Children’s Bill: finalisation

Social Development

09 June 2005
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Meeting Summary

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Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
10 June 2005
CHILDREN’S BILL: FINALISATION

Chairperson:
Ms J Tshivhase (ANC)

Documents handed out:
Children’s Bill as revised by State Law Advisors: June 2005

SUMMARY
The Committee began its perusal of the final version of the Bill as revised by the Office of the State Law Advisors who had had the May 2005 version of the Bill referred to it. The State Law Advisor read all clauses and provisions that had been amended by her Office. Most of the changes were cosmetic, and cross-references and numbering had been checked and amended where necessary. Although the terms ‘custody’ and ‘access’ had been changed to ‘care’ and ‘contact’ as requested by the Committee, no provision had been made to replace the terms currently in other legislation. This was debated again, and the drafters were requested to insert a provision stipulating their use.

The issue of legal representation for children was discussed at length. A representative of the Department of Justice explained the provisions of the Legal Aid Act as it related to the Bill, and it was agreed that the drafters would work on the language of the provision. It was emphasised that the Constitution provided a right of representation for children, and the Legal Aid Board operated subject to the provisions of the Constitution.

The Committee adjourned its deliberations at Clause 253 of the Bill. The Clauses were agreed to by the Committee, and the objections to Clauses 129 and 134 and subparagraph 231(1)(a)(ii) of the ACDP were noted.

MINUTES

Ms Aisha Johaar (State Law Advisor) introduced the revised Bill as formally referred by the Department of Social Development. The parliamentary legal advisors had indicated that the tagging appeared to be in order. Once the Bill had been formally approved by the Committee, it would be referred to the parliamentary legal advisors and they would give a legal opinion to the Joint Tagging Mechanism. A formal decision would be made on the tagging at this stage.

In reply to Mr Masutha asking if the Bill would be referred back to the Committee if the Joint Tagging Mechanism did not approve it, Ms Johaar said that it would. She explained that the clauses in dispute could either be removed, if the Joint Tagging Mechanism offered this choice, or the Bill could be withdrawn if the Minister gave such an instruction.

The Chairperson read the Motion of Desirability of the Bill, and Ms Johaar commenced the full reading of the Bill as revised by the State Law Advisors.

Preamble

Chapter 1: Interpretation, objects, application and implementation of Act

Clause 1: Interpretation
Subclause (1)
"abandoned"
Mr Masutha noted that technical concerns had been raised about the definition of "abandoned" and asked whether Ms Johaar had decided to retain the current formulation, which effectively defined an "abandoned child", rather than the concept "abandoned".

Ms Johaar replied that, throughout the Bill, the word was used in relation to a child, and it had thus been defined only in relation to the child.

Mr Masutha suggested that the definition be renamed "abandoned child".

Ms Johaar replied that the Bill referred to a child who was abandoned, or who had been abandoned, and never to an "abandoned child", and that was the reason for the wording of the definition.

"abuse"
Mr Masutha asked whether it was the intention of the Bill to make child labour one of the various forms of abuse or was it a deliberate intention not to actually include that form of exploitation as abuse and rather to create a separate concept as a labour practice that exploited a child.

Ms Johaar replied that the concept of an exploitative labour practice had been in the Bill since the start of the process, and that no fundamental change had been made.

Mr M Waters (DA) queried the process and suggested that clauses be read out only where there had been amendments.

Mr Masutha reminded the Committee that it had a duty of care to ensure that the legislation passed was, at least as far as possible, technically correct, but that he would abide by the majority decision. Ms Johaar should then read through each clause, highlight changes and the Committee could then accept the clause. This was agreed.

Subclause (2)
Ms Johaar noted that when the definitions of 'care' and 'contact' had been discussed, the drafters had been instructed to make these apply throughout legislation. Based on the changes effected or rejected in terms of the Courts Chapter, and clauses that had been picked up in Chapter 3, she had elected not to make the definition of 'care' and 'contact' applicable to all legislation dealing with 'custody' and 'access'. If the Committee requested her to do so, she would effect the change.

In reply to Mr Waters asking if the amendments to Chapter 5 meant that the terms would not apply throughout the Bill, Ms Johaar said that they would apply throughout the Bill but not to other pieces of legislation. The Bill referred to the Divorce and Maintenance Acts, and those referred to 'custody' and 'access'. If the intention was for the new terms to supersede 'access' and 'custody', this could be done.

Ms C Dudley (ACDP) asked whether the terms should not be left as they had originally been, until other legislation was changed. This legislation could then be amended.

Mr L Nzimande (ANC) felt that, in line with the preamble, 'contact' and 'care' should be stipulated to apply throughout all legislation.

Ms Johaar noted that the change would be effected.

Clause 2: Objects of Act
No changes were made.

Clause 3: Conflicts with other legislation
No changes were made.

Clause 4: Implementation of Act
No changes were made.

Clause 5: Inter-sectoral implementation of act
No changes were made.

CHAPTER 2: GENERAL PRINCIPLES

Clause 6: General principles
No changes were made.

Clause 7: Best interests of child standard
No changes were made.

Clause 8: Application
In subclause (3), the reference to a provision of this Chapter, was changed to refer to a provision of this Act.

Clause 9: Best interests of child paramount
Subclause (2) was deleted, as it was a duplication.

Clause 10: Child participation
No changes were made.

Clause 11: Children with disability or chronic illness
No changes were made.

Clause 12: Social, cultural and religious practices
A change had been made in the way in which the clause dealt with male circumcision. The Bill had given the male child the right to refuse when he was able to appreciate the consequences of consenting or being circumcised. Subclause 6 had then given the child the right to lay a charge of assault, which was a right of the child in any case. Subclause 6 had been improved to make it an offence for the person who performed the actual circumcision, if he did so against the wishes of the child. In addition, if the person responsible for the child allowed that child to be circumcised against his will, that person would also be guilty of an offence. This provided specific offences in terms of this Act, in addition to common law offences.

Ms I Mars (IFP) felt that the Committee had not reached agreement on the prohibition of virginity testing. Authorities on the subject of cultural practices should have been more widely consulted. The Chairperson felt that consultations had been thorough and Ms S Rajbally (MF) noted that the provisions were very clear and safer for the child, as the child had to be protected. The Committee concurred.

Clause 13: Information on health care
'
Treatment' was included in subclause (1)(c).

Clause 14: Access to courts
No changes were made

Clause 15: Enforcement of rights
In the original wording, the rights contained in the Act were enforceable for the child. This was changed to include the rights contained in the Bill of Rights, as well as the rights contained in the entire Act.

Clause 16
No changes.

Clause 17
No changes.

CHAPTER 3: PARENTAL RESPONSIBILITIES AND RIGHTS

Part 1: Acquisition and loss or parental responsibilities and rights
Clause 18
No changes.

Clause 19
No changes.

Clause 20
No changes.

Clause 21: Parental responsibilities and rights of unmarried fathers
The changes effected to the clause were technical, and the substance remained the same.

Clause 22: Parental responsibilities and rights agreements
A number of technical changes were made. Subclause (5) was shortened, and subparagraphs (6)(a) and (b) were merged.

Clause 23
No changes.

Clause 24
No changes.

Clause 25: Certain applications regarded as inter-country adoptions
Technical changes were made to the clause, but the substance remained the same.

Clause 26
No changes.

Clause 27
No changes.

Clause 28: Termination, extension, suspension or restriction of parental responsibilities and rights
The numbering in the clause was corrected.

Clause 29: Court proceedings
The cross-referencing was corrected, but no other changes were made.

Part 2: Co-exercise of parental responsibilities and rights
Clause 30
No changes.

Clause 31: Major decisions involving child
Cross-references were corrected.

Clause 32: Care of child by persons not holding parental responsibilities and rights
"Emotional harm or hazards" was inserted in subparagraph (1)(b), and "guardian" in subclause (2).

Part 3: Parenting Plans
Clause 33
No changes.

Clause 34: Formalities
The substance of the clause was retained, but the language simplified.

Clause 35
No changes.

Part 4: Miscellaneous
Clause 36
No changes.

Clause 37
No changes.

Clause 38
No changes.

Clause 39
No changes.

Clause 40: Rights of children conceived by artificial fertilisation
The cross-referencing in the clause was corrected.

Clause 41
No changes.

CHAPTER 4: CHILDREN’S COURTS

Part 1: Establishment, status and jurisdiction
Clause 42: Children’s courts and presiding officers
Mr Waters noted that subparagraph (8)(d) had been inserted. Ms Johaar pointed out that the insertion had been done by the Committee.

Clause 43
No changes.

Clause 44: Geographical area of jurisdiction of children’s courts
The Clause had been renamed. Subclause (1) was deleted, because its provisions were restated in Clause 45 and expounded upon in Clause 46.

Clause 45: Matters children’s court may adjudicate
Subclause (1) had been reworded, but there were no substantive changes.

Mr Waters noted that the Committee had disagreed with guardianship remaining with the High Court.

Ms R van Zyl (SA Law Reform Commission) reminded the Committee that the Deputy Minister of Justice had requested them not to affect those matters currently dealt with under the Divorce and Maintenance Acts. The proposed insertion on custody and care would lead to a conflict in this regard, as it took it out of the jurisdiction of the High Court, and this would by implication amend the Divorce Act.

Ms W Direko (ANC) asked whether this meant that the Committee was going against the advice of the Deputy Minister. The Committee had agreed in principle to take cognisance of his recommendations.

Ms van Zyl explained that the Deputy Minister had asked that the Children’s Bill should not amend other legislation. He was specifically asked about 'contact' and 'care' rather than 'custody' and 'access', and he had stated that he had no problem with it in this Bill, but that other legislation should not be amended. Ms Johaar had now been requested to add a paragraph providing that 'contact' and 'care' should take the place of 'custody' and 'access' for all South African legislation. This could lead to legal uncertainty when it went to court.

The Chairperson reminded the Committee that the Members had agreed to what the Deputy Minister had requested.

Dr Mabetoa explained that Ms van Zyl was proposing that the change in respect of 'contact' and 'care' should not be effected.

Mr Nzimande reiterated the Committee’s understanding that this Act could not be made overarching to all other legislation, and asked the reasoning behind the proposed change.

Mr Waters noted that there had been no agreement with the Deputy Minister, as he had issued instructions and undermined the independence of the Committee. The majority had simply chosen to comply with his instructions.

Ms Weber asked the State Law Advisors if the amendment would complicate other Bills and other laws.

Ms Rajbally asked whether the change would be of advantage to children.

Ms van Zyl read the proposed wording for the definitions clause: "Unless the context indicates otherwise, any reference in a law to custody of a child must be construed as reference to care as defined in paragraph (a)". A similar wording was proposed for the change from "access" to "contact". In her opinion, however, these would have to be construed as such even in the Divorce Act, and this would make it difficult to interpret what Clause 45 was trying to achieve. The Bill also provided that it was not covering matters provided for in the Divorce Act, and this was therefore a conflict.

Mr Masutha raised a process issue as he had earlier tried to raise issues of technical correctness but had been ruled out of order.

Ms Johaar replied that she would take instruction from the Committee.

Mr Masutha emphasised the need to agree on whether it was within the rights of the Committee to entertain rectification of technical inaccuracies or whether the intention was to simply approve clause by clause without any input. A policy had been agreed upon, in which the custody and access jurisdiction that currently resorted exclusively in the High Court, apart from guardianship, was being cascaded down to the lower level. His understanding was that there was a further agreement that the Bill would not take away the power of the Divorce Court and High Court to perform any of their current functions, but was simply expanding access and custody to the magistrate’s court. If that was the position, and the Deputy Minister was amenable, the interpretational provision just read would not have the effect of taking away the power of Divorce Court to deal with custody and access in the course of finalising a divorce order. It would, however empower the children’s court to entertain applications relating to custody and access. It would also change the meaning of custody and access in the Divorce Act to mean custody and care as defined here. It would not take away the power of the High Court and Divorce Court to deal with custody and access or care and contact as part of a finalisation of a divorce order.

Mr du Preez (Legal Section: Department of Social Development) reminded the Committee of the input the previous week on 1 June by the Minister of Social Development, in which he had emphasised that no amendments should be made to other legislation. The Committee had now agreed to two additional paragraphs that affected the Divorce and Maintenance Acts.

Mr Waters asked what had been decided. The Bill was still the prerogative of the Committee, which was supposed to be independent and have oversight authority. If there were no cross-references with 'care' and 'contact', it might exist in limbo.

Mr Nzimande noted that the Minister and Deputy Minister had merely confirmed what the Committee had already decided, and asked whether the drafters could arrive at something that was in line with the decision.

Mr Masutha referred to Clause 45(1), which provided that its list of matters that a children's court could adjudicate would apply except where this Act, the Divorce Act and Maintenance Act expressly ruled otherwise. One of the matters on the list was care of or contact with a child. That effectively brought down competence to the lower courts, because care and contact had been defined to incorporate custody and access. His impression was that the Bill did not seek to alter arrangements provided for under those Acts. The main concern of the Department of Justice was the cascading down to lower levels of guardianship, but this was not being done here. The Department of Justice had also objected to the removal of jurisdiction of the High Court in its competencies. This appeared to be affirmed by the Bill as it read at present, which effectively meant that there was no issue. This Bill introduced new concepts and was pulling the other laws with it. It was not taking away the powers of the other institutions, but was simply modernising the language of those other institutions.

Mr Johan de Lange (Legal drafter, Department of Justice) asked whether the Committee was adding the rider. There would be no problem if it was not amending the definitions in the other Acts. It would be problematic if an attempt was made in this legislation to try to amend other legislation. In terms of legal practice, there was a series of precedents in respect of those definitions, including law reports, going back over a hundred years, and a question arose over what would happen to those precedents. More practically, the implication was that any person reading the Act would not know what the terms meant unless that person read the Children’s Act, and that was a dangerous way to legislate.

Clauses 46 – 4.
No changes.

Clause 50: Investigations
The cross-referencing was corrected, and subparagraph (4)(d) reworded, but the meaning remained the same.

Clauses 51 – 54.
No changes.

Clause 55: Legal representation of children
No changes were made.

Discussion
Mr de Lange noted that he understood that there had been discussions on this issue, and that subclause 55(1) now contained new wording to address the concerns of the Committee. The problem was, however, that subclauses (2) to (6) were in contradiction with (1). It was proposed that subclause (1) should constitute the whole of Clause 55, and the rest should fall away. Once the court referred the child to the Legal Aid Board, the Board had to conduct an investigation taking into account a number of factors, and then compile a report to the court who would make a decision as to whether the child received legal aid. To clarify the situation, work was under way on the Child Justice Bill, which aimed to introduce a new system for youthful offenders, and the wording in subclause (1) was the same as that proposed by the drafters for youthful offenders.

Mr Masutha said that, as he understood it, subclause (1) would replace everything else contained in the clause. Was the policy arising out of the formulation to be that, in all matters where children were not represented at their own expense, that the magistrate would have to refer the matter to the Legal Aid Board without discretion? Did the Legal Aid Act provide how the matter would be dealt with, in terms of the discretion they would exercise?

Mr de Lange replied that it would indeed be mandatory.

Mr Masutha asked whether this meant that in essence the Legal Aid Board then exercised discretion on whether the child qualified for legal representation and then took that decision.

Mr de Lange noted that the bottom line was that the Legal Aid Board would make a recommendation, but the decision would still rest with the court.

Ms Shabalala noted that the distinction was that the Legal Aid Board, rather than the court, would appoint the legal representative.

Mr Masutha urged the Committee to move with the proposals from the Department of Justice.

Ms Newhoudt-Druschen asked whether a child would still be covered if the child was referred to the Legal Aid Board, but subparagraph 2(b) applied.

Ms K Shabalala (Chief Director: Protection of Rights of Vulnerable Groups) replied that, once subclause (1) was applied, the rest of the subclauses (2 – 6) would fall away and the children would be covered.

Mr Masutha suggested that Ms Newhoudt-Druschen ‘s concern was that 2(b) was a mechanism designed to rectify a situation that could go wrong. In other words, would the arrangements under the Legal Aid Act provide sufficient measures of intervention as contemplated in subparagraph 2(b), if the subclauses were deleted.

Mr de Lange said that it would be same position as was currently the case, but he did not know whether the court could dismiss the person or allow them to be dismissed. He noted that subparagraph (2)(b) should also cover privately hired representatives if it was required.

Mr Masutha emphasised the need for the Committee to understand the mechanism of the Legal Aid Act, because that was clearly going to be the operational mechanism. The Department of Justice needed to assure the Committee that all necessary precautions had been taken to ensure that that the provisions of the Clause were covered. Ms Dudley confirmed this concern.

Mr Waters noted that the Bill approved by Cabinet had provided for legal representation for children, and expressed a preference for retaining subclause (2), given what was originally approved by Cabinet.

Mr du Preez expressed concern that the Legal Aid Act referred to criminal proceedings only. Mr de Lange confirmed this, and said that changes would be needed.

Mr Masutha said that the children’s court only dealt with civil matters, so clearly any reference in the Legal Aid Act to criminal matters fell outside the scope of the Bill. There was no way in which the Legal Aid Board could provide representation.

Mr de Lange emphasised that the Deputy Minister had informed him that the Department felt very strongly that legal aid should be dealt with by the Legal Aid Act. The Legal Aid Guide had been drafted in terms of that Act, and made provision for action when there was dissatisfaction with the services of the person appointed. The Legal Aid Board had given the assurance that, before a legal practitioner was appointed, there would be a screening mechanism. Before a practitioner went to court, the practitioner would be required to furnish the Board with the file to go to court, and there was a system in place to grade the file. An 80% pass rate was required before the practitioner was formally appointed. Once the matter was in court and any conflict of interest arose, the person could revert to the Legal Aid Board. The Board was very favourably disposed to take the child’s side in a child matter, and the practitioner would be replaced. It was strongly felt that subclause 55(1) was the correct model to follow.

Mr Waters said that the Department had originally supported the subclauses as they had submitted the Chapter, asking whether the Deputy Minister was trying to change Cabinet policy.

Mr de Lange said that the Deputy Minister had assured him that legal aid matters were done through the Legal Aid Board and Act.

Mr Masutha asked whether the question of the Legal Aid Act only dealing with criminal matters had been addressed in relation to the Bill.

Mr de Lange replied that the objectives and general power of the board were as contemplated in the Constitution. It was not limited to criminal matters.

Mr Masutha noted that this was helpful, as the Constitution would be the guiding principle in the Legal Aid Board’s decision.

Ms Dudley asked whether the Legal Aid Board could choose not to represent the child. If so, there was a need for a provision to enable the court to appoint someone to represent the child.

Mr de Lange agreed, from his reading, that there was a need to see that the court could eventually make a decision. The whole purpose of the proposed provision in subclause 55(1) was that the court would have a good filtering mechanism. There might be room for looking at the Legal Aid Act, specifically to address the scope of civil matters and how they dealt with children.

Ms Dudley recommended that at least a version of subparagraph (2)(a) be retained.

Mr Nzimande said that Members were therefore saying that in the vagueness of the explanations from the Department of Justice, they were requesting that subparagraph 2(a) should remain.

Ms Direko expressed concern that the decision went against the explanation from the Department of Justice that the Bill could not interfere with the Legal Aid Act.

Ms Weber noted that, rather than interfering with the Act, the Committee was requesting to retain the section to cover the children.

Ms Direko asked for clarification on the source of funding for aid to a child in the absence of the Legal Aid Board.

Mr de Lange replied that the legal aid representative would always have to be appointed by the Legal Aid Board out of the Board’s budget. One could not get past the Constitution. A proviso might work, with an insertion in subclause 55(1) that "if the court is of the opinion that substantial injustice might result, the court must appoint …"

Ms Direko reiterated her question on funding. Ms van Zyl replied that, in the discussions on the Bill, the indication had always been that legal aid should always be provided at the state’s expense, and it would therefore be through the Legal Aid Board. The possible cost of legal aid to children was being costed in the process. Figures of R20 million a year had been mentioned, so it would be an instruction to the Legal Aid Board. The wording of the Constitution had been used when the provision was originally drafted. It was important to take cogniscence that the court had to appoint a representative, and that this should be done through the Legal Aid Act.

Ms Direko suggested that the drafters revert the following Tuesday.

Mr Masutha said that, in Section 28 of the Constitution, provision had been made for legal representation to be provided in civil matters involving children, if substantial injustice would otherwise occur. The legal obligation already existed. As matters stood, children had this right in the Constitution. The Bill was trying to make it available in an organised way. He was now satisfied that the Legal Aid Act was not confined to criminal matters, but required the Legal Aid Board to provide for representation as provided in the Constitution. He thus agreed with the Department of Justice.

Mr Waters asked whether that would ensure that Legal Aid Board did extra budgeting so that they could not use money as an excuse. Mr Masutha replied that his interpretation was that a denial would mean that the Legal Aid Board was acting in contravention of the Constitution, and a child could thus take them to court.

Ms Dudley suggested that this meant there should still be a constitutional provision. Mr Masutha suggested this was not necessary as it was already contained in the Legal Aid Act. Ms Dudley requested that the drafters check carefully and insert a cross-reference. This was agreed.

Clauses 56 – 60
No changes.

Clause 61: Participation of children
Mr Waters confirmed that the addition of "any special needs" would cover disabilities. This was confirmed.

Clauses 62 – 63
No changes.

Clause 74: Publication of information relating to proceedings
No changes.

Discussion
Mr Masutha asked whether the Ms Johaar had taken account of the Access to Information Act in the formulation the clause. Ms Johaar was satisfied that it was in order.

Clause 75: Regulations
The cross-referencing was corrected.

CHAPTER 7: PROTECTION OF CHILDREN

Part 2: National Child Protection Register
Ms Johaar noted that, throughout Part 2, there had been inconsistency in referencing, so one term had been uniformly applied to refer to the Register.

Clauses 111 – 114.
No changes.

Clause 115: Access to Part A of Register
Subparagraph (d) had been changed, as the provision had not been contained in the Section 75 Bill.

Clauses 116 – 126
No changes.

Clause 127: Disclosure of names in Part B of Register prohibited
A few changes had been made to the Clause, to make it more clear. The wording had been changed to ensure that the persons referred to in Clause 127 were the same persons referred to in Clause 126.

As many bodies were mentioned, including institutions, child and youth care centres, schools, clubs and so on, "institutions" was incorrect, and "body" had been substituted.

Clause 128: Removal of name from Register
No changes.

Part 3: Protective measures relating to health of children
Clause 129: Consent to medical treatment and surgical operation
The numbering in the Clause was rectified.

Ms Dudley requested that the ACDP’s objections to the Clause be noted.

Clauses 130 – 133
No changes.

Clause 134: Access to contraceptives
No changes were made to the clause.

Discussion
Ms Dudley requested that the ACDP’s objections to the clause be noted.

Clause 142: Regulations
The cross-reference was rectified.

CHAPTER 9: CHILD IN NEED OF CARE AND PROTECTION

Part 1: Identification of child in need of care and protection
Clause 150: Child in need of care and protection
The clause had referred to Clause 105, but that was not part of the Section 75 Bill. It was felt better to delete the reference and define a child in need of care and protection. The substance of the Clause had been to stipulate what constituted a child in need of care and protection, so the reference had been deleted.

Clauses 151 – 154
No changes were made.

Part 2: Children’s court processes
Clause 155: Decision of question whether child is in need of care and protection
A technical change had been made to the wording in subclause (2).

Discussion
Dr Mabetoa noted a problem with the 90 days provision, and felt that it was too long. It should be left "as prescribed", and the prescription should be made in the Regulations.

Ms Mars noted that it provided for a maximum of 90 days.

Dr Mabetoa suggested that it could more properly be dealt with in the Regulations, where it could be dealt with in terms of minimum days.

Mr Masutha hoped that the Department was in touch with what was happening in the provinces. In his constituency, the inner city of Johannesburg, backlogs for foster care placements dated back to two years ago. A period of 90 days would obviously exert pressure on departments to start moving, but it was inadvisable to be more ambitious.

It was decided to retain the maximum of 90 days.

Mr Masutha asked to what the 90 days related. Was it in relation to the time the child was actually picked up by the social workers? At what point did the 90 days start?.

Ms Muller replied that it would be 90 days since the child was picked up, if Form 4 was used. In practice, a social worker usually dealt with 15 – 20 cases simultaneously, so the 90 days would date from the time the child was referred to a particular social worker. 90 days would be adequate because a social worker never handled only one case.

Mr Masutha noted that none of this was stated in subclause (2), and his understanding was that a court would only be involved when the social worker was ready to table his/her report. To what could the provision link the 90 day period?

Ms Johaar replied that the 90 days in subclause (2) had been launched by all of the provisions of subclause (1).

Ms Dudley asked what would happen if Childline referred a case across. She had heard of about thirty specific cases referred from 2003 onwards, on which no social worker had yet reported back. Was there any deadline for such cases?

Ms Johaar replied that Clause 105 in the Section 76 Bill would place an obligation on anyone identified, to make a report to social services.

Dr Mabetoa reminded the Committee that the Register would also take care of those cases.

Clause 156: Orders when child is found to be in need of care and protection
Subparagraph (1)(f) had been deleted, as it contained a reference to a section not contained in this Bill. The provision would be re-inserted when the Amendment Bill was completed.

Clauses 157 – 158
No changes were made.

Clause 159: Duration and extension of orders
A change was made to subclause (3), again because of the cross-reference to a provision of the Section 76 Bill.

Discussion
Ms Dudley asked whether this would be a problem as the provision would need to apply.

Ms Johaar understood this Bill would not become an Act until the Section 76 Bill was merged. It was not the intention for this Bill to be implemented until the Section 76 Bill was an Act, but the Section 75 Bill should be made as comprehensive as possible.

Clause 160: Regulations
The cross-referencing was rectified and the wording simplified.

Clauses 161 – 166
No changes were made.

CHAPTER 15: ADOPTION

Clause 228: Adoption
Only technical changes were made.

Clause 229: Purposes of adoption
No changes were made.

Discussion
Mr Masutha noted the reference to "promote the goals of permanency planning" and asked whether the goals were listed somewhere, or whether this was just a ‘figure of speech’.

Dr Mabetoa replied that the goals were contained in the Regulations of the Child Care Act, and was certain that they would also be included in the Regulations for this Bill when it became an Act.

Mr Masutha questioned whether there should be a reference to "as prescribed".

Clause 230: Child who may be adopted

Technical amendments were made.

Clause 231: Persons who may adopt child
In subparagraph (1)(c), "conjugal" was deleted.
In subclause (3), all reference to ethnic was deleted.
A subparagraph (7)(a) was inserted, because without it, the current (7)(b) did not make sense.

Discussion
Mr Waters noted that "must" should have been "may" in subclause (3), and that there should be an insertion at the end of subparagraph (3) of "where it would be in the best interests of the child concerned".

Ms Johaar noted that the change would be made.

Ms Dudley requested that the objections of the ACDP to subparagraph 231(1)(a)(ii) be noted.

Clause 232: Register of Adoptable Children and Prospective Adoptive Parents
The title of the Clause was changed to "of" rather than "on".

Clause 233: Consent to adoption
Only technical changes were made.

Clause 234: Post adoption agreements
Technical changes were made, and cross-referencing rectified.

Clause 235: Freeing orders

No changes were made.

Clause 236: When consent not required

Only technical changes were made.

Clause 237: Gathering of information for proposed adoptions

A change was made to the wording in subclause (4), but the Clause remained substantively the same.

Clauses 238 – 239
No changes were made.

Clause 239: Application for adoption order

Cross-referencing was rectified.

Clause 240: Consideration of adoption application

Cross-referencing was rectified.

Clause 241: Unreasonable withholding of consent
No changes were made.

Clause 242: Effects of adoption order

The Clause numbering was corrected.

Clause 243: Rescission of adoption order

Technical amendments were made.
Subclauses (3) and (4) were merged, subclause (5) became (4) and the cross-referencing was rectified.

Clauses 244 – 248
No changes were made.

Clause 249: No consideration in respect of adoption
A problem had been encountered in respect of subparagraph (1)(b), where the Committee had not decided who would prescribe the fees.

Discussion
Mr Masutha had though that the matter had been resolved. His understanding was that, because the only report required by law was that of an adoption agency or social worker, any fees prescribed would be in respect of those services that needed to be prescribed.

Clause 250: Only certain persons allowed to perform adoption service
Technical changes were made.

Discussion
Mr Masutha noted that a psychologist might be called in. The term "adoption services" appeared to be defined to include other services besides those of an adoption agency. He expressed concern that this might indirectly defeat the purpose of the clause.

Ms Johaar replied that some things listed might be services rendered by professionals. In other clauses, the Bill stated that only designated people would provide adoption services.

Mr Masutha suggested that the Bill should prescribe what was required for an adoption to be ordered. He proposed stating that "nobody may recommend an adoption other than … "and elsewhere stating that the court might not effect an adoption without having considered a recommendation.

Dr Mabetoa had thought that lawyers, psychologists and other professionals were covered under Clause 252.

Ms Dudley noted that no criteria had been specified to define eligibility.

Ms Johaar replied that this was a Section 76 matter (accreditation was dealt within two clauses of the Section 76 Bill).

Mr Masutha said social workers received accreditation from the Council (governed by its Act) and that identified the accreditation process. With inter-country adoptions, nobody could be accredited who was not accredited to do national adoptions.

Clauses 251 – 252
No changes were made.

Clause 253: Regulations

Only technical changes were made.

The meeting was adjourned.

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