Children’s Bill: deliberations

Social Development

23 May 2005
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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
24 May 2005
CHILDREN’S BILL: DELIBERATIONS

Chairperson:
Ms J Tshivhase (ANC)

Documents handed out:
Clause 11: Children with disability or chronic illness (see Appendix)
Chapter 7: Protection of Children
Chapter 9: Children in Need of Care and Protection
Children's Bill [(B70-2003) Reintroduced]

SUMMARY
The Committee continued its deliberations on the Children’s Bill. A proposed amendment to Clause 11 was introduced and accepted, separating provisions relating to a child with a disability and a child with chronic illness.

The Committee returned to its debate on the National Child Protection Register, approving an amendment providing that a person who failed to disclose that he or she was listed on Part B of the Register was guilty of misconduct. This addressed the conditions of employment fears that had been raised the previous day. Public access to the Register was discussed, and the Department emphasised that access would be given only to managers of child-care or educational facilities, who would require the information when investigating current or prospective employees. It was agreed that the manager or owner of such a facility would have to check whether the names of existing employees appeared on Part B of the Register within twelve months of the commencement of the Act. The Department would then have six months in which to reply to these requests for information. It was also noted that a person could apply to have his name removed from the Register, after a period of five years, unless he was identified as a chronic offender.

The issue of consent to medical treatment of and surgical operations on children was debated at length. The Department confirmed that the consent of a guardian was required for surgical operations on a child under the age of 12 years, or a child of insufficient maturity or mental capacity to understand the benefits, risks and social implications of the procedure. Caregivers were capable of consenting to medical treatment. It was noted that this would cover HIV/AIDS treatment.

The Committee debated the provisions relating to a child in need of care and protection. It was agreed that, when a social worker was notified of a child possibly in need of care and protection, that social worker should first investigate the circumstances and then make a recommendation on whether the child should be referred to the children’s court. It was noted that there were many circumstances in which the social worker could provide alternative counselling and support services to the family where the child was not necessarily in need of care and protection. The social worker would then continue to monitor the situation. If a child was removed to temporary safe care in an emergency, the matter would automatically have to be referred to the children’s
court.

MINUTES
Dr M Mabetoa (Department Chief Director: Child, Youth and Family) announced that the theme for International Children’s Day on 1 June 2005 would be "caring communities protect children". The sub-themes would be "child protection is everybody’s business", "put children first", and "your child is my child". The Department had been using "child protection is everybody’s business" for the past five years, but the focus was now moving down to the community level. Three awareness programmes would be launched, as well as the campaign on national adoptions. The green ribbon campaign would be launched, with the green ribbon signifying child protection and child development. Pamphlets would be distributed at various locations to raise awareness about the establishment of childcare committees and forums.

Clause 11: Children with disability of chronic illness
Subclause 11(1) was amended to provide for social, cultural, religious and educational activities, recognising the special needs that the child might have.

Discussion
The Chairperson noted that it was agreed.

Ms W Direko (ANC) noted that the Department of Education was planning to integrate children with disabilities into ordinary schools and expressed concern that some children were so severely disabled that they would not be able to cope with standard schooling.

Ms H Bogopane-Zulu (ANC) observed that this was the reason behind the insertion of "special care as and when appropriate".

Clause 124: Disclosure of entry of name in Part B of Register
Subclause (1) (a) had been amended. As a result of the previous day’s discussion, it was proposed to insert a subclause (2) here in respect of a person who failed to disclose that s/he was on the Register. "A person contemplated in subsection (1) who fails to disclose … is guilty of misconduct and his or her services may be terminated as a result thereof".

Discussion
Mr Waters proposed that the clause use "must".

Ms R van Zyl (South African Law Reform Commission [SALRC]) replied that it might be possible to make an arrangement for that person not to have access to children, and that opportunity had to be provided for.

Mr T Godi (PAC) asked whether the provision was gender sensitive. Ms van Zyl replied that "his or her" was used.

Clause 125: Access to Part B of Register
Access to the Register was heavily restricted to government officials, but subclause 1(e) had been inserted because foster care and adoption were usually done through a designated organisation. It therefore had to be possible for these organisations to ascertain whether an applicant for foster care or adoption appeared in Part B of the Register.

Discussion
Ms Bogopane-Zulu used the example of a paedophile moving into the neighbourhood, and asked how this could be dealt with. This had been one of the issues raised when the Law Commission was working on the Bill.

Ms van Zyl replied that that would be the "name and shame" principle. It had been decided not to use this system in South Africa because of the privacy clauses in the Constitution. The public at large would not be able to access Part B of the Register.

Ms Bogopane-Zulu remarked that this would be of particular interest to a community.

Ms Rajbally asked how it would be possible to keep quiet if you knew that that person could do harm. Privacy was a good concept, but the community and children had to be protected. There should be some way of warning them.

Mr Godi noted that there was a penalty clause providing for persons whose names appeared on Part B of the Register to be found guilty of misconduct for non-disclosure. He suggested a penalty clause for the managers of institutions as well, as they were supposed to check on the backgrounds of the people applying. There was an obligation on management, and there should be a penalty if that obligation was not fulfilled.

Ms I Mars (IFP) expressed concern at the questions, as the public would not have access to the Register.

Ms A Johaar (State Law Advisor) replied that, in terms of Clause 298 of the Bill, it was an offence for someone operating an institution to employ such a person, and similarly Clause 124 made it an offence in the later part of the Bill. If you were guilty of such an offence you would be liable for a fine or imprisonment of up to 10 years.

Ms van Zyl concurred with Ms Johaar, noting that any parent or person with parental control over a child had a duty to protect that child against abuse. There were unfortunately countries that applied the "name and shame" principle, and this was considered when the Bill had been drafted. Consideration had also been given to the possible damage to persons whose names were wrongfully published, and it was emphasised that great care should be taken when broadcasting people’s names. There was a strong vigilante element in some communities and people should not be exposed to these actions. It was very easy for a community to conclude that someone’s name was on the Register, and the decision had been taken to restrict access to the Register. The idea of the Register was not to take over the duty of care and protection of guardians over their children.

Clause 126: Establishment of information in Part B of Register
Subclause (1) (a) had been amended to ensure that there was not a closed list of institutions.

The previous day, the Committee had discussed the possibility of imposing an obligation on a manager or person operating a facility to, within a year after the commencement of the Act, enquire from the Department of Social Development whether their current employees’ names were on the Register. The Department had a duty to respond to an enquiry within 21 days, but towards the end of that 12-month period, they would probably receive a flood of enquiries. It was suggested that a three-month period be allowed in respect of enquiries related to current employees.

Dr Mabetoa requested that the Bill provide for a six-month reply period as the Department might need to go back to the provinces.

Ms van Zyl replied that there would be no need to go back to the provinces. The problem was simply that there would be a flood of enquiries towards the end of the year.

Dr Mabetoa confirmed that six months would be better as the Department was unsure of the implications of this provision.

Mr Waters asked how many people from the Department would be working on the Register. Dr Mabetoa replied that the Department had started establishing Part A of the Register three years before and that it was not yet fully operational because the national Department was struggling to connect with the provinces. It was an ongoing process.

Ms van Zyl suggested that there would be a clearer picture once the costing had been done. Once the Bill was through the first process, the South African Police Service (SAPS) would have to change the way they kept their statistics. There had been discussions with the SAPS, and the Department could ask the SAPS to inform them of the projected time. The Department of Justice would also have to assist in the process.

Mr Waters asked how long it would take until a decent base of information was available for Part B of the Register, once the Bill had been passed and had become an Act.

Ms van Zyl replied that, in terms of the Interpretation Act, once the Act had been signed by the State President, regulations could be drafted, and the Register could then be started. It was difficult for the Department to give a firm reply as they were dependent on the SAPS and the clerks of courts. The SAPS were aware of this, but at present did not distinguish in their statistics between child victims and adult victims, so there would have to be a change in the way in which they maintained their statistics. Systems would also have to be put in place, and provision was being made for a smooth flow of information between the Department and the SAPS. The Department of Justice would also have to be consulted, because the clerks of courts would also need to supply names. A lot of groundwork would have to be done before Part B was ready to operate.

Mr Waters noted that he received child statistics every year, so there must be some facility for this.

Ms van Zyl suggested that the SAPS be requested to give an indication of how long it would take to change their systems.

Clause 127: Disclosure of names in Part B of Register prohibited
When the drafters had looked again at the Sexual Offences Register, they saw there was no provision that imposed a duty on the Director-General to inform a person that his/her name would be entered in the Register. This was a requirement in the Sexual Offences Register. It was recommended that a subclause (3) be added to provide that the Director-General had to inform a person found unsuitable to work with children that his name would be entered on the Register. The Committee concurred.

Clause 128: Removal of name from Register
A person might apply to have their name removed from the Register after a period of five years, but there were additional measures in the Sexual Offences Register. It was considered advisable to add a subclause (4) to provide that the name and particulars of a person convicted of abuse of a child more than once would not be able to apply to have his name removed.

Discussion
Mr Waters asked whether this meant abuse of the same child on more than one occasion. Ms van Zyl replied in the negative and suggested amending the wording to "any" child.

Mr Godi asked whether this would apply to a person who was convicted in the same trial of having abused, for example, three different children on three occasions. Ms van Zyl replied if he was charged with regard to three children, but tried in the same case; it was more than one offence. Ms Johaar concurred.

Ms Rajbally suggested that the removal of the listing after a certain period was for first time offenders, so that in an instance as suggested by Mr Godi, this would not apply.

The Chairperson asked about an instance where a person raped a mother and child on the same day. Ms van Zyl replied that the rape of the mother would not count, as the Register referred exclusively to abuse of children. The Sexual Offences Bill Register was also aimed only at children.

Ms Bogopane-Zulu remarked that the Sexual Offences Bill Register should also be for adults.

Ms van Zyl pointed out that the Register proposed under the Children’s Bill was much broader than that proposed under the Sexual Offences Bill.

Mr J Sibanyoni (ANC) remarked that this was complex, and indicated that the non-removal of a name from the Register was intended for those persons who had not learned from their convictions. A person convicted of a series of offences would have a strong case to say that he had only been convicted once. The punishment was intended for a person who, despite one conviction, had again offended.

Ms van Zyl asked whether the House wanted a person in one court case, convicted of offences against three children, to have his name stay on the Register forever, or whether a second time offender only be penalised, regardless of the number of children involved.

The Committee noted that there were serial rapists, and concurred on the first option.

Ms Mars remarked that the fact that a rapist was caught in one case did not mean that there were no other cases against him that had not been prosecuted.

Mr Godi remarked that he hoped that rape was not exclusively used in this instance, as he had meant generic offences against children.

Ms van Zyl explained that in the case of conviction on murder, attempted murder, rape or assault with intent to do grievous bodily harm, the offender’s name had to be on the Register. In other cases, the court had discretion to include the name. A person could be found unsuitable to work with children, even though that person had not been convicted of an offence. For example, if a person was released on a technicality, the court could, in such a case, still find that person unsuitable to work with children. This could even occur in a case. The restriction was aimed at offences against children, not just rape.

Part 3: Protective measures relating to health of children

Clause 129: Consent to medical treatment and surgical operations
The Committee had requested that Part 3 be re-inserted into the Section 75 Bill. One of the amendments effected was the deletion of "primary" caregiver, since that term was no longer used. This exclusion would apply only to consent to surgical operations. In some cases, the hospital could consent to a surgical procedure, but in the cases where there was no one to give consent, application could be made to the provincial head of Social Development, or the court. The current Child Care Act made provision for the Minister to give consent, but it had been felt that, since services were rendered at a provincial level, it should be made the responsibility of the provincial head.

Ms Bogopane-Zulu asked for an explanation of subclause (6) (b).

Ms van Zyl replied that the wording had been taken from the current Child Care Act, and that it referred to the type of case where a person might be in an accident, lying in the hospital in a coma, and mentally unable. If a parent or guardian found it difficult to communicate, this would not make them unfit.

Ms Bogopane-Zulu asked for the two to be separated. If "physical and mental" were together, it implied physical in relation to a disability, and this was literally what it meant in the Child Care Act.

Ms van Zyl proposed putting mental and physically incapable in two separate paragraphs, and invited proposals for an amended wording.

Ms Bogopane-Zulu replied that she would propose wording. With the amended Mental Disability Act, a person would have to be declared mentally unable by a court. The qualification of mental disability should be checked.

Ms Johaar suggested the deletion of mentally or physically, and retain "if the parent or guardian is incapable of giving consent".

Ms Bogopane-Zulu felt that if the person were mentally incapable, there would be documentation to support this.

Ms Rajbally referred to Clause 129(3) and asked for clarity on how it could be a child’s child. Ms Bogopane-Zulu replied that there were numerous mothers over 12 years.

Ms van Zyl said that the distinction was that any child might, without the assistance of a parent, consent to medical treatment, but when a surgical operation was involved, the consent of a parent or guardian was required.

Ms Rajbally suggested that this be embodied in the Bill. Ms van Zyl replied that it was contained in subclause (2).

The Chairperson noted that only one person was required and asked which parent would be involved. Ms van Zyl replied that, in terms of the Interpretation Act, the singular implied the plural as well.

Dr Mabetoa asked how this was related to parental responsibilities and rights for children with children. Ms van Zyl replied that this had been cross-referenced.

Mr Waters asked why the reference to a caregiver had been deleted and whether a caregiver could consent to a medical procedure.

Ms van Zyl replied that, in terms of Clause 32, a caregiver could give consent for medical treatment. This applied not only to a caregiver, but to a person who had no parental responsibilities and rights but who voluntarily cared for a child. A caregiver would be anybody that was looking after a child. A primary caregiver had been mentioned only in certain clauses regarding the care of children, and had therefore been deleted. In this clause, a caregiver could not give consent for an operation. It would be easy for a medical person to ascertain whether someone was a parent, but it would be difficult to ascertain whether that person was a caregiver or primary caregiver, so the Bill stipulated only parent or guardian for surgical operations.

Mr Waters expressed concern, given the HIV/AIDS pandemic, that there were a lot of children without parents and guardians, and who relied on caregivers. These children would be compromised. The caregiver was excluded from consent to medical treatment in subclause (4) as well.

Dr Mabetoa remarked that, with the agreement with the HIV/AIDS sector, the head of department in the province would give consent, but this was delegated down to the chief director, so that it was now more accessible. The issue referred to by Mr Waters had related to the HIV/AIDS test, and this was a difficult decision to take. It was confidential, but with children, the Department would be saying that literally anyone could give permission to take the test. There was a query over how far this could be permitted.

Ms van Zyl clarified that a child could give consent for medical treatment. A caregiver could also give consent for medical treatment. The consent of a parent or guardian was required only for a surgical operation. Parental consent was not required for HIV/AIDS treatment. Subclause (4) would be changed if it did not make that clear.

Mr Masutha noted that the concept of primary caregiver in the Social Assistance Act was aimed at a dispute resolution mechanism. The issue of primary caregiver did not arise anywhere in the Children’s Bill, but was simply a concept for grants. The extent to which the Bill sought to distinguish between the parental responsibilities and rights it chose to accord a caregiver versus those for a parent or guardian was not clear. The definition of caregiver currently included the director of a children’s institute, and a whole mix of circumstances could be involved. Would the removal of caregiver in relation to surgical treatment also imply that the head of a children’s home would also not be able to give consent for this? Had provision been made for the possibility of such an institution to become both caregiver and guardian for all intents and purposes?

Ms van Zyl replied that currently the head of a child and youth care centre could not consent to an operation; this would be done through the Minister. The Bill proposed the head of Social Development in the province.

Mr Masutha asked why it was no longer the responsibility of the Minister. Ms Muller replied that it would be more accessible if delegated to the provincial head. Mr Masutha queried the appointment of the head rather than the MEC. Ms van Zyl replied that most delegated powers were given to the provincial head of the department.

Dr Mabetoa said that according to the 1993 Act, it was stipulated that this power be delegated to the head of department.

Mr Masutha said that he was not raising the issue of delegation, but the question of giving powers. In principle, this might not be a good idea. It was the responsibility of the Minister to declare children mentally unfit. The executive functionary should have the responsibility to make the decision on behalf of the state. It was strange that the executive function had been removed and given to an administrative functionary. The powers should be located in the most senior person in that line function. When it came to certain things, it became critical that either the executive or judiciary took responsibility for making decisions. Heads of departments were public servants. There was no problem with providing the possibility to delegate, but the function should be located within the higher office in the first instance.

Ms van Zyl replied that the change had been made because the services delivered to children were on a provincial level.

Mr Masutha suggested that the MEC be nominated instead. Mr Waters asked whether this was practical. Mr Masutha replied that there was always provision for delegation.

Ms Johaar stated that it would not be a problem to have the Minister, the MEC or the head of department.

Ms Bogopane-Zulu indicated that, since it was a provincial competency, it did not make sense to give it to the Minister. The MECs would be more suitably qualified, and provision could then be made for delegation.

Ms Johaar replied that the Bill allowed for delegation. The Department had indicated that the function was delegated down to the bureaucratic level, and that by including it in the legislation, they would ultimately be held responsible. It was also possible to hold a political head responsible, and delegation was thus provided for.

Mr Masutha suggested that, if the responsibility was put at the level of the Director-General, the Minister would not be able to review it. At times, for issues of community and national interest, the political head was not just concerned with formality but took into account the mood of society. Both the political environment and a whole range of factors informed decision making, hence issues such as consent for leave of absence, or for removal of a foster child from the country were usually handled by the Minister.

Ms Bogopane-Zulu proposed that the responsibility be given to the level of the MEC. At a provincial level, the MEC would have the same responsibility as the Minister. It would also be acceptable to give it to the national Minister.

Mr Masutha noted that, if the responsibility was put at the provincial level, the national Department was excluded altogether. Whatever the Committee decided, there would be implications, because if it were pitched at a provincial level, it would be a direct budgeting responsibility and carry legal obligations as well. If it were pitched at the national level, there would be a delegated unfunded mandate.

Dr Mabetoa noted that it had been framed in this way to take into consideration the realities at provincial level particularly. The Minister would, however, cover all children including those from other countries, who would otherwise not be covered here.

Mr Masutha noted that the Minister could of course delegate that function. It was agreed to vest the responsibility with the Minister.

Mr Waters asked for clarity on whether the insertion of caregiver regarding consent to medical treatment would include the heads of children’s homes and foster parents. If one cross-referenced Clause 32, no mention was made of heads of children’s homes and foster parents.

Ms van Zyl replied that definitions would be dealt with at the end of the Bill, and that the definition of caregiver would be addressed. At present, kinship caregiver, informal kinship caregiver, a person caring for child in temporary safe care and foster parents were already covered. The heads of childcare facilities would be inserted as well.

Clause 142: Regulations
Paragraphs (g) and (i) had been inserted.

The clause dealt with the Minister’s ability to make regulations. When the drafters had earlier referred to processes and procedures to be established with the SAPS amongst others, this was what had been referred to, with the requirement imposed here so that there could be a detailed procedure stipulated by regulation, with time periods.

CHAPTER 9: CHILD IN NEED OF CARE AND PROTECTION
When the Bill had initially been discussed, this Chapter, apart from Clause 150, had been in the Section 76 Bill, but the Committee had requested that it be re-inserted into the Section 75 Bill. It had appeared logical to re-insert Part 2 as well. The drafters had consulted the Department of Justice since the provisions related to court procedures and the justice authority, and the Department had concurred.

Part 1: Identification of a child in need of care and protection

Clause 150: Child in need of care and protection

Subclause (2) had been added, identifying three instances where a child was not necessarily in need of care and protection, but where it might be necessary to do an investigation. This would include a child who was a victim of child labour. This concern had been raised by the Department of Labour. This child would not necessarily be in need of care and protection, for example a child who was picking fruit for pocket money rather than a child who was locked in a factory. The same applied to illegal unaccompanied foreign children, and it had been determined that not all of these children were in need of care and protection, as was the case with refugee children.

Clause 151: Removal of children to temporary safe care by court order
Clause 155 had provided for a new procedure in line with current practice, but that had not yet been formally recognised in legislation. When a child was found in circumstances indicating that the child was possibly in need of care and protection, the child would not necessarily be referred straight to the children’s court. Social workers would first do an investigation. This issue had been formally brought into the Bill in Clause 155. Subclause 151(1) included the referral of a child to a children’s court immediately, but this would have to be amended if Clause 155 was accepted. The cross-reference would have to be inserted in Clauses 151 and 152. Reference to a primary caregiver was also removed, in line with the decision to drop the concept of a primary caregiver.

Discussion

Ms Bogopane-Zulu referred to subclause (2) and asked whether it would be possible to include designated organisations, in order to accommodate the shortage of social workers.

Ms van Zyl replied that "designated social workers" was actually broader, as it included social workers working for the national departments or provincial departments or a designated organisation.

Ms Bogopane-Zulu responded that she was considering the introduction of auxiliary workers, and asked whether the subclause referred exclusively to a social worker.

Dr Mabetoa replied that someone had to be accountable. In a case of malpractice, the social worker would be charged, not the organisation for which she worked. Even if an auxiliary worker assisted her, she would be held responsible.

Ms Johaar observed that "designated social worker" was defined in the Bill as a social worker in the employ of the state or of a designated organisation.

Mr Waters reiterated that, although the Bill addressed civil matters, when he had visited the sexual offences courts, one of the biggest causes of delay had been social workers’ reports, because of the shortage of social workers. The magistrate relied on the reports to make a finding and a decision on sentence. While not all cases needed to go to court, the children concerned would still have to wait a long time because there were no social workers.

Dr Mabetoa replied that a reasonable time frame could be inserted, as contained in the Child Justice Bill.

Ms van Zyl replied that if the problem were a lack of social workers, a timeframe would not solve the problem, as it would cause the social worker to rush the investigation.

Dr Mabetoa referred to the utilisation of auxiliary social workers to assist on the ground, because social workers were ultimately responsible for statutory services. This was specialised work and was statutory. She would support the insertion of a reasonable timeframe.

Ms Bogopane-Zulu concurred with the insertion of a timeframe, but cautioned that the Child Justice Bill had been withdrawn partly because of all the timeframes.

Ms van Zyl noted that there had been a query on where child headed households and street children and vulnerable groups were situated in this respect, so that their needs were not ignored. The best place for this would be in Clause 150(2) as an insertion to the list. This would indicate that they were not necessarily children in need of care and protection who had to go to court, but that a social worker had to assist them. Other assistance measures could be used if the case was not referred to the children’s court.

Before a child would be dealt with under Clause 151, there would have to be a finding that the child had been abandoned or exploited. The addition simply meant that a social worker had to investigate the circumstances of the child. The social worker might, for example, not find it necessary to refer the child to the court, but be able to apply prevention and early intervention services, or refer the parents for parental training. The Law Reform Commission had initially included a full chapter on children in especially difficult circumstances and the concern was that, when that was deleted, these children might fall through the cracks. This provision would form subclauses (d) and (e).

Clause 152: Removal of children to temporary safe care without court order
In both Clauses 151 and 152, "caregiver" would have to be substituted for "primary caregiver", and the cross-references amended.

Clause 153: Written notice to alleged offender

This Clause had been requested by the SAPS.

Clause 154: Siblings in need of care and protection
It had been decided that reference would be made to "child found in the same place or on the same premises", rather than a sibling.

Part 2: Children’s court processes
This part of the Bill was currently in the Section 76 Bill, but it had seemed sensible to return in to the Section 75 Bill, as it also linked to the courts chapter.

Clause 155: Decision of question whether child is in need of care and protection
Subclause (2) was inserted to bring the Bill in line with the practice that the social worker should first investigate the matter when it went to court. If a matter was taken to the court without this investigation, the court would refer it for investigation.

After the Clause had been drafted and put to the Department, they had recommended that a social worker in terms of (b) would not make a finding that the child was in need of care and protection. He/she might find that child should not be referred to a children’s court, but still be obliged to implement any other measures necessary for the protection of the child. The drafting of this suggestion would be discussed with the Department.

Discussion
Ms Rajbally referred to subclause (2) (c), and expressed concern that the child would be returned to the person from whom he or she had been removed.

Ms van Zyl replied that the whole subclause dealt with children in respect of whom it was found that there was a small problem that did not need to go to court. Clause 152 provided for the removal of a child to temporary safe care as an emergency measure. The social worker might find an allegation of abuse false, but might feel there was alcohol abuse in the family, so would refer the family for prevention and early intervention services. If the court felt that this was a serious matter, the court had to confirm the order for temporary safe care. If the social worker was in doubt as to whether the child could be returned, the child had to be referred to the court.

Mr M Malahlela (ANC) referred to subclause (2) (c) and asked what the procedure would be if the child had to go to court. Would the social worker be able to apply for a court order made on the basis of the investigation, without the necessity of a hearing?

Ms van Zyl replied that this measure had been designed to alleviate the burden on the courts. A social worker did not have the authority to decide to remove the child and place that child in a youth care centre, foster care or temporary safe care, but that that decision had to be made by the court. It was impossible to get away from the fact that there were still cases that would have to go to court.

Mr Malahlela replied that his point had been in relation to the process. What was the relationship between a formal hearing and a judicial officer making a decision on the basis of the investigation already done? This was similar to a judge making a decision in chambers.

Ms Muller replied that, in practice, a social worker would receive a referral, investigate and assess whether or not the child needed to go to court. A child found in a potentially harmful situation could be removed, but the court would have to be informed the next day, and a children’s court hearing opened. The Commissioner for Child Welfare would then order an investigation. If the child was in need of care, the social worker would prepare a report and recommend the child to residential care, for example, but might find that the child was not in need of care, but in unfortunate circumstances. The child could be placed under the care of the social worker, and return to the court in three months, or a similar period.

Ms van Zyl reminded the Committee that the provision referred to the proceedings of a children’s court, and that these were different from the normal proceedings of other courts. They were already informal and geared to accessibility. They were thus already in chambers in the High Court.

Ms Muller pointed out that the hearing was not in open court, but that only the social worker, family and court officials would be present.

Ms van Zyl said that it was envisaged that, if a report were made that a child might be in need of care and protection, a social worker would do a proper investigation and make a finding. If the social worker’s investigation revealed that the child should be kept away from the family, the case would have to go to court. The child would otherwise have to be returned, as the social worker did not have the authority to keep the child away.

Mr Malahlela asked whether this meant that social workers were simply there to perform investigations, and what the relationship was between the work done by a social worker and a police officer. The social worker should have the power to recommend what would happen to the child.

Ms van Zyl referred to the following subclause, now (3), which gave the social worker the discretion to do an investigation. If it was not a small matter, she would have to refer the matter to the children’s court. She was not just a "conveyor belt" doing an investigation. The provisions attempted to cover both smaller matters that did not need to go to court and more serious matters where the social worker would have to make a recommendation to the court on how to deal with this child.

Dr Mabetoa addressed the notion that social workers would be looking at the investigation in a mechanical way. If the family was in crisis while the social worker investigated, she would provide whatever counselling or other services that family required during the investigation. After the investigation, the social worker would recommend alternative services to be provided if the child was not referred to the children’s court. This was already happening in practice.

Ms Muller explained that social workers were trained in therapy, divorce and family counselling, family rehabilitation and reconstruction and the implementation of legislation. An important part of their work was the compilation of a report to motivate that the child was in need of care and protection. They were not just people coming in with a certain perspective to implement a decision. They had received four or more years of training in therapeutic and other skills. It was important to take note of the skills, training and knowledge of social workers as social work had a very strong counselling, therapeutic and mediation bias.

Mr Malahlela suggested that (c) was not necessary.

Ms van Zyl replied that the best way to illustrate this would be by a practical example. If a person called a child protection organisation, saying that there were terrible things happening at the neighbour’s house, for instance, shouting and screaming, and it had to be investigated. A social worker would be sent out, and on arrival might find the whole place in chaos, with the father and mother ranting and raving. In these circumstances, the social worker would use her emergency powers and take the children away, placing them in temporary safe care. The next day, the social worker would start the investigation, and return to the house to talk to the neighbours. The child would now have been removed and would be in temporary safe care.

The social worker might discover that this was usually a quiet and demure family, but that, at the end of the month when the father was paid, they would drink and fight. She might decide that this was not a child that needed to go to court and that there would be no danger in returning the child to the family. The child would be returned, but the social worker would monitor the family, refer them for counselling and for alcohol abuse treatment. The problem could be solved with counselling. If the social worker investigated and found that this was consistent behaviour, and therefore a serious matter, it would have to be referred to the court. It was a huge trauma for the child to be removed.

Ms W Newhoudt-Druchen (ANC) requested that "with follow up" be added to subclause (2) (c) because if at the end of a month, the child could go home, the law was quiet on the follow up process. This should be expressly stated.

Ms van Zyl replied that the problem of follow up would be addressed in the extra paragraph to be inserted to indicate the measures that the social worker must take if the issue was not to go to the children’s court.

Ms Rajbally asked whether it would be considered continuous if this problem occurred in the house every month-end.

Ms van Zyl replied that when she had used the example, she had been trying to distinguish between a situation which immediately necessitated the removal of the child. She did not know how social workers would regard such a pattern, but she was certain that this was a different scenario from that where the father was promoted, and there had been a once-off party. The solution would suit the problem at hand.

Dr Mabetoa raised the issue of the use of "control" and suggested the use of "care", as it had been agreed that this would be a better and more progressive term. This was agreed.

The meeting was adjourned.

Appendix:

Children with disability or chronic illness

11. (1) In any matter concerning a child with a disability due consideration must be given to―

(a) providing the child with parental care, family care or special care as and when appropriate;

(b) making it possible for the child to participate in social, cultural, religious and educational activities, recognising the special needs that the child may have;

(c) providing the child with conditions that ensure dignity, promote self-reliance and facilitate active participation in the community; and

(d) providing the child and the child’s care-giver with the necessary support services.

(2) In any matter concerning a child with chronic illness due consideration must be given to―

(a) providing the child with parental care, family care or special care as and when appropriate;

(b) providing the child with conditions that ensure dignity, promote self-reliance and facilitate active participation in the community; and

(c) providing the child with the necessary support services.

(3) A child with a disability or chronic illness has the right not to be subjected to medical, social, cultural or religious practices that are detrimental to his or her health, well-being or dignity.

 

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