.
Mr Morwamoche remarked that, in the current situation, there was a representative of the Department of Home Affairs in every mission to process documents under the Department of Foreign Affairs.
Ms Bogopane-Zulu said that the proposal was not adding anything new. Because trauma was involved, and children were under eighteen, an escort was being added. She gave the example of the efforts to assist South African citizens affected by the recent tsunami.
The Chairperson resolved that the drafters would consult on the issue.
Ms Bogopane-Zulu said that, at times, it was persons with parental responsibilities and rights that participated in the trafficking, and she asked whether there was a statement in the Bill to protect that child pending investigation.
Ms Stuurman replied that this was addressed later in the Bill.
Mr M Waters (DA) suggested that the "may" in subclause (3) should read "must". A child that had been the victim of trafficking would be traumatised irrespective of maturity. Even if the child had incurred no physical harm, there would still be trauma.
Mr Morwamoche remarked that some of South Africa’s neighbours, such as Zimbabwe, Botswana and Mozambique, did not have a Director-General of Home Affairs as Home Affairs fell under Safety and Security. How would this be catered for?
Mr Morwamoche referred to the provision for the child not being of a sufficient age, maturity or stage of development. There was a move to encourage accessibility of Acts of Parliament, and this should say "underage".
Ms Stuurman replied that she would discuss the issue with the Department of Social Development as it had cost implications.
Clause 284: Trafficking in children prohibited
The clause had been amended to provide for liability of juristic persons.
Mr Masutha raised a technical question that he was unsure whether the clause adequately covered all forms of enterprise. A partnership was not a juristic person for example, so partners were jointly and severally liable. If a situation arose where a partnership was involved in trafficking, it would only be possible to penalise the individual and not the employees of the partnership. It was uncertain whether covering natural and juristic persons was sufficient to let in other forms of business formations.
Ms Stuurman replied that she had not applied her mind to this, but felt that if a partnership was excluded under natural or juristic persons, it should be expressly included. An employee would, however, be held liable in his individual capacity.
Ms R van Zyl (SALRC) said that the Interpretations Act defined the Act, and that the definition was so wide as to include juristic persons and partnerships. This was sufficient.
Mr Masutha proposed eliminating "natural or juristic", or proposed saying "a person, natural or juristic, partnership or any other form of enterprise". The idea was not just to penalise natural or juristic persons but also to prohibit any form of business from engaging in this type of trade.
Ms Bogopane-Zulu questioned whether the provision of subclause (4) was the only penalty. It would not make a difference, as people operated as syndicates. If trafficking in children was to be regarded as a serious offence, this was too mild a sanction.
Ms Stuurman replied in the negative, as if a juristic person was involved in trafficking, it was, in the first place, a criminal offence. It would have to be included in the offences Chapter.
Mr Waters proposed replacing "may" by "must", citing the need to get tougher. Ms Stuurman replied that she had no specific objection if that was required. The Committee concurred on the replacement.
Ms C Dudley (ACDP) queried the wording of subclause (2), and suggested the insertion of "exploitative adoption", as she felt that it was otherwise making adoption a criminal act.
Ms Stuurman replied that "exploitative" had not been used, as these adoptions were not always illegal or exploitative. For example, where a trafficker befriended a pregnant woman without financial means, convinced her to give up her baby for cash and took the baby out of the country, selling the child for a bigger amount, the process would be illegal.
Ms Dudley reiterated her call for rewording. Ms Stuurman replied that it would have to be read in conjunction with the definition of trafficking.
Ms Dudley suggested "coerced or irregular adoption", to link to the fact that the Chapter was addressing threats or coercion.
Mr Masutha agreed with Ms Dudley, observing that the phrase was "consent of a child who is a victim of trafficking", and it appeared to be an alternative.
Clause 285: Behaviour facilitating trafficking in children prohibited
This clause had been inserted to provide for the criminalisation of such behaviour.
Mr Waters queried whether this included word-of-mouth, and asked how this could be regulated for and combated.
Ms Stuurman replied that the wording "by any means" in subclause (1)(b) would cover word-of-mouth.
Ms Bogopane-Zulu asked the background to the clause, feeling that no one would place an advertisement for trafficking. There was a practical question of how this could be policed, as advertisements were usually indirect. How would it be implemented?
Mr Masutha referred to subclause (1)(b), which stated "by any means", and suggested the phrase be unpacked. The message had to contain at least one of the elements. There could be a situation where an advertisement was regular on the face of it.
Ms van Zyl proposed referring to "traffic or trafficking". The definition also covered recruitment by any means, and this would cover such an advertisement.
Ms Stuurman remarked that the Committee would be surprised at how many advertisements there were.
Clause 286: Trafficking in children by parent, guardian, care-giver or other person who has parental responsibilities and rights
This clause provided for instances where the parents were implicated, and suspended parental responsibilities and rights pending a children’s court enquiry. The wording had been amended to broaden the scope of the clause.
Mr Masutha remarked that the issue went back to the Chapter on parental responsibilities and rights, and the notion of persons who did not hold parental responsibilities and rights. This clause appeared to allude to those who did. Should those who did not, also not be excluded from dealings with the child? Ms Bogopane-Zulu concurred.
Ms Stuurman replied that the purpose of clause 286 was to remove parental responsibilities and rights. People without parental responsibilities and rights, for example persons minding children, or a crèche, would be covered in the clause dealing with the prohibition of trafficking in children.
Ms A Johaar (State Law Advisor) said that it clearly did not speak only to people with parental responsibilities and rights, as the notion of care-givers was very broad.
Ms Stuurman agreed to revisit the clause.
Mr Masutha referred to the earlier debate on primary care-givers versus care-givers, and the relationship between care-givers, primary care-givers and custodians under current common law. This should be revisited more holistically.
Dr Mabetoa agreed that "care-giver" really applied to children in the care of others not with parental responsibilities and rights.
Mr L Nzimande (ANC) asked for clarity on whether the Committee was trying to say that trafficking in children was a serious offence and there was a need to strengthen the Bill in this respect. Did it cover the situation where a person had committed an offence in respect of one child, but had more than one child? If it was a serious offence, all rights should be removed. In addition, was the scenario of grabbing street children adequately covered?
Ms Stuurman replied that there was a clause protecting siblings elsewhere in the Bill, and the siblings would also be considered children in need of care and protection.
Ms van Zyl referred to clause 154, and said that, when it had been discussed, it had been decided not to restrict it to siblings but to refer to children living on the same premises. If other children were on the premises, it would be investigated.
Mr Nzimande asked whether it was an assumption or a stipulation.
Ms van Zyl replied that it provided for good reason to believe. The person might not be trafficking in children; an investigation should first take place.
The Chairperson noted that orphans were often victims of trafficking and asked whether this had been covered.
Ms Stuurman replied that the definition related to "any child".
Mr Masutha remarked that he doubted whether the clause belonged in this position as he suspected it could be fragmenting the Chapter on parental responsibilities and rights. Other circumstances could lead to the removal of parental responsibilities and rights, not just trafficking. Some reworking was needed to the Chapter on parental responsibilities and rights. There were currently two parallel instances; the first was an individual with an interest in a child who wanted to assert his rights. He could not approach the children’s court, but had to go to the High Court. The only instance covering the children’s court was when state intervention was needed to protect the child. It might be necessary to look at the implications of this. The removal of parental responsibilities and rights was done applying common law rules, but under the provision of a child in need of care, which was currently governed by statute. The concern was that the process might cause confusion.
Ms Stuurman replied that subclause 287(1)(a) had deleted the reference to the children’s court, and had substituted referral to a designated social worker, to bring it in line with subclause 155(2). The fact that the child might be illegally in the country was being ignored, and the Department of Social Development felt the need to give some recognition to the status of that child.
Mr Waters referred to the additional requirement of subclause (1), and asked whether or not every child would be referred to a social worker.
Ms Stuurman replied that, if for example, a child was trafficked from the Eastern Cape to Johannesburg, and was found by the South African Police Service (SAPS) and traced back to the parents. It was debatable whether there was a need to put this child through the children’s court process if the parents were competent.
Mr Waters asked what would happen if the parent had sold the child and then opened a docket of kidnapping.
Ms Stuurman replied that the social worker would have to follow up before the child was returned to the parents. The clause would have to be broadened to include inter-country trafficking.
Ms Mars said it appeared that a hearing was required, but what happened to the child was a licuna.
Ms Stuurman replied that that was not how she read it, as she understood it to mean that the child would be placed in care from the start.
Mr Masutha commented that the clause provided that any child who was a victim should immediately be brought before the court, but the question was by whom, as a value judgement had to be made by someone, or there would be a situation where there was no certainty in law. This might not be a straightforward exercise.
Ms Stuurman replied that categories of responsible people were listed in clause 105 of the Bill.
Mr Masutha reiterated that the difficulty was the dichotomy, as the common law might be looking at the normal situation of a child, while in this situation it might be looking at others in better positions. In this case the Bill was trying to locate a person within the area of trafficking. It might be necessary to create a special formulation.
Ms van Zyl replied that, according to clause 105, a matter had to be reported to a social worker, police service, provincial social services or a designated child protection organisation. It would be helpful to include a provision to report this to someone specific, such as the police, although the police often found the child. Would this solve the problem?
Ms Stuurman said that, once the SAPS found a child that had been trafficked, it was usually reported to Social Services. It was important to also remember immigration officials, who then usually reported to the police. It might be necessary to look at other categories of professions in contact with children in such instances.
Mr Masutha suggested that this might complicate the matter. The area of law dealing with reporting dealt with a situation where someone picked up a hint of something unsavoury. The existing law referred to children that had been neglected or maltreated, and could also allude to children who were victims of trafficking in children, as a part of the compulsory reporting requirement. In the second instance, in respect of the referral system, where one arm of the state noted something, another arm of the state was required to deal with it. There would be an internal referral, and the Bill should not take it beyond that.
The Chairperson asked how relevant reporting was. In the deep rural areas, for example, social workers were very scarce. If a child was picked up, authorities such as chiefs should also be utilised.
Ms Stuurman replied that this linked to temporary placement, and it was the concern of the police whether other forms of safe housing were used.
Ms van Zyl noted that one person of authority that was found in every place was the SAPS and that they had quite broad powers to place a child in temporary safe care. Currently, if the police were called out, for example at 11 pm, and a child was involved, there were places that that child could be taken for the night. In rural areas, it would probably be easiest to report to the police, and something like a chief’s kraal would qualify as a temporary place of safety.
Mr Masutha said that it was essential to create a system of referral. If it was picked up that a child had been trafficked, the first obligation should be to report that to the police. The moment that officials were called in, the child was in the system. This clause required those officials to do a number of things, and they would use the provisions of the Chapter on a child in need of care and protection. One provision was removal to a temporary safe place. The clause should clarity that one of the duties was to assess how the child was reported and then follow the process.
Ms Stuurman replied that the idea was that, once the child was found in need of care and protection, the child would go into the process.
Clause 288: Repatriation of trafficked children
This clause provided for the repatriation of foreign children to their country of origin or trafficking, making provision for an adult escort if necessary. This clause stipulated that a child could not be repatriated without considering the child’s safety and well being in the country to which repatriation was suggested.
The Members agreed that this clause was very similar to clause 283(3) providing for the return of a South African trafficked child from abroad or from elsewhere in South Africa.
Ms Stuurman wanted to broaden the clause 288 to include ‘working’ children across the border, and stated that she would consult with the Department of Social Development on this issue.
Ms Bogopane-Zulu felt that clause 288 should not be exactly similar to clause 283, as each country was different and it would not be appropriate to use exactly the same wording for both in-country and out-country repatriation. Ms Stuurman stated that she would take this into account.
Mr Waters pointed out that the phrase "trafficked child" in clause 288(1) and clause 287(3) should be replaced by the phrase "victim of child trafficking," as not all victims of trafficking had actually been trafficked. Ms Stuurman stated that she would consider this change.
Clause 289: Extra-territorial jurisdiction
This clause extended the jurisdiction of the Republic of South Africa regarding the crime of trafficking in children to all nationals and juristic persons of the Republic, regardless of the location where the crime was committed. The clause prohibited a person who had already been tried on child trafficking charges in another country from also being prosecuted in the Republic.
Ms Stuurman gave the example of a South African national who had trafficked in children in Mozambique, which has no laws against child trafficking. Upon the return of that person to South Africa, that person, as a South African national, could be prosecuted by the Republic for the child trafficking he or she had committed while in Mozambique.
Ms Bogopane-Zulu was concerned about the last portion of the chapter, particularly regarding the implications of the extra-territorial jurisdiction on foreign policy. This chapter might be interpreted by other nations as ‘stepping on toes.’ She asked for clarification on existing legislation and agreements, noting that the Committee should not be involving the Department of Foreign Affairs without their consent. This chapter was too prescriptive, especially as there is no Act dealing specifically with trafficking, and therefore this chapter was misplaced in a bill dealing with children.
Ms Stuurman reassured Ms Bogopane-Zulu that this type of stipulation was fairly common in legislation dealing with cross-border or international crime. There was related legislation that had not yet been passed, the Trafficking in Persons Bill. Therefore, the chapter could be shifted to the Trafficking Bill, although it would create a loophole if removed.
Ms Bogopane-Zulu responded that she had no problem with the principle of the chapter, but the Committee had to consider the implications of this chapter on bilateral, foreign, and other international agreements. She would prefer to cross-refer if the Trafficking Bill was an Act. There were other instances of a similar chapter in legislation. She gave the example of the legality of prosecution of those involved in the attempted coup in Equatorial Guinea after their release from Zimbabwe. Ms Bogopane reiterated the need to regulate how the Republic related to other countries. The chapter had to be effective, not simply empty words.
Mr Waters replied that this chapter was specific, dealing only with child trafficking, and sent a strong message to those in countries with legal loopholes in trafficking legislation that they would be prosecuted when they returned to the Republic.
Ms Stuurman clarified that the chapter would allow the prosecution only of South African citizens and nationals who commit crimes of child trafficking while abroad, not foreign citizens in South Africa. Members agreed that this chapter should remain.
Ms Van Zyl commented that although the chapter provided for extra-territorial jurisdiction in this specific case, there is a worldwide trend to extend territorial jurisdiction for specific crimes often committed abroad. She gave the example of Australians on a paedophile tour in Hong Kong being prosecuted on their return to Australia. There are no significant international implications, as the power would be to prosecute these crimes only when they were committed by South African nationals, regardless of the location of the crimes.
Ms Stuurman promised to revise the chapter in light of the Members’ comments.
Change in terminology describing parental responsibly
Ms Van Zyl introduced the Law Review Commission Report (p. 214-217), which proposed a shift in legislative terminology to "care" and "contact" in legislating the rights of children and responsibility, replacing "custody" and "access" respectively. The Commission suggested that "guardianship" be retained, and defines "guardianship" "care" and "contact." Ms Van Zyl argued that the Law Review Commission’s reasoning in adopting new terms for parental responsibility was not compelling enough to justify the use of the new terms in the Children’s Bill. The argument for the use of "contact" instead of "access" was not referenced and no examples were given in other legislation. "Care" should not be adopted in place of "custody", as no other nations used "care" as a legal term, and that the Commission’s prediction that use of the less-argumentative concept of "care" in divorce proceedings would reduce conflict in divorces was simply wishful thinking.
Particularly as neither "care" nor "contact" was used in divorce law, Ms Van Zyl advocated waiting until the Law Commission reviewed the Divorce Act. If adopted for the Divorce Act, the Children’s Act could be amended to reflect the change, but that to adopt the terms independent of other legislation would create a confusing disjunction. Ms Van Zyl also referred to page 632, where the Commission found that the current terminology of "access" and "custody" contributed to a sense of having to ‘win’ these parental rights in divorce court, rather than emphasising parental responsibility. It would be best to leave contemplation of these changes to the reconsideration of the Divorce Act, rather than rushing to alter them.
Mr Masutha forcefully stated that the Committee should emphasise and promote a shift in view from parental rights to parental responsibility, echoing a shift in the system of family law which was occurring in many countries. Ms Van Zyl’s argument that "care" and "contact" had been used elsewhere was inaccurate, as "care" has already been mentioned in law several times.
Hence, he argued that the concept of "care" was already in the legal system, although with a slightly different meaning than proposed by the Law Commission Report. The Child Care Act, which though it spoke of "care", also made provision for common-law "custody", which led to confusion about the synonymity of "care" and "custody" and questions about the extent and type of "care" meant in the Act. The Children’s Court has no power to transfer "custody" but could transfer "care" as described in Section 214-15, if a child needs to be removed from a parent or guardian. Mr Masutha questioned the extent to which the Children’s Court was empowered regarding "custody", and asked whether the distinction was merely one of location.
He advocating narrowing the legal gap by settling on only one term as an attempt to merge the legal systems was being made. The term "custody" had archaic connotations of ownership, while "care" was perceived as a softer term. Furthermore, where "custody" appeared in extant statutes, this term could be changed retroactively, simply by adding a clause to any law. This clause would state that any reference to "custody" in law should have the same effect as a reference to "care," and would close any existing gap in meaning between the terms. The opinions of the Law Commission were by themselves no inducement for change. It was critical to be innovative and look at global legal trends. Mr Masutha stated his support for the adoption of the ‘softer’ terms, which would reflect changing societal attitudes towards parenting.
Ms Van Zyl ‘back-pedalled’, noting that the decision was up to the Committee, but argued that "care" was not clearly defined as both "custody" and "temporary looking after," among other uses. As "care" was used more often and broadly than "custody," which refers more to a parent-child relationship, "care" can exist without "custody," and vice versa.
Mr Masutha countered that recent judgements had found "custody" to be de facto the person who was caring for the child at that time, rather than "custody" in the legal sense of a right to that child. Hence, the judgements regarding "custody" were in line with the use of the word "care." Although the Law Commission’s arguments were not strong enough to go forward by themselves, the new terminology should nevertheless be adopted.
Ms Bogopane-Zulu questioned how legal practice would be affected if the different terms were adopted and commented that it was a bit pointless to debate the issue at present.
Ms Van Zyl maintained that retaining the old terms would be more practical, as they were used in other legal and international laws, and cited the UN Protocol on International Child Abduction as an example. She re-emphasised the potential for confusion if the proposed terms were adopted, reiterating that all the terminology must be standard, as it would influence how the court viewed the idea of "custody" or "access".
Mr Masutha riposted that the divorce laws dealt principally with husbands and wives, and therefore was not a suitable vehicle to champion concepts of "care" for children. He steadfastly asserted that the Children’s Act must lead and hold primacy in children’s issues. The dichotomy of terms could easily be resolved by issuing a memorandum stating that in past laws, the old terms of "access" and "custody" must be interpreted to mean "contact" and "care," respectively.
Additionally, he noted that legal decisions placing children in the "care" of others was effectively an order of sanctioned custody, no matter the length of the time-frame in question. He gave the example of foster care, asking whether the biological parents retained "custody" of their children in foster care, or whether the foster parents had "custody." He concluded that the artificial distinction between "care" and "custody" must be removed.
Ms Van Zyl said the matter was for the Committee to decide.
The Committee agreed to adopt "contact" and "care" as new terminology with the appropriate legislative cross-referencing, replacing "access" and "custody," respectively.
Clause 5: Intersectoral implementation of the Act
This clause stated that all parts of government on the local, provincial and national level must co-operate in the implementation of the Children’s Act.
Ms Bogopane-Zulu preferred the alternative proposal of this clause for uniformity and clarity. The alternative proposal was adopted by the Committee.
Clause 6: General Principles
This clause outlined the principles under which this Act was conceived, including the Constitution and the rights to dignity, fair treatment, and the meeting of developmental needs, as well as basic guidelines for the execution of the other portions of the Act.
Ms Van Zyl noted the addition of "disability" to Clause 6(2d) and the addition of Clause 6(2df), reading that all proceedings, actions, or decisions in a matter concerning a child must "(f) recognise a child’s disability and create an enabling environment to respond to the special needs that the child has."
Mr Masutha agreed that this addition resolved the earlier concern of Ms Bogopane-Zulu that the child’s health and disability status were conflated in the erroneous perception that people with a disability also necessarily had a health problem.
Ms Bogopane-Zulu commented that there was still a problem with the compromise, as many chronic, disabling conditions, such as epilepsy, were fundamentally health problems, but agreed to the compromise nevertheless.
Ms Van Zyl noted that the notions of disability and chronic illness were also disaggregated in Clause 7(1i) and 7(1j)
Clause 13: Information on healthcare
This clause stated that children had the right to health information in an appropriately accessible format.
Ms Van Zyl noted that the phrase "and treatment" was added to subclause 1(a), and that subclause 2 stipulated that health information must be made available to children in a manner they could understand.
Clause 21: Parental responsibilities and rights of unmarried fathers.
This clause outlined the various means by which unmarried fathers could gain parental rights and responsibilities for a child and stated avenues for resolving a dispute about the acquisition of these rights and responsibilities.
Ms Van Zyl stated that subclause 1(a) outlining the gaining of parental rights by a father if he was in a "permanent conjugal life-partnership" was added, with the wording the same as in the section of the Bill dealing with adoption rights.
Mr Masutha asked whether this definition was factual or legal in nature, and whether the relationship had to be intended as permanent, and proposed "cohabitation" as a possible substitute to cover the possibility of a couple living together in a stable relationship but lacking a life-long commitment.
Ms Stuurman noted that the term "permanent conjugal life-partnership" legally could only refer to a married relationship. She advised that the Committee should not attempt to dictate the requirements for a valid marriage, as that would have the effect of changing the common law, and noted that parents could have rights and responsibilities over their children even if the relationship between the parents was not a marriage.
Ms Bogopane-Zulu asked whether the wording could simply be changed, perhaps stipulating cohabitation of at least three years.
Mr Masutha stated that the Committee was facing a policy choice and had to decide whether parental rights and responsibilities ought to be linked to a specific duration of a relationship. He proposed alternatively that the father should have parental rights and responsibilities beginning at conception, birth, or some specified point thereafter, so long as he was still in a relationship and living with the mother. Therefore, the rights of the father would be terminated when the relationship ended unless he had applied to the court to maintain his parental rights and responsibilities. This proposal would create a situation where fathers did not have to fulfil their responsibilities to their children if the relationship failed, at which time the children would return to the sole care of the mother.
Ms Van Zyl staunchly stated that it was discriminatory to give parental rights to married fathers and withhold them from unmarried fathers, simply on the basis of being married or unmarried. There ought to be a specific arrangement for unmarried fathers to keep their parental rights following the dissolution of the relationship, as there was with divorce. Under Mr Masutha’s proposal the mother would be able to blackmail the father to stay with her for fear of losing his parental rights and responsibilities.
Mr Masutha stated that the clause needed clarification, and suggested the addition of "at the time of birth," as it was a clear and indisputable event.
Ms Van Zyl argued that subclause 1(a) was included at the request of the Committee. In subclause 1(b)(ii), the stipulation that parental rights would be awarded after the father had contributed or attempted to contribute to the child’s upbringing for "a reasonable period" was vague and likely to be interpreted as very different lengths of time by different courts.
Ms Bogopane-Zulu queried how the previous stipulation of 12 months would have been measured, noting that it would be possible for that phrase to be interpreted as 12 individual months. It was appropriate for this issue to be left to the courts to decide what a "reasonable period" would be, as these debates only occurred when there was already conflict and dispute.
Ms Makasi noted that the intent of the phrase "a reasonable period" was, when there was a dispute about parental rights and responsibility, to avoid the assumption of instant rights by the father if he was not around. This could resolve possible hardship for the mother. She argued for leaving the phrasing "a reasonable period" and allowing the court discretion, keeping in mind the best interests of the child and not shutting the court out of the decision-making process.
Dr Madeto noted that the Committee had to trust the professionals: the courts and social workers.
Mr Masutha preferred the subclause to provide for the giving of parental rights and responsibilities "in relation to" contributions to the child’s upbringing rather than conditional on it.
Ms Van Zyl stated that the original idea had been to assign parental rights and responsibility to the father automatically, as after 12 months he had either complied or not complied with the conditions. However, there was potential for disputes about the extent of compliance, which would necessitate going to court anyway. Currently, only the court could decide, requiring time, effort, expense, etc. on the part of the applicant for parental rights. The intent was to expedite the acquiring of rights easily if the terms had been complied with, with mediation a possibility if the father and mother were in disagreement about whether the father had earned parental rights and responsibilities.
Ms Van Zyl argued for the phrase "a reasonable period" on the basis of an imaginary example case where a woman wanted to immigrate to New Zealand with her 18-month old child to marry another man. However, the father had paid his maintenance duties and wanted the child to remain in the country. The stipulation that he must have made 12 months of contributions could unduly prevent him from gaining parental rights to keep his child in the country. She noted the complexity of the issue, where if the phrase "reasonable period" was used, the parents must go to court anyway if what was "reasonable" could not be agreed on.
Mr Masutha was concerned about the gaining of parental rights by performance of set duties, noting that fathers could stop complying with the conditions as soon as they had gained parental rights and responsibilities. While 12 months was a reasonable period and should be considered a basic timeframe, it should not be specified by law. This would prevent the mother from moving away or emigrating at the point just before the father’s rights would come into effect after the 12 months.
Mr Godi stated that the Committee should agree on either "a reasonable period" or a specific amount of time, after which parental rights were gained.
Mr Waters reminded the Committee that they had never agreed on the terms in subclause 2(a) of clause 21.
Mr Masutha asked if "cohabitation" was problematic, as it suggested living like husband and wife.
Ms Stuurman inquired if the requirement would stipulate "cohabitation" only, or the existence of a relationship as well.
Mr Masutha questioned whether "conjugal" necessarily implied a married relationship.
Mr Waters asked if the removal of the word "conjugal" from the phrase "permanent conjugal life-partnership" would solve the problem.
Ms Van Zyl stated that there would be no problem removing the word "conjugal," and that either "cohabitation" or "permanent life-partnership" would be acceptable phrases.
The Committee adopted "permanent life-partnership" as the amended phrasing of subclause 21(1)(a)
The meeting was adjourned.