1. INTRODUCTION

ACESS welcomes the opportunity to present our views before the Portfolio Committee on Social Development with regard to a critical piece of legislation, the Children’s Bill. ACESS is an alliance of over 1000 children’s sector organizations across the country, including faith-based, community-based and non-governmental organizations. As an alliance, we have garnered our strength together with other partners, including government, in a myriad of ways in order to promote, protect and fulfill the socio-economic rights of children, in particular their right to social security.

The Children’s Bill has a critical role to play in giving effect to the constitutional right to social security for children in terms of section 27 of the Constitution and children’s specific socio-economic rights under section 28 of the Constitution. As an Alliance of over 1000 organisations who work with children living in poverty, we would like to contribute our views on the Children’s Bill.

The Bill in its current form is substantially different to the Draft Bill proposed by the South African Law Reform Commission (‘the SALRC Draft Bill’). We would like to put forward our grave concerns at the considerably watered down version of the Bill especially with regard to comprehensive social security for children. The motivation for having a new Children’s Act was to bring together all aspects regulating children’s lives together under one umbrella and, in addition, to broaden the conception of the protection of children to include preventative and other intervention measures that address poverty and other issues which contribute to children’s vulnerability. By removing social security aspects from the Children’s Bill, the original conception of a composite Bill with the capacity to alleviate poverty and prevent children from falling into situations of vulnerability has been whittled away.

The SALRC Draft Bill contained a chapter on social security that proposed a range of grants and benefits for children. In addition, the Committee of Inquiry into a Comprehensive Social Security System for South Africa (COI) made numerous critical recommendations with regard to social security for children. Besides the recent extension of the Child Support Grant (‘CSG’) to age 14 years through an amendment to the Social Assistance Act regulations, the SALRC and COI recommendations have not yet been incorporated into any piece of legislation. The recently passed Social Assistance Act 2004 does not incorporate the COI recommendations and as a result there are many children who fall outside of the social security safety net and there is no clear indication from government as to how these gaps will be addressed. The Children’s Bill thus presents a valuable and timely opportunity to include and elaborate upon these recommendations.

ACESS is also concerned about the removal of the National Policy Framework (NPF) and the main elements of the Children’s Rights Chapter. The NPF is critical for ensuring a collaborative and coordinated framework for the Children’s Bill amongst the various departments responsible for the administration and implementation of the Bill – particularly important for a comprehensive social security system. The Children’s Rights Chapter of the Bill is crucial for elaborating the rights of children as provided in our Constitution and in our obligations under the Convention on the Rights of the Child.

 

2. SOCIO-ECONOMIC BACKGROUND

The Taylor Committee Report stated that South Africa's social safety net has its roots in a set of apartheid labour and welfare policies that were racially biased and based on an assumption that everyone is employed or would soon be employed. Furthermore, between 45% and 55% of the population live in poverty. This translates into 20 to 28 million people living in poverty.

In 2002, it was estimated that 11 million children (between the ages of 0-18) are living in dire poverty in South Africa on less than R 200 per capita per month (R245 in 2002 real terms), and therefore living on less than half the minimal R400 per capita per month required to meet their basic needs, and 14.3 million children are living in poverty on less than R400 per capita per month (R490 in 2002 terms).

"It is estimated that in 2002 about 11 million children under 18 years in South Africa are living on less than R200 per month and hence are desperately in need of income support."

And child poverty appears to be increasing. The analysis of the October Household Survey data (1995 & 1999) by Ingrid Woodard for IDASA shows that child poverty rates have increased. Between 1995 and 1999 the rate of child poverty in South Africa (on a poverty line of R400.00 / month per capita) increased from 64.7% to 75.8%, and the rate of children in dire poverty (calculated on a poverty line of R200.00 / month per capita) increased by 19.2%, from 38.9% to 58.1%.

In 1996, 33% of working age adults were unemployed. The rate for 2002 was 41%. Given the size of the unemployment problem in South Africa; full employment or significant improvements to the unemployment rate, and improvements to wage levels of the working poor, are not at all likely to happen in the short to medium term.

Another reality to bear in mind is the impact of HIV/AIDS, particularly on households already burdened by high poverty levels.

The Taylor Committee Report also showed that 60% of the poor do not have access to any form of social security cash grants or benefits.

Social Security policy reform must take cognizance of all the above realities. The COI's recommendations were based on an analysis of these and other socio-economic realities.

3. A COMPREHENSIVE SOCIAL PROTECTION PACKAGE

After looking at all the evidence, the Committee proposed that South Africa should create a comprehensive package of ‘social protection’.

The COI talks about a package of social protection interventions and measures. The notion of a package is emphasised as it is not desirable for a person to have to choose between basic needs. For example, a poor parent should not be expected to have to choose between feeding the family and sending their children to school. Both are basic needs that must be provided for by the package of comprehensive social protection.

The COI looked at addressing income poverty - a situation where people have no income or insufficient income to meet their basic needs – and recommended three universal cash grants:

• Basic Income Grant (BIG)
• Child Support Grant (CSG)
• State Old Age Pension (OAP)

The Report recommends that everyone must get at least a certain minimum income transfer to reduce or eradicate destitution and starvation. This would mean that all people would get an income transfer, whether it be through the vehicle of the CSG, BIG or OAP. The bottom line is that eventually (by 2015) everyone should get basic income support through one of the three grants.

The Committee also proposes a package of services to enable everyone to live and function in society. These services should be provided to everyone (universal) or may have eligibility criteria attached to them and only provided to certain categories of people:

• Free and adequate public health care
• Free primary and secondary school
• Free basic water and sanitation
• Free basic electricity
• Accessible and affordable public transport
• Access to affordable and adequate housing
• Access to jobs and skills training

In addition, people with special needs should also be provided for in the social security system. ‘Special needs’ refers to people with disabilities and children in compromised home environments. The Committee proposes that the adult disability grant, care dependency grant and the foster child grant should remain and be reformed in order to enable more children in need to benefit from them. All three grants should continue to be targeted grants which would mean that they would continue to have eligibility criteria.

The Committee proposes a phased in approach for the Comprehensive Social Protection package. It stresses that first priority must be to address income poverty by ensuring that poor people have access to a minimum level of income.

The Committee proposed a timetable for a programme of phasing in universal social assistance:

The COI Report into a comprehensive social security system was considered in public hearings held by the Portfolio Committee on Social Development held in June 2003 and by Cabinet in July 2003. Many of the overlapping policy decisions regarding social security broadly, and specifically in relation to children, have not yet been made or properly consulted upon. This leaves legislative reform on this issue like a ball up in the air to be bounced around from bill to bill, department to department and policy to policy, without ever landing anywhere.

1. COMMENTARY ON PROVISIONS OF THE CHILDREN’S BILL [B70-2003]

1. National Policy Framework

The provisions for an inter-sectoral National Policy Framework have been removed from the Bill and ACESS believes that its reinstatement would greatly benefit the successful future operation of the Children’s Bill. In particular, ACESS is concerned that the implementation of the various components of a comprehensive social protection package for children articulated above would require a cross-departmental and coordinated framework. The package would involve the Departments of Education, Social Development, Housing and Health etc. Without the National Policy Framework, such a comprehensive system will be dislocated and difficult to administer in a coordinated manner amongst the various Departments.

It is therefore essential that the provisions for an inter-sectoral National Policy Framework (NPF) be reinstated, to guide the implementation, enforcement and administration of the Act and to ensure that responsibility for the wellbeing of children is shared across relevant Departments. The NPF would be binding on all government structures with responsibilities for children, and would require them to plan for these responsibilities, and includes a provision for a funding strategy to support these activities. For example, the problem of poor children being unable to access grants because they do not possess birth certificates or their care-givers do not have ID’s, would be more easily solved if the Departments of Social Development and Home Affairs were to plan and coordinate their efforts to ensure that poor children are able to access identity documents and social grants. These coordinated administration systems could also be budgeted for across departments, thereby creating cohesive planning and implementation.

 

 

2. Chapter 3 - Children’s Rights

South Africa has an above average child illness and death rate, particularly in the rural areas where the majority of poor children live. Many children suffer from hunger, many children are disabled by preventable trauma accidents or bad management of acute and chronic illnesses, and many children are unable to attend schools simply because they are poor.

While we have an economy that can provide better services for children, children’s needs are not receiving the priority that they are entitled to. Decision-makers and service-providers are generally supportive of the call for the prioritization of children's needs in government reform and service delivery. However, in reality, this commitment does not always bear fruit. One of the reasons is that as a country, we do not yet fully understand how to put the commitment into practice.

There is therefore a need for Parliament to provide guidance on the meaning of children's constitutional rights. One way is through the inclusion of a comprehensive Children’s Rights Charter in the Children’s Bill. The Charter can provide guidance by elaborating on the meaning of children's rights and the state’s duties using international law and South Africa’s particular history and challenges. This would provide decision-makers and service-providers with clear guidance with regards to their constitutional obligations to children and enable them to put the obligation into practice.

The SALRC Draft Bill took us many steps forward in this endeavor through its elaboration of some of the essential children's rights in the Child Rights Chapter of the Bill. This elaboration was based on international and comparative research and South Africa's particular circumstances. However, the Children's Bill currently before Parliament, while including some essential rights, omits many of those proposed in the SALRC version and therefore takes us several steps backwards.

The Department has stated that it’s reason for changing the SALRC version and for instead simply restating section 28 of the Constitution is to avoid litigation. However, simply restating the Constitution does not take us any further in the struggle to realize children's rights and litigation can in fact be avoided better if children’s rights are adequately protected through the Children’s Bill.

As an alliance of organizations working with children living in poverty, we are particularly concerned about the omission from the Bill of the following rights and we recommend that they be re-inserted into the Bill:

• Unfair Discrimination

• Name and nationality
• Property
• Education
• Health

• Social security
• Water and sanitation

• Social services
• Children with disabilities and chronic illnesses
• Food and Nutrition
• Family or alternative care

We therefore endorse the rights formulations submitted by the Children’s Institute in their submission.

By December 2002, roughly 900 000 children under the age of 18 in South Africa were estimated to have lost a mother, the majority of these to HIV/AIDS, and that figure is expected to rise to roughly 3 million by the year 2015, in the absence of major health interventions.

There is no comprehensive national data on the prevalence of child-headed households at this point in time. On the basis of their national household survey on HIV/AIDS, the Human Sciences Research Council (HSRC) argues that:

Other studies also provide anecdotal data of the existence of child headed households in South Africa. The lack of statistical evidence and probable low incidence of child-headed households should not, however, detract from the fact that child-headed households exist. Furthermore, in the context of increasing numbers of orphans as the HIV/AIDS pandemic progresses, it is likely that South Africa will face increasing numbers of children living without adult caregivers. This recognition is important in order to guide equitable, appropriate and effective responses of support.

Children living in child-headed households are particularly vulnerable without the care and support of parents or substitute parents, and require extra support to meet their various basic needs, including financial, emotional, psychological, health, education etc. We are particularly concerned with support (financial and otherwise) to children within the context of living without adult care-givers.

Of particular concern is that children who live without adult caregivers – as so called ‘child-headed households’ - are currently not able to access financial support from the government, in the form of social grants, for the following reasons:

• In practice, only children living with an adult primary care-giver can apply for a Child Support Grant (CSG);
• Children must be placed in formal foster care in order for the Foster Care Grant (FCG) to be payable; and

Under the Constitution, the State is obliged to provide social security to everyone, including social assistance if they are unable to support themselves and their dependants. In addition, the State has a responsibility to children who are orphaned and have no parental care. The Government thus has an obligation to provide social assistance to these children, via a mechanism that is practical, reasonable and appropriate.

One of the ways, we recommend, is the mentorship scheme proposed in the SALRC draft of the Children’s Bill. This scheme should apply to children where it is not in their best interests to be living in a child-headed household without adult supervision, and where a potential adult mentor is available. Essentially, child-headed households could be assisted by mentors, as required and available, (individuals working in NGOs or CBOs and other responsible individuals) to provide the necessary adult supervision in the application and spending of the grant. However, it is important to stress that children who are in fact performing the function of primary care-giver should be able to claim and access the CSG on their own behalf and on behalf of children in their care. The mentorship scheme should only kick in when children are too young or immature to perform the functions of a primary care-giver, or where there are no adult mentors available in the community.

The SALRC Draft Bill contained a provision which allowed adult mentors to be appointed by an organ of state, non-government organization or a children’s court. This mentorship scheme was incorporated to give recognition to the support that adults in affected communities already provide to children living in child-headed households and enable them to access grants on behalf of these children. We therefore strongly recommend that the SALRC model be reinstated in order to also allow for an adult to be appointed as a mentor of a child-headed household, as designated by an NGO or organ of state.

We strongly support this chapter and the intentions behind it. Many families desparately need assistance from the state to address poverty (in which more than half of the population lives) and to adequately provide for their child’s care and protection. If families at risk had access to good social services aimed at primary prevention and early intervention, the number of children who are vulnerable and children who are abused and neglected would steadily decline. However, we are concerned that the chapter does not make the provision of early intervention and primary prevention services compulsory for provincial departments.

Section 145 (1) of the August 2003 version of the Bill provided that the "MEC may, from funds appropriated by the relevant provincial legislature for this purpose, provide for –

(a) facilities and services for prevention and early intervention services to families, parents, care-givers and children; and

(b) the subsidisation of facilities and services by non-governmental bodies and other organs of state for prevention and early intervention services to families, parents, care-givers and children."

However, the Bill no longer contains this provision. We recommend that the provision be re-inserted into the Bill and that the word "may" is replaced with the word "must" in order to ensure that provincial departments are obliged to budget for and provide prevention services.

We are also concerned that the strategy mentioned in section 146 is restricted to a national department of social development strategy. A National Strategy that only relates to the Department of Social Development will encourage the fragmentation of services and functions of all State departments who are responsible for providing basic services and primary prevention services to families and care-givers who are in the grip of poverty. It is a futile exercise for the Department of Social Development to develop strategies that would also affect the other departments if the other departments aren’t obliged to participate. By legislating the inclusion of the National Policy Framework we are ensuring that all relevant State departments are compelled to work together and eradicate the duplication of services and funding.

2. Children in Especially Difficult Circumstances

The SALRC version of the Bill included a chapter on children in especially difficult circumstances (chapter 16). This entire chapter was removed from the Bill. The chapter included specific recommendations for the following groups of children:

• Children affected by malnutrition
• Children affected by HIV/AIDS
• Children with disabilities
• Children with chronic illnesses (this category included children with HIV/AIDS)
• Children who are subject to exploitative labour practices
• Children living or working on the streets
• Children in child headed households (CHH)
• Children subjected to commercial sexual exploitation

• The categories of children listed above were chosen by the SALRC because they were identified as those children whose circumstances place their survival, development and protection at risk. The reason behind creating a chapter on children in especially difficult circumstances was not to deal with these children separately to other children but to ensure that any special needs that these groups may have, are legislated for.
• Section 232 of the SALRC draft of the Bill proposed that the Minister must develop inter-departmental strategies to identify, assist and promote the best interests of these children. The section does not provide a comprehensive list of the strategies that need to be developed, but does state that these strategies must include strategies aimed at the following (among others):

• Combating malnutrition among children
• Encouraging orphaned, abandoned or impoverished children or children affected by HIV/AIDS or other chronic conditions to remain in their homes or communities
• Identifying child headed households and supporting their functioning in the community
• Providing impoverished children free access to primary and basic health care services
• Providing impoverished children with free primary and secondary education

• The section also stated that the Minister’s national strategy must set out the responsibilities and roles of municipalities and provincial organs of state and must promote the engagement of NGOs in the development and implementation of programmes and projects giving effect to these strategies.

When this chapter was removed from the draft Bill by the DSD, some of the provisions were incorporated elsewhere but many were lost. It is therefore recommended that the entire chapter be re-instated put together with the NPF into one chapter.

2. Legislative reform of the social security system

The current social security system for children in South Africa is clearly inadequate in its capacity to address the socio-economic realities highlighted above. It is governed piecemeal in various acts, including the Social Assistance Act No.13 of 2004, the South African Schools Act 84 of 1996, the Child Care Act 74 of 1983 and various other acts and is by no means comprehensive.

A noble attempt was made in the SALRC Draft Children’s Bill to present a variety of provisions to create a basic social security scheme for children, which took cognizance of the dire poverty in South Africa and the needs of the most vulnerable children. The Children’s Bill, however, has since had most of these provisions removed from it. The Department has reported that these provisions are better placed within the Social Assistance Act, but the Social Assistance Act that was recently passed by Parliament this year, does not incorporate the provisions left out of the Children’s Bill. The new Act in fact makes no new provisions relating to expanding the social security net for children living in poverty and in the context of HIV/AIDS.

The Social Assistance Act currently makes provision for three main grants that can be accessed for the benefit of children, namely the Child Support Grant (‘CSG’), the Care Dependency Grant (‘CDG’) and the Foster Child Grant (‘FCG’). There are however, many shortcomings of this social assistance scheme for children. For example the limited eligibility of children for the CSG due to age and caregiver income restrictions; difficulties in accessing the FCG due to cumbersome court procedures; and the fact that the CDG is only for those children who suffer from severe disabilities and require permanent home-based care.

The result of these shortcomings is that the following groups of vulnerable children have no access to social assistance despite clearly being vulnerable and in dire need of support:

• Poor children between the ages of 14 and 18 years, who are cared for by their biological or by other care-givers;
• Many poor children between the ages of 0 and 18 years whose caregivers do not pass the means test. The means test does not take account of the number of people living off the income or the extra vulnerabilities faced by the family such as HIV/AIDS. Furthermore, the means test thresh-hold has not increased since 1998 despite increases in inflation and the cost of living;
• Child-headed households;
• Children with moderate disabilities and chronic illnesses who need assistance;
• Children living with HIV and AIDS.

These shortcomings need to be addressed through legislative amendments so as to ensure that government fulfills its obligations to children under the Constitution.

The recently promulgated Social Assistance Act has not made any policy shifts in relation to social security provisions for children - assertions made by the Department of Social Development at the time of debate on the Act, indicated that the appropriate vehicle for changes to the social security scheme for children is the Children’s Bill.

The SALRC Draft Children’s Bill, proposed a social security scheme which included the introduction of various new grants and an expansion of the reach of existing grants aimed at benefiting children and accommodating those in vulnerable situations. The SALRC was of the view that there are currently inadequate prevention and early intervention strategies in our children’s legislation, as the entire Child Care Act 74 of 1983 is weighted towards taking children away from parents into one or another form of alternative care.

The Commission stated that:

The Commission therefore recommended provision of ‘a concrete legislative framework for preventive and early intervention strategies to combat child abuse and neglect’, in addition to tertiary intervention strategies, such as removal of children in need of care into formal alternative care. There is now no such provision in the Children’s Bill.

The SALRC discussed the pros and cons of the legislative placement of the social security system for children in the Social Assistance Bill and the Children’s Bill. They stated that the advantage of placing the children’s grants in the new child care legislation would be:

• To promote a comprehensive approach to key issues affecting children’s lives, and have the benefit of linking children who are extremely vulnerable to the means to address that vulnerability.

Arguments in favour of the grants system remaining within the context of overall social security or social assistance legislation included:

• Especially as regards non-court related grants, such as the CSG, it might be preferable to include all detail, regulations and conditions in one piece of legislation, to promote uniformity of policy and practice amongst those who implement payment of the grants at the local level.

The Law Commission in the end was of the opinion that a ‘via media’ approach was possible. With this approach, child-related grants would ideally be created and defined in the new Children’s Bill, as well as the conditions under which they must be paid; however, administrative details concerning the administration of grants could be included in social assistance legislation.

The introduction of a Children’s Bill is an important milestone in the realization of children’s rights in South Africa. However, we cannot support the Bill if it does not contain a robust and elaborated children’s rights chapter, provision for a National Policy Framework and a comprehensive social security scheme as outlined above.

The Draft Bill proposed by the SALRC specifically included numerous aspects on social security for children, because based on their work and research, it was concluded that a holistic approach to the care, protection and development of children should be taken. The SALRC broadened the conception of the protection of children to include preventative and other intervention measures that address poverty and other issues which contribute to children’s vulnerability.

The success of the new child care and protection system depends very much on ensuring that children’s basic needs are provided for. Without a comprehensive social security system which is well-coordinated and implemented by various departments, this is not possible. Considering the widespread poverty experienced by many children in South Africa, exacerbated further by the HIV/AIDS pandemic, by removing social security aspects, the children’s rights chapter and the National Policy Framework from the Children’s Bill, the country is failing to ensure that children can survive and develop to their full potential.