1. AIM

To provide the Portfolio Committee with an update on the development of new child care legislation.

2. BACKGROUND

1. The former Minister for Welfare and Population Development, together with the Minister of Justice, requested the South African Law Commission (SALC) during 1997, to appoint a Project Committee on the Review of the Child Care Act, in order to conduct a comprehensive review of the present child care legislation. The aim was to develop recommendations for new appropriate and far-reaching child care legislation, which will take into account not only the present realities, but also anticipated future social political and economic constraints.

2. The Committee has completed a consultative process with regard to the First Issue Paper, which was consulted at workshops in all provinces. A Report summarising comments from the workshops has been prepared and circulated to participants.
3. To hasten the process the Law Commission identified Mr G H Grove as the most suitable person to be appointed to draft the Bill. Mr Grove finalised the first zero-draft Children’s Bill during July 2002.
4. The initial Report and the zero-draft Children’s Bill was submitted to the Cabinet Committee during October 2003
5. A workshop, arranged by the Law Commission, took place in Gordon’s Bay on 29 and 30 October 2002 in order to initiate broader crosscutting debate on the draft Children’s Bill. The purpose of the workshop was to give other government Departments, the provincial departments of Social Development and some national organisations and institutions the opportunity to present their views on the draft Children’s Bill to the Department of Social Development at this early stage.

The following concerns were raised during the workshop:

• The Chapter on the new proposed court system was a concern to the Department of Justice and Constitutional Development. This proposal will have a major impact on financial and human resources, as well as the training of staff for the said department. The proposal that the Central Authority for the Hague Convention on Abduction be transferred to the Department of Social Development does not take into account that international best practice has determined that the Central Authority should be with the Ministry of Justice, as these investigations have legal con-sequences.
• The Chapter on Early Childhood Development (ECD) needs to reflect the role of the ECD organisations and the draft Bill should take the Education White Paper 5 on Early Childhood Development into account in the draft Bill.
• The role and responsibilities of Local Government is an issue of concern as mentioned in the prevention and early intervention services Chapter.
• The Chapter on Trafficking in Children does not effectively criminalise trafficking as required by the United Nations Protocol to Prevent Trafficking in Persons.
• The lack of human resources, especially in rural areas is a major concern for service providers to implement the new Act.
• The costing of the draft Bill is imperative before the Bill could be introduced in Parliament.
• The whole debate with regard to corporal punishment needs clarity.
• The definitions of the draft Bill should be revised and extended and terms like injury, safety and well-being should also be defined.
• The National Policy Framework should be negotiated and should provide for a structure to monitor the implementation, enforcement and administration of the Act.
• The age issue is raising concern. The draft Bill mentions ages like 18 years, 12 years, 14 years and the concept "child of an age, maturity and stage of development." Consensus should be negotiated.
• Mechanisms to render social work support services to the South African Police Service officials need to be negotiated and competencies to police officials should be clarified to enable the officials to act in the best interest of children and to protect children.

2. The Cabinet Committee returned the draft Bill to the Department of Social Department to make final refinements to the Bill in conjunction with stakeholder departments.
3. The refinement process, overseen by an Interdepartmental Committee, entails reworking the inputs received from the relevant Ministers and their departments and an integrated costing process.
4. The SA Law Commission met on 6 December 2002 and approved the Report and draft Children’s Bill. This implies that both the Report and the Draft Bill have gone through all the Law Commission processes and approved documents would be handed to the Department. (The draft Bill is attached as Annexure 1 and the Executive Summary of the Report is attached as Annexure 2)

The report covers:

• Constitutional issues – rights and responsibilities of children; best interests of the child standard
• Beginning and end of childhood "child" = person under 18.
• Overview of the existing Child Care Act, 1983
• Parenthood and the status of children – artificial insemination and surrogacy
• Parent child relationship – codify large part of common law – "family law"
• Prevention and early intervention – new!
• Child protection
• Health rights for children
• Children as consumers
• Children in especially difficult circumstances
• Children affected by divorce
• ECD
• Alternative care – whole continuum: partial care, foster care, kinship care, adoption, residential care
• Religious and customary law affecting children
• International issues: trafficking, parental child abduction, inter-country adoption
• Courts
• Monitoring
• Grants and social security for children

• Regular meetings and workshops

1. Incorporation of the outcomes of the national workshops that took place on 29 to 30 October 2002
2. Highlighting the major concerns from the various departments
3. Written inputs from the various departments

• Reworking of the comments received from the different departments

1. The Departments would request their legal sections to rework the areas in the draft Bill that they did not agree with. The Department of Justice indicated that they would redraft the chapter on the courts
2. Bilateral meetings would take place with the departments to ensure that the process remains integrative – Ms Lulu Siwisa- Pemba (Director: Legal Services) and Agness Muller (Acting Director: Children) were appointed to meet with the departments once their inputs was received
3. The final inputs would be given to the Legal Drafter, Mr Grove who in conjunction with the relevant Legal Sections would do the redrafting of the relevant proposals

• Appointment of a Legal Drafter

Costing process

1. The National Treasury

In terms of Section 35 of the Public Finance Management Act 1 of 1999, "all draft national legislation that assigns an additional function or power to, or imposes any other obligation on, a provincial government, must, in a memorandum that must be introduced in Parliament with that legislation, give a projection of the financial implications of that function, power or obligation to the province."

It is therefore imperative that this draft Bill and envisaged Regulations be costed. Neither Cabinet, nor Parliament has therefore any basis for making a reasonable decision on the provisions of the draft Bill.

Stakeholder expectations were raised while the reality is that Government cannot implement because of the large costs and resource requirements.

This piece of legislation will have a great impact on the budgets of other national departments, provincial departments and local authorities. It would be prudent to have the costs detailed so that these organs of state could frame their discussions on the Bill within the constraints of their own budgets and their ability to implement.

2. Department of Justice and Constitutional Development

The aim of the Children’s Bill, 2002, is to replace the Child Care Act 74 of 1983, as amended. The Bill, however, has major budgetary, human resources and court structure implications of various departments including the Department of Justice and Constitutional Development.

Representatives of the lower court judiciary and the Commissioners of Child Welfare, at a Workshop held for them in March 2002, indicated their disquiet about not being part of the structures, which have been put into place to discuss new legislation such as the Children’s Bill, as they are the presiding officers who must interpret and apply the legislation and they also have much experience on these matters in the courts. It seems that though some magistrates have made individual representations to the Law Commission relating to the review of the Child Care Act, no formal consultations were held with them as a profession. The Department suggested holding a Workshop with the Commissioners in order to obtain their views in this regard, however due to the Bill now being fast tracked consultations have not taken place yet.

The officials from the Department of Justice are of the opinion that the Bill should not be introduced to Parliament without the justice matters and in particular the courts aspects have been urgently and thoroughly investigated and clarified. Though it is clear that Chapter 6 of the proposed Children’s Bill could be a valuable contribution to the Department of Justice’s initiative in making their courts more effective and efficient, because of the nature of the proposals contained in Chapter 6 relating to the establishment of a two tier court system (District and Regional) and the additional functions and resources (human and financial) proposed therein, it is strongly recommended that formal consultations take place with the Department of Justice and Constitutional Development.

This is stated because the Department is very concerned that the further fragmentation of the courts and the establishment of new specialist courts, such as the District and Regional Child and Family Courts, is not in line with the long term vision of the restructuring of the courts into one court system and a single judiciary. Cabinet is to be approached soon through the Minister for Justice and Constitutional Development, requesting an embargo on any legislation contributing to the fragmentation of the courts, and it will be recommended that only the Minister for Justice and Constitutional Development who is the cabinet member responsible in terms of the Constitution for the administration of justice, be allowed o submit legislation to Cabinet dealing with any court structure whatsoever. Any legislation that will increase the burden on the judiciary and the courts needs to be properly consulted with the judiciary, the Minister for Justice and Constitutional Development, his Advisors and the Director-General, during the formulation of such a Bill.

3. Department of Education

The bill in its current form shifts responsibility for education programmes, for children up to the age of 9, from the Department of Education to the Department of Social Development. If this is an oversight it can be easily rectified, but if it is intentional, then there are major implications for the education system. E.g. it would mean that the Foundation Phase in schools i.e. Grade R to Grade 3 would fall under the responsibility of Department of Social Development and the other grades under Department of Education.

The issue of Schools of Industry and Reform Schools also needs clarification. If we can agree that Education is responsible for the education programme in these institutions and that Department of Social Development is responsible for the other components of the programme we could have a workable situation. Education does not have opposition to these "schools" being translated into "youth centres". We just need to establish clarity that Department of Education bears constitutional responsibility to ensure that learners "right to basic education" is met. It cannot migrate this responsibility to another department.

The transitional arrangements included in the Bill does not take sufficient cognisance of the fact that Education is a concurrent function between National and Provinces. The transitional arrangements "shift" the current responsibility for reform schools and schools of industry from the provincial MEC for Education to the national Minister of Education. This has constitutional ramifications and may need to be reconsidered.

The different ages mentioned in the draft Bill should be synchronised. The ages mentioned are 12, 14, 16 and 18 years. The confidentiality of information on HIV/AIDS status of children is a concern where the age is determined at 12 years of age and older or under 12 years.

4. Department of Health

Health related information on sexuality, reproduction, and sexually transmitted diseases including HIV/AIDS are not supposed to be confidential. Confidentiality only relates to specific client information and not general health related information.

Access to social assistance needs to be explicit with regard to guiding care providers on the social assistance services that may be accessed to cater for the children in need.

Environmental officers from local municipalities should be involved in the inspection of Early Childhood Development facilities.

Regarding consent for surgical operation it is suggested that legal Guardians should also give consent. In cases of emergency the hospital superintendent should be able to give consent.

Consent with reference to age needs to be further interrogated for example for HIV/Aids disclosure, choice on termination of pregnancy and medical and surgical operations.

Strategies to avoid child headed households should be developed and if for unavoidable reasons they exist, support should be available.

Additional Comments:

Page 182: Section 237. Consent to medical treatment and operations

It should read consent to medical treatment and surgical operations

Page 134: Section 162, (2) f, make provision for home visiting of new- born babies. A concern was raised as who should visit newborn babies. Home Based Care-givers trained in Community component of the Integrated Management of Childhood Illness (IMCI) strategy, and with the supervision of a professional nurse can visit the newborn babies. The Department of Health will then be responsible.

5. Office on the Rights of the Child, The Presidency

Reasonable chastisement should be clearly defined in the draft Bill to avoid misinterpretation.

The draft Bill has broadened its scope to include non-professionals liable for reporting cases of children in need of care and protection. The draft Bill does not provide protection for those who report, but wish to be anonymous. This issue will need to be tightened if reporting by non-professionals are to be encouraged.

The payment of a foster care grant is facilitated through the Social Assistance Act. The fact that the latter mentioned Act has been assigned to Provinces and cannot be amended by the national Department could prove problematic.

In order to strengthen co-ordination and to avoid duplication, the roles of the Children’s Protector, the Human Rights Commission and the Office on the Rights of the Child need to be clearly defined.

6. Department of Safety and Security (SAPS)

1. WAY FORWARD

1. Redrafting of Bill

Following a process of consultation and after taking into account the submissions received, the Department instructed the legal drafter to amend the draft Children’s Bill. (See attached document, which outlines the major areas of change between that proposed by the Law Commission (SALC) and that proposed by the Department of Social Development)

2. Proposed Timeframes