OVERVIEW OF PROPOSED CHILDREN’S BILL
Portfolio committee Briefing 6 August 2004
General Background and Overview
The lives of children are affected by various pieces of legislation and international conventions such as:
- The Age of Majority Act (Act No. 57 of 1972)
- The Child Care Act (Act No. 74 of 1983)
- Children’s Status Act, (Act No. 82 of 1987)
- Guardianship Act (Act No. 192 of 1993)
- Hague Convention on the Civil Aspects of International Child Abduction Act (Act No. 72 of 1996)
- Natural Fathers of Children born out of Wedlock Act (Act No. 86 of 1997)
- Existing legislation was found to be not in keeping with the realities of current social problems and no longer protects children adequately
- SA has acceded to various international conventions, the principles of which has to be incorporated into local legislation
- During 1997 the then Minister for Welfare requested the South African Law Reform Commission to develop new comprehensive legislation for children
- After an extensive process of research and consultation, the Law Reform Commission finalised its report and proposed draft Children’s Bill in December 2002.
- This process was taken further by DSD, who in conjunction with national DOJ, DOE, DOH, SAPS, DOL, ORC, National Treasury, Provinces, National NGOs and Service Providers aligned the Bill to national policy directives and priorities
- This together with an scoping exercise of the Bill which identified the costing elements which may have inter-governmental fiscal and budgetary implications, led to the subsequent changes of the Bill
Objects of the Children’s Bill
The main objects of the proposed Children's Bill are:
- (a) To make provision for the structure, the services and the means for promoting and monitoring the sound physical, intellectual, emotional and social development of children;
- (b) to strengthen and develop community structures which can assist in providing care and protection for children;
- (c) to protect children from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical and moral harm or hazards;
- (d) to provide care and protection for children who are in need thereof;
- (e) to give effect to the Republic's obligations concerning the well-being of children in terms of the international instruments binding on the Republic; and
- (f) in general, to promote the protection, development and well-being of children
New Proposals
Significant new proposals include
- Inclusion of rights and responsibilities of children
- Specific provision for the participation of children in matters affecting them
- The Bill proposes to lower the age of majority and provides for parental responsibilities and rights agreements
- The provision of Partial care which is provided when a person, whether for or without reward, takes care of more than six children on behalf of their parents or care-givers
- Using the term Child and Youth Care Centres for Children’s Homes, Schools of Industry, Reform Schools
- Formally recognising shelters and drop-in centres
- Enabling legislation to
- Devolve services to local authorities when they are ready to deliver those services
- Transfer DOE Child and Youth Care Centres to DSD in the provinces when so agreed to between the two Ministers
- The provision for cluster foster care schemes and kinship care
- Broadens the definition of Adoption Social Worker to include Social Workers in the employ of Provincial Departments of Social Development
- Adoption by same sex partners in a permanent domestic conjugal life-partnership
- Making provision for persons who previously was disqualified from adopting a child based on his or her financial status and allowing adoptive parents to apply for means tested social assistance
- New child protection system for children
- An extension of the rights of unmarried fathers, provision for a High Court procedure to allow persons other than parents to gain rights with regard to children,
- The need to formally recognise and provide for child-headed households and the protection of children.
Way Forward
- Due to mixed nature of Bill (found to be a Section 75 and 76 Bill), Bill split and Section 75 chapters and clauses of Bill moved to revised Children’s Bill.
- Other chapters and clauses to be inserted in Children’s Amendment Bill once Children’s Bill is approved
- Public Hearings on 11,12&13 August
CHILDREN’S BILL: Definitions
To
- define the rights and responsibilities of children
- define parental responsibilities and rights
- determine principles and guidelines for the protection of children and the promotion of their well-being
- regulate matters concerning the protection and well-being of children
- consolidate the laws relating to the welfare and protection of children
- provide for matters connected therewith
CHAPTER 1: INTERPRETATION, OBJECTS, APPLICATION AND IMPLEMENTATION
Interpretation (definitions)
- Objects of Act
- Conflicts with other legislation
- Implementation of Act
CHAPTER 2: GENERAL PRINCIPLES
- Clause 5: General principles
- Best interest of the child standard
- Relationships: child, parent, care-giver
- Attitude of parents
- Capacity to provide for needs of child
- Effect of change in child’s circumstances
- Difficulty & expense of child / parent contact
- Need for child to remain in care of parent / family, maintain contact with family / extended family / tribe / culture / tradition
BEST INTEREST OF THE CHILD STANDARD
- Age, maturity, stage of development, gender, relevant characteristics
- Physical and emotional security, intellectual, emotional, social, cultural development
- Need for stable family environment / environment resembling family environment
- Need to protect child from psychological, physical harm
- Family violence
- Minimising further legal or administrative proceedings in relation to child
CHAPTER 3: CHILDREN’S RIGHTS
- Clause 7: Application
- Provisions of chapter takes precedence over other law
- Best interest of the child paramount
- Child participation
- Rights of children – Constitution
- Harmful social and cultural practices
- Information on health care
- Access to courts
- Enforcement of rights
- Responsibilities of children
- Age of majority - 18 years
CHAPTER 4: PARENTAL RESPONSIBILITIES AND RIGHTS
- Cl 18: Parental responsibilities and rights
- Responsibilities and rights of mothers
- Responsibilities and rights of married fathers
- Responsibilities and rights of unmarried fathers
- Parental responsibilities and rights agreements
- Assignment of parental responsibilities and rights by order of court (interested person)
- Certain applications regarded as inter-country adoptions
- Clause 25: Persons claiming paternity
- Assignment of parental responsibilities and rights to parent-substitutes
- Termination, extension, suspension or restriction of rights and responsibilities
- Who may approach court
- Court proceedings
- Co-holders of responsibilities and rights
- Major decisions involving a child
- Clause 32: Care of child by persons not holding parental responsibilities and rights
- Parenting plans: contents, formalities, amendment, termination
- Presumption of paternity – child born out of wedlock
- Refusal to submit to taking of blood samples
- Effect of subsequent marriage of parents
- Rights of children born of voidable marriages / conceived by artificial insemination
- Access to information concerning genetic parents
CHAPTER 5: CHILDREN’S COURTS
- Children’s courts and presiding officers
- Clause 43: Status
- Jurisdiction of children’s courts
- Matters children’s court may adjudicate
- Orders children’s court may make
- Referral of children by other courts
- Lay-forum hearings
- Investigations, appeals
- Rules and court proceedings
- Who may approach court
- Legal representation
- Clause 55: Legal representation of children
- Attendance at proceedings
- Compulsory attendance of persons involved
- Right to adduce evidence, question witnesses, produce argument
- Conduct of proceedings
- Participation of children
- Professional reports ordered by court
- Evidence
- Monitoring of court orders
- Protection of court case records
- Clause 67: Appointment or designation of clerks of the children’s courts
- Referral of matters to children’s court by clerk of children’s court
- Pre-hearing conferences
- Family group conferences and other lay forums
- Settling of matters out of court
- Publication of information relating to proceedings
- Regulations
CHAPTER 6: PARTIAL CARE
- Clause 76: Partial care (definitional provision)
- Provision of partial care (Section 76 Bill)
- Facilities to be registered (S 76)
- Existing places of care (S 76)
- Notices of enforcement (S 76)
- Registration: Application, consideration, renewal (S 76)
CHAPTER 6: PARTIAL CARE (2)
- Minimum norms and standards (S 76)
- Conditional registration, cancellation (S 76)
- Record and inspection of and provision for partial care facilities (S 76)
- Assignment of functions to municipalities (S 76)
- Death of children in partial care facilities (S 76)
CHAPTER 7: EARLY CHILDHOOD DEVELOPMENT
- Clause 91: Early childhood development (definitional provision)
- Strategies concerning ECD (S 76)
- Provision of ECD services (S 76)
- Minimum standards for ECD services (S 76)
- Registration: applications, conditional registration, cancellation (S 76)
- Notices of enforcement (S 76)
- Assessment of ECD services (S 76)
- Assignment of functions to municipality (S 76)
CHAPTER 8: PROTECTION OF CHILDREN (S 76 Bill)
- Clause 104: Strategies concerning child protection
- Reporting of children in need of care and protection
- Provision of designated child protection services
- Designation of child protection services
- Existing child welfare organisations
- Delegation of powers and duties to child protection organisations
- Withdrawal of designations
CHILD PROTECTION REGISTER
National Child Protection Register
- Clause 111: Keeping of National Child Protection Register
- Confidentiality of Register
Part A of Register
Purpose of Part A of Register
Contents of Part A of Register
Access to Part A of Register
Disclosure of / inquiries on information
Part B of Register: Persons who are unsuitable to work with children
Clause 118 & 119: Purpose, Contents of Part B of Register
Finding persons unsuitable to work with children
Disputes concerning findings
Findings to be reported to Director-General
Clause 123: Consequences of entry of name in part B of Register
Disclosure of entry of name in Part B of Register
Access to Part B of Register
Establishment of information in part B of Register
Disclosure of names in Part B of Register prohibited
Removal of name from Register
PROTECTION OF CHILDREN
- Clause 129: Consent to medical treatment and surgical operations
- HIV-testing and HIV-testing for foster care / adoption purposes
- Counselling before and after HIV testing
- Confidentiality of information on HIV/AIDS status of children
- Access to contraceptives
- Applications to terminate / suspend parental responsibilities and rights
- Child-headed households
- Unlawful removal or detention of children
- Unlawful taking or sending of children out of Republic
- Corporal punishment
- Child safety at places of entertainment
- Worst forms of child labour prohibited
- Regulations
CHAPTER 9: PREVENTION & EARLY INTERVENTION SERVICES (S 76)
- Prevention and early intervention services
- Clause 144: Purposes of prevention and early intervention services or programmes
- Provision of prevention and early intervention services
- Strategies for securing provision of prevention and early intervention services
- Assignment of functions to municipalities
- Court may order early intervention services
- Reports to include summary of services
CHAPTER 10: CHILD IN NEED OF CARE AND PROTECTION
- Clause 150: Child in need of care and protection
- Removal of children to temporary safe care by / without court order (S 76)
- Written notice to alleged offender (S 76)
- Siblings in need of care and protection (S 76)
- Decision whether child in need of care and protection (S 76)
- Clause 156: Orders when child found in need of care and protection (S 76)
- Court orders to be aimed at securing stability in child’s life (S 76)
- Placement in child and youth care centres (S 76)
- Duration and extension of orders (S 76)
- Regulations (S76)
CHAPTER 11: CONTRIBUTION ORDERS (S 76)
- Clause 161: Issue of contribution orders
- Jurisdiction
- Effect of contribution orders
- Payment to be made to person determined by court
- Attachment of wages
- Change of residence or work by respondent
CHAPTER 12: CHILDREN IN ALTERNATIVE CARE
- Clause 167: Alternative care (definitional provision)
- Leave of absence (S 76)
- Children in alternative care prohibited from leaving Republic (S 76)
- Children absconding from alternative care (S 76)
- Transfer of children in alternative care
(S 76)
- Change in residential care programmes
(S 76)
- Clause 174: Provisional transfer from alternative care (S 76)
- Permanent discharges from alternative care (S 76)
- Discharges from alternative care after reaching age of 18 years (S 76)
- Appeals against and reviews of certain decisions (S 76)
- Death of children in alternative care (S 76)
- Regulations (S 76)
CHAPTER 13: FOSTER CARE AND CARE BY FAMILY MEMBERS (S 76)
- Clause 180: Foster care (definitional provision)
- Purposes of foster care and court-ordered kinship care
- Initial proceedings
- Prospective foster parents / kinship care givers
- Determination of placement of children in foster care
- Number of children to be placed in foster or kinship care per household
- Clause 186: Duration of kinship care orders and stable foster care placements
- Reunification of child with biological parents
- Responsibilities and rights of foster parents and kinship care givers
- Termination of foster care and court-ordered kinship care
- Regulations
CHAPTER 14: CHILD AND YOUTH CARE CENTRES (S 76)
- Clause 191: Child and youth care centre (definitional provision)
- Strategies to ensure sufficient provision of child and youth care centres
- Establishment of child and youth care centres
- Establishment of child and youth care centres by organs of state
- Existing government children’s homes, places of safety, secure care facilities, schools of industry and reform schools
- Establishment of child and youth care centres by accredited organisations
- Existing registered children’s homes
- Clause 198: Notices of enforcement
- Application for registration or renewal of registration
- Consideration of applications
- Conditional registration, amendment and cancellation of registration
- Clause 204: Voluntary closure of child and youth care centres
- Children in child and youth care centres to be closed
- Appeals against and reviews of certain decisions
- Operation and management of child and youth care centres
- Clause 207: Management boards
- Managers and staff of child and youth care centres
- Minimum norms and standards for child and youth care centres
- Management system
- Quality assurance process
- Regulations
CHAPTER 15: SHELTERS AND DROP-IN CENTRES (S 76 BILL)
- Clause 213: Shelters and drop-in centres
- Establishment of shelters and drop-in centres
- Shelters and drop-in centres to be registered
- Existing shelters
- Notices of enforcement
- Registration: application, renewal, consideration
- Minimum norms and standards
- Clause 221: Conditional registration
- Cancellation of registration
- Appeals against and review of certain decisions
- Record and inspection of and provision for shelters and drop-in centres
- Assignment of functions to municipality
- Death of children in shelters and drop-in centres
- Regulations
CHAPTER 16: ADOPTION
- Clause 228: Adoption (definitional provision)
- Purposes of adoption
- Children who may be adopted
- Persons who may adopt a child
- Consent to adoption
- Freeing orders
- When consent not required
- Gathering of information for proposed adoptions
- Clause 236: Notice to be given of proposed adoptions
- Application for adoption orders
- Consideration of adoption applications
- Unreasonable withholding of consent
- Effects of adoption orders
- Rescission and grounds for rescission
- Notice of application for rescission
- Effects of rescission
- Recording of adoption in births register
- Registration of birth and recording of adoption of child born outside Republic
- Adoption register
- Access to adoption register
- No consideration in respect of adoptions
- Only certain persons allowed to provide adoption services
- Accreditation to perform adoption work
- Advertising
- Regulations
CHAPTER 17: INTER-COUNTRY ADOPTION
- Clause 254: Purposes of Chapter
- Hague Convention on Inter-Country Adoption to have force of law
- Central Authority
- Delegation of functions
- Accreditation for inter-country adoptions
- Entering into adoption working agreements
- Adoption of children from Republic
- Adoption compliance certificate
- Adoption of children from other countries
- Recognition of inter-country adoptions
- Clause 266: Evidential value of adoption compliance certificate
- Effect of recognition of inter-country adoption
- Refusal to recognise inter-country adoptions
- Application to court for inter-country adoption
- Access to information
- Processing/facilitating inter-country adoption
CHAPTER 18: CHILD ABDUCTION
- Clause 273: Purposes of Chapter
- Hague Convention on International Child Abduction to have force of law
- Central Authority
- Delegation of powers and duties
- Powers of court
- Legal representation
- Regulations
CHAPTER 19: TRAFFICKING OF CHILDREN
- Clause 280: Purposes of Chapter
- UN Protocol to Prevent Trafficking in Persons to have force of law
- Assistance to children who are victims of trafficking
- Trafficking in children prohibited
- Victims of child trafficking found in Republic
CHAPTER 20: SURROGATE MOTHERHOOD
- Clause 285: Surrogate motherhood agreement must be in writing and confirmed by High Court
- Consent of husband, wife or partner
- Genetic origin of child
- Confirmation by court
- Artificial fertilisation of surrogate mother
- Effect of surrogate motherhood agreement on status of child
- Clause 291: Termination of surrogate motherhood agreement
- Effect of termination of surrogate motherhood agreement
- Abortion
- Payments in respect of surrogacy prohibited
- Identity of parties
- Prohibition of certain acts
CHAPTER 21: ENFORCEMENT OF ACT
- Clause 297: Inspection of child and youth care centres, partial care facilities, shelters and drop-in centres
- Offences
CHAPTER 22: ADMINISTRATION OF ACT
- Clause 299: Regulations
- Delegation of powers and duties by Minister
- Assignment of powers and duties by Minister
- Delegation of powers and duties by MECs for social development
- Delegation by Director-General
- Delegation by provincial heads of social development
- Outsourcing of services
CHAPTER 23: MISCELLANEOUS MATTERS
- Clause 307: Repeal of laws
- Transitional matters
- Short title and commencement
- Schedules 1 to 5
- Schedule 1: Hague Convention on Inter-country adoption
- Schedule 2: Hague Convention on International Child Abduction
- Schedule 3: UN Protocol to Prevent Trafficking in Persons
- Schedule 4: Legislation repealed