THE CHILDREN’S PROTECTOR
INTRODUCTION
Writing legislation that is progressive, comprehensive and attends to the holistic needs of children is not sufficient in itself. The implementation of legislation, making legislation a living reality in the lives of South Africa’s children, requires the monitoring of implementation of legislation and policy and its impact on effective service delivery to children. According to Discussion Paper 103 of the South African Law Reform Commission monitoring is "a continuous follow-up of the activities of government, non-government organisations (NGO’s) and other child related structures to ensure the effective implementation of the Convention of the Rights of the Child and child welfare legislation".
It is of note that some of the progressive legal and policy provisions that do exist to protect children in South Africa are not implemented. For example the use of the intermediary system and closed circuit television that facilitates a child’s giving of evidence in criminal cases of child abuse is only partially implemented, despite the fact that the law providing for this was passed in 1992.
Childline comes across numerous examples of failure to address the needs and rights of children across all sectors of society, including government and civil society.
Appropriate and independent monitoring of the implementation of laws relating to children is essential as it assists in evaluating the gaps in the legislative provisions, gaps in implementation and also what accounts for the gaps in implementation and what can be done to address the issues. Monitoring can also inform legislators as to the need for further law reform – either as a result of the legislation being unworkable or as new problems and challenges arise in the social context that require some legislative intervention.
Monitoring systems need to be independent of the structures that are being monitored. At the Parliamentary Hearings into the sexual abuse of children held in March 2003, it was clear that government departments and the Non-government sector sometimes had differing perceptions of their own, versus the outside view, of their service provision.
INTERNATIONAL COMPARISONS
The concept of a children’s legislation monitoring mechanism or Children’s Protector is not unique to South Africa. A number of countries have adopted monitoring mechanisms and structures into their children’s legislation in order to ensure meaningful monitoring of the implementation of the legislation and an effective response to problems in implementation.
For example:
In some countries, for example, Sweden and Philippines, children’s rights are monitored by NGO or NGO coalitions.
The development of monitoring structures to oversee the implementation and effectiveness of legislation affecting the lives of children is a matter of concern in a number of countries around the world and has been proposed as an issue for debate at the 16th International Congress on Child Abuse and Neglect to be held in York, UK. 2006. "…… the role of Ministers for Children and Commissioners or Ombudsmen for Children raises the question of a session which looks broadly at how each country can develop structures which support children's well-being and raise their status in law and policy and in the minds of the people to the point that their abuse becomes less likely and, ideally, unthinkable."
THE SOUTH AFRICAN SITUATION
In South Africa there is no comprehensive and independent monitoring system that focuses exclusively on the rights of children and the implementation of legislation and policies that impact on the lives of children.
Structures that have a partial monitoring function include:
THE SA LAW REFORM COMMISSIONS RECOMMENDATIONS
The SA Law Reform Commission’s Draft Children’s Bill contains a Chapter (22) that proposes the Development of an Office of the Children’s Protector. This proposal was actively supported by many respondents to the Commission’s Discussion Paper 103 of 2001. The draft legislation provides for the establishment of this office as body, operating independently of the Department of Social Development.
The main functions of the Children’s Protector as envisaged in the Children’s Bill is "without fear, favour or prejudice monitor the implementation of this act by –
The powers and functions of the Office of the Children’s Protector are summarised as:
It is clear that the Bill intended for the Children’s Protector to monitor both state and civil society in order to ensure implementation of a comprehensive, holistic and children’s rights based Children’s Act.
It is also clear, that in a society in which the majority of the country’s children were historically disadvantaged, and which has no formal mechanism that allows children themselves an effective voice when their rights are violated, some form of monitoring mechanism has to be established.
This submission supports the creation of a Children’s Protector to monitor the implementation of the Children’s Bill as well as to monitor and bring to government’s attention any deficiencies in law, policy and implementation of law and policy that compromises the rights of children as subscribed to in South Africa’s commitment to international Conventions and Protocols, the National Constitution and domestic legislation relating to children.
RECOMMENDATION
SUBMISSION ON THE CHILDREN’S BILL - A NATIONAL POLICY FRAMEWORK
INTRODUCTION
The need for an integrated approach to the holistic management of children’s issues, the promotion of the well being of children and the protection of children’s rights has long been recognised both internationally and nationally. Many sectors are involved in ensuring that children’s rights and well being are promoted and protected, and that these may be compromised by competing demands for resources, the sometimes differing perspectives of the different sectors as to what constitutes the "best interests of children", and a lack of understanding of the roles and contribution of sectors.
THE CHALLENGE
Some of the key issues and challenges relating to implementing the country’s ratification of the United Nations Convention on the Rights of the Child, the African Charter on the Rights of Children and the clause relating to the rights of children in the Bill of Human Rights in the National Constitution centre around the lack of coordination of services – both preventive and protective – to children, as well as comprehensive and integrated budgeting for these services. Each sector tends to work in isolation from the other, leading to the duplication of some services and shortfalls in others. Individual sectors may also be reluctant to commit resources to activities that require inter-sectoral collaboration.
EXISTING INTER-SECTORAL STRUCTURE – THE NATIONAL PROGRAMME OF ACTION FOR CHILDREN STEERING COMMITTEE
Although the National Programme of Action Steering Committee exists in the Office on the Rights of the Child in the National Presidency and calls on government departments to "give priority to children in every decision about how to spend government funds", this structure, through its own activities and the activities of provincial programmes of Action serves to facilitate communication and the sharing of information, embark on activities that promote advocacy, participation and mobilisation, assist with research, policy review, evaluation, data collection and monitoring. It is clear that this structure has a data collection and monitoring function, and not a service delivery function. Thus the inter-sectoral coordination of and actual service delivery to children does not fall within the ambit of this structure.
MOTIVATION FOR A NATIONAL POLICY FRAMEWORK
The concept of inter-sectoral and inter-disciplinary protocols and frameworks that promote working together in order to provide holistic children’s services has been developed in both national and international forums and literature. It is of note that a number of countries have developed inter-sectoral strategies and protocols designed to facilitate the effective implementation of legislation and policy relating to children, as well as legislation that supports such strategies and protocols.
The Proposed National Strategy on Child Abuse and Neglect developed through the participation of the National Committee on Child Abuse and Neglect noted that "Government Departments at all levels, in partnership with the broader public must plan inter-sectoral preventive strategies which are designed to strengthen family and community life and to promote homes, schools, neighbourhoods and communities which are safe for children and which promote their full and healthy development" However despite the recognised need for a National Strategy on Child Abuse and Neglect, this has not yet been finalised and subscribed to in South Africa, thus underlining the problems of commitment to inter-sectoral working together. It is therefore clear that, by giving the need for inter-departmental, inter-sectoral collaboration recognition in legislation through provision for a National Policy Framework, the concept of working together to protect the rights of children will have a greater chance of becoming a reality.
As a result of submissions, research and their analyses of the needs of the children of South Africa the Final Report of the S A Law Commission on the Children’s Bill noted that "The Commission is convinced that prevention and early intervention strategies can only be delivered effectively as part of an integrated, inter-sectoral, inter-departmental framework."
THE SOUTH AFRICAN LAW REFORM COMMISSION PROPOSALS
The Law Commission’s Draft of the Children’s Bill therefore contains an entire chapter on the Inter-sectoral Implementation of the Legislation, providing for the following:
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).
The Core Components provided for included
The Development of the National Policy Framework was to be through a consultative process that included Cabinet Members whose departments are affected by the framework, organs of state in other spheres of government and public participation.
Public participation was provided for through the publication of the proposed framework in the government gazette and a summary of the proposed framework in the national media, inviting the public to present oral representations or objections to the Minister, who was required to give due consideration to all representations or objections presented across all sectors and role-players.
This provision thus provided the framework for the entire implementation of the Children’s Bill.
Arguments relating to the inclusion of the National Policy Framework in the Children’s Bill:
ARGUMENTS AGAINST |
THE ARGUMENT FOR |
1. There is provision for inter-departmental working together in the Constitution (Chapter 3). To include a national policy framework in the Bill is therefore a duplication and redundant. |
1.1. The Constitution establishes the broad principle of inter-sectoral cooperation but not the specifics. The Children’s bill is so complex and comprehensive that a specific National Policy Framework is required. 1.2. The Constitution does not include the NGO’s that will facilitate and contribute to the implementation of the Act. A National Policy Framework thus has to be developed that is inclusive of the NGO sector and the arrangements around the purchase of services from this sector. 1.3. Although this Chapter exists in the National Constitution, Practice indicates that inter-departmental cooperation in providing for children is not happening. It is clear that there is duplication of services across departments, gaps in services, and differences in practice and resourcing across the Provinces instead of having some basic national norms. |
2. It will delay the implementation of the Bill as it will take too long and hold up the implementation of the Act generally. |
2.1. In the Sexual Offences Bill the Minister of Justice is instructed to draft the NPF for Sexual Offences within a 6 month period. Can the Children’s bill not set a time frame? 2.2. The Children’s Bill once passed into an act can be progressively implemented. The development of the NPF need not delay the implementation of other sections of the Act. |
3. The NPF is unaffordable – the consultation process may be expensive |
3.1. The NPF will in the long term save resources as services will be better coordinated and also contribute to the prevention of duplication of services – thus saving money. 3.2. It could also facilitate improved management of donor funding and ensure that donor funding is directed to where it is most needed. 3.3. It would facilitate a fairer distribution of purchase of services thus reducing the costly competition for funding that sometimes occurs in the private sector. |
4. The Bill does, in some clauses, refer to national strategies and mechanisms in relation to specific provisions, for example early childhood development, section 92. |
4.1 However these sections are linked to fragmented provisions in the bill. There is a need to develop a comprehensive national policy framework to avoid further fragmentation of services and provisions. Having a number of national policy frameworks relating to different sections of the Bill may contribute to further fragmentation and wasted resources, and further compromise holistic developmental services to children. |
5. The NPF would substantially contribute to a reduction in the secondary abuse and neglect of children as services would be well coordinated, role-players would understand and have an appreciation of each other’s role, gaps in the services etc. |
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7. A consultative process will facilitate more rapid implementation and ownership of the Children’s Act. |
THE RECOMMENDATIONS OF THE UNITED NATIONS COMMITTEE ON THE RIGHTS OF THE CHILD
It is of note that the concluding observations of the United Nations Committee on the Rights of the Child noted that it was "also concerned about the lack of inter-ministerial coordination between those ministries responsible for the implementation of the Convention (on the Rights of the Child)……The Committee recommends that the State party strengthen its efforts to ensure greater coordination between those ministries and departments responsible for the implementation of the Convention.
The Committee also expressed its concern about the "insufficient efforts made to ensure the adequate distribution of resources allocated for children’s programmes and activities". The Committee further "encourages" …the prioritising of budgetary allocations and distributions to ensure implementation of the economic, social and cultural rights of children to the maximum extent of available resources..".
It is clear that the National Policy Framework, as envisaged in the Law Reform Commission Draft of the Children’s Bill, is an essential component of meeting the South Africa’s obligation to fulfil its ratification of the Convention of the Rights of the Child.
THE REMOVAL OF THIS CHAPTER FROM THE CHILDREN’S BILL
Unfortunately the entire chapter on the National Policy Framework contained in the SA Law Reform Commission’s Draft of the Children’s Bill has been removed in its entirety in the subsequent drafts of the Bill.
It is difficult to understand the rationale behind the removal of this chapter from the Bill other than to hypothesise that implementing such a framework would require resources and would also require the planned allocation of resources for successful implementation.
This is seen as a retrogressive step that will impact negatively on the implementation of the Children’s Bill once it has become law.
It also undermines the possible commitment of the allocation of funding across sectors to ensure that adequate service delivery to children is manageable. This is particularly important and concerning when seen in the light of other provisions retained in the Bill which make it clear that the private welfare sector will carry responsibility for large portions of service provision, for example in the area of child protection.
Removal of this chapter from the Bill is removing the heart and brain of the Children’s Bill and will severely compromise its implementation, and ability to function as an enabling, protective and comprehensive statute for the children of South Africa.
URGENT REQUEST
Our urgent request is that this chapter be reinstated in the Children’s Bill in its entirety.
SUBMISSION ENDORSED BY:
Johannesburg Child and Family Welfare Society.
RAPCAN
SASPCAN
COMPARISON OF PROVISIONS IN CHILDREN’S BILL AND (CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT BILL
Prepared by Joan van Niekerk, Childline SA
9th August 2004
INTRODUCTION
The Children’s Bill and Sexual Offences Bill were developed by the SA Law Reform Commission. The Project Committees working on these two critical pieces of draft legislation recognised potential areas of overlap in relation to the care and protection of children, and therefore regularly consulted on the development of draft provisions in order to prevent such overlap.
However subsequent to the handing over of the two Bills to their respective departments, Social Development and Justice, both Bills have undergone considerable changes and there appears to have been no continuation of the process of consultation relating to the two Bills and the prevention of overlap.
Below is a tabulated comparison of the two Bills in relation to how they both "knit together" in order to provide comprehensive care and protection of children and some areas of potential overlap.
It is also relevant to consider the provisions of the Child Justice Bill in that this draft bill relates to children in trouble with the Law.
Children’s Bill |
Sexual Offences Bill |
1. APPLICATION Provides for the promoting, protecting and monitoring of the sound physical, intellectual, emotional and social development of children. |
1. APPLICATION Provides for the protection of complainants of sexual offences and their families, and condemns offences of a sexual nature, more specifically those committed against children. |
2. The National Policy Framework
Proposed in the original SALRC Bill in order to facilitate the implementation of the Bill. This has been removed in subsequent drafts. |
2. The National Policy Framework (S38) This was proposed in the Law Reform Commission Draft and has been retained and expanded in the subsequent drafts but has omitted consultation with civil society organisations in the development of the policy. This National Policy Framework contains the following elements:
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3. INTER-SECTORAL MECHANISM The provision for an intersectoral Mechanism to co-ordinate the child Protection System has been removed from the Bill – in the SALRC Draft of the Bill this was Section 113A and provided for (inter alia): i. National needs analysis to inform budget estimates. ii. Inter-sectoral task teams iii. Monitoring and coordinating structures at Provincial level. iv. Training v. A comprehensive plan for the financing of Child Protection Services. |
3. INTER-SECTORAL MECHANISM The Establishment of an Intersectoral Committee (Section 39) providing for: i. representation from key government role-players. ii. Responsibilities, functions and duties of the Committee. iii. Provision for meetings. (please note the inclusion of civil society representation has been omitted although recommended in the SALRC draft Bill.)
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4. TRAINING FOR COURT PERSONNEL Training for personnel in the Children’s Court: These provisions – Sections 70 to 74 in the SALRC version of the Children’s Bill, have now been removed from the current version. |
4. TRAINING FOR CRIMINAL JUSTICE SYSTEM PERSONNEL Provision for National Instructions and Directives (Section 42) This provision includes provision for training on national instructions, social context training and the provision of norms, standards and procedures for all role-players including those in the Justice system. |
5. CHILDREN’S RIGHTS TO HEALTH CARE Childrens rights to health care – Section 22 of the SALRC draft has now been reduced to information on health services. This is unfortunate as the original draft provided access to the prevention of Ill-health and disease. This is particularly concerning as child victims of sexual assault are particularly vulnerable to injury and infection. |
5. CHILDREN’S RIGHTS TO HEALTH CARE Victims (both adult and child) Rights of access to Health Care also removed from the SALRC draft of the Sexual Offences Bill (sections 1h and 21) This is particularly concerning as child victims of sexual assault are particularly vulnerable to injury and infection. |
6. PORNOGRAPHY The obligation on internet service providers to take all responsible steps to block access to child pornography – Section 239 – now removed from the Bill. This may be provided for in the Films and Publications Amendment Bill of 2004. |
6. PORNOGRAPHY Section 9 of the most recent draft of the Sexual Offences Bill criminalises the exposure or display of pornography to a child. This provision may be superfluous if dealt with in the Films and Publications Bill of 2004. |
7. AGES OF CONSENT/MAJORITY These vary according to the situation – this variation is appropriate according to age and maturity of the child and the particular decision being made. However a child’s consent to his/her own adoption has been removed from the Adoption section, removing a right afforded to children for the past 4 ˝ decades at least. |
7. AGES OF CONSENT/MAJORITY This is pegged at 16 years – and has not changed from the earlier legislation. Sexual penetration of a child under the age of 12 years is rape, regardless of "consent"/gender of the child and regardless of whether sexual penetration is vaginal, anal and/or oral and effected by a penis or an object. |
8. TRAFFICKING Sections 280 to 284 deal with child trafficking. It is appropriate that these provisions remain in the Bill as they relate to the protection of trafficked children and how they should be dealt with by the Children’s Court. Criminal issues relating to trafficking are presently an investigation by the SALRC who are considering the development of specific legislation to deal with trafficking generally. |
8. TRAFFICKING Section 24 of the latest version of the Sexual Offences Bill criminalises trafficking for the purpose of sexual exploitation. This provision is totally inadequate and it is recommended that it is omitted from the Bill as it pre-empts the outcome of the special investigation of the SALRC. |
9. THE REGISTER OF PERSONS UNFIT TO WORK WITH CHILDREN (PART B OF THE CHILD PROTECTION REGISTER) : This provides for
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9. THE SEX OFFENDER REGISTER
This provides for
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10. PROTECTION OF THE VULNERABLE CHILD WITNESS S 61 does provide for the use of the intermediary in the Children’s Court however there are no guidelines set out to assist the Court in making the decision as to when the intermediary should be used. It is essential that some guidelines be inserted into the legislation itself or into the regulations. |
10. PROTECTION OF THE VULNERABLE CHILD WITNESS The original provisions in the Amendments to the Criminal Procedure Act No 51 of 1977 remain the same. The extension of these provisions in order to afford vulnerable witnesses greater protection from secondary victimisation and intimidation in Court have been withdrawn pending further debate. |
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