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SOCIAL SERVICES SELECT COMMITTEE
12 August 2004
CHILDREN’S BILL: BRIEFING
Chairperson: Ms J Masilo (ANC, North West)
Documents handed out
B70B-2003 as passed by Portfolio Committee on 14 June 2005: Part1
B70B-2003 as passed by Portfolio Committee on 14 June 2005: Part2
Department PowerPoint presentation on the Children’s Bill
Department briefing document
Children’s Bill: Department Executive Summary
Representatives of the Department of Social Development and the South African Law Reform Commission briefed the Committee on the process and content of the Children’s Bill, as approved by the Portfolio Committee on Social Development. The National Assembly had passed the Bill on 22 June 2005. The Department emphasised the urgency of the Bill, particularly the provisions in respect of child trafficking and inter-country adoptions. It was envisaged that the comprehensive Bill would be promulgated in 2007, a full ten years after the start of the legislative process.
The Committee expressed its concern that the costing had not been completed, and would not be completed by the time the Committee was expected to have approved the Bill at the end of 2005. It was agreed that the costing service provider would address the Committee on the costing process. Points of contention in the Bill particularly regarded virginity testing, cultural practices and surrogate motherhood. Members agreed that the Department and Committee would hold a workshop to address these issues before further deliberations. Key stakeholders would be invited.
The Chairperson suggested that the Committee try to complete the processing of the Section 75 Bill by the end of 2005, so that the Section 76 Bill could be addressed in the new year.
Dr M Mabetoa (Department Chief Director: Children and Families) explained that there were approximately 18.9 million children in South Africa, and this was over half the population of the country. The situation of many of these children was critical, with almost 45% living in extreme poverty. About 5.8 million children received grants, particularly the child support grant. The increase in HIV/AIDS had led to an increase in child-headed households, and increased child abuse, neglect and exploitation.
Children’s rights were addressed in Section 28 of the Constitution and this had been the main policy that informed the Bill, together with other policy documents, such as the White Paper for Social Welfare, Department strategic plans, and the draft strategy on child abuse and neglect.
The Department had established developmental social welfare and statutory services. Numerous services were also provided by other Departments, including the expanded public works programme in respect of Early Childhood Development (ECD) and Home and Community Based Care and Support (HCBCS). A number of structures had already been established, such as the Office on the Rights of the Child in the Presidency and various intersectoral committees. A national Steering Committee had been established for the purpose of the Bill, as well as service delivery structures, NGO structures, social welfare forums on children’s issues, and Cabinet and Parliamentary structures. The Department was, however, facing challenges in terms of implementation, insufficient budget, human resources, intersectoral collaboration, research and monitoring and information.
The Bill was in the process of being costed, and the Department was repositioning itself, and had implemented a retention strategy. Grants and welfare services and other programmes had been linked and the international instruments to which South Africa was a signatory and the strong political leadership of the Department provided opportunities for the future.
The lives of children were affected by a variety of pieces of legislation and international conventions, including the Child Care Act (Act no. 74 of 1983) and the Hague Convention on the Civil Aspects of International Child Abduction Act (Act No. 72 of 1996). It had been found that existing legislation was not in keeping with the realities of current social problems, and that children were not adequately protected. South Africa had also acceded to various international conventions, the principles of which had to be incorporated into domestic legislation.
In 1997, the previous Minister of Welfare had asked the South African Law Reform Commission (SALRC) to develop comprehensive new legislation for children, and a draft Children’s Bill had been presented in December 2002. The process had been taken further by the Department which, in conjunction with the Departments of Justice, Education, Health and Labour, the SA Police Service, the Office on the Rights of the Child and the National Treasury, the Provinces, NGOs and service providers had aligned the Bill to national policy directives and priorities. This process and a scoping exercise on the Bill had led to the subsequent changes to the Bill.
A workshop had been convened in December 2004 to identify existing responsibilities, policy and legislation, and a matrix had been compiled of gaps in existing legislation. It had been decided to focus the Bill on the protection of children. A further workshop had been held in April 2005 to address unresolved issues such as cultural and religious practices, customary law, guardianship, child headed households and inheritance. Once the Portfolio Committee was satisfied that it had all the relevant information, the Clauses were reviewed and amended as necessary. Significant changes had been made to the original Bill, and the Children’s Bill had been passed by the National Assembly on 22 June 2005.
The Bill provided for the preservation and strengthening of families, and aimed to give effect to the constitutional rights of children. The best interests of the child were made paramount at all times. Significant new proposals in the Bill included the inclusion of the rights and responsibilities of children, recognition of the rights of children with disabilities and chronic illness, recognition of unaccompanied foreign minors and specific provision for the participation of children in matters affecting them. The Bill included a proposal to lower the age of majority, and provided for parental responsibilities and rights agreements. Far-reaching provisions were introduced in respect of adoption, both national and inter-country adoption.
The costing was running concurrently with the deliberations on both the Section 75 and Section 76 Bill, and it was envisaged that this would be completed by February 2006. It was hoped that the full Act would be promulgated in June 2007, a full ten years after the start of the process.
The Chairperson asked for clarity on the composition of the Steering Committee.
Dr Mabetoa replied that the Steering Committee was composed of officials from the different Departments concerned in the Bill, particularly the Departments of Justice, Education, Labour, Home Affairs and Foreign Affairs, the South African Police Service and the National Treasury. The committee met once a month or as necessary to deal with issue that arose during deliberations. Once the Bill had been passed, the committee’s main purpose would be to ensure the implementation of the Bill. There would be a lot of consultation with NGOs in respect of the Section 76 Bill, particularly the critical clauses on service provision.
Mr P du Preez (Legal Services, Social Development) referred to the briefing document, which listed the members of the Steering Committee, and concurred that it met at least once a month. The Steering Committee consisted of officials from the Departments of Social Development, Health, Justice, Education, Local Government, Safety and Security, Labour, Finance, Home Affairs and Correctional Services, the Office on the Rights of the Child in the Presidency and the South African Law Reform Commission.
The Chairperson confirmed that the Committee would invite the costing service provider to address the Members.
Mr M Sulliman (ANC, Northern Cape) expressed concern that the Department expected the Committee to pass the Bill by the end of the year, while the costing would only be ready the following year, and asked for clarity on this.
Mr T Setona (ANC, Free State) concurred, and expressed concern at a trend towards inadequate costing, noting that this had caused delays on the Older Persons Bill as well.
Dr Mabetoa replied that a scoping exercise had been done in 2003. The Bill was very complex, and the Department had been unable to find a service provider that was able to properly cost the Bill. The appointed service provider had only been approved in January 2005, and was costing the comprehensive Bill (both Sections 75 and 76). The Section 75 Bill did not have major cost implications, or the implications lay with the Department itself. The Department was bidding for funds from the Treasury for these. The major cost implications were with the Section 76 Bill, and by the time this was addressed, the full costing would be available. The Department hoped that some of the Section 75 Bill could be fast-tracked, particularly as it related to inter-country adoptions and child trafficking. A full year had been provided for deliberations on the Section 76 Bill, as it dealt with service delivery and would need close scrutiny.
Ms M Mbere (Director: Children’s Directorate) noted that the other stakeholder departments were also part of the comprehensive costing.
Mr Sulliman asked the legal team to explain the legal requirements for Parliament to pass a Bill in terms of the Public Finance Management Act.
Mr du Preez replied that Section 35 of the Public Finance Management Act required all legislation that assigned an additional function or power to, or imposed any other obligation on, a provincial government, to give a projection of the financial implications of this. This had been done in the Memorandum to the Bill.
Mr Setona asked for clarity on the extent to which the Bill would require the amendment of other legislation affecting children, such as labour legislation.
Ms R van Zyl (SALRC) replied that the drafters had gone through a very comprehensive process in order to ensure that functions were not removed from other Departments, or legislation amended. Workshops had been held with Departments, the Legal Aid Board, the Human Rights Commission and the Office on the Rights of the Child to ensure that efforts were not duplicated. A comprehensive document had been drafted, setting out exactly what legislation affected children and who was responsible for this, and its broad financial implications. This document was being updated and would be made available to the Committee.
Mr Setona emphasised that the Committee should not be "ritualistic" in its dealing with the Bill. There was no way in which it could oversee the implementation of the Bill unless it understood the Bill itself.
Ms N Madlala-Magubane (ANC, Gauteng) concurred, and suggested that the timeframe allowed for consideration was too short. There were controversial issues, such as virginity testing and cultural practices, and these aspects should be examined in depth. A one-day workshop should be held, and the involved Departments should be invited so that the Committee could see where the Bill violated the Constitution.
The Chairperson agreed that there was a need for a workshop, and noted that the Department needed to explain the Section 75 and 76 Bills, and their future amalgamation.
Mr du Preez confirmed the need for a workshop and emphasised that traditional leaders should be present to address issues such as virginity testing. The legal-technical background of the Bill was explained in the Briefing document. The consolidated Bill initially submitted to Parliament had been found to be a "mixed" Bill, and had been split. The current Bill contained only matters to be dealt with in terms of Section 75 of the Constitution. The numbering of the consolidated Bill had been retained, and as soon as the current bill was enacted, an amendment Bill, containing the Section 76 matters, would be introduced.
Ms H Lamuela (DA, Western Cape) asked for a copy of the changes made to the Bill by the Portfolio Committee.
Dr Mabetoa replied that the Department would try to make provision to show where the main changes had been made to the draft of 2003, although this would be difficult. The Department would address the bigger picture and highlight critical changes, and would submit this document when next it met with the Committee.
Mr J Thlagale (UCDP, North West) suggested that surrogate motherhood was a foreign concept in the cultural practices of most black South Africans and wondered how acceptable it would be to them. The chapter on surrogate motherhood should have been placed in the Section 76 Bill, so that the people in the provinces could have discussed the issue.
Ms van Zyl replied that the SALRC had investigated surrogate motherhood and drafted a Bill regarding it. A report had been tabled in Parliament, which had appointed an Ad Hoc Committee. This Committee had consulted very broadly, travelling abroad to investigate legislation in other countries, and the chapter as it stood in the Children’s Bill was actually the final report of that Ad Hoc Committee.
The Chairperson asked that the report of the Ad Hoc Committee be distributed to the Committee by Friday.
The Chairperson asked for clarity on the clauses of the Section 75 and 76 Bills, and asked how many clauses there were in total.
Dr Mabetoa replied that the entire Bill had about 315 clauses, and that the Section 75 Bill contained 210 clauses. The national Bill was more of a base, and provided a structure for the Section 76 Bill. The Section 76 Bill was more detailed, but the Section 75 Bill dealt with administrative issues and much space had been taken up by these issues.
Mr Setona noted that Parliament should unify the nation, and it could not abdicate its responsibility to provide leadership. The Section 75 Bill was more about the philosophical framework of the Bill, and it was important to converge on issues such as virginity testing and surrogacy. Even culture was determined by human beings, and was not static. It was not reasonable to continue to do certain things because one’s grandfathers had done these. Culture was diverse, but some kind of convergence had to be created.
The Chairperson noted that the workshop would be a presentation by the Department and some stakeholders, and suggested that public hearings would be held in the provinces.
The Committee agreed that the workshop should be held before the clause-by-clause deliberation of the Bill.
Children’s Bill: Summary of major issues
Ms van Zyl introduced the main points as contained in the Section 75 Bill, with specific reference to international instruments and controversial issues.
CHAPTER 3: PARENTAL RESPONSIBILITIES AND RIGHTS
Clause 25: Certain applications regarded as inter-country adoption
South Africa had acceded to the Hague Convention on Inter Country Adoptions. Clause 25 provided that, if a non-South African citizen brought an application for guardianship, this should be regarded as an inter-country adoption. There had already been instances where foreign persons had applied for guardianship, as they knew that they would not qualify to adopt. Once the child was out of South Africa, these persons then applied for adoption in other countries. This provision sought to prevent this practice.
Clause 31: Major decisions involving child
Before one holder of parental responsibilities and rights made any major decision involving the child, any other person with parental responsibilities and rights would have to be consulted. In certain instances, the child would have to be consulted as well.
Part 3: Parenting Plans
Clauses 33 – 35
The concept of parenting plans did not exist in South Africa at present. A parenting plan set out in detail who could see the child, for what period and so on. It could be entered into even before conflict arose.
CHAPTER 4: CHILDREN’S COURTS
This Chapter was the domain of the Department of Justice. They had drafted it, and they had proposed the amendments. The SALRC had proposed a different court system, but the Department of Justice had not supported this, as it was in the process of a full review of the courts system. There had been some expansion on the matters that could be adjudicated by a children’s court, and the introduction of lay forum hearings. Clause 55 was also important as it related to the legal representation of children. The Department of Justice had proposed that, if a child was not represented and the court felt that it was in the best interests of the child, the matter should be referred to the Legal Aid Board, who would then decide on representation. The Legal Aid Board had been consulted on this, and was aware of the financial implications.
A further important aspect of this chapter was that children had the right to be heard and that the court was obliged to listen to the child and consider the child’s opinion, subject to the child’s age and stage of maturity.
CHAPTER 7: PROTECTION OF CHILDREN
An innovation in this Chapter was the National Child Protection Register in two parts, where Part A was a record of vulnerable children. The Register would be national, in order to enable social workers to pick up patterns of abuse. The Department had already started compiling Part A of the Register.
Part B of the Register would list persons found unsuitable to work with children.
Part 3: Protective measures relating to health of children
The Child Care Act required that children be 14 to be able to consent to medical treatment, and provided that the consent of a guardian was required for surgical treatment, with no provision for the child’s own consent. This age had now been lowered to 12. The consent of a guardian was still required for surgery, but the child’s own consent was also required. Measures had been inserted for emergency situations. Clause 134 was also important in its provisions for the access of minors to contraceptives.
The Committee expressed concern that this would encourage promiscuity in minors.
Ms van Zyl replied that it was essential to look at the reality of a high prevalence of sexually transmitted diseases and a high rate of pregnancy amongst teenagers. It was important to continue with programmes to uplift morals, but the problem could not be allowed to run wild in the meantime. Twelve had been selected, as it was the age of adolescence.
CHAPTER 9: CHILD IN NEED OF CARE AND PROTECTION
Clause 150 had listed the categories of children in need of care and protection. Clause 155 was new and in line with practical requirements and current practice, providing that, before a formal court hearing, the case had to be referred to a social worker for investigation. The Chapter emphasised that the court had to try to secure stability for the child.
CHAPTER 15: ADOPTION
The focus was firmly placed on the child in respect of adoptions, and provision was made for a Register on Adoptable Children and Prospective Adoptive Parents. All information would be entered centrally on this Register, and national matches could be made. There was also provision for "open" adoptions, while adoption currently severed all ties.
CHAPTER 16: INTER-COUNTRY ADOPTION
Inter-country adoptions were a problem in South Africa, and it might be necessary to fast track this Chapter. South Africa had become a source country for adoptions, and this had to be addressed as a matter of urgency. No foreign person could adopt a South African child unless there were no suitable South African adoptive parents.
CHAPTER 17: CHILD ABDUCTION
This Chapter gave effect to the Hague Convention on International Child Abduction, to which South Africa was a signatory.
CHAPTER 18: TRAFFICKING IN CHILDREN
Trafficking in children was a problem in South Africa, and this Chapter criminalised trafficking, which had not previously been an offence.
CHAPTER 19: SURROGATE MOTHERHOOD
The report of the Ad Hoc Committee would be found and circulated to the Committee.
The meeting was adjourned.
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