SUBMISSION TO THE PARLIAMENTARY PORFOLIO COMMITTEE ON SOCIAL DEVELOPMENT
THE CHILDREN’S BILL – PREVENTION IS BETTER THAN CURE
Carol Bower, Executive Director, July 2004
Endorsements:
The Homestead
Child Accident Prevention Foundation of Southern Africa
Molo Songolo
Children’s Institute
Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) is a child rights NGO which works in various ways to combat child abuse and neglect. We are a registered Section 21 Company and NPO, and have been in existence since 1989. We engage in a range of activities:
The Children’s Bill is a critical piece of legislation in which we have a particular interest as it will govern the environment in which South African children are born and raised for the next 20 to 30 years. While we have an interest in most sections of this long and complex Bill, we confine this written submission to dealing with the need for a comprehensive and effective prevention and early intervention focus.
THE CHILDREN’S BILL – BRIEF COMPARISON BETWEEN THE SALRC DRAFT BILL AND THE TABLED BILL (TOGETHER WITH THE PROPOSED S.76 BILL)
The deliberation, consultation and research undertaken by the South African Law Reform Commission (SALRC) were evident in the Draft Children’s Bill released late in 2002. It was clear that careful thought and planning had gone into formulating a Bill which articulated our international treaty obligations and domestic Constitution, and which acknowledged and accommodated the multi-faceted context which renders children vulnerable to abuse and neglect, and out of which abuse and neglect arise. The Draft Bill was strongly focused on protection and early intervention, with a range of inter-sectoral mechanisms to prevent vulnerable children from falling through the cracks, and to catch them if they did. It is of deep concern to RAPCAN that most of these prevention and early intervention mechanisms, and the overarching inter-sectoral framework, have been removed from the Bill in its current form. This leaves us with a Bill with many of the inherent problems of the present Child Care Act which does little to ameliorate the reality of many millions of South Africa children, and which focuses solely on tertiary-level interventions.
Childhood in South Africa
The context in which many South Africa children spend their childhood has a number of characteristics:
Growing up in these circumstances and faced with many difficulties, the emotional and material future of large numbers of South African children is seriously compromised. This plays out in large numbers of unskilled employment-seekers; high levels of childhood illnesses and deaths from preventable diseases; our high levels of violence (including gender violence), and in our high levels of crime generally; special education needs; increased pressure on formal protection services and social services more broadly. It becomes clear that the ultimate price paid is high. While it is certainly true that the criminal justice system and other role-players have critical role to play in preventing crime, and addressing health, housing, poverty and educational issues, addressing the context which gives rise to these conditions is the true challenge. For if we do not do so, we end up paying more that the costs already enumerated; and we end up paying them for longer as the cycle of abuse and neglect is perpetuated.
Child protection in South Africa, if it is to fulfil international and domestic obligations and ensure that we provide an environment which can facilitate children’s optimal development, must:
THE CONSEQUENCES OF THE FAILURE TO PREVENT ABUSE AND NEGLECT, OR INTERVENE AT THE POINT AT WHICH CHILDREN ARE BECOMING VULNERABLE
While much of the detail of the mechanisms to prevent children from becoming vulnerable to abuse and neglect is best placed in the section 76 Bill which will follow the present section 75 one, it is very important that the principles upon which these mechanisms will be based are articulated in the section 75 Bill. This is necessary to ensure that inter-sectoral planning, budgeting and management are possible.
1 Financial cost
A study undertaken in Michigan in 1992 found that the cost of failure to prevent child abuse and neglect was 19 times higher than the costs of prevention when a range of factors was considered – factors such as birth weight, infant mortality, special education needs, protection services, foster care, juvenile and adult criminality, and social services. In its Discussion Paper 103 on the Draft Children’s Bill, the South African Law Reform Commission noted that there has never been a proper analysis of the services required, or the costs of delivering such services effectively in the child protection sector. This is exacerbated by the lack of clarity as to who is responsible for them or for their financing, and a lack of inter-sectoral co-operation and co-ordination. Its recommendations included the necessity to adequately resource services to children and to approach child protection from an inter-sectoral perspective.
2 Social fabric cost
There is significant research evidence to support the assertion that prevention and early intervention services which address socio-economic issues and provide support to vulnerable children and their care-givers mitigate against the development of criminality and enhance the possibilities that children will go to school and remain there longer. Furthermore, support of this nature would ensure that greater numbers of children are able to remain within their families. This not only lessens the burden on the state, but ensures that greater numbers of children will have their basic needs for survival and development met within their families, which is a basic right of all children, and grow to maturity physically and emotionally healthy and able to sustain themselves.
COMMENTS ON THE BILL
In recommendations in this section, (underlined words indicate additions to the text, while [bold in square brackets] indicates deletions from the text, and bold underlined words are recommended additions to the text.
Our recommendation is that the chapter including the National Policy Framework is re-introduced into the Bill. We further recommend that s106A (1) of the SALRC Bill be re-introduced and replace section 92 of the Bill.
92 The Minister, after consultation with the Minister of Education, must include in the departmental strategy a comprehensive national strategy aimed at securing a properly resourced, co-ordinated and managed early childhood development system.
Insert:
(1) The Minister, in consultation with the Minister for Education, must include in the National Policy Framework a comprehensive national strategy aimed at securing a properly resourced, co-ordinated and managed early childhood development system, which must include –
(a) mechanisms for the planning, development and implementation of designated early childhood development services and programmes;
(b) strategies for expanding the range of early childhood development services and programmes;
(c) criteria for the selection and designation of early childhood development services and programmes;
(d) minimum standards for early childhood development services and programmes;
(e) mechanisms to ensure impartiality in the provisions of early childhood development services and programmes; and
(d) measures to ensure that budgetary requirements and procedures are complied with to secure adequate funds for the provision of early childhood development services and programmes.
We recommend the reinstatement of a separate chapter covering the full range of the rights of children into the Children’s Bill, section 75. In particular, we make the following proposals:
Maltreatment, abuse, neglect, degradation, exploitation and other harmful practices
(1) Every child has the right to be protected, through administrative, social, educational, punitive or other suitable measures and procedures, from all forms of torture, physical violence, mental harassment, injury, maltreatment, abuse, neglect, degradation and exploitation.
(2) Every child who has been tortured, maltreated, harassed, abused, neglected, degraded or exploited has the right to have access to social services including counselling and medical treatment at state expense.
Social security
23. (1) Every child has the right to social security, including access to social assistance if the parent or care-giver cannot or does not provide for the basic needs of a child.
(2) A child suffering from malnutrition or who is at risk of malnutrition has the right to have access to sufficient and appropriate food, including emergency measures by the state for a child whose survival is at stake.
Social services
Every child has the right to social services, including services that are aimed at:
We suggest the following wording for this section:
139. (1) [A] No person who has control of a child, including a person who has parental responsibilities and rights in respect of the child, may administer corporal punishment to such child. [must respect to the fullest extent possible the child’s right to physical integrity as conferred by section 12 (1) (c), (d) and (e) of the Constitution.]
[(2)](3)Any legislation and any rule of common or customary law authorising corporal punishment of a child by a court, including the court of a traditional leader, is hereby repealed to the extent that it authorises such punishment.
[(3)](4)No person may administer corporal punishment to a child at any child and youth care centre, partial care facility or shelter or drop-in centre.
[(4)](5)The Department must take all reasonable steps to ensure that –
(a) education and awareness-raising programmes concerning the effect of subsections (1), (2), (3), (4) and (5) [(4)] are implemented across the country; and
160. (1) The MEC must, from money appropriated by the relevant provincial legislature, provide prevention and early intervention services to families, parents, care-givers and children.
Conclusion
Many of the challenges facing children in South Africa have their roots in our colonial and apartheid history, and our deeply patriarchal ethos in which children are viewed as owned. The formulation of a new dispensation for the children in this country provides an opportunity, unlikely to be afforded us again for the next two decades or more, to redress some of the wrongs of our past and provide a platform for the development of a more just, equitable and caring society.
If we put our resources and energy into building the capacity and wherewithal of families to raise children who can and will become self-sustaining and productive members of a peaceful, just and democratic society, we will truly fulfill the promise of our young democracy. This means they must have access to nutritious food, shelter and warm clothing, primary health care and education, irrespective of the ability of their parents to provide these things.
If we put our resources into developing and maintaining good systems for identifying children at risk or increasing vulnerability, and give additional support then, we increase the possibility that the family will be able to provide the basics for their children, thus preserving the family and decreasing negative effects of being taken into care.
If we are creative and more flexible (although no less careful) about where we place those children for whom it is impossible to remain in their family homes, the chance of them growing up in an environment conducive to future happiness is greater.
And if we put our resources into a criminal justice system focussed on restorative justice, victim empathy and rehabilitation, we reduce the number of children who grow up shattered by rape and sexual abuse, by violence in their homes and communities.
Thank you.
July 2004