Proposed Legislation by Departments of Home Affairs, Health and Social Development: briefing

SELECT COMMITTEE ON SOCIAL SERVICES
9 October 2001
PROPOSED LEGISLATION BY DEPARTMENTS OF HOME AFFAIRS, HEALTH AND SOCIAL DEVELOPMENT: BRIEFING

Chairperson: Ms L Jacobus (ANC)

Documents handed out
African Traditional Health Practitioners Bill, 2001 (see Appendix 1)
Summary Report: Draft Nursing Bill (Appendix 2)
Briefing on the status of proposed legislation: Department of Social Development (Appendix 3)
Births and Deaths Registration Amendment Bill [B53 - 2001]

SUMMARY
The Departments of Health, Social Development and Home Affairs briefed the Committee on pending legislation.

MINUTES
Department of Health proposed legislation:
African Traditional Health Practitioners Bill
Professor Gumbi (Department of Health) noted that for the first time traditional healers in South Africa will be regulated. Traditional healers have always been on the periphery although as many as 80 percent of South Africans consult traditional healers

The purpose of the Bill is that “people have the freedom of choice in relation to health care delivery�. The Bill will give traditional healers legal recognition and if they want to claim from medical schemes they would be at liberty to do so. The Bill will also protect the public.

Currently there is a 24-member council that the Minister appoints. The chairperson and vice chairperson must be a registered Traditional Health Practitioner. Nine persons must be registered and have at least five years of practice. Nine persons will be community representatives from each province. A Department of Health representative, a person with legal expertise, a pharmacist and a medical practitioner from the SA Health Professions Council will make up the rest of the 24 member council.

The Department wants traditional practitioners to be involved  in decision making. Since they are providing a service to the public, there should be community representatives for monitoring purposes in order to protect the public.

The Department would guide the council on the issues of policies, providing them with legal expertise and backing from the pharmaceutical council. There would be the regulation of aspects such as education and training, research, property rights and professional conduct.

Four categories of traditional healers would be registered, these being the herbalists (inyanga), traditional surgeons, traditional birth attendants (ababelekisi), and diviners (sangoma). Prof Gumbi noted that much concern has been expressed as to why the Department had excluded spiritual healers but that was still being debated.

Discussion
Rev P Moatshe (ANC) asked why spiritual healers were excluded.

Professor Gumbi responded that they are not considered to be within the parameters of traditional healing.

Draft Nursing Bill
The new legislative framework is looking at changes that would accommodate the new transformation agenda. The proposal for the composition is looking at inclusivity where student nurses, nursing auxiliaries and other nurses are going to be together, which had not been the case before 1998.

The Bill is in line with the provisions of the Bill of Rights. For the first time people would be considered as part of the decision making process. The Department is looking at universal norms and values and the key element of the council is to make sure that nurses improve the quality of life. There have been concerns that some of the councils are not protecting the public and that was why all registered people would understand that the focus is service provision within human rights principles.

Key changes in the Bill to be presented include expanding the role of the council and making sure that monitoring and evaluation of medical standards in all facilities including those in rural areas are implemented.

In response to challenges of professionalism the Bill would make sure that nurses are competent. Professional development will be linked with registration. The Department is looking at new provisions for a National Qualification Framework and related legislation.

For instance in certain nursing schools, applicants are not admitted unless they have a matric qualification or equivalent and the Department believes that experience should also be taken into account. The system of accreditation is to be brought back, which would recognise prior learning.

To avoid discrimination among those enrolled and those who find themselves on the periphery, one registration system would be introduced which would indicate whether they are registered or enrolled nurses to ensure that the community is protected.

People who violate the professional code would be exposed for unprofessional conduct because the community must be protected. There would be an appeal process, which had not existed in the old legislation for the purposes of due process.

Discussion
Mr J Tolo (ANC) queried the difference between registered and enrolled nurses.

Professor Gumbi replied that registered nurses wore maroon epaulettes. However the backbone of health care are the enrolled nurses or staff nurses. Another grouping is known as auxiliary or assistant nurses whose scope of nursing knowledge is narrower than those of enrolled nurses.

The provision in the Bill will not differentiate between enrolled nurses or auxiliary nurses “because it is discrimination� instead it would say who is an enrolled nurse or a registered nurse.

Department of Social Development proposed legislation:
Probation Services Amendment Bill
Mr du Preez, Department legal advisor, said the Department had introduced the Probation Services Amendment Bill in March 1999 which the Portfolio Committee had passed.  At the last minute the Department of Justice had intervened, compelling the Bill to be withdrawn.

Parliament went into recess and the Department was told to resubmit the Bill to Cabinet. The line function in the Department that administers the Act decided to make changes to the Act and to take it to all the provinces. This resulted in the new Bill being drafted. The new Bill did not differ much from the original Bill.

Early this year when the Department was ready to introduce the Bill there was another query from the Department of Justice. who indicated that they were busy with the Child Justice Bill and wanted to know whether there were no overlapping provisions in the Child Justice Bill and the Probation Services Amendment Bill.

Realising that there could be some overlaps the Department of Social Development had made a few changes. The Department of Justice eventually approved these changes. The Bill would now be submitted to the Minister. If the Cabinet approves the Bill, it may come to the committee later this year. The Department hopes the Bill would be finalised in February/March 2002.

Fund-raising Amendment Bill
When the Department had submitted the Bill in February, it was noted that in order for it to be passed by Parliament the draft legislation would have to be approved by stakeholders, the national and provincial Heads of Social Development, Cabinet and the State Law Advisors. That has not happened because the Board of the Relief Fund meets only three times a year. The Board met in January and then in July. In July it indicated that it wanted to add clauses that deal with asylum seekers and refugees.

During the meeting of the Portfolio Committee, the committee indicated its concern with the inclusion of asylum seekers and refugees and that the Home Affairs Refugee Act should deal  with it. This was reported to the Director General who had put the Bill on hold until discussions with the Director General of Home Affairs were concluded.

The Department had envisaged that these Bills would be passed this year but it is unlikely. Other Bills would be introduced late in 2002. As yet none of these Bills have been drafted:

Status of Old Persons Bill
The Department awaits someone to be appointed to drive this Bill as the person responsible for it had passed on.

National Agency Development Amendment Bill
The Department  plans to introduce the National Development Agency Amendment Bill. The National Development Agency Act is currently administered by the Department of Finance but there is an agreement between Finance and Social Development that the President will transfer functions of that Act to the Ministry of Social Development. As soon as that happens minor amendments will be prepared by the Department and introduced to Parliament.

Prevention and Treatment of Drug Dependency Amendment Bill
The Department plans to introduce the Prevention and Treatment of Drug Dependency Amendment Bill or come up with a new Bill on the Treatment of Substance Abuse. The Act was drafted in 1992. When the Noupoort Christian Care Centre tragedy occurred the Department realised that the Noupoort Centre had been in existence  for ten years without being registered. Similar centres are “jumping up all over the country� and the Department decided either to make major amendments to the Act or to come up with a brand new Act on substance abuse.

Discussion
Rev P Moatshe (ANC) asked the Department what the obstacles were that prevented the Bills from being passed.

Mr du Preez responded that the obstacles were mostly internal and that many stakeholders had to be consulted, resulting in delays. Another problem is that the Director General of the Department has to consult with a Director General of another Department.

Ms E Gouws (DP) asked for clarification as to what had happened to the Noupoort Centre after the death of one of its patients?

Mr du Preez replied that the Minister had decided to close the place but a strong outcry from parents prevented the Minister from going ahead with her decision. It was agreed that Noupoort would continue to operate and that the Department would monitor the place and that by the end of the year Noupoort must either register or close down.

Child Care Legislation
Ms L Pemba, Department, stated that the Department had requested the South African Law Commission (SALC) to investigate and review the Child Care Act of 1983 and to make recommendations to the Minister.

The reason for the review was because many issues dealing with childcare are scattered in many pieces of legislation and the idea was to bring them together into one piece of legislation.

The Commission is aiming to finalise and introduce the childcare legislation in Parliament before the end of 2002.

Discussion
Mr J Tlhagale (UCDP) asked if there had been childcare legislation before or was it a new bill.

Ms Pemba replied that there was the Child Care Act of 1983 and that this Bill was meant to repeal that Act by replacing it with comprehensive childcare legislation.

Department of Home Affairs proposed legislation:
Advocate Malatji (Home Affairs legal advisor) said the Department had draft legislation that needed to be passed by Parliament. It had been hoped that some Bills would have been passed by the end of this year. Unfortunately most of them have not yet been approved by Parliament nor been submitted to the Cabinet. The reason for the delay was because many of the clauses are still being discussed.

Births and Deaths Registration Amendment Bill
The Births and Deaths Registration Amendment Bill was before the Portfolio Committee and is expected to be passed before the end of this year. The Bill dealt with which surname children should assume - that of a father or the mother. If only one parent has guardianship, the consent of both the father or mother would not be required, to change the surname. It also deals with allowing widows to use their previous surnames if they so wish.

Discussion
Rev Moatshe (ANC) asked if this Bill would encourage double-barrel surnames?

Advocate Malatji replied that the Bill was simply making a provision for those who wish to do so, to be allowed to do so.

The Chair commented that the Bill should allow divorced women to resort to their maiden surnames if they so wished.

Marriage Act legislation
Advocate Malatji said the Marriage Act of 1961 was outdated and that the SALC has completed research on the issue and that legislation on this would come before the Committee sometime next year.

Ms J Vilakazi (IFP) noted that she had been married for 31 years but when her husband had died his death certificate had stated that he was unmarried. This was common practice, especially before 1994 when marriage certificates from the so-called Homelands did not reach Pretoria.

Advocate Malatji said that that was wrong and the Department would look into the issue.

The meeting was adjourned.

Appendix 1:
THE AFRICAN TRADITIONAL HEALTH PRACTITIONERS BILL, 2001 

CONSTITUTION OF THE COUNCIL
1. The Council shall consist of 24 members appointed by the Minister, of whom:
The Chairperson, who shall be a registered Traditional health practitioner;
- The vice-chairperson who shall be a registered traditional health practitioner;
- nine persons shall be registered traditional health practitioners with not less than five years of practice;
- nine persons as provincial community representative from each province;
- An officer from the Department of Health;
- One person with legal expertise;
- a pharmacist from the South African Pharmacy Council; and
- a medical practitioner from the South African Health Professions Council

PURPOSE OF THE BILL
1. To give effect to the spirit and letter of the Constitution.

2. To give legal recognition to the marginalised traditional healers fraternity and afford them reasonable protection in conducting their practices.

3. To promote substantive equality and full participation of traditional health practitioners in conventional medical practices


Appendix 2:
Draft Nursing Bill

The South African Nursing Council has put forward a proposal to the Department of Health for a new Nursing Act as opposed to amending the existing Nursing Act No 50 of 1978 (the Principal Act).

The Rationale for a New Nursing Act

1. History of Regulation
· Pre 1994 there were 5 Nursing Councils in South Africa accommodating the then "Homeland" policy. Each of these Councils was formed in terms of their own nursing legislation.
· In 1995 an interim South African Nursing Council, that was an amalgamation of the 5 Councils, was formed.
· In 1997 the Principal Act that governed the South African Nursing Council, was amended to accommodate the formation of the new South African Nursing Council in line with the democratic changes in the country.

2. The Principal Act that has been amended to accommodate the democratic changes still makes reference to derogatory terminology.

3 The Nursing Act No 50 of 1978 is also written in a manner that is not accessible to those it proposes to protect i.e. the public.

The above rationale justifies the enactment of a new Nursing Act and not amending the existing legislation.

Summary of Key changes

1. The definitions in the introductory section propose changes in line with current legislative and policy developments.

2. The composition of the Council the status quo to remain.

3. The objectives of the Council have been amended to accommodate the overall aims of providing health care for all the inhabitants of South Africa and for the protection of the public as enshrined in the Bill of Rights.

"to promote the provision of health care to the inhabitants of the Republic₁ which complies with universal norms and values, with' the goal of improving the health status and quality of life of a patient and to promote and maintain social empowerment and entrenchment of the Bill of Rights applicable to health and health related matters and to perform an overall advocacy role; to establish, improve and control standards of nursing and midwifery education and training, and professional conduct standards and practice for registered persons within the ambit of applicable legislation;"

4. The Powers of the Council are expanded to include the monitoring and evaluation of nursing care standards in health care facilities.
5. Provision is made for continuing professional development and ongoing maintenance of competencies of nurses.

6. To bring nursing education and training in line with the National Qualifications Framework and the related legislation governing higher education in South Africa.

7. The Council will keep a single register of all practitioners as opposed to a register and a roll for different categories of nurses.

8. Provides for penalties for persons practising and performing statutory acts while not registered to practise.

9. To Provide for action that must be taken by the Council in the case of unprofessional conduct that:
·allows for legal representation of the practitioner.
·makes provision for persons who are physically, mentally and socially impaired to practise.
·provides for an appeal process.

10. Gives the Minister the powers to make of regulations and repeal of existing legislation and regulations.

Appendix 3:
BRIEFING TO SELECT COMMITTEE ON SOCIAL SERVICES ON THE STATUS OF PROPOSED LEGISLATION - 9 OCTOBER 2001

The Department of Social Development envisages to introduce the following laws in Parliament during the remainder of 2001 and during 2002 for finalisation in 2002:
- Probation Services Amendment Bill;

- Fund-raising Amendment Bill;

- Status of Older Persons Bill;

- Children's Bill;

- National Development Agency Amendment Bill; and

- Either a new Bill on the Treatment of Substance Abuse or an Amendment Bill on the Prevention and Treatment of Drug Dependency.

It is envisaged that the Probation Services Amendment Bill will be tabled during November 2001 and be passed by Parliament either during November 2001 or during February / March 2002.

The other envisaged Bills may only be introduced in Parliament late in 2002 as no Bills have as yet been drafted.  However, in order to introduce these Bills they will have to be approved by stakeholders, the Heads of Social Development, MINMEC and Cabinet, be published for comment and be certified by the State Law Advisers before 30 July 2002.

PROBATION SERVICES AMENDMENT BILL
The Probation Services Amendment Bill which intends to amend the Probation Services Act, 1991, in order to be in line with new developments in the field of probation services and child justice, has been finalised and will shortly be submitted to the Minister for approval and submission to Cabinet.

The Bill, amongst others, envisages to -

- amend the definitions of “probation officer� and “authorized probation officer�, so as to extend the meaning thereof to include an “assistant probation officer� and an “authorized assistant probation officer� who will assist probation officers in the performance of their duties;

- insert the definition of “family finder� whose main function would be to trace the parents or guardian of a child who is being prosecuted, so as to make them available to assist the child in court;

- introduce assessment, support, referral and mediation services in respect of victims of crime;

- provide for the competency of a probation officer to recommend an appropriate sentence or other options to the court and for the mandatory assessment of every arrested child within 48 hours of his or her arrest; and

- provide for the establishment of a probation advisory committee to advise the Minister on matters with regard to probation services.

The provisions of the Bill have been discussed and approved at various probation advocacy group meetings attended by stakeholders, policy-makers and provincial probation officers.  Provincial departments of Social Development were also consulted at various meetings during 2001 and approved of the Bill.

The provisions of the Bill were also discussed with officials from the Department of Justice in order to ascertain the relationship between this Bill and the proposed Child Justice Bill.  It was found that there are no conflicting areas between the two Bills.  It is also important to note that the Probation Services Act applies to children and adults while the Child Justice Bill will apply to children only.

Provinces have been allocated funding through the One Stop Early Intervention Business Plan during and for the period 2000/2001 in order to employ assistant probation officers. 
33 Assistant probation officers have already been employed in the provinces at a cost of R990 000,00 per annum.  It is foreseen that by the year 2004 at least 10 assistant probation officers will have been employed per province which amounts to a total of 90 assistant probation officers at a total cost of R2 700 000,00 per annum.

FUND-RAISING AMENDMENT BILL
At a meeting of the board of the Disaster Relief Fund in December 2000, it was decided to amend the remaining part of the Fund-raising Act, 1978 (Act No. 107 of 1978) so as to provide for the following.

- the insertion of new definitions such as “political violence�, “social relief�, “terrorism�, and “victim�;

- the repeal of the Disaster Relief Fund, the SA Defence Force Fund, the Refugee Relief Fund, the State President's Fund and the Social Relief Fund;

- the establishment of a new Social Relief Fund; and

- provisions to deal with the Management of the Fund, the qualifications of members of the Board, meetings of the Board, the objects of the Board (which would be a combination of the objects of the current Boards) and the finances of the Board.

A draft Bill was subsequently prepared and submitted to Board members for approval.  However, at a meeting of the Board in July 2001, members decided that major changes should be effected to the draft Bill.  Amongst others these changes were to provide for the insertion of definitions of “refugees, asylum seekers and faction violence� and for the changing of the name of the Act to Social Relief Act. During August 2001 Board members met with the Portfolio Committee on Social Development where the  Portfolio Committee members expressed their concern with the envisaged inclusion of refugees and asylum seekers in the legislation.  The Portfolio Committee also wishes to have a workshop with the members of the Board of the Relief Funds in order to assist with regard to issues such as refugees and the disbursements of funds.  It is envisaged that this workshop will take place during November 2001 after which a second draft Bill will be prepared.

STATUS OF OLDER PERSONS BILL
This Bill which has not yet been drafted intends to provide for the promotion of the status of older persons, their protection and well-being and the care of their interests.  This Act when in operation will also repeal the Aged Persons Act, 1967.  A draft guideline document has been developed and various stakeholders have been consulted.  The Department still needs to collate the document and consult with the Ministerial Task Team to include their input.  Thereafter a first draft Bill will be prepared.

It is envisaged to have a draft Bill ready for publication for comment by June 2002.

CHILDREN'S BILL
See attached document.

NATIONAL DEVELOPMENT AGENCY AMENDMENT BILL
It is envisaged that the President will by proclamation transfer the administration of the National Development Agency Act, 1998 from the Minister of Finance to the Minister of Social Development during 2002 after which the Department of Social Development envisages to prepare an Amendment Bill which will deal with issues such as the composition of the NDA Board and the appointment of the chief executive officer of the NDA.


PREVENTION AND TREATMENT OF DRUG DEPENDENCY AMENDMENT BILL OR NEW BILL ON THE TREATMENT OF SUBSTANCE ABUSE
The Noupoort Christian Care Centre debacle (failure to register or deal with the registration of the Centre) has shown that the Prevention and Treatment of Drug Dependency Act, 1992, is outdated, not applicable to the current substance abuse situation in the country and should either be amended or rewritten completely.

It is envisaged to start discussions with stakeholders and the various provincial administrations on the Bill during November 2001 and if all goes well a first draft could be ready by March 2002.

CONCLUSION
All the dates referred to above are tentative dates as the timeframe for legislation for 2002 is subject to the Parliamentary legislative agenda which is currently being awaited and which may affect our timeframe drastically.

THE COMPREHENSIVE CHILD CARE LEGISLATION

The South African Law Commission (SALC) was requested to investigate and review the Child Care Act of 1983 to make recommendations to the Minister for Social Development for the reform of this particular branch of the law in 1997.

A project committee was appointed and an Issue Paper was published for general information and comment in May 1998.  The Issue Paper was workshopped extensively.  The Discussion Paper follows on these public consultation processes, and contains the commission's preliminary recommendations and findings.  It is published in full so as to provide persons or bodies wishing to comment or make suggestions for the reform of this particular area of the law with sufficient background information to enable them to place focussed submission before the Commission.

The essence of the recommendations and findings made by the Commission in their discussion paper comprises about twenty (20) chapters excluding the introductory chapter, which cover the following areas:

CHAPTER 2- THE SCOPE OF THE INVESTIGATION

The Commission's vision of a new child's statute are the twin principles of enabling a child's growth and development within a family environment and protecting children in vulnerable situations.  It is accordingly recommended that the new children's statute should go beyond the scope of the existing Child Care Act of 1983 and to include other aspects mentioned in the following chapters.

CHAPTER 3- THE CHILDREN- INTERNATIONAL DIMENSIONS

This chapter covers issues of inter country adoptions, international child abduction, refugee and undocumented immigrant children, and trafficking children across borders.

CHAPTER 4 - CONSTITUTIONAL ISSUES AFFECTING CHILDREN`S RIGHTS AND RESPONSIBILTIES, THE BEST INTEREST OF CHILDREN- STANDARD, AND THE PRINCIPLES UNDERPINNING THE NEW CHILDREN`S STATUTE.
This chapter presents an analysis of the judicial interpretation given to section 28 of the Constitution, which protects the children's rights.  The Commission also points out that the need to protect the rights of children is also founded on international imperatives. The Commission therefore recommends that in addition to the rights enumerated in the Constitution, certain specific supplementary rights for the children should be included in the new children's statute.

In this regard the Commission is of the opinion that the following key principles must play a central role:

- The best interests of the child
- Non intervention and de-institutionalisation and
- The child's right to participate in decision-making about his or her life.  


CHAPTER 5- CHILDHOOD -ITS BEGINNING AND END
The International law and our Constitution define a child as a person below the age of eighteen years. The Child Care Act also defines a child likewise.   In terms of the Age of Majority Act 57 of 1972 the age of majority is twenty-one (21) years.

The Commission recommends that the age of majority be eighteen (18) years of age, with a proviso that parental responsibility and /or state support in respect of such person may be extended by the Court beyond that person's eighteenth birthday in special circumstances.

CHAPTER 6-THE CHILD CARE ACT 74 OF 1983
The Commission, recognising that the present Child Care Act of 1983, has its deficiencies and limited scope also acknowledge that it presents a workable basis and therefore recommends that most of its provisions be retained. The following sections have been retained, albeit with some slight amendments:

- The section dealing with the Children's Court Assistant-The Commission recommends that the position of the children's Court Assistant be reactivated and given an expanded role.
- Legal representation for children. The Child Care Act provides for obligatory duty of Court to inform a child who is capable of understanding of his right to request for legal representation. The Commission further recommends that where legal representation at State expense is not provided for any child involved in any proceedings under the new children's statute the court must enter its reasons for its decision not to order such legal representation.

- The right of children of self-expressions.

It is a matter of concern that the Child Care Act does not provide a child with a clear right to express views and wishes if able to do so.  The Commission accordingly recommends that the new children's statute should expediently allow children to give evidence, if capable of doing so in any proceedings under this Act.

- Removals in terms of section 11.

In terms of this section a children's court may effect the removal of a child to a place of safety where such child has no parent or guardian or where it is in the interests or the safety and welfare of child that he or she be taken to a place or safety. The children's court enjoys a wide discretion in this regard.  This Commission recommends that this section be retained.

- Removals in terms of section 12

The Commission recommends amendments to section 12 of the Child Care Act of 1983 to spell out clearly that removals without a warrant are only to take place in emergency situations and in clearly defined circumstances.  The Commission further recommends that officials who do remove children without a warrant should be held accountable to the court where children are removed in non-emergency situations under the Form 4 process.

- Bringing children before the children's court.

Because of delays in finalising children's court inquiries, the Commission therefore recommends that there should always be a formal opening of an enquiry, and at this limited hearing the court should have the power to order the provisions of certain services, such as family groups, conferencing, to the child or its family, as interim measures.

- Finding a child in need of care.

The Commission argues that the Children's Court needs broader power.

CHAPTER 7 - ESTABLISHING PARENTHOOD AND THE STATUS OF CHILDREN.
In order to allocate parental rights and responsibilities, it is necessary to determine parentage. Rapid advances in medical science over the past few decades have made the determination of parentage very problematic in certain areas, notably in cases involving artificial fertilization techniques, like artificial insemination and surrogate motherhood.

The Commission recommends that section 5 of the Children's Status Act 82 of 1987 be amended to also cover these two (2) instances and that these be incorporated in the new children's statute.  The confidentiality provisions in the Human Tissue Act 65 of 1983 be amended to allow children born of artificial insemination access to records and donor's file when such person reaches the age of eighteen.

The Commission further recommends that a child born of a surrogate arrangement should have access to the surrogate contract and all biological information concerning his or her genetic parents from the date on which the person reaches the age of 18 years.

CHAPTER 8- THE PARENT - CHILD RELATIONSHIP
This is one of the core chapters underlying the new children's statute and lays the foundations for the move from the concept of parental power or authority to parental and children's rights and responsibilities.  The areas covered in this chapter are the following:

- The diversity of family forms

- The shift from "parental power" to "parental responsibilities".
- The components of parental rights and responsibilities
- The acquisition of parental rights and responsibilities
- The management of parental rights and responsibilities where several persons (parents or otherwise) simultaneously  have parental rights and responsibilities or components thereof in respect of a child.
- Parenting plans
- Termination of parental rights and responsibilities of parental rights and responsibilities.

CHAPTER 9 - PREVENTION AND EARLY INTERVENTION SERVICES OF CHILDREN AND THEIR FAMILIES
Early intervention services have the following primary goals:

To prevent the removal of children from their families;
To prevent the recurrence of problems and reduce the negative consequences of risk factors.
To divert children away from either the child and youth care system or the criminal justice system.

CHAPTER 10- CHILD PROTECTION
Formal measures for the protection of children from harmful actions and from negligence especially by those immediately responsible for their care, are arguably the central focus of the child Care Act of 1983. The children's statute is likely to be broader and deal with the following:

- Circumstances in which protective intervention may be required
- Setting broad principles for child protection measures
- Assessment and treatment/therapeutic services.
- Permanency planning
- Reporting and registration of cases

CHAPTER 11- THE PROTECTION OF CHILDREN`S HEATLH
- Assessing children's health rights

As the health care rights of children are currently scattered throughout a number of different pieces of legislation, it is not easy to determine to what health rights children are entitled. The Commission therefore recommends the inclusion of a number of provisions in the National Health Bill dealing mainly with HIV/AIDs status of the children. This chapter covers also the following issues:

- Children's rights to basic health care

These rights are covered in section 28 (1) ( c) of the Constitution

- Consent to medical treatment and consent to surgical intervention.

- HIV- testing and placement of children in need of care

- Confidentiality of information relating to HIV/Aids status of children

- Access to contraceptives

- Access to termination of pregnancy

- Right to refuse medical treatment

CHAPTER 12- THE PROTECTION OF CHILDREN AS CONSUMERS
This chapter covers the following aspects:

- Protecting and informing children as consumers
- The sale of dangerous goods to children and safety standards
- Television broadcasts
- Advertising

CHAPTER 13-CHILDREN IN NEED OF SPECIAL PROTECTION
This chapter deals with the following categories of children in need of special protection:

- Children living in poverty
- Children included and affected by HIV/Aids, including orphaned children;
- Children with disabilities and chronic illnesses
- Child labour
- Children living on the streets
- Commercially exploited children and
- Refugee children and undocumented immigrant children.

CHAPTER 14- EARLY CHILDHOOD DEVELOPMENT (ECD) AND PARTIAL CARE
This chapter considers two related matters. These are the question of legislative support for early childhood development programs and legislative protection for children in certain partial care situations where their parents or other primary caregivers have arranged for them to be temporarily cared for by other persons.

The Commission recommends, amongst others that ECD be defined as the process of emotional, mental, physical and social growth and development of children aged between birth and 9 years.

CHAPTER 15- FOSTER CARE
This chapter deals with

- Conceptualising foster care
- Cluster foster care
- Specialist or professional foster care
- Selection criteria for prospective foster parents
- Social and cultural issues when placing children in foster care
- Parental rights and responsibilities for foster parents
- Termination of parental rights and responsibilities over certain children in foster care
- Reunification services and statutory supervision
- Duration and extension of foster orders
- Rights of non- South African children to foster care grants
- Social Security

CHAPTER 16- ADOPTION AS A FORM OF SUBSTITUTE FAMILY CARE
The Commission recognises that adoption is not always a suitable long-term alternative care plan for a child. The Commission is also of the opinion that the focus of adoption must be on the need of children who require permanent care.  The chapter covers the following:

- Who may be adopted?
- Who may adopt a child?
- Consent to adoption
- Dispensing with consent to adoption
- The effect of adoption and post adoption contract
- Prohibition of consideration in respect of adoption
- Subsidised adoption
- Access to information
- Adoption services

CHAPTER 17- RESENTIAL CARE
This chapter covers the following:

- Forms of residential care
- Regulation of residential care facilities
- Human resources
- Registration and classification
- Programmes
- Geographical location and size
- Procedures

CHAPTER 18- RELIGIOUS LAWS AFFECTING CHILDREN
The Commission operates within the framework of the South African Constitution and international obligations. Therefore additional protection for children living in accordance with the tenets of any particular religious or customary system is recommended.

CHAPTER 19- CUSTOMARY LAW AFFECTING CHILDREN
The Commission believes that the fundamental principles underpinning the new children's statute should  be sensitive to the needs of customary law.  At the same time it should be clear that the best interests of all children including those living under a system of customary law, are the paramount consideration. Accordingly the Commission has recommended that children be protected from harmful and cultural practices.

CHAPTER 20- A NEW COURT STRUCTURE FOR SERVING THE NEEDS OF CHILDREN
The three main recommendations if the Project Committee with regard to the Courts are as follows:

- That the Children's courts be renamed and accorded a wider jurisdiction to allow them to provide more remedies
- That all courts should begin to use the more flexible system of parental responsibilities, rather than merely guardianship, custody and access
- That practitioners working in courts which make child placement and child care orders must be more effectively utilised and trained in future.

CHAPTER 21- MONITORING THE IMPLEMENTATIN OF THE NEW CHILD CARE LEGISLATION.
For effective implementation of the new child care legislation and in order to avoid a duplication of efforts and thereby maximising available resources the Commission recommends that the office of the Children's Protector should maintain close liaison with authorities, organisations, bodies and processes concerned with child welfare in order to foster common practices and to promote co-operation in cases of overlapping jurisdiction.

The chapter on a New Court Structure for  serving the needs of children, recommends that the child and Family Courts be accorded a monitoring power to do a follow-up on a case which it heard earlier. This will also serve as a method of monitoring the implementation of the new child care legislation.

WAY FORWARD
The Commission envisages to engage in the following processes in an endeavour to finalise and introduce the child care legislation in Parliament before the end of 2002:

- 15 November 2001- Project Committee to submit final draft of Discussion Paper without the Draft Bill to stakeholders.
- 15 January 2002- Draft Bill to be considered by project committee
- 15 February 2002- Draft Bill to be considered with the Portfolio Committee for Social Development  and to updated them on progress