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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
25 May 2005
CHILDREN’S BILL: DELIBERATIONS
Documents handed out
Chapter 1, 15 and 16
Amended Bill: May 2005
Children's Bill [(B70-2003) Reintroduced]
In response to the previous day’s discussions, the Committee noted amendments to Chapter 9 on a child in need of care and protection. Members discussed the provisions of Chapter 10 on contribution orders. Certain sections of the Maintenance Act had been made applicable so that the procedures of that Act could be used to enforce contribution orders. Members discussed possible remedies for non-payment of contribution orders, and it was noted that there were still problems with the implementation of the Maintenance Act. It was also noted that the single Clause of Chapter 12, on children in alternative care, had been deleted.
Four definitions from Chapter 1, relating to adoption, were discussed, and the provisions of Chapter 15, on adoption, were examined. Provision was made for a register on adoptable children and prospective adoptive parents. It was agreed that the names of prospective adoptive parents would remain on the register even if they had adopted a child, unless they requested that their names be removed. It was further emphasised that disability would not render a person unsuitable to adopt. The Committee discussed the determination of the suitability of adoptive parents, and emphasised the need to exclude persons involved in any form of violence. The issue of post-adoption agreements was raised, with the Committee expressing mixed views on the subject. This was a new provision in South African law, as adoptions were traditionally closed.
The issue of payment to mothers giving their children up for adoption caused some debate. The Bill provided that they should not lose the benefits to which they would otherwise have been entitled, such as UIF benefits and paid maternity leave. Members expressed concern that the exchange of money was open to abuse, and the drafters agreed to revisit the wording. The possible prescription of fees to be charged by lawyers and other non-social work professionals was another contentious issue. The Committee felt strongly that these fees needed to be prescribed at least to some extent, and the drafters would revisit this.
CHAPTER 9: CHILD IN NEED OF CARE AND PROTECTION
Clause 156: Orders when child is found to be in need of care and protection
Throughout the Clause, "control" was changed to "care" as proposed the previous day.
CHAPTER 10: CONTRIBUTION ORDERS
This Chapter was also currently in the Section 76 Bill. Contribution orders were completely concerned with the competencies of the court, and the Chapter was therefore being transferred back to the Section 75 Bill.
Clause 163: Effect of contribution orders
Subclause (2) was inserted to make certain sections of the Maintenance Act applicable, so that the procedures as laid down in the Maintenance Act could be used to enforce contribution orders.
Ms S Rajbally (MF) asked what could be done if a person was employed but refused to pay.
Ms R van Zyl (South African Law Reform Commission (SALRC)) replied that this situation had led to the reference to the Maintenance Act, as several actions could be taken. It was unfortunate that officials from the Department of Justice were not available to answer the question, but it was possible to issue an order that maintenance be subtracted directly from a salary. Orders could also be issued for the sale of movable property of a person in default.
Ms Rajbally asked what the situation would be if the defaulter was self-employed.
Ms van Zyl replied that maintenance was unfortunately always a problem. The new Maintenance Act had created the new post of maintenance investigator. The objective of this post was that, currently if a person was in default with their maintenance payments and someone needed that maintenance, she would have to pay an investigator to track down the defaulter. Once the maintenance investigators had been fully rolled out throughout the country at each maintenance court as was proposed, the maintenance investigator would do the investigation and trace the defaulter. There were problems with maintenance, and the Department of Justice had said that the Maintenance Act as it stood had not yet been fully implemented. Once this had been done, it would probably be necessary to re-look at the situation and see whether other amendments could make it easier.
The Chairperson remarked that, earlier in the week, she had spoken to a woman whose husband had stopped paying maintenance for two years. The man claimed that he did not have enough money to pay, but when he travelled to Cape Town, for example, he travelled by plane. She was not getting any help from the maintenance court.
Ms van Zyl explained that the powers of the maintenance court included the subpoena of a person’s bank statements and the investigation of his financial statements. A defaulter was expected to provide an income statement to indicate what he could afford and the mother likewise. The parents were equally responsible for the maintenance of the child, but any decision would be made pro rata to their income. Maintenance was a difficult issue, and this was why the post of maintenance investigator had been established, because he would be expected to investigate the financial position of both parties, and see what they were able to afford. This had unfortunately not yet been implemented. The complainant concerned should call the responsible person in the Department of Justice head office. There should also be inspectors of these matters. A system was in place, but the problem was that it was not always equally implemented, and the staff were over worked.
Ms H Bogopane-Zulu (ANC) noted that women were not utilising the services effectively. In addition, if the defaulter claimed that he had no money, the woman had the right to attach his music system and other assets.
Ms van Zyl added that there was also now a measure to sue the grandparents of the child. Paternal grandparents could also be required to pay, even in the case of a child born out of wedlock. Most complaints related to the court’s giving the defaulter time to fulfil his obligations. Summons would be issued, and when the defaulter failed to appear, the case would be postponed. The defaulter would apologise, the court would hand out a minor reprimand, he would pay for two months and then stop again. After three years, nothing would have changed. The woman would incur transport costs and days off work each time. On a visit to the Johannesburg Family Law Centre, she had noted long queues. People were quite rude at times, although the more senior people were very helpful. The legal measures were there, but once again, implementation was an issue. It was important to put pressure on the Department of Justice to get processes in place so that the Act was fully implemented. People went to the maintenance court as a last resort. Courts should perhaps crack down on defaulters first time round rather than postponing the case. If people saw action being taken immediately, they might be more careful about consistent payment.
Ms W Newhoudt-Druchen (ANC) asked whether the maintenance judge had to order that money could be deducted from a defaulter’s salary, or whether a social worker could make that decision. What was the situation if the father was disabled and not working, but receiving a grant? Conflicting information had been received on whether the father should be paying maintenance out of the grant.
Ms van Zyl replied that a court order had to be made before money could be subtracted from a person’s salary directly. If a person was dependent on a grant because of disability, it would seem unreasonable for the court to expect him to contribute from his grant, because the grant was designed to cover basic levels of life expenses. In such a case, the mother would have to look at appropriate grants for herself, e.g. the child support grant.
Ms Bogopane-Zulu recalled some cases from her constituency office. Social services had indicated that the only recourse would be the child support grant, and if the child was older, the child could be registered on the food schemes and the other smaller subsidies of the department, but the grant could not be accessed.
CHAPTER 12: CHILDREN IN ALTERNATIVE CARE
Clause 167: Alternative Care
Ms van Zyl noted that in the original Bill, a part of Chapter 12 had appeared in the Section 75 Bill. That was being removed, as it did not make sense to have one Clause of a Chapter in the Section 75 Bill and the rest in the Section 76 Bill. This was the case with Clause 167.
Four definitions had been added for discussion at this point. Chapter 1 would be discussed in full at a later stage. The Committee had requested the creation of a national register of adoptable children and prospective adoptive parents, and definitions for orphan, child adoption organisation and adoption services.
CHAPTER 15: ADOPTION
Clause 228: Register on Adoptable Children and prospective Adoptive Parents
The lack of a register had been pointed out as a shortcoming in the current system. Adoptions were mostly dealt with through adoption social workers, and the only way in which they could determine the situation in another area was by contacting other officials on their own initiative. This was also a problem with inter-country adoptions, and would be addressed by a central adoption register, kept by the national department or the provinces. Social workers would have access to the register and, in cases of inter-country adoptions; it would be possible to ascertain the possibility of a national adoption for that child.
Mr M Waters (DA) referred to Clause 228(5)(c)(iv) and asked whether the intention was to limit the number of children a person could adopt.
Ms van Zyl replied in the negative and suggested that, if a person had adopted one child, they could be asked whether they wanted to leave their names on the register. A possible solution would be for people to request removal of their names, thus placing the onus on the adoptive parents.
Ms A Johaar (State Law Advisor) noted that subclause (5)(b) allowed for renewal of registrations so that, once a person had adopted a child, their names would automatically be removed from the register, but they could re-apply.
Ms A Muller (Department of Social Development) noted that, usually, a person applying to adopt a child would go through a selection process. During this counselling, they would indicate whether they wanted more than one child. The organisation would then take their names and keep them on the register.
It was agreed that the name should stay on the register, because it would only be there for three years.
Ms H Weber (DA) referred to Clause 228(5)(c)(vii) and asked why it only referred to violence towards a child. Surely a child would not be taken into a family where the husband abused his wife. The reference should be to conviction of a violent offence.
Ms van Zyl suggested changing the provision so that if a person appeared on part B of the child protection register, they would not be suitable to adopt. A person convicted of an offence involving violence could also be excluded.
Ms Muller explained that background investigations were also done for adoption. If a social worker diagnosed that there was violence in the family, she would not place a child in the family. If such a diagnosis was made, the family would be placed in counselling and they would work through it. Some people were not suitable for adoption, even if they had not been convicted.
Dr M Mabetoa (Director: Department of Social Development) reminded the Committee that adoption involved not only adoption of children who had been orphaned, but included the stepfather or stepmother adopting the child of their spouse. The children might be residing with one or both parents, but needed to be adopted.
Ms Rajbally asked for clarity on the three-year renewal period, asking whether a parent of adopted children would have to renew the adoption every three years.
Ms Johaar explained that it referred only to the eligibility of the prospective adoptive parent.
Ms van Zyl noted that it was a requirement only if a person wanted to keep their name on the register in order to adopt more children. It had nothing to do with a current adoptive relationship, because circumstances could change. The provision allowed the agency to do a follow up investigation to determine whether these people were still prospective adoptive parents, since their names could just be forgotten on the register.
Mr B Solo (ANC) suggested that, if a person had a history of violence, this should be studied very carefully. Not everyone might consciously look at that history, and it could be overlooked if not provided for. In addition, while the social worker was talking to the parent who was going to adopt, if there was a history of fighting in the family, it was doubtful whether a child should be placed in that family. A father might adopt a child, perhaps his own child born out of wedlock, and his wife might cause problems when he was absent. If there was a history that the relationship could be detrimental to the children, they should not be placed in that family.
Ms Bogopane-Zulu noted that there was resistance to placing the child in the family of a disabled person. A lot of suitable disabled parents could raise children, but were not allowed to adopt. This should be addressed somewhere. The term "suitable children" had been replaced by "adoptable children", would this be defined? Some children were also more adoptable than others for good reason. It had also become evident that people would rather foster children, because they could receive the foster care grant. A lot of families would like to adopt children, but they needed financial support. How was the Department progressing in assisting adoptive families?
Dr Mabetoa replied that the social security branch had indicated that they were looking at a comprehensive programme of social assistance to children and there was a need for further research. Court-ordered kinship care had huge financial implications for social security, for example. The Bill provided for adoptive parents to have access to any other grants, such as the child support grant, care dependency grant, and any other grants for which they were eligible.
Mr Solo reiterated his call to strengthen subclause (vii) to deal with couples who demonstrated violent behaviour. Two issues were involved, and he suggested dropping "towards a child", but providing a Clause to deal with a couple that had a history of violence. Should it be left to the discretion of the social worker?
Ms van Zyl referred the Committee to paragraph (4)(a), which dealt with the suitability of parents to adopt. One of the requirements was that prospective adoptive parents should be fit and proper, willing and able to undertake, and be properly assessed by an adoption social worker for compliance. Social workers would perform an investigation as provided by Clause 232(2). Names could only be placed on the register once the social worker was satisfied that the family was not violent and that the parents were suitable.
Ms Muller emphasised that disability would not render a person unsuitable to adopt. Most of the organisations dealing with adoptions had adoption policies and guidelines that were used by social workers when assessing suitable adoptive parents. This legislation was very important to enable social workers to do their work and to protect children and to look after the best interests of children. These organisations had very strict policies and criteria that would be used to find suitable adoptive parents.
Ms Rajbally asked for further clarity on the notion of suitable parents, and what would render them suitable. A parent in a wheelchair, for example, would be able to work and earn money.
The Chairperson noted that this would be addressed in Clause 232.
Clause 230: Purposes of adoption
Following Committee discussion, sub-paragraph (c) was deleted.
Mr Solo emphasised that these factors would become necessary in certain instances. It was vital to understand cultural dynamics and cultural diversities. Matching clans, for example, should be taken into account when looking at the choice of children.
Ms van Zyl remarked that the drafters had understood that the Committee had requested that it be removed.
Mr Waters asked whether Mr Solo was suggesting that if certain clans did not want to be adopted by another, that a child would remain un-adopted. Were the best interests of the child being addressed?
Mr Solo replied that the factors should simply be taken into consideration, as cultural aspects were involved. Not knowing how to interpret cultural rituals for the child might put that child at a serious cultural disadvantage.
Mr Waters suggested that, if he adopted a child tomorrow, that child would then take on his culture, beliefs and traditions, and the same would apply to any other adoption. The child did not know where he came from and what rituals he should go through. This appeared unfair.
Ms van Zyl reminded the Committee that the Clause dealt with the purposes of adoption, and this was not a purpose. If the essence of the issue was retained, it could be put in as part of the requirements for assessing parents.
Mr Solo expressed his satisfaction provided that the issue was addressed somewhere in the Bill.
Ms Bogopane-Zulu reminded Members that the Committee had decided that these were issues that had to be accommodated in counselling. The best interest of the child would be paramount because culture was important and would be catered for. A lot of adopted children, especially in inter-cultural or inter-racial adoptions, did not get proper cultural background.
Ms van Zyl agreed that it should not form the basis of whether the adoption should take place or not. Responsibility should be placed on the adoptive parents to ensure that culture was maintained. It should be inserted under the new Clause 232.
A representative of the Department suggested that it be put under the register, as it formed part of the history of the child.
Ms van Zyl noted that it would have to fall under the investigation of parents, as the register would only contain names. It should be taken into consideration when prospective adoptive parents were investigated under Clause 232.
Dr Mabetoa suggested that the adoptable child Clause could be used, and checked to ensure that, if the parents of a child had given the child up for adoption, that could be a reason for the child to be adoptable.
The Chairperson recommended that the register should capture everything available.
It was agreed to add a subclause (2)(f) to cover biological parents or guardians who gave a child up for adoption (Clause 231).
Clause 231: Children who may be adopted
The adoptability criteria had been included in this Clause. A new subclause (1) (b) had been added, and (2) inserted, to indicate when a child was adoptable.
Clause 232: Persons who may adopt child
In subclause (1) (a) (iii), the Committee had indicated that permanence should be involved. It was agreed that the reference to "conjugal" should be removed in subclause (1)(a)(ii) in accordance with a previous discussion.
In line with drafting principles, "or parents" was deleted.
In subclause (2), the word "suitable" would be replaced by "fit and proper to be entrusted".
Subclause (6)(a) had been deleted because subparagraph (b) had been amended to include a list of people who could veto an adoption. This rendered (a) superfluous.
Mr Waters reminded the drafters that, when the Committee had dealt with the rights of unmarried fathers, an extra clause had been inserted that automatically granted such a father full parental responsibilities and rights, if he was in a permanent relationship with the child’s mother.
Ms van Zyl emphasised that the biological father would be on the birth certificate. If he was not, he could apply to be on the certificate. He would get parental responsibilities and rights if he was in a permanent relationship with the mother anyway, but even if he did not have parental responsibilities and rights, he would still have to consent to adoption. He always had to consent unless he had raped the mother. He would get preference for adoption in that notice would be served on him and he would be required to indicate if he was interested.
The Chairperson asked how a relationship could be permanent if people were not married. Some document had to be signed.
Ms van Zyl noted that it was at times a judgement that had to be made. A man might be married under Muslim law, but this would not be recognised as the marriage might not have been performed by a registered marriage officer. In such a case, the person would easily be able to prove that the relationship was permanent, even though it was not a civil marriage. An objective decision had to be made on the basis of the relationship between the people. The domestic partnerships investigation with which the Law Reform Commission was busy, would also assist in determining when a relationship complied with being a permanent relationship.
Mr Solo remarked that the matters dealt with social evolution.
Ms Bogopane-Zulu suggested that marriage was a subjective word. If lobola was paid, for example, a marriage had been contractually sealed.
Mr Waters noted that, according to law, marriage could only be between a man and a woman.
The Chairperson remarked that there was no guarantee that a marriage would be permanent.
Mr Waters asked why there was a need to differentiate; as if you were in a permanent relationship you would already have adoption rights.
Ms van Zyl assured the Committee that the drafters would ensure that this was in line with the parental responsibilities and rights Chapter.
Mr Waters asked why "biological father" was used at times, and "biological parent" at others. Ms van Zyl replied that the wording would be checked for consistency.
Clause 233: Consent to adoption
It had been noted that, under current legislation, only the biological parents had to give consent regardless of their age, even if the biological parents were minors. This situation was now being changed in that if the child was a minor, that child had to be assisted by the guardian. Subclause (1)(a) had been amended accordingly and subclause (1)(c) had been amended to bring back the provision that a child had to consent to his or her own adoption.
Amendments had been made to subclause (4) for correct cross-referencing.
Subclause (5) had been amended to delegate signature in the presence of the presiding officer.
Subclause (7) had been corrected to refer to the consent of the child.
Subclause (8) had been inserted to provide for open adoptions. These were particularly prevalent in certain communities for cultural reasons. Provision was now made for these parents to enter into a formal agreement.
The Chairperson asked at what age a child would qualify to be adopted.
Ms van Zyl replied that a child could be adopted at any age, but if the child was over 10, they had to give consent. A newborn baby could not give consent, for example.
Ms Makasi asked whether it would be possible for a caregiver to delay a person who wanted to adopt a child, as the caregiver would be protecting his or her financial interests.
Ms van Zyl replied that the deciding factor would always be the best interest of the child. Consent of the caregiver was not required, so could not delay an adoption.
Ms Bogopane-Zulu asked whether provision was made for the child’s special needs to be taken into consideration when consent was given.
Ms van Zyl replied that the special needs of a disabled child had been inserted at the beginning of the Act. The courts Chapter further required provision to be made for such a child.
Ms Rajbally expressed concern that there would not be a severing of the ties of the biological parent, in view of the position in which the child was placed. The child was given by the biological parent to the adoptive parent, and would start to realise that the adoptive parents were not his parents. She mentioned an example of a child who ran away from school and her adoptive parents to find her biological parents. The child’s mind was being disrupted. She had personally adopted two girls, and had told them that they were adopted when they were twelve years old. They had thought of the biological parents as bad people and had needed counselling. They had then been allowed to choose the set of parents with whom they preferred to live.
Ms van Zyl suggested that the new Clauses might be better placed elsewhere in the Bill. The general rule was still that ties were severed, and it was at the discretion of the adoptive parents to decide whether they wanted to allow contact. The Committee had expressed concern that there might be instances where the child was adopted but the parents wished to remain in contact, so this had been brought in as an exception to the rule. The Clause dealing with the effects of adoption provided that adoptions were closed unless by prior agreement. Counselling was a prerequisite, because there were psychological implications. There could be a cross reference here to Clause 241 on the effects of adoptions.
Ms Muller remarked that it would depend on the age of the child. Usually, the adoption of a small baby was closed. The adoption of an older child could be open as described here. The Department’s policy was that the child should be told from the start that he or she had been adopted. When the adopted child was between 18 and 21, and provided there was written consent by the adoptive parents, the Department could make information available from the file in the Department. There were hundreds of these enquiries. The applicants were usually shown the minutes of the order, and then the organisation would deal with adoption counselling. Some countries, such as Sweden, were quite positive towards open adoptions. The agreement should be very carefully worded, and there had to be counselling by social workers. It had been found that many adoptive children developed behavioural problems. Children should know from birth that they were adopted, and there was more trauma when children were told at a later stage.
Dr Mabetoa reminded the Committee that there had been a shift in focus to the needs of the child, rather than on the wishes or needs of the adoptive parents. The social workers would have to find a proper adoptive parent for this adoptable child, not the reverse. On the issue of open adoptions, provision had been made because of children who were adopted by people of a different race or racial group. It would be obvious to such a child that the adoptive parent was not a biological parent.
Ms Newhoudt-Druschen mentioned an example of an adoptive parent who had been told by the adoption agency that the child’s birthday and adoption date should be celebrated. This was not necessarily in the best interests of the child. Did the Department monitor these requirements?
Ms Muller strongly rejected the notion. In terms of monitoring, there was a section on service standards in the national Department with affiliates in the provinces which investigated, got service plans, monitored services, and specifically looked at adoption service. If the Department disagreed on certain policy attitudes and issues, the Department would take this up with the agencies.
Ms Bogopane-Zulu gave an example of an oversight visit to a residential shelter in Witbank. The delegation were taken to the house by the provincial social worker, and then sat with the children. She was amazed that when the children were explaining the horrible experiences they had had in the home, the social worker was unaware of any of it. Nothing had been done by the time a return visit was made. The Department was still funding the home.
The Chairperson emphasised that the Department should make it clear that a business could not be made out of these children.
Clause 234: Freeing orders
Subclause (4)(a) was amended to look after the interests of the child, because the freeing order was applicable to adoption. The freeing order would lapse if the application was refused for any reason. It was felt that the freeing order should be on record for 12 months to keep the child on the books in line with the discussion on the Clause in the Committee.
This was agreed to.
Clause 235: When consent not required
Subclause (1) substituted parental responsibilities or rights with guardianship in particular.
Subclause (2) was inserted to accommodate a case where there was no one to give consent.
Subclause (3)(c) provided that consent could be done away with if the biological father had raped the mother and the child was the result of the rape.
Ms Bogopane-Zulu asked for clarity on subclause (3)(b) and what would happen to half siblings.
Ms van Zyl replied that, if the parents were not aware of the fact that they were siblings and had a child, and that child was then to be adopted, the consent of both parents would be required.
Ms Muller mentioned a case of a couple who discovered that they were siblings. They had subsequently decided to marry, but not to have children.
Ms van Zyl noted that such persons could not legally marry. It was not legally possible to marry anyone less than third degree relatives, even in adoptive relationships. Ms Muller remarked that the couple had married in the end. Ms Mars suggested that they might not have disclosed their relationship to the marriage officer.
Ms Bogopane-Zulu remarked that this bothered her, as her first daughter was a child of rape. The rapist was married and had sons. It was possible that the children would be in the same school one day.
Ms Rajbally stressed that Ms Newhoudt-Druschen’s comment had been important. Counselling for both the adoptive and biological parents was essential before any outside arrangement was made. Any private arrangement would disturb the relationship between the child and the adoptive parents.
Clause 236: Gathering of information for proposed adoptions
There had been considerable discussion of what was intended by "reasonable steps", and it had been changed to "prescribed steps". Subparagraph (b) inserted the reasonable steps, and the provision for determination of address had been deleted, because it would be difficult for the clerk of a children’s court to establish an address. This was agreed to.
Clause 238: Application for adoption orders
The discussion on inter-country adoptions had again highlighted the fact that adoption was not about parents looking for a child, but about a child whose best option was to be adopted. Subparagraphs (1)(b), (c) and (d) had been amended accordingly. Subparagraphs (1)(b) and (d) had been recommended by the Department. The requirement of a letter of recommendation was now inserted, and gave the oversight function to the Department to enable them to track trends.
Clause 239: Consideration of adoption applications
The cross-reference to Clause 238(1)(b) was amended.
Clause 241: Effects of adoption order
There had been general agreement that the post-adoption agreement Clauses would be better placed in this Clause. This was agreed to.
Clause 242: Rescission of adoption order
The old Clause 241 and Clause 242 had been combined.
Clause 243: Notice of application for rescission
An amendment had been effected to subparagraph (b) for clarity and to include the cross-reference.
Clause 248: Access to adoption register
A new subclause (3) was added to refer to medical information.
Clause 249: No consideration in respect of adoptions
The Clause was amended so that subparagraphs (1)(a) and (b) made it clear that the provision applied to both local adoptions and inter-country adoptions.
In subparagraph (2)(a)(ii), "reasonable" had been added to make it impossible for anyone to load medical expenses to make money out of the adoption.
"other professionals" was inserted in subparagraph (2)(b).
Dr Mabetoa suggested that "reasonable fees" be changed to "prescribed fees", or it might be too open to abuse.
Ms Bogopane-Zulu asked the rationale behind subparagraph (2)(a)(i), querying whether people would fall pregnant just to get their children adopted.
Ms van Zyl replied that nobody could pay a person to give up their child for adoption, but that, in certain circumstances, reasonable medical fees could be paid, and an employed person who was entitled to paid maternity leave and UIF would not lose those benefits.
Ms Weber remarked that "reasonable medical expenses" was also very wide, and suggested they could be prescribed.
Ms Mars asked what constituted "reasonable", as a range of deliveries would have to be allowed. Ms Weber concurred that "reasonable" should remain.
Ms Newhoudt-Druchen asked for further explanation, as it sounded like surrogate motherhood.
Ms van Zyl replied that the intention was for the mother not to lose what she was entitled to, such as paid pregnancy leave and UIF benefits. In other words, she would be legally entitled to any benefit she would have had if she had not given up the baby. If the Committee felt that the wording was too wide, it would be re-visited. She cautioned against the Committee prescribing fees for other professional bodies, noting that she was unsure whether the Minister of Social Development could take on the responsibility of determining the fees of professionals such as doctors, lawyers and psychologists. This was a new addition, and none of those professional bodies had been consulted. They were unlikely to respond positively and might refuse to take on any work related to adoptions. Prescribed fees very often fell below the normal fees.
Ms Rajbally suggested the Clause be revisited to include compensation but eliminate malpractice.
Ms Weber recalled a presentation from an advocate who had proposed a prescribed fee for inter-country adoptions.
Ms Makasi agreed with Ms Weber. If this was left open, it could be abused.
Ms Bogopane-Zulu suggested that the Clause needed reworking, because someone who gave their child up for adoption should have a very good reason for doing so. There had to be a balance, otherwise people would just be adding to the waiting list of children to be adopted. People should be encouraged to keep and raise their own children. In terms of fees, perhaps there should be a provision that professional bodies should regulate fees. If too much money was exchanged, it became a crime of trafficking.
Ms Mars noted that professional bodies had scales of fees, and concurred that these should be inserted.
Ms van Zyl replied that it could be stipulated that the mother could receive compensation in terms of the UIF or maternity leave, which would restrict the money that could be paid to the mother. On the issue of professional fees, the Law Society had been taken to the Competition Commission and it had been ruled that it was illegal to set guidelines for fees. She proposed that the Bill provide that the fees would have to be subject to consultation. The Minister could prescribe them, but only in consultation with the relevant body or Minister.
Ms Johaar suggested that, instead of concentrating of the fees of professional persons, the Bill should concentrate on the fees for adoption services rendered, as this was within the Minister’s portfolio.
Ms Muller said that, in practice, social workers wrote an examination and received accreditation. If they performed local adoptions, they would work in an adoption centre with perhaps five social workers. The line function was that of the social worker, if was exceptional that a lawyer was involved. If a professional such as a lawyer was required, that would be paid for by the party concerned, and this was cautioned against. There would be a specific workshop focusing on adoptions and foster care in the costing process, and norms and standards on adoption procedures would be formulated. All activities would be costed here.
Ms Mars expressed satisfaction at the formulation of norms and standards for adoption, and asked whether this would be in the Bill in the Regulations, or by Amendment.
Ms Muller replied that they would form part of the Regulations.
Dr Mabetoa explained that the Regulations followed a consultative process and all professionals involved would have to be consulted.
Ms van Zyl reminded the Committee and the Department that the Clause was intended to cover both local and inter-country adoptions, and the problem with lawyers and money arose in inter- country adoptions. Mention of lawyers was made in the Clause to address their fears, but they would not be accredited. Two possible options were prescribing the fee that the organisation could charge, and having professional fees covered from this; or having prescribed fees for adoption and fees for other professional services, but these would obviously have to be consulted. It was important to make it impossible for people to run adoptions profitably. Perhaps professionals could be included, with a specification that they should be consulted.
Ms Muller noted that the whole issue of the accreditation of inter-country adoptions was another contentious issue.
The Chairperson suggested that the Members of the different parties should consult on the issue, and return with party mandates.
Mr Solo concurred, but suggested that it should not be limited to parties. The Department and the drafters should investigate the issues very carefully as well.
The meeting was adjourned.