Children’s Act: Amended Regulations: briefing by Department of Social Development

NCOP Health and Social Services

11 November 2008
Chairperson: Ms J Masilo (ANC, North West)
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Meeting Summary

The Committee was briefed on the Amended Regulations to the Children’s Act. It was noted that the Children’s Act, unlike other pieces of legislation, did not simply leave the promulgation of regulations in the discretion of the Minister, but required that the regulations should be presented to Parliament for consultation. It was explained that both the Departments of Social Development and of Justice and Constitutional Development bore responsibility for some of the regulations, depending on the matters that fell under the control of each Department, with the Department of Justice primarily responsible for matters affected the Children’s Court and abductions. The Regulations had been published for comment, with an extension also granted, and thirty three comments were received. The categories of regulations were described and the Departments of Social Development and Justice took the Committee through the Regulations. It was explained that certain of the costings still needed to be done and the Minister of Finance would need to be consulted. 

Members asked questions about who gave medical consent for school-going children who needed treatment, the provisions in relation to the National Child Protection Register, clarity regarding male circumcision and the deaths related to this practice, the age limits for consent in relation to circumcision, and burial of children who died while in foster care.

Meeting report

Children’s Act: Amended Regulations: Department of Social Development (DSD) Briefing
The Chairperson stated that the Committee would be receiving a briefing from the Department of Social Development (DSD) on the Amended Regulations to the Children’s Act.
Mr T Setona (ANC, Free State) said that whether the Committee would accept the briefing on the Regulations was the decision of the Committee, although it was important to remember that the Committee wanted to achieve certainty on some of the provisions of the Regulations. The original plan was that this meeting was just to inform the Committee of the operational plans of the Department of Social Development.

The Chairperson apologised for the late documentation, which had only been received on 10 November.

Mr M Sulliman (ANC, Northern Cape) requested that the Department only highlight the important issues.

The Chairperson said that she could not support that request. This meeting was set to continue until 13:00 and there should be sufficient time to complete deliberations. The Chairperson added that there was a request from the Department of Justice and Constitutional Development to make an input, and they were only told to attend this meeting yesterday. She then asked the Director General of the Department to give his presentation.

Mr Vusi Madonsela, Director General, Department of Social Development, noted that his presentation would cover a range of issues that the Select Committee had raised at the last meeting.

The provision to amend the regulations was rather unusual, because regulations were usually an Executive function. However, the Children’s Act required that the NCOP must be consulted upon regulations. He referred to Section 3(6) of the Children’s Act (the Act), which stated that ““for the proper application of subsection 2(2), the Minister must in terms of Section 146 (6) of the Constitution, submit all regulations made under this Act”. Mr Madonsela said that the meaning of this was uncertain as Regulations were subordinate legislation, and this section appeared to require the Minister to seek approval from the NCOP, which would involve approval from the provinces. He asked what would be the practical effects if, each time that the Department sought to give practical expression to the intent of legislature, it must approach the NCOP.  Mr Madonsela said that the Department would seek legal advice from the Office of the Chief State Law Advisor on the apparent conflict in this legislation.

Ms Agnes Muller, Manager: Children’s Act, Department of Social Development, provided a background to the briefing. She stated that in February 2007 a service provider had been appointed to draft the Regulations for the Department. A decision had been taken that the Department of Justice and Constitutional Development should withdraw the Regulations on the Children’s Court as well as on abductions.

Ms Muller said that the Department had distributed more than 900 hard copies of the Regulations, and e-mails, and had published the Regulations for a period of 45 days, which led up to 11 August 2008. Requests had been received for an extension, and  this was granted, for a further week, until 22 August 2008. Thirty three comments were received from stakeholders, and the Department had worked through all these comments.

Ms Muller said that the draft Regulations related to the Regulations as prescribed by the Act and included Norms and Standards on Partial Care, Early Childhood Development programmes, Child Protection, Prevention and early intervention programmes, Child and Youth Care Centres, and Drop-in Centres. Forms 1 – 79 were attached, so three very comprehensive documents were enclosed.

Ms Muller said that comments were received from the Department of Justice and Constitutional Development (DOJ). The presentation would deal with what the Regulations said, and, if the Committee was interested, the document on the Regulations could be more extensively discussed.

Ms Muller said that the Department would also like to entertain a detailed discussion on virginity testing and circumcision, as these were new to the legislation. Comments were also received on Child and Youth Care Centres.

Ms Maria Mabetoa, Deputy Director-General: Welfare Services, DSD, explained why there were separate regulations for the Departments of Social Development and Justice and Constitutional Development. She said that in the Children’s Act it had been stipulated that the DOJ must develop separate regulations dealing with abductions, because these fell under the responsibility of the Department of Justice. The two Departments had tried in all instances to align the processes to ensure that the publication of all regulations was done at the same time.

The Chairperson asked the Department of Justice to clarify the division of labour.

Mr Deon Rudman, Deputy Director-General:  Legislation,  DOJ, stated that a set of draft regulations had been made available to the Committee. These regulations were still in draft form, as a number of issues still needed attention. A component of the DOJ would take responsibility for the implementation of the Regulations, in accordance with the implementation plan. He noted that the costing still had to be done, given the fair amount of financial implications related to the Regulations, and the Minister of Finance would also have to be approached regarding this matter.

Ms Muller then commenced the main presentation by discussing the general provisions in the Regulations. She outlined the definitions and the intervals of provincial profiles, as well as the strategies. She then noted that there were General Provisions were outlined regarding intervals of provincial profiles and strategies. She noted that there were regulations also referring to social, cultural and religious practices, and she highlighted the regulations in respect of virginity testing and male circumcision. She then indicated that other topics covered included parental responsibilities and rights agreements, parenting plans, medical information concerning genetic parents of children born from artificial fertilization or surrogacy, partial care facilities, early childhood development, child protection system, the National Child Protection Register, protective measures relating to the health of children, other protective measures, children in need of care and protection, foster care, Child and Youth Care Centres, Drop In Centres, adoptions, inter-country adoptions, and child trafficking.

Mr B Tolo (ANC, Mpumalanga) asked under what circumstances the Minister would have to be consulted regarding children at school level needing medical treatment.

Ms Muller said that medical consent by the Minister was delegated to Chief Directors in provinces at this stage, as a provincial function.

The Chairperson asked for clarity regarding the National Child Protection Register, Part B. 

Ms Muller said that the Child Protection Register Part B, set out that persons could, by a court of law, be deemed unfit to work with children.

Ms J Vilakazi (IFP, Kwazulu Natal)  asked for clarity regarding male circumcision and the deaths relating to this practice.

Professor Julia Sloth-Nielsen, Child Law Centre, University of the Western Cape, answered the question at the request of the Chairperson. She stated that the Act did not permit regulation of matters beyond those dealt with in that Act. There was provincial legislation in four provinces regarding circumcision. She reiterated that regulations could not be superceded.

She noted that two provisions of the Act related to male circumcision. Section 12 referred to circumcision of males older than the age of 16. Professor Sloth-Nielsen said that circumcision was generally prohibited, except where it was a religious decision, and then common law rules would apply.  Section 129 did not specifically require regulations, but as it was a new regulation, it was felt that medical personnel would require consent for children over the age of 12. This was intended both to assist practitioners and obtain the required parental assistance.

Ms Muller read out Chapter 2, Parts I and II, on Virginity Testing and Male Circumcision, from the Consolidated Regulations Pertaining to the Children’s Amendment Act, 2007 (Act No 41 of 2007), and highlighted the amendments (see attached document).

Regulations under the control of the Department of Justice
Mr Laurence Bassett, Chief Director: Legislation, Department of Justice and Constitutional Development, apologised that unfortunately no document was available at this stage. He noted, however, that considerable consultation had taken place with a number of stakeholders, including the Judiciary, the Supreme Court of Appeal, Registrars of the High Court, the Office of Family Advocate and the Department of Social Development.  The Justice Regulations were published together with the Regulations from Social Development, and all comments from stakeholders had been incorporated.

Mr Basset briefly set out some of the Social Development sector legislation on which the Minister of Justice had the responsibility of making regulations:  This included regulations under Section 75 of the Act, in relation to Children’s Court proceedings, and Section 280, as also in respect of the Chapter of the Act dealing with International Child Abduction. 

Mr Basset said that other matters requiring the involvement of the Department of Justice included Section 48(2), in terms of which the Children’s Court may estimate the age of a Child,  Section 52, which provided that further investigation must be carried out according to prescribed procedures and Section 59(1), which provided that the clerk of the Children’s Court must summons a person to appear as a witness. Others were Section 63(1), which  provided that a written report must be signed by a medical practitioner or designated social workers or suitably qualified persons, regarding information about a child which was admissible as evidence, and Section 67,  which provided that the Director-General must, in a prescribed manner, designate one or more officials for every Children’s Court as clerks of the children’s court.

Mr Basset stated that the draft Regulations prepared by the Department of Justice were divided into five chapters. Chapter 1 dealt with definitions, Chapter 2 dealt with Clerks of the Children’s Courts; Chapter 3 dealt with children’s’ courts in two  parts. Draft Regulation 4 dealt with the conditions of appointment of staff; Draft Regulation 5 dealt with functions, powers and duties of clerks; Draft Regulation 6 dealt with how matters should be brought to children’s courts, Draft Regulation 7 dealt with attendance at proceedings; Draft Regulation 8 dealt with the time periods set and deviations from set time periods,  Draft Regulation 9 dealt with subpoenaing and summonsing of witnesses and Draft Regulation 10 dealt with the age estimation of a child. In respect of the Part II matters, Draft Regulations 12 and 14 dealt with hearings,  family group conferences and lay forums.

Mr Basset said that Chapter 4 covered regulations regarding child abductions. Draft Regulation 15 dealt with the return of a child from another State; Draft Regulation 16 dealt with access to children wrongfully removed from the Republic, Draft Regulation 17 dealt with applications to have a child returned who had been wrongfully removed; Draft Regulation 18 dealt with the appointment of officials of the Chief Family Advocate; Draft Regulation 20 covered court appearances; Draft Regulation 21 dealt with provisions for the  payment of fees; and Draft Regulation 22 dealt with the recovery of expenditure. Draft Regulation 23 covered the finalisation of proceedings for the return of a child, Draft Regulation 24 covered the procedures in the high court; and Draft Regulation 27 dealt with the powers of the High Court. The Draft Regulations in Chapter 5 dealt with miscellaneous issues like forms prescribed for distribution audits. Mr Basset concluded by saying that 15 annexures were referred to in the Regulations, and these contained the forms referred to in the document.

Mr Malusi Ncolo, Senior State Law Adviser, Office of the Chief State Law Adviser, commented that there was nothing objectionable in the draft Regulations. He referred to the questions raised earlier regarding the role of the NCOP and the normal function of the Executive in regard to regulations. He said that he had just held an informal discussion with the Director General of the DSD. Normally, he agreed that regulations would simply fall under the jurisdiction of the Executive, but sometimes the law did require that the NCOP or Parliament take part in the regulation process.

Ms Muller continued with the briefing on the regulations that pertained to the function of the Department of Social Development, reading out Chapter 10, and Part II on Cluster Foster Care from the Consolidated Regulations. 

Mr Thetjeng asked what would happen about the burial of a child who died in foster care.

Ms Muller said that it depended on whether the child had parents. If there were no parents then the State would have to take care of the burial.

Mr Madonsela stated that he was happy with the feedback from the Committee and hoped that all the questions had been sufficiently covered. He said that the DSD was keen that the Regulations be promulgated..

The meeting was adjourned


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