Child Care Act review: briefing by SA Law Commission

Social Development

05 June 2001
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Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
6 June 2001
CHILD CARE ACT REVIEW: BRIEFING BY SOUTH AFRICAN LAW COMMISSION

Chairperson: Mr Saloojee

Documents handed out:
Draft Discussion Paper: Review of Child Care Act (Chapter 5) as on 20 May 2001
[this document is work in progress]

SUMMARY

The South African Law Commission briefed the Committee on how the draft Discussion Paper deals with following issues;
- The definition of a ‘child’;
-The relationship between the child and its parents
-;The protection of particularly vulnerable children
-Commercial sexual exploitation of children
-Children’s rights and needs in the justice system.

MINUTES
Introduction

Prof Zaal of the S A Law Commission said that the document that had been handed to the Committee was an 812 page Discussion Paper. It was a work in progress. The document illustrates the broad scope of the childcare project. Initially they had considered simply reforming the existing Act, but it became evident from the failing system that far more meaningful changes were needed. The Commission then dealt with the issues previously raised by the Committee.

Definition of a ‘Child’

Prof Zaal described this as the foundational aspect for legislative reform. Initially the Commission had thought that the issue was simple and that it could be taken for granted that eighteen was the age of majority. However, upon examining the rural areas it became evident that children were leaving school later due to poverty and this created a problem of how to deal with the learners above the age of eighteen who had not yet finished school. The Commission explored three routes:
-Maintain the age of eighteen as the age of majority in terms of the Constitution.
-Re-introduce the traditional age of 21 as being the age of majority (despite its conflict with the Constitution)
-Maintain the age of eighteen as the age of majority, while introducing special protective measures for the nineteen to 21 year old category. This could be done by the inclusion of a definition of a ‘young adult’.

Discussion

Ms N Tsheole (ANC) indicated her support of the last proposal. With regard to the rural areas she said that although learners remain at school until a later age, many of the youth got married at a much earlier age.

Ms J Chalmers (ANC) asked how labour legislation would be affected if proposal (c) were to be implemented.

Dr Loffell warned that the reduction of the age of majority should serve to empower the young and not have the opposite effect. Thus a balance has to be maintained, as the lowering of the age of majority should not interfere with what is considered to be an acceptable working age.

Ms E Gandhi (ANC) referred to the fact that because of AIDS children as young as nine years old are acting as the heads of their households. She cautioned that if age were to determine majority provision has to be made to enable these children to access benefits despite the fact that they are themselves still children.

Prof Zaal said that the issue of child headed households had been discussed by the Commission.

Ms Rajbally (Minority Party) added that, with reference to school leaving age one has to consider the circumstances that keep these children back in life such as children who started school late or backward children who spend more than one year in a particular standard.

Mr M Masutha (ANC) expressed concern that attempting to debate the age of adulthood would possibly be an unproductive exercise. Relevant ages of competence for children should be dealt with separately within the legislation dealing with the issues affecting children such as. the age at which a child may testify in court or the age at which a child may be employed.

Prof Zaal felt that it was helpful to fix the age of majority in order to give effect to protective provisions affecting children. It would also serve to urge children who are in protective care to make an effort to complete their schooling prior to reaching the age of majority.

Ms Tsheole asked how children who are criminals are being dealt with.

The Chair said that this issue is dealt with in the Justice Bill.

Prof Zaal expressed concerns that where children are diverted from the justice system to the care system, 80% of these children ‘disappear’ and never actually reach the care system. He believed that this should be addressed, as the care system still seems to be the correct system to use.

Relationship between a child and its parents

The silence of the current Child Care Act on this issue is a serious shortcoming. It leaves the issue to be dealt with by Common Law, which has its focus on the traditional nuclear family where the child is raised by the parents who are married to each other. The nature of the family has changed so much in recent times that this approach is no longer relevant often families are headed by children and children are raised by people other than their biological parents. Yet, in practice the High Court rarely allocates guardianship to a non-biological parent as its focus is still on the traditional nuclear family.

In addition, the Commission recommends that the issues of guardianship, custody and divorce be dealt with in the same court in the interests of saving money.

Roman Dutch Law has traditionally dealt with guardianship, access and custody and this is done with the parents as the primary focus of the issue. To deal with this the Commission recommends that ‘parental powers’ be replaced by ‘parental responsibilities’.

Discussion

Mr Masutha suggested that the notion of the primary caregiver should be extended to siblings. The term ‘parental responsibilities’ does not go far enough to include the new emerging types of relationships where parents are not necessarily the ones taking responsibility for children.

Prof Zaal found Mr Masutha’s opposition to the use of the term ‘parental responsibilities’ to be very interesting this term was used as the ‘in’ terminology in different progressive systems to replace the outdated ‘parental powers’. This term was limiting, as it does not cater for the family where children are not being raised by their parents. There was a need to develop terminology that places responsibility on the primary caregiver.

Ms Tsheole argued against extending the concept of ‘parental responsibility’ as it created the possibility of abuse. Any individual may claim grants and state assistance by simply claiming that they are responsible for the child.

Prof Zaal said that this could be solved by the involvement of a court process. This would ensure that only the person to whom the court awards custody is able to claim grants on behalf of the child. The process would have to be flexible to ensure that it is easy for an individual to return to court if circumstances change.

Ms Gandhi said that it is important to take changing family circumstances into account when defining a family. Thus, one has to consider child-headed households and adoption of children by gay and lesbian couples.

Protection of the ‘particularly vulnerable’ child
Dr Loffell said that Chapter eight of the Discussion Paper deals with the formal protective system. The current Child Care Act is based on the Western model which benefits a select group who have relatively easy access to courts -. children living in urban areas. The Commission is focusing on a model, which is able to reach more children.
The approach is based on the idea that if one puts too much resource into the formal protective system there will not be enough to put in place preventative measures. There is thus a need for a balance between the two. Experience has shown that interventions in terms of the formal protective system can have devastating effects such as. where children are removed from their families. Things often go severely wrong in the protective system and this often results in secondary abuse. It is therefore important that the various components of the systems function properly.

The Chair asked what these components are and what the cost is to enable them to function properly.

Dr Loffell said that one has to determine how many children one is dealing with. In addition one should determine what the Departments of Justice, Welfare, Health and Education need so that they may function effectively in this regard.

The emphasis on compulsory reporting should be considered. This concept has been imported from countries with highly developed protective systems. Problems often arise when this gets out of hand and excessive amounts are spent on investigations and families are often worse off after this occurs. It is therefore important to put enough money in developing preventative mechanisms. This would decrease the amount of children in the protective system at which stage things become much more difficult.

The Commission has made extensive recommendations in connection with permanency planning such as foster and extended families should also be assured of permanency.

Discussion
Mr Masutha asked if family preservation was viewed as a primary issue as is the case overseas.

Ms Loffell replied that the family preservation programmes were expensive requiring intensive resources. They were successful as they prevented children from being removed from their families and often reversed the abusive situation. In South Africa this would only be achieved on a limited scale.

Mr Masutha said that social security is vital to child care as it empowers families to care for children. Thus, it is important that the Committee meets the Commission of Inquiry on the Comprehensive Social Security System.

Ms Loffell agreed to the importance of the basic income grant and added that it removed the starvation and desperation factor. It would reduce cases of street children, prostitution, child labour, as well as juvenile and adult crime. Though this grant would be costly it will result in savings in other respects. It will keep the protective system for those children whose abuse had not been related to poverty.

Mr Masutha referred to the notion that foster care should be dealt with as a professional service separate to kinship placement. He asked the Law Commission to elaborate on this issue.

Ms Loffell replied that in terms of this view, foster care involved a professional agency taking custody of the child until s/he can be restored to his/ her family. This may mean reduced funding available to the child as the foster care grant in terms of the current system is the best grant available to the child.

Ms S Kalyan (DP) noted that the social security grant would benefit children who fell through the system. She asked which category AIDS orphans fell into.

Ms Loffell said that this depends on the outcome of the deliberations of the Commission dealing with social security.

Ms Kalyan said that a family is a unit living together with a common purpose. This, she suggested, would include child-headed households and families consisting of children adopted by gay or lesbian couples.

Ms Loffell agreed that a flexible approach is needed in defining a family.

Law Commission’s approach to Child-headed Households

Ms Stuurman of the Law Commission noted that the Commission was considering the following:
-Giving legal recognition to child-headed households.
-Enabling the child to access the relevant grants such as the child care grant
-Encouraging the extended family for placement of orphans. This can be done by allowing the extended family access to the foster care grant without them having to approach the courts.
-Appointing a guardian on behalf of the household as the child may be too immature to be given parental responsibility.

Discussion
Mr Masutha referred to the impediments experienced in accessing grants by children heading households. He reiterated the importance of the Law and Social Security Commissions working together at this stage.

Ms Gandhi commended the preventive steps to be introduced by the Law Commission, but emphasised that support systems were needed for its implementation e.g. To implement family preservation, adequate housing is needed.

Ms Chalmers asked how the Commission does its costing.

Prof Zaal said that extensive debates had taken place on the budget. Many solutions had been found via creative thinking such as:
-having one family court as opposed to many.
-if a family got a grant the possibility of child prostitution is lessened. This, in turn reduces the risk of the child contracting AIDS, which would have been more expensive for the State to treat.

Ms M Ramotsamai (ANC) noted that the document handed to the Committee was not helpful in enabling members to follow the presentation. Has the Commission considered the situation of non- South Africans adopting South African children?

Mr Hollamby of the Law Commission replied that Chapter 3 of the Discussion Paper deals with International adoptions. They recommended that:
-South Africa should ratify the Hague Convention
-There should be a reporting officer who should be someone other than the Family Advocate. They considered adoption by citizens of other Hague Convention countries, countries with whom South Africa has a bilateral agreement or countries who were not signatories to either the Convention or agreements. The prohibition on these adoptions (as provided for in the Child Care Act) has been declared unconstitutional in the Fitzpatrick case.

Ms Tsheole referred to family preservation and asked how incest will be dealt with.

Prof Zaal said that he was impressed with the provision in the Domestic Violence Act where the perpetrator is removed from the home and not the child.

Dr Loffell added that when assessing the removal of a perpetrator one should consider that treatment is sometimes better than imprisonment. Often families fail to report cases of abuse as it could mean the imprisonment of their sole breadwinner.

Dr Loffell stressed the importance of the Local Authorities in Child Care issues as this is where the most effective delivery takes place. Despite their differing capacities, each should count the children in its jurisdiction and submit even the most rudimentary plan of action for the next three years.

Ms R Southgate said she did not understand the role Local Authorities could play as this role could only be very limited.

Dr Loffell responded that in the UK the Local Government runs the entire Child Care system. If a child were abused local government would be far more accessible to deal with the issue. Local Governments elsewhere in Africa are expressly involved in examining and planning for the needs of the children. In addition, the Provincial Government can delegate responsibility and funding down (as Gauteng did in order to deal with the issue of street children). The Chair added that in Brazil every Local Government has a Childcare Commissioner.

Mr Masutha asked if the Judge in the Fitzpatrick case gave a timeframe for the implementation of the decision and what processes were put in place.

Mr Hollamby said that the timeframe was two years. The Law Commission had taken the decision into account, but its implementation was the Department’s responsibility.

Mr Masutha said that South Africa should become signatories to the Hague Convention.

Commercial sexual exploitation of children
Ms Stuurman said that Section 50A of the Child Care Act criminalises commercial sexual exploitation of children, but does not say how it will protect these children. She suggested that S50A belongs in the Sexual Offences Act and that the new Child Care Act should focus on protection.
Commercial sexual exploitation is divided into child prostitution, pornography and trafficking. It is one of the worst forms of child labour and should be dealt with as such.

Discussion
The Chair said that there appears to be no effective way pornography on the Internet can be dealt with. He asked if there are any countries where this has been done successfully.

Mr Hollamby described the scenario where a person travels from Pretoria to Cape Town to meet a twelve-year-old child s/he met in a chat room. The fact that such person travelled that distance could be indicative of intent to engage in sexual activities with the child. Here intent could be the relevant factor.

Dr Loffell suggested that the Internet service could be held responsible to which Ms Stuurman agreed.

Children’s rights and needs in the justice system
Prof Zaal said that this could be addressed by the Family Court pilot project. Opposition is expected from the legal profession, which is by nature conservative. The problem is evident in the division between the children’s courts and the High Court. The former has limited resources with which to operate. The High Court enjoys status, but is inaccessible to ordinary people, as it is very expensive. In addition, it lacks specialised services in work involving children and families.

Courts need to draw in people who are child and family- oriented. The position of a children’s court assistant could be created and this person would serve as a child and family specialist. This person would require knowledge of social work. One would however still require a law degree to qualify as family court judge.

Discussion
Ms Tsheole said that one should work toward eliminating the competition between parents in custody cases and encourage parents to bear in mind that the best interests of the child should be the priority.

Prof Zaal replied that this situation was borne out of the weakness of the Roman Dutch law system. The court should in these cases monitor the child and have the power to call back the child and parents if it is not satisfied that the child’s interests are being served.

Dr E Jassat (ANC) asked what the nature of the qualification of the Child Court assistant would be.

Prof Zaal said that the extent of the legal training as opposed to social work training needed is debatable. An adjudicator will however require a law degree. However, at entry level a full law degree would not be necessary and courses in the Law of Evidence and procedure could suffice. The Commission could also recommend 50 hours’ observance of court procedure as a requirement.

The meeting was adjourned.

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