Departmental Briefing on the Child Care Act 1983

PORTFOLIO COMMITTEE OF WELFARE COMMITTEE
24 March 1998
DEPARTMENTAL BRIEFING ON THE CHILD CARE ACT (1983)

The Department of Welfare and Population Development was asked by the committee to give a progress report (see Annexure) on the amendments to the Child Care Act (1983), focussing on section 18(4)(d). The Department presented a provisional draft paper, having had written input from a number of organisations.

Amendments have been proposed on The Natural Fathers of Children born out of Wedlock Act (1997), as there were inconsistencies regarding the equality provision in the Constitution of South Africa (1996). Annexure D consists of a draft of these proposed amendments to the Child Care Act (1983).

The committee discussed the rights of fathers who have committed rape (or incest). Words in the Act such as "relationship" and "refrain" should be defined or changed. Dr. Mokaba (Acting Director-General) informed the committee that a final draft might be ready by June.

Ms Turok (ANC) asked the Department about the progress of the Regulations for Social Assistance Bill. Dr Mokaba replied that it would be implemented on 1^st April.

The Chairperson, Mr Saloojee, ended the meeting by emphasising that the Department had to allow the Portfolio Committee to view the drafts so that they could be aware of the progress and make relevant input on the drafts.

ANNEXURE 1

WELFARE PORTFOLIO COMMITTEE BRIEFING ON 24 MARCH 1998 REGARDING THE AMENDMENTS TO SECTION 18(4)(d) OF THE CHILD CARE ACT, 1983.

1. BACKGROUND
1.1 During February 1997 the Constitutional Court of the Republic of South Africa ruled that section 18(4)(d) of the Child Care Act 1983, is inconsistent with the Constitution of South Africa (1996) and gave Parliament two years in which to correct the defective section.

1.2 Section 18(4) of the said Act states that only the natural mother's consent is necessary as a prerequisite to have a child adopted who was born out of wedlock.

1.3 Judgment by the Constitutional Court prescribes the following critical issues which should be taken into consideration when amending the said section:
· The natural father's right to be heard in court during the adoption inquiry
· Customary unions
· Relationships between parent(s) as well as between child and parent(s)
· No discrimination against any party

Attached is a copy of the summarized ruling of Judge Mohammed for your information. (Ed. This annexure has not been attached)

2. DISCUSSION
2.1 The issue has been consulted on a national level with several bodies by
way of workshops and formal meetings to obtain inputs and suggestions regarding the amendments to the said section, whereupon the first draft amendments were compiled.

2.2 A list of the bodies who were requested to provide written comments on the draft amendments is attached for your perusal.

(Ed. This annexure has not been attached)

2.3 One of the critical issues which were identified during the consultation process was that section 18(4)(d) of the Child Care Act, 1983 (the Act) could not be amended without the amendment having an effect on the entire Chapter 4 of the Act which deals with Adoptions. Therefore certain amendments to other sections of Chapter 4 of the Act also need to be amended and ipso facto also the Regulations under the Act

2.4 Second draft amendment to the said section was compiled and again forwarded to relevant role players. Written comments were received from relevant bodies. Second list attached for your perusal (Ed. This annexure has not been attached)

2.5 Role players had consensuses on the following issues:
· The natural father of a child born out of wedlock (natural father) should not be awarded rights and privileges which the natural mother is not entitled to during and after the adoption process.
· The natural father should formally accept responsibility for his child before he may be awarded any rights and privileges.
· A prerequisite for the father to accept responsibility for his child should be that be would have to register his intentions in a national register.
· The natural father should be refraining from accepting responsibility of his child if the child had been conceived through, rape of the mother or through incest.
· The definition of a natural father should not include a male person whose relationship with the child merely exists because he was a gamete donor in artificial fertilization as defined in the Human Tissue Act, 1983 (Act 51 of 1983), or whereby that child was fathered in the absence of a relationship with the mother of the child.
· The natural father should only have access to information pertaining to himself which is included in the minutes of an adoption inquiry. No information on the identity of the adoptive parents or the adopted child may be made available to him should he lodge an application to have the adoption order rescinded.

3. THE PRESENT SITUATION WITH REGARD TO THE FINALlSATION OF THE DRAFT AMENDENTS
3.1 Draft amendments have been formulated taking into account the afore-mentioned role players' written inputs.
3.2 Attached is a copy of the draft amendments to Chapter IV of the Act, for your information and comments. Annexure D.
3.3 Additional amendments have now been drafted to amend The Natural Fathers of Children born out of Wedlock Act, 1997 which was approved by Parliament on 19 November 1997. Attached is a copy of the afore-mentioned Act as well as a copy of the proposed amendments to this Act, for your information and comments. Annexure E and F.

4. PROPOSED AMENDMENTS TO THE NATURAL FATHERS OF CHILDREN BORN OUT OF WEDLOCK ACT, 1997 (NATURAL FATHERS ACT)
4. 1 Amendments to the Natural fathers act include the following:
* Reference to the proposed adoptive parents in section 2(5)(b) and 2(5)(c) shall only be applicable after the natural father has formally accepted responsibility of his child born out of wedlock.
* Repeal of section 6 of the Natural fathers act

4.2 The rationale for repealing section 6 of the Natural fathers act is as follows:
4.2.1 Section 6(1) of the Natural fathers act
"6(1) Subject to subsection (2), a children’s court to which an application for an order of adoption of a child born out of wedlock is made in terms of the Child Care Act, 1983 (Act No. 74 of 1983), shall not grant the application unless it is satisfied that the natural father of the child concerned has been given notice of the intended adoption.

Proposed amendments to section 18(4)(d) of the Act include written notice to the natural father who has formally accepted responsibility of his child born out of wedlock.

4.2.2 Section 6(2) of the Natural fathers act
"(2) a notice referred to in subsection (I) may be dispensed with if the children’s court is satisfied that-
the natural father-
(i) can be identified;
(ii) can not be found notwithstanding reasonable efforts to do so;
(b) the child was born of an incestuous relationship or as a result of rape; or
(c) it is in the best interests of the child that the requirement of notification be dispensed with."

* The proposed inclusion of an additional section following section 19 of the Act makes provision for dispensing with the notice referred to in subsection 18(4)(d)(ii) of the proposed amendments to Chapter IV of the Act.

* The proposed inclusion of the definition of "responsibility" as described under section 1 of the proposed amendments to the Act makes provision for dispensing with the notice referred to in subsection 18(4)(d)(ii) of the proposed amendments to the Act with regard to an incestuous relationship and the rape of the mother.

4.2.3 Section 6(3)(a), (b), (c), (d) of the Natural farthers act
"(3) For the purposes of this section the Minster of Justice may, after consultation with the Minister for Welfare and Population Development, by notice in the Gazette prescribe the following matters:
(a) The practice and procedures in connection with and issuing and service of a notice referred to in subsection (l) including the time which notice shall be given;
(b) the form and content of such notice and any other form required in complying with subsection (I);
(c) the duties of officers of a children’s court in respect of the issuing of such notice;
(d) the fees payable in respect of the service of such;"

The proposed amendment to sub-regulation 18(2) of the Regulations makes provision for practice and procedures with regard to the issuing and service of a notice referred to in subsection l8(4)(d)(ii) of the proposed amendments to the Act.

4.2.4 Section 6(3)(e)

"(e) any matter which he or she may deem necessary or expedient to prescribe for the attainment of the objects of this section.
Section 60 of the Act makes provision for the Minister to make regulations under the Act.

DRAFT [Annexure D]

Proposed amendments to Chapter IV of the Child Care Act, 1983 and the Regulations under the Child Care Act 1983
1. That subsection (d) be included under section 17 of the principal Act as follows:
"17(d) by the natural father of a child born out of wedlock"

2. That subsection 18 (4) (d) be amended as follows:
"That consent to the adoption has been given by both parents of the child; or
(i) if the child born out of wedlock, by the mother of the child, whether or not such a mother is a minor and whether or not she is assisted by her parent or guardian; and
(ii) if the child is born out of wedlock, by the natural father who has formally accepted responsibility of the child, whether or not such a father is a minor and whether or not he is assisted by his parent or guardian, who has been given reasonable notice on the pending adoption of the child, in the prescribed manner.

3. That subsection 19 (b) be amended as follows:
" That subsection (viii) be included under subsection 19 (b) as follows:
(viii) Has persistently failed or neglected, without reasonable cause to discharge the parental duties in relation to the child.
That subsection 21(1) be amended as follows:
"That subsection (e) be included under subsection 21(1) of the principle Act as follows:
(c) or the applicant is the natural father of the child who has formally accepted responsibility for the child, that he had not been given reasonable notice on the pending adoption of his child".

4 The inclusion of an additional section after section 19 to the principal Act as follows:
"That an additional section be included after section 19 as follows.

A notice referred to in section 18(4) (d) (ii) may be dispensed with if the children's count is satisfied that the natural father who has formally accepted responsibility for the child-
a) cannot be found, despite reasonable efforts to do so or
b) it is in the best interest of the child that the requirement of notification be dispensed with".

Inclusion of definitions as described under section 1 of the principal Act as follows:
"natural father" does not include a male person whose relationship with the child exists merely because he was a gamete donor in artificial fertilization as defined in the Human Tissue Act) 1983 (Act No.65 of 1933), or whereby that child was fathered in the absence of a relationship with the mother of the child
"natural" means related by blood
^"child born out of wedlock" does not include a child whose natural parents were married to each other at the time of his or her conception or at any time thereafter before the completion of his or her birth.
"Responsibility" in relation to the provisions in Chapter IV means:
- the existence of a relationship with his child; and
- notice of the child's birth has been given in terms of section 10(1) (5) of the
Births and Deaths registration Act, 1992 (Act 51 of 992), or proof of attempts to do so in the form of affidavits; and
- did not conceive the child through the rape of the mother which he has been convicted or through incest; and
acknowledged by way of a court order in the district where the child resides

5. That subregulation 18(2) be amended as follows;
"That subregulation (d) be included under subregulation 18 (2) of the principal Regulations as follows:
(d) written proof of the responsibility accepted by the natural father
(c) written proof that reasonable notice has been served on the natural father who has formally accepted the responsibility for the child, as required by section 18(4) (d) (ii) of the Act"

That subregulation (3) be included under regulation 18 of the principal Regulations as follows:
"(3) (i) The notice referred to in subregulation (2)(d) should be served at least 21 days before the application is heard and shall be in the form of form
(ii) if the court, hearing the application is satisfied that -
(a) the notice has been duly served on the natural father who has formally accepted responsibility for the child and there is no apparent reason for his failure to respond thereto, the court may immediately give judgment; or
(b) the notice could not be served on the natural father who has formally accepted responsibility for the child because his address of residence is unknown or uncertain, the court may, in its discretion, give direction for such further or better service of the notice as it may deem fit, or immediately give judgment".

6 "That subregulation (c) and (d) be included under regulation 22 of the principle Act as follows:
(c) ……; and
where the child is born out of wedlock the notification of the pending adoption given to the natural father who has formally accepted responsibility for his child.''

7 That subregulation 28 (4) be amended as follows:
(4) The registrar may, in his or her discretion and at any time, furnish specific information regarding an adoption to any person, including the natural mother and the natural father who has officially accepted responsibility for the child, who in the opinion of the registrar has sufficient reason to obtain the information: Provided that the identity of the child, his or her parents, adoptive parents or any other personal information regarding the parents and adoptive parents shall not be made available.

DRAFT [Annexure F]
Additions to draft amendments to Chapter IV of the Child Care Act, 1983 (Act 74 of 1983) already approved by the Director-General.
1. Amendment of the Natural Fathers of Children Born Out Of Wedlock
Act, 1998 by the insertion of subsection 2A:
"5A(a) The reference to the proposed adoptive parents in paragraphs b) and c) shall only be applicable after the natural father has formally accepted responsibility of his born out of wedlock as determined in Chapter IV of the Care Act, 1983.
(b) Section 6 of the Natural Fathers of Children Born Out Of Wedlock Act, 1998, is hereby repealed."

2. Inclusion of an additional regulation pertaining to the procedures to formally accept responsibility of a child born out of wedlock
"Amendment of regulation 21 of the principle regulations by insertion of subregulation 21A
21A Accepting responsibility for the child born out of wedlock
(1) A natural father who formally intents to accept responsibility of his child born out of wedlock, shall apply in the form of Form ….
Such application shall be lodged with the clerk of the Children's Court in the district where the child is residing together with
a) proof that notice of the child's birth has been given in terms of section 10(1)(b) of the Births and Deaths registration Act, 1992 (Act 51 of 1992) or proof of attempts to do so in the form of affidavits and
b) a report by a social worker or accredited social worker which include the following:
(i) the social circumstances of the applicant, mother and the child;
(ii) details of any counselling in respect of the proposed application to formally accept responsibility;
(iii) the nature of the applicants relationship with …. [incomplete].