The Southern African Catholic Bishops’ Conference is particularly concerned with the multiple issues affecting the welfare system of children who are often the most vulnerable people in our society. With this in mind we welcome the intention of the current Parliament to finalise the Children’s Bill in this International Year of the Family.

We commend the Department of Social Development on the consolidation of children’s issues into one comprehensive Children’s Bill. In the past the law reflected Apartheid ideology and excluded the majority of children in the country. The present legislation concerning children is fragmented and we welcome the attempt to consolidate and amend the law.

We support a number of provisions in this legislation such as: the best interests of the child is of paramount importance in every matter concerning the child (Chapter 3: section 11 (2); parental rights and responsibilities (Chapter 4) including the extension of the definition of the family member to include the primary care-giver of the child, grandparents, brothers, sisters, uncles, aunts and the persons with whom the child has developed a significant relationship resembling a family relationship; children’s courts (Chapter 5), prohibition of child trafficking (Chapter 19); the prohibition of compulsory marriage or engagement of minors, female genital mutilation; children ‘s right to refuse circumcision or virginity testing (Chapter 3 section 12 (1-5); we welcome the provision that allows a person placed in Alternative care (Chapter 12-75&76 Bill) upon reaching the age of 18 to remain in that care until the end of the year in which that person reaches the age of 12 years to enable that person to complete his or her education or training.

However, we are deeply concerned that the present Bill does not contain the provisions on National Policy Framework / Departmental Strategic Plan that would bind all government departments, whether local, provincial or national in taking care and protecting Children; lack of the provisions for orphans and Child Headed Household; lack of the provision for social security even in principle;. The Chapter on rights of the Child should not just repeat the Bill of Rights but should instead elaborate on the Bill of rights. We believe that it is important that government supports families to care for children and this objective must be reflected in the Children’s Bill. We would like this objective to be carried through to other chapters of the Bill such primary prevention chapters and social security grant chapter. If the above provisions are not inserted into the Children’s Bill, the comprehensiveness and consolidation of children issues might be negated.

1. General Provisions

Madam chair, we are concerned with the splitting of the Children’s Bill into section 75 and 76. The basis of our concern is on the provisions that the section 76 will come as an amendment to the 75 Bill. The experience of such thinking leaves some provisions to fall between the cracks. For instance social security section in the Social Assistance Act 2004, when it was being dealt with in this very portfolio committee, the department dealing with social assistance Bill had said, social security issues concerning children in full would be dealt with in the Children’s Bill. We have just learned from the department that issues of the social security mainly fall within social assistance Act. If we see the provisions in the 76 Bill on social security most of the proposed provisions by South African Reform law Commission have been deleted, leaving the social security section without improvements to the current problems. We ask that the portfolio committee put some thoughts on the provisions that are said to be in the 76 Bill such as the social security section, chapters on partial care, early childhood development, children in need of care and protection and children in alternative care.

Street Children are considered to be amongst the most deprived and marginalized of all South Africa’s Children. Children living on the streets are increasingly becoming a major challenge to the whole country. While the Church and other NGOs are doing their part in taking care of the street children with or without the government’s assistance, we feel that there should be more explicit commitment by the government through the Children’s Bill to care for the children on the streets. The number of children living on the street is expected to increase dramatically due to the death of parents or caregivers as a result of HIV/AIDS. Many poor children are forced onto the street to live and work for their survival. Most of the time here they become vulnerable to abuse and exploitation. These children often stop going to school and as a result give up their hope for a better future and so continue the vicious cycle of poverty.

Section 129 specifies that the parent or primary care-giver must consent to medical treatment or a surgical operation for a child less than 12 years of age. Since the definition of "primary care-giver" does not include a child and youth care worker at a shelter. This begs a question, "who is permitted to give consent for street children under 12 years of age?" We suggest that the definition of primary caregiver should include a child and youth care worker at a shelter. This will allow the Principle of the shelter to consent.

The Catholic Church through its organisations working with street children has observed that a greater number of children leave home to live and work on the street because of poverty (shortage of space at home, lack of food at home) and abusive parents (through alcohol or drug abuse). Taking this into consideration, it becomes clear that there is a need to channel more resources on poverty eradication and early intervention services that are designed to assist families to care for their children. We recommend that the Objects section of the Bill should be amended in order to include an express objective to help families to care for and protect their children.

The Children’s Rights chapter in the Bill was originally intended to supplement the rights that a child has in terms of the Bill of Rights. It is unfortunate that the Department removed these rights because they would have helped to prevent children from abuse and vulnerability more effectively. Although the right of children to be protected from exploitative and inappropriate labour practices remains, their rights to social security and education have been removed. These rights are closely linked: without adequate access to social security and education, children will not be protected from poverty and will be forced into exploitative work.

A comprehensive listing of children’s rights as written into the original draft (December 2002) should be restored to the Section 75 bill. This is to ensure that all agencies of government and other sectors honour child rights in all aspects. The Department of Education needs to be concerned about nutrition and health of children in the schools. Children cannot learn when hungry and malnourished. The Department of Social Development needs to be concerned about the development of the whole person, including education and health. We believe that it is important that within this bill a comprehensive set of rights is articulated which will mandate government departments and others to develop strategies to ensure these rights.

There are a variety of problems regarding Children’s Courts. Important issues relating to parental responsibilities and rights have been removed from the jurisdiction of the children’s courts and, for practical purposes, will continue to be vested in the (very inaccessible) High Court. Movement to the High Court results in less or even no access to the poorest of the poor. Also, all the measures which had been built into the Bill to make the court more child-friendly and more effective in its management of children’s situations have been removed (e.g. proper selection and training for personnel, rules of evidence more appropriate to children’s situations, a code of conduct for lawyers acting in the children’s court), and provision for legal representation of children has been greatly weakened.

South Africa’s current legislation does not protect children who are vulnerable to trafficking both within and outside the country. We are happy that children’s trafficking is prohibited. Madam chair, trafficking in this 21^st century is the largest manifestation of slavery. As you may know children are being sold into bondage as prostitutes, child labourers, domestic workers, source of organ trade and some are trafficked to be thieves. It is estimated that 2 million women and children are being trafficked worldwide every year. The report by the International Organization for Migration (IOM) in Pretoria showed that international trafficking in the region is pervasive and that South Africa is the main country of destination. One of the IOM’s recommendations is tougher legislation to criminalize human trafficking. We fully welcome the prohibition of trafficking.

However, we are of the view that the chapter on trafficking needs some tightening up if the standard for "the best interest of the child" should be met. Cross-border trafficking causes a number of problems in that the children are treated as illegal immigrants under the Immigration Act of 2002, rather than as victims of crime. We would recommend that victims of trafficking should be treated as such and not as illegal immigrants. As the Children’s Bill aims at comprehensively protecting children within the Republic, there is a dire need to ensure that victims of trafficking are protected and the act of trafficking criminalized. We further recommend that any victim of trafficking should receive care such as counselling, medical examinations and treatment. Wherever possible, the victim of trafficking should be reunified with their family or relative but this should be done with caution so that the claimants are real family members or relatives who are not connected with traffickers and are in a position to provide a safe place for the child.

This Bill provides for a 'surrogate motherhood agreement' between a surrogate mother and a commissioning parent or parents in which it is agreed that the surrogate mother will be artificially fertilized for the purpose of bearing a child for the commissioning parent or parents. In this agreement the surrogate mother undertakes to hand over such a child to the commissioning parent or parents upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent or parents. In general the church does not support this.

The South African Law Reform Commission’s Draft of the Children’s Bill contained an entire chapter on the Inter-sectoral Implementation of the Legislation, providing among others the following:

• The implementation of the Act by Organs of state at national provincial and local government levels, subject to a National Policy Framework.

• The Minister of Social Development must prepare a National Policy Framework to guide the implementation, enforcement and administration of the Act in order to secure the protection and well-being of children in South Africa.

• The National Policy Framework to bring together all organs of state at all levels of government, all designated child protection organisations and all NGO’s involved in implementing government or government-aided programmes and projects concerning children.

• The draft provisions specified the content of the National Policy Framework, stating that the Policy must be coherent, provide for an integrated, co-ordinated and uniform approach by all structures, and be consistent with the provisions of the Children’s Bill (Act).

This chapter has been removed from the present Bill and this is a great set back for the successful implementation enforcement and administration of the Children’s Bill when it becomes an Act. The inter-sectoral National Policy Framework (NPF) has the possibility of strengthening family and community life, promote homes, schools, neighbourhoods and communities to be safe for children and promote their comprehensive development. It can be argued that prevention and early intervention strategies can only be delivered effectively as part of an integrated, inter-sectoral, inter-departmental framework. The successful mechanisms of the holistic well-being of children require a cross-departmental framework. Such departments would include Education, Social Development, Justice, Housing and Health etc. 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. NPF for example would help to deal effectively with child labourers since different stakeholders like the Department of Labour, the Department of Social Development, the Department of Education, the SAPS, NGOs and CBOs would be obliged by the law to work together to ensure that child labourers are identified, assisted and rehabilitated. The current Children's Bill has deleted references to a NPF and a departmental strategic plan. This is one of the fundamental sections that should be put back into in the Children’s Bill, since one government department alone cannot take responsibility for the holistic well-being of children.

8. Child-headed Households (CHH) -Chapter 8, Section 136

The SALC Draft Bill contained a broad provision that recognised the role played by ‘adult mentors’, people who already provide help to children living in child-headed households, and which would enable them to access grants on behalf of these children. The absence of adult mentors in the Children’s Bill has weakened the effectiveness of the Bill. There is provision for a children’s court to make an order placing a child in the care of a family member – designated a kinship care-giver. However, it would have been good to stipulate that the kinship care-giver may apply for any grant in respect of which the child may qualify, on behalf of the child, without going through care and protection proceedings.

Chapter 8 section 136 makes provision for the provincial head of social development to recognise a household as child-headed if –

(a) the parent or primary care-giver of the household is terminally ill or has died;

(b) no adult family member is available to provide care for the children in the household; and

(c) a child has assumed the role of primary care-giver in respect of a child or children in the household.

A CHH must function under the general supervision of an adult designated by an organ of state or NGO, determined by provincial head of DSD or children’s court. The organ of state or NGO may collect and administer grants or other assistance and is accountable for any money received. But, may not take any decisions without consulting the child at the head of the household and the other children (given age and maturity). Child head may take all day-to-day decisions. CHH may not be excluded from any aid, relief or other programme for poor households provided by an organ of state solely by reason of the fact that the household is headed by a child (section 136 (1-6).

We recommend the following:

• that section 136 concerning CHH be part of Children’s Bill section 75;
• that the first priority for CHH should be to remain in their homes or communities and the last resort should be in cluster foster care schemes;
• the impoverished children and CHH should have access to free primary and secondary education and basic health care services; and
• the provisions for child headed households are limited to facilitating access to social assistance grants with no mention of other forms of support which may be necessary, particularly in instances where a child has assumed primary responsibility for managing a household and caring for a sick adult. Provisions need to be made to ensure adequate support to the thousands of children living with and caring for AIDS sick parents.

The original chapter on Children in Especially Difficult Circumstances (Chapter 16 of Draft Bill December 2002) needs to be restored to the Section 75 bill. These are the most vulnerable children and they need to have their rights honoured and to experience the protection of the law and essential support of government. Education White Paper 6 outlines the need to include all children especially the excluded in the education system.

Section 236 in the original Chapter 16 made it mandatory for schools to assist in identifying children in difficult circumstances and to report this to the provincial head of social development. As educators are often the first to identify children in need, it is essential to reinstate this section in order to provide a cohesive social system as backup and support. The right to education is increasingly compromised by poverty, the need for children to act as carers for ill parents, to look after siblings and to seek employment to do this. Schools can be defined as nodes of care but as educators are not trained social workers it is important that a strong integrated social welfare system is put in place for the most vulnerable children.

We support this provision as it ensures that child abuse continues to be addressed through the church with ministers of religion in a way that is in the best interest of the child and the family. Mandatory reporting article 105 that makes a "minister of religion" a mandated reporter of child abuse or neglect based on the Minister’s personal observation" should make it clear that this requirement to report does not apply to what was communicated through the sacrament of confession. A new subsection could read as follows.

"105 (1) Any teacher, medical practitioner, dentist, nurse, social worker, social service professional, minister of religion (except information shared through the sacrament of confession), religious leader, member of staff at a partial care facility, shelter, drop-in centre or child and youth care centre… A minister of religion is not required to report under subsection (1) information acquired through sacrament of confession"

This section about mandatory reporting should provide protection for those who report, but wish to remain anonymous. Wherever possible this report should be followed by the social worker’s investigation.

Section 134 provides for access to condoms for children over the age of 12 years, and access to other forms of contraceptives without the consent of the parent or caregivers provided the child is at least 12 years of age, has received the necessary medical advise and has undergone any necessary medical examinations. The Church does not support this provision because being faithful to one’s partner and abstinence is the greatest weapon. Furthermore, natural prevention is greatly encouraged compared to contraceptives.

The Section on Funding, Grants and Subsidies should be restored in principle to the Section 75 Bill even if the details are included in the Social Assistance Act 2004.

We are also concerned that adequate staffing and resources be mandated in order to implement the bill, even if these must be phased in over many years. We recommend the use of para-professionals, volunteers where possible to relieve the pressure on social workers and other professionals. Our experience in schools tells us that there are far too few social workers to deal with the needs of children in crisis and that para-professionals could relieve the burdens on social workers to free them to deal with more serious issues.

Children are a great blessing from God and a source of intense joy for the family (Ps 128:3), and the future of our humanity. In the example and teaching of Jesus, the Church perceives a mandate to devote special care to the needs of children (cf. Mk 10:14); indeed, in the Christian view, our treatment of children becomes a measure of our fidelity to the Lord himself (cf. Mt 18:5). In its statement to the United Nations General Assembly on November 20, 1989, the Holy See said that the International Convention on the Rights of the Child constitutes a statement of priorities and obligations that can serve as a reference point and stimulus for action on behalf of children everywhere. The Holy See stated that policies and actions that do not recognise the rights and protect children’s dignity cannot lead to a more just and humane world, for they go against the very values which determine objective moral categories and which form the basis of rational moral judgments and right actions.

Too many children are condemned to child abuse, neglect, trafficked, pushed on the street, child labour, poverty, obviously through no fault of their own. Saving the children is to save the hope of humanity. It all starts with legislation that should provide protection for children and strengthen the state’s commitment to help vulnerable children. This is why the Bill recognises the family structure as the bedrock for the raising of children. It gives emphasis to parental responsibilities towards children, and moves away from concepts of parental power. If the Children’s Bill were to be passed in its current form it will help children, but not nearly as much as it would have if most of the SALC recommendations had been taken on board. A national policy framework is required to bind departments in a way that the National Plan of Action for Children is often unable to do because it lacks legislative authority and is seen as a monitoring body. In terms of a National Policy Framework, each stakeholder's responsibility would be clearly defined from the local level to provincial and national departments. At the very least there is a need for an inter-sectoral mechanism to ensure that government departments work together and with all stakeholders.