Section / chapter

SALC

Department of Social Development

S 1: definitions "abuse" "traffic"

The Department adopted broader definitions to include inter alia bullying in its definition of "abuse" and followed the definition of "traffic" in the UN Protocol to Prevent Trafficking in Persons.

S 29: age of majority

The SALC recommended that the age of majority be lowered to 18 years of age and that the Age of Majority Act 57 of 1972 be repealed.

At the suggestion of inter alia the Department of Education, the Department proposes that the current legal position be retained where majority is attained at age 21 years.

Chapter 5: Parental rights and responsibilities

The SALC proposals regarding parental rights and responsibilities in effect codify a large part of the common law relating to the parent – child relationship.

The Department regards codification a progressive step, but shares the concern of the Department of Justice that courts at district court level are perhaps not equipped to adjudicate matters relating to parental rights and responsibilities and especially aspects relating to guardianship currently falling within the exclusive jurisdiction of the High Court.

S 53A-C: Surrogacy

In line with its vision of a comprehensive children’s code, the SALC proposal includes provisions on the effect of surrogate motherhood agreements on the status of a child.

The Department is of the view that surrogacy deserves specific treatment in special surrogacy legislation and proposes to delete these sections.

Chapter 6: Courts

The SALC proposals provide for the establishment of a three tier child and family court system with detailed provisions on jurisdiction, competency and referrals. The proposals grant wide powers to these courts and civil and criminal competencies are to some extent blurred in an attempt to provide a one-stop service.

In view of objections raised by the Department of Justice, the Department agreed to revert to the existing situation in terms of which all magistrates’ courts function as children’s courts. Besides the change in terminology, the Department takes care in making sure that the competencies of the High Court as upper guardian of all children are not affected. Rather than to establish a totally new structure, the Department agrees with the Department of Justice that the Children’s Bill should rather build on the existing children’s court structure while allowing for the development of family courts in future.

S 69: Composition of the court

The SALC proposal allows for a panel to adjudicate children’s court matters. This panel consists of the magistrate and one or more assessors who are required to possess certain specific training and skills.

The Department has taken on board the objection of the Department of Justice that this proposal is impracticable and unaffordable. However, relying on the Equality legislation as precedent, the Department is of the view that the legislation should provide for the training of court personnel to ensure uniform norms and standards are being applied. (s 73).

S 77: Legal representation by the Family Advocate

The SALC proposal provides for the Family Advocate to represent parties in children’s court proceedings.

The Department of Justice and the office of the Family Advocate have indicated that this would be impossible given existing capacity and present a role confusion given the family advocate’s expertise in mediation.

S 86: Evidence

The SALC specifically provides for the introduction of hearsay and previous similar conduct evidence in children’s court proceedings.

The Department of Justice has indicated that it is not necessary to depart from the existing rules of evidence which usually disallows hearsay and previous similar conduct evidence.

S 92 et seq Child and Family Court registrars

The SALC proposal provides for the appointment, by the Minister of Social Development, of a special court functionary called the "registrar". While based on the concept of the children’s court assistant, the registrar is embodied with additional roles and competencies.

The Department of Justice has indicated that the terminology will be confusing and has suggested that it should revert to children’s court assistant. The Justice Department has further indicated that this functionary should be appointed by the Minister of Justice, not the Minister for Social Development.

Chapters 7 (ECD) and 9 (partial care) re-aligned

In the SALC proposal, partial care and ECD are treated as two distinct concepts. In this scheme of things, partial care is linked to a facility and a registration process while ECD is seen as a service to be provided at a facility.

In order to highlight the inter-dependency between ECD and partial care, it is suggested that the chapters be re-arranged so that ECD follows immediately on partial care. Following the suggestion of the Department of Education, it is clearly spelled out that the provision and regulation of ECD in schools are the responsibility of Education. The provision and regulation of ECD services to children not in school is assigned to the Department.

S 113A Inter-sectoral mechanism to co-ordinate child protection system

The SALC proposal provides for the establishment of an inter-sectoral mechanism to co-ordinate the child protection system.

The Department does not favour the duplication of systems and is of the view that the NPA Steering Committee in the President’s Office is capable of performing the functions envisaged by the SALC.

S 120 et seq: National Child protection register

The SALC proposal allows for a two part register: part A of the register tracks the child in need of care and protection while part B is dedicated to persons unfit to work with children.

The Department builds on the register system and brings in a third part focused on the family in need. This would allow for the monitoring of high risk families on a continuous basis.

S 127(4) Finding persons unsuitable to work with children

The SALC proposal states that a person must be found unsuitable to work with children on conviction of murder, attempted murder, sexual abuse or assault with the intent to do grievous bodily harm with regard to a child.

The Department of Education seems to argue that educators (teachers) should be exempt from this clause. The Department takes the position that teachers who murder or sexually abuse children are unsuitable to work with children (and therefore to teach children).

The consent provisions of the SALC provide for two possibilities: it allows children older than 12 years of age to consent provided that child is of "sufficient maturity and has the mental capacity …" or for children under 12 years of age or without the necessary maturity or mental capacity to be assisted.

Various commentators expressed concern at the difficulty linked to a determination that a child is of "sufficient maturity and has the mental capacity". Save as to accept a certain biological age as criterion (say 12 years), and to disregard the maturity and mental capacity of the individual child, no other alternative presents itself. In the absence of such alternatives, the Department accordingly remains committed to the SALC proposal in this regard.

S 137: HIV testing for adoption purposes

The SALC proposal provides for HIV testing of children under 3 years of age at state expense when done for foster or adoption purposes.

The Department suggests removing the under 3 years of age qualification and placing the financial burden on the prospective foster or adoption parent.

S 140: Access to contraceptives

The SALC proposal allows for confidential access to condoms for all children and access to other forms of contraceptives for children older than 12 years of age.

Various commentators expressed strong views as to the SALC proposal, but seem to have missed the point that confidential access to condoms for children cannot be equated to encouraging or even condoning sexual activity by children.

S 142: Corporal punishment

The SALC proposal in effect criminalizes corporal punishment in the home by removing the common law defence of reasonable chastisement.

Commentators were divided on this issue. Some argued that corporal punishment by parents should be allowed, while others such as RAPCAN argue that it should be expressly banned. In the absence of any clear directive, the Department adopts the SALC compromise position.

S 162: Role of municipalities in prevention and early intervention services

The SALC proposals allowing for a greater role for municipalities in prevention and early intervention services were well received.

However, as for home visits of new-born babies, the Department of Health suggested that it must be clearly spelled out that such visits must take place under the supervision of a nurse employed by the provincial department of health. The Department will give effect to this recommendation.

S 166: Definition of child in need of care and protection

The SALC definition is based on three legs: the person having parental rights and responsibilities, the absence of such a person, and the child.

The Department proposes to focus on the child exclusively. Parental attributes or the absence thereof would therefore not classify a child as a child in need of care and protection.

S 167: Reporting of children in need of care and protection

The SALC proposal limits mandatory reporting to six categories of professionals (teachers, doctors, dentists, nurses, social workers, and members of staff at facilities).

The Department proposes to extend the list to include specifically ministers of religion and labour inspectors. In view of the comments received from the Department of Safety and Security, the Department also proposes to redefine the functions of police officials in children’s court enquiries.

S 168: Referral of children in need of care and protection to the children’s court

The SALC provision allows for any court to suspend its proceedings and to refer a child to the children’s court in order to determine whether a child is in need of care and protection. Pending such a determination, the child may be placed in temporary safe care.

The Department supports the essence of the SALC proposal, but proposes to move the provision to the court’s chapter. The Department is further of the view that the provision can be strengthened by specifying that a criminal court in proceedings against a child may stop the proceedings and convert the proceedings into a children’s court enquiry.

S 170: Removal of children to temporary safe care without court order

The SALC provision provides for removal of the child, as opposed to the alleged offender, without court order in circumstances where there are reasonable grounds for believing that the child is in need of care and protection and needs emergency protection.

The Department accepts this recommendation but strengthens it by providing that the removal of the child from his or her home environment is the best way to secure the child’s well-being. This obliges the court to entertain the possibility of rather removing the alleged perpetrator from the child’s home environment. See also section 173(2).

S 170(3): Misuse of (Form 4) powers.

The SALC provision states that abuse of the removal power by a designated social worker in the service of a designated child protection organization constitutes a ground for the withdrawal of the organization’s designation.

Despite objections from the CMR and the SA National Council for Child and Family Welfare that the organization should not be penalized for their employees abusing their powers, the Department holds the view that designated child protection organizations should take responsibility for the actions of their employees and should face the possibility of losing their designations. In addition, the individual rogue social worker would face disciplinary proceedings.

S 171: Voluntary safe care

The SALC provides for the voluntary placement in temporary safe care of a child for a maximum of 72 hours.

The Department is of the view that this placement may place children at risk and suggests its deletion.

S 189A: Children in alternative care prohibited from leaving the Republic

The Department suggests including in the draft Bill a provision prohibiting the removal of children in alternative care without the prior written approval of the D-G first being obtained. This is necessary to prevent children in alternative care being adopted in foreign countries without going through the inter-country adoption procedure and to curb trafficking.

S 196A: Appeals against and reviews of decisions affecting children in alternative care

The Department proposes the inclusion of a provision allowing for the appeal against or review of decisions relating to children in alternative care.

S 211(2): The right of municipalities to administer child and youth care centres (children’s homes).

The SALC has pointed out that municipalities have, in terms of Schedule 4 of the Constitution, the executive authority to administer "child care facilities". The SALC proposals therefore accommodate this role of municipalities.

The Department is of the view that child and youth care facilities should not be administered at local government level and the draft Bill was amended accordingly.

Chapter 16: Children in especially difficult circumstances

The SALC has seen it fit to categorize children in especially difficult circumstances.

The Department, with the Department of Education, prefers to move away from categorizing children. The suggestion made is that the Chapter be deleted and the protective provisions (e.g. relating to child pornography) be placed in the child protection chapter.

S 259(6): Consent to adoption

The SALC proposal does not allow for the child who has consented to his or her adoption to withdraw that consent.

The Department suggests that the child who has consented to his or her adoption be allowed to also withdraw that consent within the 60 day window period.

S 261: Dispersing with consent

The SALC proposal allows for the children’s court to make a finding, following an allegation by the mother, on a balance of probability, that the child was conceived as a result of the rape of the mother by that person. The consent of the alleged rapist would then not be required for the adoption of child.

The Department fears abuse of this process and recommends that this subsection be deleted.

S 265(1)(c)(i) read with s 277 (1): Provision of adoption services

The SALC proposal allows social workers in the service of the Department or a provincial department to perform adoptions.

The Department prefers to restrict adoption work to social workers with an accreditation in adoption work (called an adoption social worker).

S 269(2): Rescission of adoption orders

The SALC proposals allow for the rescission of adoption orders if the child at the time of the adoption suffered from certain illness of which the adoptive parents were ignorant at the time.

The Department’s view is that adopted children are not goods sold under warrantee and proposes to delete the provision.

S 276(1)(b) and (c): No consideration in respect of adoptions

The SALC proposals prohibit the procurement or rendering of assistance in procuring a child for the purposes of adoption.

The Department is of the view that these prohibitions will unnecessarily prohibit organizations recruiting prospective adoptive parents and suggests that they be deleted.

Chapter 20: Child Abduction

The SALC proposal repeals the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 by incorporation and designates the D-G: Social Development as central authority. The current central authority is the Chief Family Advocate.

Following consultations with the Department of Justice, agreement was reached that the Chief Family Advocate would continue to act as central authority for purposes of the Hague Convention on Civil Child Abductions.

Chapter 21: Trafficking of children

The SALC proposals seek to give effect to the UN Protocol to prevent Trafficking in Persons and to prohibit certain forms of trafficking.

From submissions received from inter alia Molo Songololo it is clear that the SALC’s proposals are not fare reaching enough. The Department therefore seeks to strengthen the existing provision and to criminalize trafficking in children.

Chapter 22: Children’s Protector

The SALC proposals provide for the establishment of an independent children’s protector as a separate public entity.

It is not clear whether the envisaged role and function of the children’s protector can be performed by the Human Rights Commission. Pending clarity in this regard, the Department maintains the status quo and recommends the introduction of a children’s protector.

Chapter 23: Funding, grants and subsidies

In line with the recommendations of the Taylor Committee, the SALC developed an elaborate social security scheme for children. Provision is accordingly made for a variety of grants and subsidies and the eligibility requirements for such grants and subsidies.

The Departmental view is that all aspects relating to the administration of social security in the Children’s Bill be removed and placed in the Social Assistance Act.