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SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
6 June 2007
CHILDREN’S AMENDMENT BILL: DEPARTMENT FURTHER BRIEFING
Chairperson: Ms T Tshivase (ANC)
Documents handed out:
Children’s Amendment Bill presentation
Children’s Amendment Bill [B19B-2006]
The Department of Social Development set out the background to the process of the Children's Amendment Bill, noting that it encompassed all the provisions dealing with welfare services delivered by the provinces that needed to be considered as a section 76 Bill, and would therefore insert these provisions into the Children's Act, which had been dealt with as a Section 75 Bill. Both the Children's Act and the Amendment Bill had been through a costing process and the Department was currently busy, through a service provider, with the drafting of regulations. The Department presented a full summary of the proposed amendments to the initial draft.
Questions by members addressed the question of non-reporting, what funding would be used for education and awareness programmes, recognition and rules relating to child-headed households, the mandatory reporting clause, and the use and meaning of the words "well-resourced". Further concerns were whether it was intended to have separate strategies for children with disabilities, whether there was intended to be provision for children with sensory disabilities, protection for children from drug lords, vulnerable children under 14, and the fact that although there were pockets of support, these were not coordinated. The responsibilities and rights of children heading households were discussed, as were issues of child labour, corporal punishment at schools and by parents, the use of the words "may" and "must" in different areas of the Bill, the omission of prisons from the section of Child and Youth Care Centres, and the scope and functioning of these centres. Further questions were asked on the implications of this Bill as against the Child Justice Bill, the possible need for further public hearings, as some issues were not in the initial draft that was discussed during these hearings, steps taken by the Department to address the shortage of social workers, the need for separate programmes for street children and the need perhaps also to define them separately in the Bill, separation of children needing care and child offenders at places of safety, substance abusers who were in need of expert care, and the need for more comprehensive discussion on several issues.
Children's Amendment Bill: Department of Social Development (DSD) briefing
Ms Mosa Ngobo-Nbele, Director: National Department of Social Development, reminded the Committee of the background to the process. The current proposed legislation was a result of the realisation that existing legislation did not address the realities nor protect children adequately. South Africa had also acceded to various international conventions, creating a need to incorporate these principles into local legislation. In 1997, the then Minister for Welfare requested the South African Law Reform Commission to develop new comprehensive legislation for children. After a process of research and consultation the draft Children’s Bill was proposed in December 2002. The Bill that was initially submitted to Parliament in 2003 dealt with the full spectrum of protection of children in both national and provincial spheres, and was intended as a piece of legislation to be dealt with under Section 76 of the Constitution. It was, however, found to be a mixed Bill, because it included elements that had to be handled in terms of both Section 75 (Functional area of national legislative competence) and Section 76 (Functional area of provincial legislative competence) of the Constitution. Due to the mixed character, the consolidated Bill was split. The Section 75 Bill was dealt with in Parliament and published as the Children’s Act 38 of 2005.The Children’s Amendment Bill sought to amend the Children’s Act, completing it by inserting provisions dealing with welfare services as delivered by the provinces. The Minister of Social Development introduced the Children’s Amendment Bill (as a Section 76 Bill) in the National Council of Provinces on 25 July 2006. The Children’s Act 38 of 2005 and the Children’s Amendment Bill had been through a costing process and the final costing report was submitted to the Department of Social Development in July 2006. The Department had appointed a service provider to draft the regulations.
Ms Ngobo-Nbele then continued her presentation on the summary of the proposed amendments, as set out in detail in the attached presentation. The objects of the Bill were to insert definitions, to provide for partial care and early childhood development, to provide further for protection of children, to provide for prevention and early intervention services, to provide for children in alternative care, foster care, and Child and Youth Care Centres, and drop in centres, and finally to create certain new offences. Each of these was described in detail.
Ms C Dudley (ACDP) inquired into the results of non-reporting using the example of a child dying while in partial care but this either not being reported, or reported with no response.
Mr M Waters (DA) requested clarification on what money would be used for education and awareness programmes, disciplining of children, if Child Headed Households were still recognised and also, given the lack of Social Workers, how to implement the investigation requirement of the Mandatory Reporting Clause 110.
Mr M Masutha (ANC) pointed out that Clause 77 on Partial Care and Clause 92 on Early Childhood Development (ECD) Strategies gave the Minister and the MEC competence to develop national and provincial strategies. These, however, did not describe or define partial care strategy and ECD strategy . Another difficulty in the content of the strategy was effectively delegating powers to the Minister and MEC but not describing the extent and scope of those powers. There was also no guidance on core elements of such a strategy. He pointed out that the use of words, “well resourced” might be over-ambitious, given the shortage in resources as mentioned earlier by Mr Waters, and could open up legal obligations. He suggested that the Committee must be clear when asking Parliament to commit themselves. He further requested if the intention was to have a separate strategy for ECD for children with disabilities. He also pointed out that he was not sure if all matters contained in this bill were in fact Section 76 matters, thereby creating a problem based on the premise that a mixed bill cannot be passed. Perhaps a further report was needed in dealing with this issue.
Mr B Mkongi (ANC) requested if the issues of television advertisements, arts & culture and other entertainment categories were dealt with in the Bill in relation to the issue of child labour.
Mr Mkongi also requested explanations on what happened to the children under the age 15 who were heading households, given the permitted starting age in the Bill was 15.
Ms T Tshivase (ANC) informed the presenters that during inspections in the previous week, it was discovered that children were used as agents for selling drugs. She requested the group if there were provisions for protecting children from drug lords.
Ms Ronel van Zyl, Researcher, South African Law Reform Commission (SALRC) indicated that there was provision in the Bill for reporting of children who died or seriously injured while in partial care. One of them was that registration of facilities might be cancelled. She further reminded the Committee that in Clause110, it was important to make the distinction between sub clause 1 and sub clause 2. She explained that the list under sub clause 1 tried to cover all fields in the professional capacity, emphasising the requirements that professionals must report. Clause 305 dealt with the consequences. She explained that abuse was very widely defined and included emotional abuse. She informed the Committee that the Child Headed Household was a reality in South Africa and hence must be regulated instead of ignoring it. She explained that the age of 15 was related to the limit of school going age. She reminded that group that if Clause 136 was read carefully, this was in the best interest of children. Alternative care was foster care but there was also a shortage of this.
Ms Ngobo-Nbele explained that in terms of reporting, the relevant referrals were made at the provincial department or welfare organization or others. A social worker usually visited the families to identify children in need of care and would assist them to find adult supervision under the supervision of a certain organisation. These children were entitled to the child care grant. She further elaborated that there were programmes implemented where social workers could go into homes of children, for instance where the parents were sick, and they would talk with relatives who could assist in looking after the children. There was usually an adult in the household. She stressed to the Committee that there were pockets of activities but they just needed to be rolled out and strengthened. However, there was also a need to recognise that families' wishes must be respected when the parents died, so that the children would not necessarily end up in an institution and not be with their family.
Mr Mkongi still stressed that he had an issue with the vulnerable age of under-14 and the consequences of the non-recognition of this age group in the Bill.
Mr Masutha asked if it would not be better to create a system to recognise this. The Bill was creating further barriers by creating bureaucracy with this age limit.
Mr Mkongi expressed that he felt some were raising personal opinions; he was mainly interested in what the parliament could do to protect those children.
Mr Waters agreed with the suggestion to legalise social workers but was concerned about pockets of support and said that the Committee needed to know what those pockets of activities were and where they were rolled out.
Mr Masutha requested an indication of what legal powers a child heading up a household had, and what could such child do and not do. Every child headed household needed some support. In a situation where a child under 15 was head of the household, he asked what did this non recognition imply, given that this child was more vulnerable.
Ms van Zyl responded that if children were living without adult supervision, they needed to be placed in care. She reminded the Committee about the need to reach a balance and compromise between having all children under adult supervision and placing them in institutions. She explained that there was a problem with children headed households. Some social workers, on the other hand, believed that this term of child-headed households should not even appear in the Bill. A compromise was needed. She further explained that under-age children needed to be referred to the labour court. The Committee could change the age as mentioned in the Bill but she reiterated that the age of 15 had been chosen to correlate with the age relating to attendance at school. This Bill was related to the Children’s Act of 2005 and therefore should not be considered on its own
Mr Waters requested clarification from the Department as to how many child headed households were headed by 15-year olds and above, and how many were under 14.
Ms Ngobo-Nbele indicated that there were no statistics available at present, but the HIV/AIDs Unit had developed a database and hence DSD could pursue this together with the unit.
Mr Masutha requested clarification on what parenting obligations the child heading the household carried, and if they acquired the same parenthood, guardianship, or custody rights to this child.
Ms van Zyl responded that the child could not be a legal guardian, but would be a caregiver as defined in the Act. Legally, if they had an ID book, they could collect child support grants for the children in the household. They could get medical care to other children.
Ms Dudley followed up on her request for clarification on the mandatory reporting matter and follow up.
Ms van Zyl referred to clause 110 of the Bill, stating that ultimately the State was responsible for the welfare of the children and hence responsible for reporting. She further explained that the Provincial Department was charged with making sure this was followed through. She admitted that what was missing in the Bill was the imposition of a duty on welfare organizations and police and similar bodies to report all cases to the provincial department. Hence there might be a necessity to insert some further provisions relating to reporting.
Ms van Zyl referred to the query on Child Labour. She responded that the Department of Labour was responsible for these issues. She explained that the Children’s Act was more concerned about children being victims of child labour. The Children’s Act did have some provisions on Child Labour issues, but the bulk were dealt with by the Department of Labour (DOL). She thought that perhaps it would be useful for DOL to make a presentation.
Mr Masutha suggested to the Committee that it was best to flag issues not directly related to the Bill for further discussion, and focus on the task at hand.
Ms Dudley asked why entertainment was favoured over other labour activities.
Mr Masutha clarified that parents did have a right to directing their children to do chores as a normal part of growing up.
Ms I Direko (ANC) cautioned about copying things from other countries. As a teacher, she felt strongly that teachers could not use certain types of punishment or correction on children any more. She referred to examples in America where children were just running rampant, and thought that their system was crying out for corporal punishment to be reinstated.
Ms van Zyl responded about queries on the usage of “may” and “ must” throughout the Bill. The use of ‘may’ related to provincial competencies as these could not go beyond provincial legislations. The usage of ‘must’ related to constitutional issues where there was an obligation already on the government to do certain things. With regard to the Strategy she explained that the Bill gave the gist of what the strategy might be about. On the use of the term ‘properly’ resourced, she said this would need consideration of what was available in the province. Any provisions relating to strategy always had to refer back to the strategy clause to establish a link. All clauses were interlinked to give guidance on what strategy was about.
Mr Mkongi requested the reason why prisons were omitted from section on Child and Youth Care Centres.
Ms van Zyl explained that prisons were excluded from child and youth care centres as they fell outside the definition of what such centres were. Child and Youth Care Centres were for provision of care, but prisons were for sanctioning.
Mr Mkongi expressed his concern that there were children and young people in prisons and urged the committee to look at this matter
Mr Masutha said that children might be in prisons because they had been sentenced, or due to the shortage of other facilities where they should more properly have been referred. The question was, even if Correctional Services had made provision for children, whether there were linkages to this Bill.
Ms Ngobo-Nbele explained that children awaiting trial, or even those sentenced, were put in Youth Care Centres designed to take care of children’s needs. They were not supposed to be in prison but rather to be in secure care centres.
Ms van Zyl informed the committee that in terms of the Criminal Procedure Act, a child could be sentenced, but there was specific provision for them to be referred to a Youth Care Centre, which had a programme to deal with the matter. The Children’s Act dealt with civil issues and the Child Justice Bill would deal with criminal offences by children.. She cautioned that the Child Justice Bill had not yet been passed, hence this Bill could not cross link to it.
Mr Mkongi asked what the implications would be of passing this particular bill even if the Child Justice Bill had not been passed, and what could be the future implications.
Mr Masutha suggested flagging these issues as there was a need to interact with Justice Portfolio Committee.
Mr Masutha explained that whilst he understood the response in relation to strategy and financial issues, he still was not able to understand what "appropriately resourced" meant.
Ms Ngobo-Nbele explained that the Department’s understanding of strategy was that it should be broad, as it needed to look at issue of service delivery, resources, institutional arrangements, and research, as all those areas were covered. She asked if this should be put into the legislation.
Mr Masutha clarified that he was referring to what the Department was asking of the Committee.
Ms Agness Muller, Social Work Manager, DSD, explained that the strategy was being finalised, and this should be done by the end of June, when all the chapters in the legislation should be addressed. She further explained that the Implementation plan was in process and would include costings for five years. The strategy could be made available if the Committee wanted to see it.
Ms van Zyl confirmed to Mr Waters that Programmes were in place for education.
Ms Ngobo-Nbele expressed that the Department had a comprehensive parenting programme linked to ECD, which connected the issues of awareness with discipline of children. Funding would come from the baseline funding of the ECD pool. The question of possible removal of abused children from their home, when they were in danger, depended on the situation at home. It was generally better to remove the perpetrator rather than removing the child. However, much depended on the judgement of the person doing the investigation. If the social worker could not remove the child, then the police could also remove the child and transfer him or her to a place of safety such as family members or an institution. Cases could be followed up by auxiliary social workers who could take the matter to court.
Ms Muller clarified that part of the implementation plan was to try to retain social workers. She explained that there was money made available to train persons as auxiliary workers to work under supervision of social workers. The process was receiving attention. Even if police removed a person, the social worker must be informed.
Ms Ngobo-Nbele informed the Committing that the Department was generally moving towards targeting vulnerable children, based on detecting symptoms.
Ms Dudley requested why the defence of discipline was abolished.
Ms van Zyl explained that when the Bill was drafted, there were options considered either not to mention the defence of discipline, or abolish the defence of reasonably chastisement altogether. This was linked to the constitution which stipulated that children should be free of any form of violence. The Minister mentioned that this was also in line with international trends. Hence abolishment of the defence was justified and parents could no longer use this defence as an excuse for imposing violence on their children.
Ms Dudley referred to Clause139(2) and stated that there was a difference between loving corporal punishment by parents and other corporal acts. This particular sub clause was not in the Bill when the public hearings were held and she felt that there should be public hearings on this issue particularly.
Mr Masutha expressed the need to look at this in detail, and agreed that these issues were not addressed in the Bill as first drafted. He expressed the need to understand the rationale. There was also a need to clarify the issue of public hearings as he was not sure what the process was and how widely consultative it was.
Mr Waters supported the suggestion to have public hearings as there were substantial amendments that needed consultation.
Mr B Nzimande (ANC) cautioned that the Committee needed to tread carefully on the matter of public hearings
Ms Dudley reminded all of the Bill that was sent back to the National Council of Provinces by Doctors for Life due to lack of public consultations and warned that the Government could be setting itself up for expensive court cases.
Mr Masutha suggested that there was need to obtain advice from parliament on the constitutional obligation, as the Doctors for Life case had turned also on the question of parliamentary processes.
Ms Dudley asked why there was a need for Clause 139(3) when it was covered in all the other clauses.
Mr Waters referred back to mandatory reporting of child abuse and how the Department was looking at addressing the lack of Social Workers.
Mr Masutha expressed that the banning of corporal punishment at home may not belong to Section 76. He cautioned that the Committee may be irresponsible if a mixed bill was accepted and this was not raised in parliament.
Mr Waters expressed that he feared a vulnerable child may be placed in the wrong place, together with children in conflict with the law. He further expressed that in Child and Youth Care Centres rehabilitation was a specialised issue that needed different programmes. Children should be placed properly and appropriately and people running these programmes needed to be specialists. He also requested if the provision for siblings staying together should be included in the Bill and considered as alternative.
Ms Dudley expressed that the issue of 15-year old children heading households did not solve the issue of keeping families together. She asked in what way the Bill could provide for street children as they were definitely in need of care and could slip through the cracks
Mr Nzimande informed the committee that the Child and Youth Care could have a problem in use of the word "‘may" with respect to disabled children. He believed that it would be more appropriate to use the word "must". Sensory disabilities were left out and only physical or mental disabilities were included in the Bill. There should be more specific definitions of types.
Ms X Makasi (ANC)raised the issue of foster parents, particularly where some grandmothers did not want to let the children go to other care because of loss of the child grant.
Ms van Zyl explained that the origins of that proposal were that it came out of the initial comprehensive investigation done by the SALRC. This noted that there was no longer a differentiation between cases, but rather a general referral, which distinguished centres through programmes they offered. Now it was possible to have one facility with a range of programmes, and not different facilities for each separate programme. Fears were raised that vulnerable children would be placed together with those who violated the law. However, the norms and standards in Clause 194 provided measures for separation of children.
Ms van Zyl further explained that with respect to street children, there was provision in Section 150 of the Act, which referred to programmes designed for care of Street Children. This was one of the new insertions after public hearings. Currently street children were provided for in shelters, but the public hearings indicated that there was a reality that children were simply being dumped into shelters, which then had to be converted to proper Child and Youth Care facilities. She explained that there was a phasing-in period for shelters to upgrade.
Ms van Zyl clarified that Clause 191 (2) provided for disabled children. Residential care was the only clause which contained the pejorative “must” , but all other programmes were optional. It would largely depend on children in that facility. Children with emotional and behavioural difficulties would have to be offered programmes to address their particular needs. There was a need to also remember that when a child was placed in care, there needed to be development and a permanency plan which would dictate what programme a child would be subjected to. She suggested that perhaps there should be some reference inserted into Clause 11 to make it clear that children with disabilities and chronic illness be provided for. In relation to foster care, she explained that Clause 180 (3) provided for aunts, grandmothers and other family members.
Ms Ngobo-Nbele explained that the Prevention of and Treatment for Substance Abuse Bill was in process and should cross reference with this Bill. She further explained that there was a need to discuss cluster foster-care homes, but it was a challenge if children did not want to be removed or uprooted, as they had already experience trauma in losing their parents and hence they needed to be handled sensitively. There were not enough facilities for children and this must be acknowledged. There needed to be more Child and Youth Care Centres. Infrastructure needs were a budget priority for DSD.
Ms Muller agreed with the issue of specialised response to substance abuse needing expert care. However, she cautioned that at present it was not practical to take between twenty and fifty children to a rehabilitation centre as there was no place for them. The Department rather offered therapeutic programmes. This was a further reason why the wording used "may" rather than "must".
Messrs Nzimande and Waters were not convinced their issues were addressed adequately.
Ms van Zyl referred back to her explanation, saying that the distinction was made not on the basis of the facility but on the basis of the programmes offered to children. She referred to Clause191 which listed all programmes offered to children. She noted also that there was reference to the children to be in a secure care programme, or transferred to alternative care. The problem was the lack of available facilities.
Ms Muller suggested that perhaps a new name for "street children" was needed on registration, as children's homes offering programmes for street children had different needs. She noted that the public hearings had been clear that street children must have their own frame of reference and could not be put together with vulnerable children. Child and Youth Care centres would be discussed further by the Department. The sooner the children could be taken into care so that there was a proper analysis of what put them on the street in the first place, the better the success of the interventions would be.
The meeting was adjourned.
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