DRAFT REPORT

PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT

PUBLIC HEARINGS ON THE CHILDREN’S BILL [B70-2003 (Reintroduced)]

11-13 August 2004

Introduction

The Portfolio Committee on Social Development held public hearings on the Children’s Bill [B70-2003 (Reintroduced)] on 11 to 13 August 2004. This report reflects those written and oral submission made on the Section 75 version of the Children’s Bill.

The following organisations, and individuals, made submission:

Children’s Bill Working Group

RAPCAN

SA Society for the Prevention of Child Abuse and Neglect (SASPCAN)

South African National Council of Child Welfare

HIV/AIDS Sector

Dikwanketla – Children in Action

Southern African Catholic Bishops Conference

Community Law Centre – Children’s Rights Project

Alliance for Children’s Entitlement to Social Security

Save the Children

Wybrow-Oliver Attorneys (Adoption)

Law Society of South Africa

Robyn Shepstone

UNHCR

Education Law Project – Centre for Applied Legal Studies

Peoples Family Law Centre

Aids Law Project

Lawyers for Human Rights

Youth Action Group

Network Against Child Labour

Soul Buddyz

Childline

South African Council of Churches

Johannesburg Child Welfare Society

Early Learning Resource Unit

Bethany House Trust

Qhamani Educare

Valley Development Project

Nonceba Meyiwa

National Alliance for Street Children

National Association of Child Care Workers

Disabled Children’s Action Group

Molo Songololo

SA Aids Vaccine Initiative

Media Monitoring Project

Commission on Gender Equality

South African Prisoners’ Organization for Human Rights

South African Association of Social Workers in Private Practice

Chapter 1: Interpretation, Objects, Application and Implementation of Act

Clause 1: Interpretation

Submitted by the National Alliance for Street Children (NASC)

Clause 129 specifies that the parent of "primary care giver" must consent to medical treatment or a surgical operation for a child under 12 year of age. However, the definition of "primary care giver" does not include a child and youth care worker at a shelter.

Recommendation

The Principal of the Shelter should be allowed to consent the child receiving medical treatment or a surgical operation. Also, if a child under 12 years of age arrives at a clinic/hospital on their own and request medical treatment, the medical practitioner or senior nurse in charge of the hospital should be authorised to give such consent. This would either necessitate a change to the definition of primary care giver to include principal of the shelter or an amendment to clause 129.

Clause 130 allows the person in charge of the hospital or clinic to consent if the child has no parent or care-giver and there is no designated child protection organisation arranging the placement of the child.

Recommendation

The Principal of the Shelter should be allowed to consent to the child being tested for HIV. If a street child under 12 arrives at a clinic or hospital on their own and requests testing, the medical practitioner or senior nurse in charge of the hospital or clinic should be authorised to provide such consent. This would either necessitate a change to the definition of primary care giver to include the principal of the shelter or an amendment to clause 130.

Submitted by Lawyers for Human Rights (LHR)

The Bill contains shortcomings in providing protection and care to foreign children in South Africa. Currently foreign children are given limited protection in a variety of forms and are often vulnerable to abuse and neglect. There exists a lot of uncertainty within the governmental and non-governmental child protection agencies about the legal and procedural position of foreign children. Although legislation exists that outlines the rights and duties of foreigners in South Africa, it is inadequate on the treatment and protection of foreign children. Therefore, it is important that the Children’s Bill, which when enacted will become the principal legislation relating to childcare, expressly includes foreign children in its scope.

The current draft of the Children’s Bill expressly deals with refugees and undocumented migrants in only two areas, namely: foster care placements and trafficked children. It is submitted that in both instances the protection being suggested is haphazard and does not take into account the huge procedural gaps that challenge true access to protection for these children.

Recommendation

The Bill defines a child as "a child under the age of 18 years". In order to ensure certainty that the Bill indeed includes foreign children in its scope, LHR recommends that the definition be changed as follows:

"Child means any child under the age of 18 years, regardless of nationality".

Submitted by the Law Society of South Africa 

Definition

"abuse" 

The submission held that the definition of "abuse" in the Bill did not follow the definition in the Prevention of Family Violence Act, and proposed that "neglect" should be included in the definition. 

"adoption working agreement" 

The submission was concerned that attorneys are, in terms of Chapter 17, excluded from the adoption process. 

"family member" 

The submission noted that the definition of "family member" was too extensive, especially in sub-clause (e), and that this may led to exploitation in certain instances, such as in the instance of an au pair appointed to take care of the children. 

"parent"

The Law Society argued that the definition of "parent" should include, as sub-clause (d), "a surrogate mother who has elected not to terminate the surrogate agreement within the prescribed period". Consequently, it was argued that the words "means a biological, adoptive or commissioning parent where the agreement referred to in (d) below has not been terminated" should be inserted after the heading "parent". 

With reference to the issue of child maintenance, the submission noted that, although the Bill proposes changing the age of majority to 18, maintenance payments should continue until the child becomes self-supporting. In addition, for dependants younger than 21 years of age, maintenance should be negotiated on the child’s behalf by the primary caregiver.

Clause 2: Objects of the Act

Submitted by the Children’s Institute

The Bill focuses on secondary and tertiary interventions once a child has been abused or neglected at the expense of primary prevention and early intervention services. It is submitted that if the Bill does not adequately provide for greatly improved provision of primary prevention and early intervention services, the second and tertiary layers of care will continue to operate in crisis mode as more and more abused and vulnerable children need to be taken up into the formal child protection system. The White Paper on Social Welfare of 1997 set out the Department’s policy shift towards a social developmental approach and away from a residual welfare approach. However, the Bill does not reflect this shift in policy direction. Accordingly, it is submitted that the Bill should focus clearly on primary prevention needs and that the principle of primary prevention is included as an object of the Act.

 

 

 

 

Recommendation

That clause 2, "Objects of the Act" is amended to read as follows:

Objects

  1. The objects of this Act are –

        1. To make provision for structures, services and means for promoting the survival and sound physical, mental, emotional and social development of children;
        2. To assist families to care for and protect their children;
        3. To utilize, strengthen and develop community structures which provide care and protection for children;
        4. To prevent, (as far as possible), any ill-treatment, abuse, neglect, deprivation and exploitation of children;
        5. To provide care, protection and treatment for children, who are suffering ill-treatment, abuse, neglect, deprivation or exploitation or who are otherwise in need of care and protection; and
        6. Generally, to promote the well-being of all children.

Submitted by the National Alliance for Street Children

Recommendation

The Objects clause of the Bill should be amended in order to include an express objective to assist families to care for and protect their children.

Suggested Amendment:

The objects of this Act are –

 

Submitted by Disabled Children’s Action Group (DCAG)

The objects section of an Act describes the nature and scope of the Act. The objects clause as it is currently formulated, makes no reference to the obligation to promote and protect the rights of vulnerable children such as children with disabilities and chronic illnesses.

Recommendation

The objects clause should be amended so as to include an express reference to the obligation to provide services, care, support and protection to children in especially difficult circumstances.

Suggested Amendment

The objects of this Act are –

(a) to make provision for structures, services and 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 of care and protection;

(e) to provide assistance, support and protection for children in especially difficult circumstances

[(e)](f) to give effect to the Republic’s obligations concerning the well-being of children in terms of international instruments binding on the Republic; and

[(f)](g) generally, to promote the protection, development and well-being of children."

Submitted by the HIV/AIDS Sector

Recommendation

The Objects clause of the Bill should be amended in order to include an express objective to assist families to care for and protect their children. Chapter 9 of the August 2003 version of the Draft Bill (primary prevention and early intervention) does include this provision, however, to give it prominence, the HIV/AIDS Sector suggest that it be included in the objects clause as well.

Submitted by Dikwanketla – Children in Action

The submission agreed with the objects of the proposed Act and that the Bill will be the law that will or should ensure that all the needs of all children in South Africa are addressed.

Clause 123: Consequences of entry of name in Part B of Register

Submitted by the National Alliance for Street Children

While the NASC supports clause 123, read together with clause 126, which ensures that a person whose name appear in Part B of the National Child Protection Register may not be employed, operate or manage a children’s or youth care facility, the NASC is concerned about whether the office of the Registrar will have adequate resources to respond to request for screenings.

Chapter 2: General Principles

Submitted by the South African Aids Vaccine Initiative (SAAVI)

The proposed clause 5(6) of Chapter 2 of the Bill provides that "a person who has parental responsibilities and rights in respect of a child and the child, where this is appropriate, having regard to the age, maturity and stage of development of the child, children must be informed of any action or decision taken in a matter concerning the child which significantly affects the child." The submission argued that the aforementioned proposed clause does not recognise the fact that in some instances the Children’s Bill recognises the competence of children to act independently of their parents or guardians. The protection of children’s confidentiality with regard to their medical treatment, general health status and HIV status may be of utmost importance in encouraging children to access health services and to participate in research.

Recommendation

The clause should be redrafted to provide for instances where a child is alone, having regard to age, maturity and stage of development, must be informed of any action or decision taken in a matter concerning the child which significantly affects the child.

In terms of the Best Interests of the Child Standard, provided for in the proposed clause 6(1)(a) to (l), these appear to be mostly directed at the issues arising where the best interests of an individual child are being considered for purposes of determining custody or otherwise placing a child.

It is also recommended that these factors be broadened to enable them to be applied to a class of children (for instance, children participating in an HIV vaccine trial) as opposed to an individual child. It is also suggested additional factors are included to facilitate decision-making, such as the purpose of the decision or act, the rights of a child (as contemplated in the proposed clause 11) and how they will be affected by the decision or action, and alternative decision or actions that may have a less restrictive or more beneficial impact on the rights of the child.

Submitted by the Law Society of South Africa 

Recommendation

With regard to clause 5(3), the submission proposed that the words "or sexual orientation" should be inserted at the end of the sentence to ensure that the clause does not permit discrimination on the basis of sexual orientation. 

Chapter 3: Children’s Rights

Submitted by Dikwanketla – Children in Action

Recommendation

The following rights should be added: the right to be looked after and have a home, the right to speak and be listened to, the right to be a child (any person under the age of 18), the right to health and access to information and health care, to equal opportunities, to be themselves, to welfare, to be protected from drugs; the right to life, information, to play and rest, to development, not to be stolen, bought or sold, to foster and parental care, to food, water and clothing; the right to privacy and their own religion; the right not to be subjected to harmful social and cultural practices, and the right to participate in judicial administrative decisions about children.

Submitted by the Education Law Project, Centre for Applied Legal Studies, University of the Witwatersrand

The focus of this submission is Chapter 3 of the Children’s Bill, which deals with Children’s Rights. The Education Law Project (ELP) is of the view that the removal of the key rights clauses from Chapter 3 of the current Bill, which formed part of South African Law Commission (SALRC) draft, undermines the original intent, purpose and effect of Chapter 3. The original intent, purpose and effect of Chapter 3 were to elaborate on to the rights in the Bill of Rights insofar as they relate to children. In particular, the ELP is concerned that the removal of the clause dealing with the right to education will impede the potential for the State to provide access to a basic education of an adequate standard to all children living in South Africa, undermining their ability to realise their full potential.

It is argued that Chapter 3 serves as a benchmark against which the various State departments should be able to measure their obligations in respect of children’s rights. The submission argues that original SALRC draft Bill attempted to do this by identifying and elaborating on those rights that have particular relevance for children in accordance with South Africa’s international law obligations, and in accordance with the particular needs of South African children. The current draft of the Bill either omits key rights totally, or merely restates rights already in the Bill of Rights. This status quo fails to enhance the full realisation of children’s rights and defeats the purpose that the inclusion of Chapter 3 in the Bill was meant to serve. Instead, it makes the inclusion of Chapter 3 as a chapter dealing with children’s rights meaningless since in its current form it is unable to fulfil the objectives that it was meant to serve.

The right to education is probably the most widely recognised socio-economic right in international instruments and in the constitutions of individual countries. The underlying rationale for international recognition of the right to education has been described as its importance in enabling individuals to develop and realise their full potential, and to learn good values and thereby make good citizens. The unique history of apartheid education required that constitutional drafters recognise the legacy of inequality and the need for redress through the entrenchment of the right to basic education. Prior to 1994, education was structured along racial lines so as to prepare learners of different race groups for the roles they were expected to serve in apartheid society. This legacy persists today despite Government efforts to redress apartheid education and may be largely attributed to the failure of the regulatory framework to sufficiently create an education system that is of an adequate standard and that is both physically and economically accessible to all.

The regulatory framework provided by the South African Schools Act, Act 84 of 1996, and the Education Policy Act, Act 27 of 1996, appears not to provide for an education that is of an adequate standard and that is economically accessible to all. Contrary to South Africa’s obligations in terms of international law, school fees are charged at both primary and secondary schools. While the regulatory framework attempts to alleviate the burden of school fees for the poorest parents by setting a mandatory ‘means test’ for the granting of full and partial exemptions that individual schools are obliged to abide by when determining their exemption policies, this exemption policy is widely acknowledged as inadequate.

Any education clause contained in the Bill must take cognisance of South Africa’s obligations in terms of international law, particularly as regards the guarantee to free education. Article 28(1)(a) of the Covenant on the Rights of the Child (CRC) requires that State parties "make primary education compulsory and available free to all". Article 28(1)(b), however, provides that State parties make secondary education "available and accessible to every child, and take appropriate steps such as the introduction of free education and offering financial assistance in the case of need". This suggests that primary education should be completely free and that steps such as the current means test should only become a factor at the level of secondary education.

Recommendation

Submitted by the Children’s Institute

It is submitted that the Children’s Bill no longer contains a comprehensive list of rights. Key rights have been omitted, including the rights relating to education, refugee and undocumented migrant children, children with disabilities and chronic illnesses, leisure and recreation, prohibition against unfair discrimination, and property.

Recommendation

That a Child’s Rights Charter is included in the Bill that:

"Best interest of child paramount"

(1) An organ of state, an official, employee or representative of an organ of State, or any other person in authority who has official control over a child, must, when acting in any matter concerning the child, apply the standard referred to in section 28(2) of the Constitution that the child’s best interest is of paramount importance.

(2) All national, provincial and local organs of state must be guided by the principle of best interests of the child when making policy, legislative, budgetary and administrative decisions that concern children.

Recommendation

It is recommended that:

"Children’s Rights"

Application

  1. The rights, which a child has in terms of this Chapter, supplement the rights that a child has in terms of the Bill of Rights.
  2. All organs of state in any sphere of Government and all officials, employees and representatives of an organ of state must respect, protect, promote and fulfil the rights of children contained in this Chapter.
  3. A provision of this Chapter binds all persons, natural or juristic, if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

"Conflicts with other legislation"

In the event of a conflict between a provision of this Chapter and any other legislation, the provision of this Chapter prevails except to the extent that such other legislation is or could be interpreted as a limitation of general application on such provision that is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including those listed in section 36(1)(a) to (e) of the Constitution.

"Unfair discrimination"

  1. No organ of state, and no official, employee or representative of an organ of state, and no other person may unfairly discriminate directly or indirectly against a child on the ground of –

  1. The race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth of the child or of any parent, guardian, caregiver or family member of the child; or
  2. The family status, health status, socio-economic status, HIV status or nationality of the child or of any parent, guardian, caregiver or family member of the child.

  1. Discrimination on any of the grounds listed in subsection (1) is presumed to be unfair unless it is established by the respondent that the discrimination is fair.
  2.  

    "Best interest of child paramount"

    1. An organ of state, an official, employee or representative of an organ of state, or any other person in authority who has official control over a child, must, when acting in any matter concerning the child, apply the standard referred to in section 28(2) of the Constitution that the child’s best interest is of paramount importance.
    2. All national, provincial and local organs of state must be guided by the principle of best interests of the child when making policy, legislative, budgetary and administrative decisions that concern children.

"Child Participation"

  1. Every child capable of participating meaningfully in any matter concerning that child has the right to participate in an appropriate way in those proceedings, and views expressed by the child must be given due consideration.
  2. Children with disabilities must be supported where appropriate to enable participation.

"Name, nationality and identity"

Every child has the right –

  1. To be registered promptly in terms of the Registration of Births Act, Act 51 of 1992; and
  2. To the preservation of his or her identity and nationality, subject to the other provisions of the abovementioned Act.

"Family care or alternative care"

  1. The child’s parents and family have the primary responsibility to provide for the child’s care and protection.

  1. The State must render appropriate assistance to families in the performance of their child rearing responsibilities and must ensure the development of accessible institutions, facilities and services for the care of children.
  2. Where the child’s parents or family are not willing or are unable to fulfil their duty of care, the State has an obligation to step in and provide assistance to the child and family or appropriate alternative care for the child.

"Family relationship"

    1. Every child has the right not to be separated from his or her parents or family against the will of the parents or family and of the child where the child is capable of expressing a choice, except when that separation is in the best interest of the child.
    2. Every child separated from his or her parents or family has the right to maintain a personal relationship and regular contact with their parents or family, except when those personal relations and that contact are not in the best interest of the child.

"Property"

Every child who owns property or who is a dependent of a deceased person who owned property, has the right to the administration of that property in the best interest of that child.

"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.

"Harmful social and cultural practices"

  1. Every child has the right not to be subjected to harmful social and cultural practices, which affect the well-being, health or dignity of the child.
  2. Every child –

    1. Below the minimum age set by law for a valid marriage has the right not to be given out in marriage or engagement; and
    2. Above that minimum age has the right not to be given out in marriage or engagement without his or her consent.

  1. Female genital mutilation or the circumcision of female children is prohibited.
  2. Every male child has the right –

  1. To refuse circumcision; and
  2. Not to be subjected to unhygienic circumcision.

  1. Every child has the right –

  1. To refuse to be subjected to virginity testing; and
  2. Not to be subjected to unhygienic virginity testing.

"Economic exploitation"

Every child has the right to be protected, through administrative, social, educational, punitive or other suitable measures and procedures, from –

  1. Economic exploitation; and
  2. Performing any work –
    1. That is inappropriate for a person of that child’s age; and
    2. That places at risk the child’s well-being, education, physical and mental health, and spiritual, moral or social development.

"Education"

    1. Every child has the right to –

  1. Education that is compulsory and available free to all
  2. Educational facilities of a reasonable standard
  3. Vocational information and guidance; and
  4. Receive education and information through a medium which makes such education and information accessible to the child, having regard to the child’s language, personal circumstances and any disability from which the child may suffer.

    1. The education of a child must be directed towards –
      1. The development of the child’s personality, talents and intellectual and physical abilities to their fullest potential;
      2. The development of respect for the democratic values of human dignity, equality and freedom enshrined in our Constitution;
      3. The development of respect for the child’s parents, cultural identity and values, and language;
      4. The preparation of the child for a responsible life in a free society, in the spirit of peace, friendship, humanity, tolerance and national unity; and
      5. The development of respect for our natural and cultural heritage.

"Health Care"

Every child has the right to basic health care that promotes the child’s health, prevents acute and chronic health conditions and disabilities, adequately manages and treats acute and chronic health conditions and that provides rehabilitation after illness or injury. This right includes the right to -

      1. Confidential access to contraceptives and health-related information on sexuality, reproduction, termination of pregnancy, STDs and HIV, regardless of age.
      2. Confidentiality regarding his or her health status and the health status of a parent, caregiver or family member.
      3. Request and receive information on health promotion and the prevention of ill health and disease.

  1. Have access to appropriate assistive devices that are necessary to enable the participation of children with disabilities and chronic illnesses in community life.
  2. "Social security"

    1. Every child has the right to social security, including access to social assistance if the parent or caregiver cannot or does not provide for the basic needs of the child.
    2. Every child with a disability has the right to have access to social assistance if such social assistance is needed to enable the child to survive, develop and participate to full potential.

"Water and sanitation"

  1. Every child has the right to have access to clean water within a reasonable distance from his or her home.
  2. Every child has the right to have access to sanitation services aimed at preventing infections and diseases.

"Environment"

Every child has the right to an environment that is not harmful to his or her safety or health.

"Basic nutrition"

  1. Every child has the right to basic nutrition in order to prevent illness and disease and to promote their right to survival and development. The state must provide programmes that are designed to reach all children living in poverty.
  2. A child suffering from malnutrition, or who is at risk of malnutrition has the right to prompt assistance from the state through the immediate provision of food or other emergency relief.

"Shelter"

Every child has the right to shelter that adequately protects the child against the elements.

"Legal representation"

  1. Every child has the right to legal representation in criminal proceedings affecting the child, and the state must assign a suitably qualified practitioner to represent the child if the child cannot afford his or own legal representative.
  2. Every child has the right to legal representation in civil proceedings affecting the child, and the state must assign a legal practitioner to represent the child if the child cannot afford his or her own legal representative and if substantial injustice would result if the child was not represented.

"Social services"

Every child has the right to social services, including services that are aimed at:

      1. Assisting the child’s caregiver or parent to provide for the child’s survival, development and participation needs.
      2. Assisting the child and the child’s parent or caregiver to address social problems within the family and community that are violating the child’s rights.
      3. Assisting parents and caregivers of children in especially difficult circumstances to provide adequately for their children’s needs.
      4. Providing adequate protection for children who have been abandoned, abused or exploited.

  1. Providing adequate alternative care for children whose parents or caregivers are unable or unwilling to care for them.
  2. Providing adequate shelter and care for children living on the street or in child-headed households
  3. Providing adequate protection, care and humanitarian assistance to refugee and undocumented migrant children.

"Refugee and unaccompanied minors"

  1. Every child who is a refugee or asylum seeker in terms of the Refugees Act and every unaccompanied foreign child, has –

      1. The rights set out in this Chapter,
      2. The right to be re-united with his or her parents or family if the child was separated from his or her parents or family.
      3. The right to receive humanitarian protection and assistance to realise the rights referred to in paragraphs (a) and (b).

(2) No child may in any way whatsoever be refused entry into the Republic, expelled, extradited or returned to any other country or be subject to any similar measure, if as a result of such a refusal, expulsion, extradition, return or other measure, such child is compelled to return to or remain in a country where -

    1. He or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group; or
    2. His or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination, other events seriously disturbing or disrupting public order in either part of the whole of that country.

"Children with disabilities and chronic illnesses"

(1) Every child with a physical, sensory, neurological, intellectual or psychiatric disability and every child with a chronic illness, has the right –

      1. To enjoy life in conditions which ensure dignity, promote self-reliance and facilitate active participation in the community.

  1. To receive support that contributes to and enhances the quality of life.
  2. To receive financial assistance from the state to ensure a standard of living adequate for his or her development and equal enjoyment of his or her constitutional rights.

"Leisure and recreation"

Every child has the right to rest and leisure and to engage in play and recreational activities appropriate to the child’s age, including the right to have access to recreational facilities within reach of his/her home or school.

"Access to courts"

Every child has the right to bring a matter to court, provided that the matter falls within the jurisdiction of that court. A child may be assisted in bringing the matter to court according to the ordinary rules of law, however, may also do so in his or her own name.

"Age of majority"

A child, whether male or female, becomes a major upon reaching the age of 18 years.

"Enforcement of rights"

      1. Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights or this Chapter of the Children’s Act has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.
      2. The persons who may approach a court, are:

    1. Anyone acting in his or her own interest.
    2. Anyone acting on behalf of another person who cannot act in his or her own name.
    3. Anyone acting as a member of, or in the interest of, a group or class of persons.
    4. Anyone acting in the public interest.
    5. An association acting in the interest of its members.

Submitted by Lawyers for Human Rights

Both domestic and international law recognise the special requirements of refugee children. Refugee children obtain rights accorded to children generally, and as refugees specifically. Similarly, foreign children who are not eligible for refugee status also have needs specific to their circumstances, particularly in the context of the possible removal from the Republic. Unaccompanied refugee and foreign children are the legal responsibility of the government.

Recommendation

That a clause dealing with the specific rights of unaccompanied refugee and foreign children is added to the Bill, reading as follows:

" Refugee and unaccompanied minors"

  1. Every child who is a refugee or asylum seeker in terms of the Refugees Act and every unaccompanied foreign child, have –
    1. the rights set out in this Chapter,
    2. the right to be re-united with his or her parents or family if the child was separated from his or her parents or family.

  2. No child may in any way whatsoever be refused entry into the Republic, expelled, extradited or returned to any other country or be subjected to any similar measure, if as a result of such a refusal, expulsion, extradition, return or other measure, such child is compelled to return to or remain in a country where -
    1. He or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group; or
    2. His or life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination, other events seriously disturbing or disrupting public order in either part of the whole of that country.

Submitted by the National Alliance for Street Children (NASC)

The NASC supports the inclusion of a comprehensive list of rights for children in the Bill, however are concerned that the revised version of the Bill no longer contains a comprehensive list of rights.

Recommendation

The Bill should be amended to include a comprehensive list of rights for children, and these rights should be formulated in a way that fleshes out the scope of the protection provided by the Constitution and that clarifies each roleplayers’ obligations.

The NASC also recommends that the following rights be included in the comprehensive list of rights:

Submitted by the Early Learning Resource Unit (ELRU) and the South African Congress for Early Childhood Development (SACECD)

ELRU and SACECD endorse the Children’s Institute’s submission calling for the Child Rights Chapter to be reinstated into the Bill and support the formulation of the rights proposed in that submission.

Recommendation

The Bill should include a comprehensive list of rights, particularly including the right to social services, education and nutrition.

Submitted by Disabled Children’s Action Group (DCAG)

In the Children's Bill, coverage of children's rights is minimal. Children's rights, as contained in the Bill of Rights of the Constitution, are re-stated with no additional elaboration. One of the greatest concerns with regard to the Children's Bill is the exclusion of specific reference to the rights of children with disabilities and chronic illnesses. The Integrated National Disability Strategy calls for a rights-based approach to the development of services for children with disabilities and chronic illnesses, in line with the recognition that disability is a human rights issue.

The rights of children with disabilities and chronic illnesses need to be specifically addressed in the Children's Bill. This should refer to rights of children with physical, sensory, neurological, intellectual or psychiatric disability, as well as those with chronic illnesses, and should ensure access to basic social services.

In addition, a number of other specific rights need to be highlighted with regard to their application to children with disabilities and chronic illnesses:

Recommendation

The following are suggested amendments and insertions (underlined parts are proposed insertions):

"Unfair discrimination"

(1) No organ of state, and no official, employee or representative of an organ of state, and no other person may unfairly discriminate directly or indirectly against a child on the grounds of –

(a) the race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth of the child or of any parent, guardian, care-giver or family member of the child; or

(b) the family status, health status, socio-economic status, HIV-status or nationality of the child or of any parent, guardian, care-giver or family member of the child.

(2) Discrimination on any of the grounds listed in sub-clause (1) is presumed to be unfair unless it is established by the respondent that the discrimination is fair.

"Child Participation"

  1. Every child capable of participating meaningfully in any matter concerning that child has the right to participate in those proceedings in an appropriate way, and views expressed by the child must be given due consideration.
  2. Children with disabilities must be supported where appropriate to enable participation

"Name, nationality and identity"

Every child has the right –

    1. to be registered promptly in terms of the Registration of Births Act, Act 51 of 1992); and
    2. to the preservation of his or her identity and nationality, subject to the other provisions of this Act.

"Property"

Every child who owns property or who is a dependent of a deceased person who owned property has the right to the administration of that property in the best interest of that child.

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 recourse and social services including counselling and medical treatment at state expense.

"Education"

Please see the Education Law Project (CALS) and Children’s Institute submission for the preferred formulation of this right.

"Health Care"

Please see the Children’s Institute’s submission for the preferred formulation of this right.

"Social security"

  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 the child.
  2. Every child with a disability has the right to have access to social assistance if such social assistance is needed to enable the child to survive, develop and participate to their full potential.

"Water and sanitation "

(1) Every child has the right to have access to clean water within a reasonable distance from his or her home.

(2) Every child has the right to have access to sanitation services in order to prevent infections and diseases

"Environment "

  1. Every child has the right to an environment that is not harmful to his or her safety or health.

"Social services"

  1. Every child has the right to basic social services, including services that are aimed at:
    1. Assisting the child’s caregiver or parent to provide for the child’s survival, development and participation needs.
    2. Assisting the child and the child’s parent or caregiver to address social problems within the family and community that are violating the child’s rights.
    3. Assisting parents and caregivers of children in especially difficult circumstances to provide adequately for their children’s needs.
    4. Providing adequate alternative care for children whose parent’s or caregivers is unable or unwilling to care for them, or who have succumbed to HIV/AIDS.
    5. Providing adequate shelter and care for children living on the street or in child headed households.

"Children with disabilities and chronic illnesses"

(1) Every child with a physical, sensory, neurological, intellectual or psychiatric disability and every child with a chronic illness have the right

(a) to enjoy life in conditions which ensure dignity, promote self-reliance and facilitate active participation in the community; and

(b) to receive care support that contributes to and enhances the quality of life; and

(c) to receive financial assistance from the state to ensure a standard of living adequate for his or her development and equal enjoyment of his or her constitutional rights.

Submitted by Children’s Bill Working Group (CBWG)

According to the CBWG, the current version of the Bill has greatly reduced this clause of the draft Bill. What is left is mainly a reiteration of section 28 of the Constitution without the vital detail and interpretation that was supplied in earlier drafts.

Critical issues, which have been sacrificed in this process include:

The redraft also resulted in:

Recommendation

It is recommended that the omitted clauses of original SALRC Draft Bill should be re-inserted.

Submitted by the HIV/AIDS Sector

The Bill omits some essential rights, which are critical in the context of HIV/AIDS. In particular:

Recommendation

The HIV/AIDS Sector supports the call by the Children’s Institute for the inclusion of a Child Rights Charter in the Children's Bill that:

Submitted by the South African Aids Vaccine Initiative (SAAVI)

In terms of the proposed Chapter 3 (Children’s Rights), clause 13 provides that every child is entitled to confidentiality with regard to their health status, "except when maintaining such confidentiality is not in the best interest of the child". SAAVI is concerned that children would be discouraged from accessing vital public health services or participating in research, where their right to confidentiality could be breached on the basis described in the aforementioned clause.

Recommendation

The "best interest of the child" standard should operate in addition to those existing provisions, rather than supplanting them.

 

 

Clause 10: Child Participation

Submitted by the Law Society of South Africa 

With reference to the participation of children in decisions about their lives, the submission raised questions about the procedure for a child’s participation in such decisions, as well as a clearer definition of "due consideration". 

Clause 12: Harmful social and cultural practices

Submitted by the Commission on Gender Equality (CGE)

The Promotion of Equality and the Prevention of Unfair Discrimination Act, Act 4 of 2000, gives effect to section 9 of the Constitution, which aims to preventing and prohibit unfair discrimination, as well as to promote equality, and eliminate unfair discrimination. Section 8 of this Act, prohibits unfair discrimination on the grounds of gender. Section 8(d) prohibits any practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well being of the girl child.

Virginity testing clearly discriminates on the grounds of gender and impairs on the dignity and well being of the girl child.

Clause 12(5)(a) of the Bill provides for virginity testing. No consent is required to be subjected to virginity testing. This clause, however, gives children the right to refuse to be subjected to virginity testing. Clause 12(5)(b) states that every child has the right not to be subjected to virginity testing.

The following provisions with regarding virginity testing are of great concern to the Commission:

The CGE do, however, support clause 12(3), which outlaws female genital mutilation and female circumcision as a cultural practice. The CGE feels that this clause may to some extent seek to give effect to the standards stipulated in Clause 11.

Clause 13: Information on Health Care

Submitted by the Aids Law Project (ALP) and Human Rights Watch

It is submitted that the current Bill is not sufficiently clear or comprehensive to safeguard children’s rights to medical care and treatment. In South African common law, parental consent or consent from a legally appointed guardian is required before medical treatment can be administered to a child. In cases where parental consent or consent from a legal guardian cannot be obtained, the High Court, as the upper guardian of all children, can be approached to provide consent. In terms of the Child Care Act, Act 74 of 1983, children above the age of 14 years are permitted to consent to receiving medical treatment without the assistance of a parent or legal guardian. In the case of children under the age of 14, where the consent of a parent or guardian cannot be obtained, the Minister of Social Development can provide permission for a medical procedure if, in the opinion of a medical practitioner, the procedure is necessary. In urgent cases, the medical superintendent of a hospital can provide consent.

The Child Care Act, enacted in 1983, did not anticipate that the HIV/AIDS epidemic would leave large numbers of children without parents or legal guardians. Nor did it anticipate that the dual epidemics of HIV/AIDS and sexual violence would threaten the lives of so many South African children. Consequently, the systems set up in terms of the Act are unable to cope with the large numbers of children that require assistance. The Aids Law Project (ALP) has found that, in practice, the current requirements regarding consent pose a serious barrier to children’s rights to life and to the highest attainable standard of health under the Constitution and international human rights law. In some instances, the ALP has had to resort to litigation to obtain consent for antiretroviral treatment for children living with HIV/AIDS.

Human Rights Watch and the ALP have found, however, that current consent requirements impede children’s access to post-rape medical care, including lifesaving PEP services and prerequisite HIV testing. Human Rights Watch’s research found, for example, that problems in obtaining consent on behalf of unaccompanied children and those whose parents or guardians refused to consent to medical treatment barred some children from receiving post-rape medical services, including lifesaving PEP. The ALP also has found that the lack of clarity regarding whether HIV testing constitutes "medical treatment" within the meaning of the Child Care Act has impeded some children from obtaining HIV prevention and treatment services. Some health care workers have declined to provide HIV testing to children above the age of 14 years without parental consent. It is only recently that the State Law Advisors have clarified in a legal opinion sought by the Department of Social Development that HIV testing does fall within the definition of medical treatment. It is, however, not clear whether any steps have been taken to ensure that this has been brought to the attention of health care workers providing services to child survivors of rape and sexual violence.

Submitted by the Law Society of South Africa 

The submission argued that the child’s right to make decisions about a range of health interventions may cause conflict between children and their parents.

Recommendation

It is proposed that the child’s maturity be taken into consideration when determining what is in the best interest of the child. 

Chapter 4: Parental Responsibilities and Rights

Submitted by the Children’s Institute

Although South African law has no single definition of "family", the "nuclear family form" based on the relationship of a married man and woman and their biological or adopted children is predominant. However, this does not reflect the reality of South African society where responsibility for children is by no means only linked to biological parenthood.

In reality, the nature of family life is far from static and is shaped by the historical and socio-economic conditions in society, amongst other things. In South Africa, the history of colonialism, the creation of a migrant labour system, the complex system of apartheid laws, and more recently the scourge of the HIV/AIDS pandemic, has had an enormous impact on family life. It is common for children to live apart from their parents in many types of family arrangements. The AIDS pandemic is likely to be a causal factor for larger numbers of children living without their parents. As a further consequence, children increasingly have to assume more significant roles of responsibility. Though not a new phenomenon, more children have to take care of younger siblings or other children while caregivers are sick and dying or when they have died already. These children have to perform all or some of the functions of a "primary care-giver" in a family environment, including procuring food, preparing it, dressing and feeding younger children, earning money and performing other household chores. Accordingly, these considerations should be taken into account when examining the Bill’s provisions relating to parental responsibilities and rights (PRR).

The new Children’s Bill will modernise South African Law as it takes a child rights approach, promotes mediation rather than conflict and recognises flexible and diverse family forms. These aspects converge to provide a shift in emphasis from parental power to parental responsibilities and rights (PRR). Parental power is historically rooted in private law and was used more to reduce conflict between parents on divorce; however this did not recognise the emerging self-determination of the child and the varied roles of "care-givers" in the lives of children.

Submitted by the HIV/AIDS Sector

The submission voiced its support for the proposed clause 32 of Chapter 4 which, along with the definition of caregiver, is a significant improvement on current legislative provisions, in the context of HIV/AIDS where many children are currently denied access to treatment because of requirements that parental consent or consent from a legally appointed guardian is required before medical treatment can be administered.

Submitted by Dikwanketla – Children in Action

The submission contended that children expect all caregivers to care for them in a manner that will promote their growth and development.

Clause 21: Parental responsibilities and rights of unmarried fathers

Submitted by the Children’s Institute

A particularly controversial provision in the Bill is the parental rights and responsibilities of unmarried fathers. The Bill provides for a biological father to have rights and responsibilities over his child if he is married to the child’s mother or if he was married to her at the time of the child’s conception, the child’s birth or any time between the child’s conception and birth. For those biological fathers who do not fall into the above categories, clause 21 provides that unmarried fathers may acquire parental rights and responsibilities in respect of the child, if the father has lived with the child’s mother for a period of 12 months or more consecutively, or for periods which together amount to 12 months; or if he has cared for the child with the mother’s informed consent for 12 months or more consecutively, or for periods which together amount to 12 months.

Clause 22 further provides that unmarried biological fathers may acquire parental rights and responsibilities by entering into an agreement with the mother or with the person having parental rights and responsibilities over the child.

It is submitted that simply leaving the determination as to whether the conditions listed in clause 21 exist up to the father and mother concerned may create great uncertainty. It is argued that it is likely that the father will simply make the decision as to whether the conditions exit or not, thereby putting the burden on the mother to challenge the situation in Court if she believes that the conditions do not exist.

 

 

Recommendation

Submitted by the People’s Family Law Centre

This clause provides that an unmarried father automatically acquires parental rights and responsibilities if after the child’s birth he lives with the child’s mother for a period of no less than 12 months (or for periods together which amount to no less than 12 months). Alternatively, an unmarried father can automatically acquire parental rights and responsibilities if he has cared for the child for a period of no less than 12 months (or periods together which amount to no less than 12 months). In both instances, the acquisition of parental rights and responsibilities is automatic and does not need confirmation by a court order.

The submission is that the clause begs disputes of fact and places the mother in the position of having to disprove what the father is alleging. It is submitted further that children’s rights and interests are best protected by means of the certainty that a court order bestows.

Submitted by the Law Society of South Africa 

The Law Society argued that unmarried fathers should not have automatic access or rights with regard to their biological children, but that this provision should be harmonised with the provisions in the Natural Fathers of Children Born out of Wedlock Act. The father should either have to apply to the High court or Family court for access, although the submission noted that the family court structure it proposes could be equipped to deal with applications of this nature. The submission further questioned the stipulation that the father acquires parental rights dependent on a relationship that has lasted for at least twelve months, noting that relationships are fluid, and that such a period may be arbitrary. 

 

 

 

Clause 22(3): Parental Responsibilities and Rights Agreements and Clause 23(2): Assignment of Parental Responsibilities and Rights by Order of Court

Submitted by the Children’s Institute

It is of great concern that the Children’s Bill retains the High Court jurisdiction as upper guardian of all children. This means that any matters related to the guardianship of children must be dealt with by the High Court, which reduces the original aim of improving accessibility to the courts for all. It is submitted that the High Court, divorce court and children’s court have jurisdiction to assign and terminate all parental rights and responsibilities, including guardianship.

Recommendation

That the following clauses be deleted:

Clause 22

[(3) Only the High Court may confirm a parental responsibilities and rights agreement that relates to the guardianship of a child.]

Clause 23

[(2) Only the High Court may issue an order that relates to the guardianship of a child.]

Submitted by the Law Society of South Africa 

The submission argued that the authority before which a parental responsibilities and rights agreement is registered, must be required to ascertain that such agreement is in the child’s best interests before registering it. In addition, it was noted that the role of the Family Advocate in registering parenting plans should be clarified. 

Clause 24: Certain Applications regarded as Inter-Country Adoptions

Submission by the United Nations High Commissioner for Refugees

The submission notes that refugee status protects non-citizens from persecution by the authorities of their country of origin. The procedures that accompany inter-country adoptions require that permission be obtained from the country of origin. Thus, the submission expresses concern that the procedures that accompany inter-country adoptions may expose refugees and refugee children to personal danger or persecution from such a country.

 

 

Recommendation

Clause 24 should be amended to include a proviso exempting refugees applying for partial or full responsibility of refugee children from being treated in terms the laws relating to inter-country adoption.

Clause 26 (1): Assignment of parental responsibilities and rights to parent substitutes

Submitted by the Children’s Institute

The issue of passing on guardianship and custody through a document or a formal will is also of grave concern in the context of many parents and caregivers dying due to the AIDS pandemic. The provision in clause 26 allows for parental rights and responsibilities to be assigned to other caregivers via a written document or as part of a will is thus welcome and allows parents to plan ahead for the care of the children they will leave behind in the event of their death. It is submitted that it is important that caregivers may be appointed through a mechanism that is easily accessible and does not require the intervention of the courts. There is however, an increased need for education of people in order to ensure that they make provisions for their children upon their death. Mere legislation is not enough.

Recommendation

That regulations provide that home-based caregivers and social workers be instructed to make succession planning part of their duties when caring for and attending to sick and dying parents.

Clause 32: Care of Child by Persons Not Holding Parental Rights and Responsibilities

Submitted by the Aids Law Project (ALP) and Human Rights Watch

It is submitted that clause 32 of the Children’s Bill, together with the definitions of caregiver and primary caregiver, represents a significant and welcome departure from the current law that will benefit large numbers of children. The clause imposes an obligation on anyone who cares for a child to safeguard the child’s health and well-being and permits care-givers, including those who have no parental rights or responsibilities in respect of a child, to consent to medical examination and treatment of the child if such consent cannot be reasonably obtained from the child’s parent or primary caregiver will remove major impediments to medical treatment for children, including children living with HIV/AIDS and child sexual violence survivors.

However, concern was raised that neither clause 32 nor the current draft of the Children’s Bill more generally are sufficiently clear or comprehensive in safeguarding children’s rights to medical care and treatment. It is submitted that many children are unlikely to benefit from the provision of antiretroviral drugs, unless the definition of consent is broad enough to address their needs. A prior version of the Children’s Bill included several provisions regarding consent that expanded the definition of consent. Although it is likely that these provisions will be included in the section 76 version of the Bill, there is concern that if they are not adequately addressed in the current Bill, some children will still not be able to obtain access to potentially life-saving medication.

Recommendation

Clause 33: Contents of Parent’s Plans

Submitted by the Law Society of South Africa 

The submission argued that when making decisions in terms of a parenting plan, the child’s "cultural upbringing" and "generally anything affecting the best interests of the child" should be included the list of in matters considered while

Clause 35: Amendment or Termination of Registered Parenting Plans

Submitted by the People’s Family Law Centre

It is submitted that it appears contradictory that a parental rights and responsibilities agreement relating to guardianship requires confirmation by the High Court whereas, unmarried fathers can automatically and unilaterally acquire parental rights without any court involvement.

Chapter 5: Children’s Courts

Clause 45(1): Matters Children’s Courts May Adjudicate

Submitted by the Lawyers for Human Rights (LHR)

LHR submits that the Children’s Courts are best placed to serve as an initial point of entry into the protection framework for foreign children. This becomes particularly necessary in respect of issues relating to the determination of the resident status of the children and, thereafter, the departure and removal of children who are declared illegal foreigners in terms of the Immigration Act, from the Republic.

Recommendation

"Any matter which relates to the manner in which children, who had been declared to be illegal foreigners in terms of the Immigration Act, are detained and removed from South Africa".

Submitted by the Law Society of South Africa 

The Law Society expressed concern about the manner in which Children’s courts are envisaged in the Bill. With reference to the issue of child support, the submission noted that it should be clarified what the relationship would be between the Children’s court and the Maintenance court in terms of jurisdiction. It further pointed out that the divorce court does not have jurisdiction over the guardianship of any child, as this is the exclusive purvey of the High court. This error in the Bill must therefore be corrected.  

 

 

Clause 46: Orders which Children’s Courts May Make

Submitted by the Lawyers for Human Rights (LHR)

It appears that foreign children are regularly detained pending their removal from the country. This is in contravention of section 28 the Constitution and the provisions of the Child Care Act, provide for the protection of children in need of care, which are totally ignored when such children are foreigners.

Recommendation

"An order instructing the circumstances when and the manner in which children, who had been declared to be illegal foreigners in terms of the Immigration Act are detained and removed from the Republic".

Clause 47: Referral of Children to Children’s Courts by Other Courts

Submitted by the Law Society of South Africa 

With regard to suspending proceedings in order to investigate whether a child is in need of care and protection, the submission proposed that such suspension of proceedings be valid for a period of no longer than fourteen days. 

Clause 60: Conduct of Proceedings

Submitted by the Law Society of South Africa 

Recommendation

With reference to the conduct of proceedings in the children’s court, the Law Society proposed that the following be inserted as sub-clause 4 after clause 60(3): 

"The presiding officer has the discretion to refer any matter at any stage before or after commencement of proceedings for mediation by an impartial mediator or mediators. Such mediator(s) shall not have the power to make findings or recommendations, but shall be required to assist the parties to settle their dispute. The mediator(s) shall certify whether or not the dispute has been settled and if the dispute has been settled the mediator(s) shall summarise the terms of the settlement". 

 

 

Clause 73: Other Functions

Submitted by the Law Society of South Africa 

The submission also raised questions with regard to the qualifications of persons appointed as Clerk of the Children’s court. 

Chapter 7: Early Childhood Development

Clause 91: Definitional provision of Early Childhood Development (ECD)

Submitted by the Early Learning Resource Unit (ELRU) and the South African Congress for Early Childhood Development (SACECD)

ECD is defined by all current Government policy documents as an umbrella term, which applies to the processes by which children from birth to at least 9 years grow and thrive physically, mentally, emotionally, spiritually, morally and socially.

The Department of Education focuses on children aged 5 and 6 years, with grade R-provisioning as its key policy priority. Children aged 7-9 years are seen as part of the formal schooling system (grades 1-3). There is a definite gap in ECD provisioning for children aged 7-9 years, as they are not explicitly covered within current ECD policy. For many reasons, most of them, related to poor socio- economic conditions, children 7-9 years may find themselves out of the formal primary schooling system (grade 1-3) and so not benefit from any ECD programmes. Similarly, even though children in the 0-5 year category are covered in policy, many of them do not have access to centre based ECD facilities.

Recommendation

The definitional provision of ECD in clause 91 of the Bill should be changed to the following:

91(1) Early childhood development, for the purposes of this Act, means the process of emotional, mental, spiritual, moral, physical and social development of children from birth to school-going nine years of age.

91 (2)(b) provided by a person, other than a child’s parent or primary caregiver, on a regular basis to children up to school going nine years of age.

 

 

 

 

 

Chapter 8: Protection of Children

Submitted by Dikwanketla – Children in Action

Recommendation

All members of society should be obligated to report cases of child neglect and abuse so that protecting children is a community’s responsibility and that removing children from their environment away from family and friends should be the last resort. In the event of a child being removed, the first option for places of safety should be in the community, enabling the child to attend the same school and to have the same friends. In addition, support structures such as counselling and parenting classes should be provided in cases of neglect.

Other measures to protect children from abuse should include:

Submitted by the SA Society for the Prevention of Child Abuse and Neglect (SASPCAN)

The provision previously made for an intersectoral mechanism to see to the proper planning, resourcing and coordination of the child protection system has been entirely omitted. All of its tasks are now simply omitted, without any attempt to reassign them. The lack of a secure basis in the law for the financing and carrying out of these tasks creates a situation in which the current disarray in the child protection system, with all the harm it does to children, is liable to continue ad infinitum.

Submitted by the HIV/AIDS Sector

The HIV/AIDS sector supports the important provisions (clauses 130, 132 and 133) but emphasise that they have obvious direct implications for health workers.

Recommendation

The provisions should be mirrored or cross-referenced in relevant health policy and legislation. It is also imperative that the provisions for an integrated National Policy Framework (or equivalent) be reinstated.

While the sector also supports the recognition within the Bill of child-headed households as a family form in South Africa, there is not yet consensus as to the appropriateness of the definition, given some of the potential implications for children and their caregivers. If CHH include households in which the parent or primary care-giver of the household is terminally ill, how would "terminally ill" be defined, and what would the adult caregivers roles or responsibilities be in this household? Furthermore, there is no clarity as to whether the provisions for child-headed households are only applicable to those households recognised as such by a provincial head of social development. Another concern highlighted by recent research indicates that child headed households, while clearly existing in small numbers, are frequently a transitional or temporary household form, existing for a period for example, just after the death of an adult and prior to other arrangements being made for children’s care. How would this impact on continuity of care and support for the children within these households?

Suggested amendment(s)

136. (2) A child-headed household must function under the general supervision of an adult designated by organ of state or non-governmental organisation

(a) An organ of state or non-governmental organisation determined by the provincial head of social development; or

(b) designated by a children’s court.

(3) The organ of state or non-governmental organisation adult person referred to in sub-clause (2) –

(a) may collect and administer for the child-headed household any social security grant or other grant or assistance to which the household is entitled; and

(b) is accountable to the provincial department of social development, or the children’s court, or to another organ of state or a non-governmental organisation designated by the provincial head of social development, for the administration of any money received on behalf of the household.

(4) The organ of state or non-governmental organisation adult referred to in sub-clause (2) may not take any decisions concerning such household and the children in the household without consulting –

(a) the child at the head of the household; and

(b) given the age, maturity and stage of development of the other children, also those other children.

(5) The child heading the household may take all day-to-day decisions relating to the household and the children in the household as if that child was an adult primary care-giver.

(6) A child-headed household may not be excluded from any aid, relief or other programme for poor households provided by an organ of state in the national, provincial or local sphere of government solely by reason of the fact that the household is headed by a child.

(7) The Minister must include in the national policy framework [or equivalent], a comprehensive and intersectoral strategy aimed at identifying, assisting and promoting the best interests of children living in child-headed households.

Chapter 9: Prevention and Early Intervention

Submitted by Dikwanketla – Children in Action

The Children’s Bill rightfully states that there should be interventions put in place to help children and their families before their problems become too serious.

Recommendation

The Children’s Bill should state that an effective prevention service would require Government service personnel such as nurses, psychologists, social workers, educators and the police to work together with the community, i.e., home-based care-givers, churches and non-governmental organisations. It will also require the existence of support mechanisms such as rehabilitation centres, parenting classes, community leisure activities, such as play grounds, sports fields and transport facilities to get people where they need to go to ask for assistance.

Chapter 10: Children in need of Care and Protection

Submitted by Dikwanketla – Children in Action

Dikwankwetla was convinced that removing children from their environment away from family and friends should be the last resort and that only when children are cared for by caregivers other than their biological parents would it be logical to remove such children and take them to places of safety. Children who have been neglected and abused must receive counselling.

Submitted by the Lawyers for Human Rights (LHR)

A child is unaccompanied if no person can be found, either by law or custom, to have primary responsibility for that child. It is submitted that unaccompanied refugee and foreign children should be recognised as children in need of care and protection and that they should therefore be dealt with in terms of children’s court proceedings.

Recommendation

It is recommended that the following sub-clause be added to clause 150 of the Bill:

"(j) is an unaccompanied foreign child".

Clause 150: Child in Need of Care and Protection

Submitted by the United Nations High Commissioner for Refugees

The submission notes that in accordance with Article 22(2) of the Convention on the Rights of the Child, refugee children whose parents or family members cannot be traced must be treated as nationals would be in a similar situation. Accordingly, the Government has an obligation to assist such children in tracing their families, and in ensuring that they are afforded the same treatment and status as nationals during their stay in South Africa.

Recommendation

Chapter 12: Children in Alternative Care

Submitted by the National Association of Child Care Workers (NACCW)

The sector commends the Department of Social Development for much of the contents of Chapters 12 and 14. It considers that these chapters lay a strong and comprehensive foundation for effective services to children placed in residential facilities. It particularly welcomes much of the contents of Chapter 12 as limiting the power of the court and other bodies to transfer children within the child and youth-care system. It also is strongly in favour of much of the chapter on "Child and Youth Care Centres".

The NACCW, however, raises a concern, which relates to the excision of the provision for free state services to children in statutory care, originally included in clause 188 of the SALRC draft of the Bill. Should child and youth care centres be required to provide for such services, funding for these services would need to be provided in addition to the funding for the residential care. It must be noted that children placed in child and youth care centres are by definition the responsibility of the state, and it is the responsibility, therefore, of the state to provide sufficient resources to enable legislative requirements to be met. If it were incumbent on child and youth-care centres to fund educational and health services for children in their care, this is likely to seriously impact on their capacity to adequately provide for the requirements of the legislation in respect of therapeutic programmes.

 

Submitted by the HIV/AIDS Sector

The HIV/AIDS Sector contended that while there are many orphans who, as a result of abuse, neglect, abandonment or exploitation, are in need of care and protection by the State, the vast majority of children who have been orphaned are cared for by the extended family and kinship networks. The legislation, therefore, needs to make adequate provision for children who are being cared for in kinship or extended family networks and who simply require financial support or poverty relief in order to maintain their current care arrangements. Failing the full extension of the child support grant to all children, it is likely that the provisions within the Bill will lead to massive pressure on the courts and social workers to process court-ordered kinship or foster care. The HIV/AIDS Sector argued that, in addition to an effective formal child protection system, the best way of ensuring blanket financial provisions for all vulnerable children is the full and immediate extension of the Child Support Grant, with additional needs met through the provision of free basic services and special grants.

Recommendation

A provision within the Children’s Bill is recommended to allow for amendments to the Social Assistance Act which, as it stands, fails to adequately address the needs of children in the context of HIV/AIDS.

Chapter 15: Shelters and Drop-In Centres

Submitted by Dikwanketla – Children in Action

Recommendation

The Government should build places of care and safety in all communities so that children have a place to go to when they need protection and shelter. Also, Government must create a system of funding the NGOs that run child and youth centres so that they are better able to provide for children.

Chapter 16 Adoption

Clause 229(c): Purposes of Adoption

Submitted by the Johannesburg Child Welfare Society

Respect for cultural, ethnic and religious diversity is not in itself a purpose of adoption, but rather a principle to be followed as far as possible when arranging it. At times these considerations have to be made secondary to other factors such as the availability of suitable adopters, or pre-existing bonds between an applicant adopter and the child in question.

Recommendation

It is recommended that the aforementioned clause be deleted.

Submitted by the Law Society of South Africa 

The submission argued that the purpose of adoption as a means of conferring "rights and responsibilities on the adoptive parent and child" must be spelt out in the legislation. 

Clause 231: Persons Who May Adopt Child

Submitted by the Johannesburg Child Welfare Society

A glaring omission is that of provision for the child’s consent to be required for his or her adoption, provided that he or she is capable of understanding what is involved. The right of a child aged ten years or more to give or refuse such consent has been in place for decades. It is unthinkable that this should now be removed. The SALRC, in line with the principle of participation by the child in decisions concerning him or her, expanded this provision to cover all children capable of understanding the implications of adoption and of the consent being given.

Recommendation

That the wording of clause 259(i)(c) of the SALRC draft Bill be added to clause 231 of the current Bill.

Submitted by the Law Society of South Africa 

The Law Society stated that the reference to being "unsuitable to work with children" should be spelt out in greater detail, stipulating, for example, that persons whose names appear as perpetrators in a child protection register would be considered unfit to adopt a child. 

Clause 232 Consent to adoption

Submitted by Robyn Shepstone

The Bill makes no provision for a child ten years of age or older, to consent to his or her adoption. Given that a child of that age has established relationships, it is essential that he or she be involved in any plans for his or her future. At present a great deal of weight is given to the child’s view.

 

 

Recommendation

It is recommended that the relevant provisions in the Child Care Act, Act 74 of 1983, requiring a child of ten years of age or older to consent to his or her adoption be retained.

Clause 232(5)(a)(i): Consent to Adoption

Submitted by the Johannesburg Child Welfare Society

The present Child Care Act requires that the consent to adoption be signed in the presence of the Commissioner of Child Welfare (section 18(5) of the Child Care Act, Act 74 of 1983). The Bill affords this responsibility to the clerk of the court, a shift that is dangerous, especially in a context where reports of parents being pressured or offered incentives to consent, without necessarily understanding their rights, are surfacing from time to time.

Recommendation

It is recommended that the words "clerk of the children’s court" in the aforementioned clause be replaced with "presiding officer of the children’s court".

Clause 233(4)(a): Freeing Orders

Submitted by the Johannesburg Child Welfare Society

This clause provides for a "freeing order", which would enable a biological parent to hand over his or her parental responsibilities to a designated child protection organisation or an adoption social worker pending the adoptive placement. This would apply in a situation where an adoptive family has still to be found and relieves the biological parent from having to continue to carry responsibilities for the child after having made the immensely difficult decision to distance herself or himself from that child. It is also designed to give the adoption agency or social worker authority to make whatever decisions are required and to reduce the insecurity experienced by adopters before the adoption order is finalised. As it stands the clause provides that a freeing order will lapse if a single application to adopt the child has been turned down. It is submitted that other prospective adopters may be available, and it could defeat the purposes of this clause to simply cancel the order.

Recommendation

It is recommended that this clause be replaced with the words "a freeing order may be terminated by the court if after 12 months since the issuing of the order there appears to be no reasonable prospect of adoption of the child, and the order no longer appears to be in the best interests of the child".

Submitted by the Law Society of South Africa 

With reference to freeing orders, the submission argued that freeing orders should only be permitted if the parent is replaced by a third party as the person responsible for the child in law. The granting of a Freeing order may be permissible where the obligations are placed on the adoptive parent-to-be, prior to the adoption being finalised. There could be an assignment of parental responsibilities or foster care rather than placing the burden on the State while the child has not yet formally been adopted. 

Clause 234(2)(c): When Consent is Not Required

Submitted by the Johannesburg Child Welfare Society

This clause provides that an unmarried father, who has been convicted of raping the mother, which rape has given rise to the conception of the child concerned, will not be required to give his consent before such a child can be adopted. It is argued that it is of no use to include a conviction of rape as a basis for removal of a biological father’s right to prevent the adoption of his child. Conviction rates for rape are extremely low and if they occur at all, this may be after several years. It is submitted that this clause may lead to an appalling situation for those women and girls who fall pregnant due to rape, and for the babies themselves.

Recommendation

That the current requirement, as introduced by the Adoption Matters Amendment Act, is for a finding by the court on balance of probabilities that the child was conceived as a result of rape. This principle was fought for very hard by NGOs delivering adoption services, and it is recommended that the present clause be replaced accordingly.

Submitted by the Law Society of South Africa 

The Law Society indicated that consent to adoption should not be necessary if the biological father of the child has not exercised parental responsibilities in terms of sub-clause (1)(b). 

Clause 235(1)(b) and (4): Gathering of Information of Proposed Adoptions

Submitted by the Johannesburg Child Welfare Society

The aforementioned clauses require that the court take all reasonable steps to establish the identity and whereabouts of any person whose consent is not required to the adoption, and that a social worker who becomes aware of such information must supply it to the court. This would in practice apply to certain biological parents and unmarried fathers, who have forfeited their rights.

It is not clear why the court would have to do its utmost to obtain the address of a person, who does not have to be notified of a pending adoption. It is argued that there is merit in naming the person and giving reasons why he or she does not have to be notified, but not for the court to be required to insist on having further details. It is also not clear why a social worker who is in confidence provided with information which is not relevant to the proceedings, should be obliged to pass such information on to the court.

Recommendation

It is recommended that the aforementioned clauses be deleted.

Clause 248(1): Access to Adoption Register

Submitted by the Johannesburg Child Welfare Society

This clause provides for an adopted child over 18 years of age and the adoptive parents, and in some circumstances the biological parents of such a child, to access information contained in the adoption register. An order of court is required to access such information for a person under 18 years of age. It has, however, been pointed out that if such information is required for medical reasons and if a medical emergency arises, the expense and delay involved in obtaining a court order could have severe and even fatal consequences for the child. Good adoption practice requires that all available medical background information be obtained by the social worker processing the adoption, and that this be handed over to the adoptive parents, and that adoption agencies will generally supply such information on request by the adoptive family. However, in situations where the relevant information has not been recorded or is not being made available, provision needs to be made for it to be obtained without delay.

Recommendation

Clause 249: No Consideration in Respect of Adoption

Submitted by the Johannesburg Child Welfare Society

This clause addresses the issue of "consideration" that change hands during adoptions, especially those managed by private practitioners in various disciplines. Although these "considerations" are illegal, the meaning of the law is being distorted and many children’s courts appear to be turning a blind eye to such practices. It is submitted that a number of aspects of the present formulation are problematic.

Recommendation

Clause 250(1)(d): Only Certain Persons Allowed to Provide Adoption Services

Submitted by the Johannesburg Child Welfare Society

The stipulation that inter-country adoption practice is restricted to the Central Authority and designated child protection organisations is strongly supported. It is believed that perverse incentives exist for private practitioners in virtuous professions to arrange inter-country adoptions when local options exist, and to engage in practices which are not in keeping with the spirit of the Hague Convention on Inter-country Adoption. This problem can be solved in a situation in which there can be seen to be no link, either direct or indirect, between the income earned by the practitioners involved and the decisions they make with regard to applications to adopt children. It is suggested that this principle should be further clarified, as there is concern that some individuals will form loose arrangements with NGOs in order to be permitted to arrange inter-country adoptions, while themselves collecting the fees paid by adoptive parents.

 

 

 

Recommendation

It is recommended that a clause be included to the effect that all fees with regard to inter-country adoptions be collected in their entirety by the management of the accredited organisation, and that no payments be paid by that organisation to any individual practitioner except in the form of a standard salary.

Chapter 17 Inter-Country Adoptions

Clause 257(1): Delegation of Functions

Submitted by the Johannesburg Child Welfare Society

The submission notes that the official in the Department of Social Development, who would be responsible for the management of the Central Authority dealing with inter-country adoptions, was specified in the SALRC Bill as being at least of the rank of Director – now he or she is merely "an official".

Recommendation

It is recommended that the wording as in clause 284(1) of the SALRC draft Bill be restored.

Clause 258: Accreditation of Child Protection Organisations for Inter-Country Adoptions

Submitted by Robyn Shepstone

The burgeoning AIDS epidemic has given rise to large numbers of orphaned or abandoned children, particularly so in KwaZulu-Natal (the Province in which the presenter carries out her work). The response from welfare authorities, especially in the case of orphaned children, has been to try to arrange foster care with extended family members or other members of the child’s community. Placing abandoned children in foster care with extended family members or other members of the children’s communities is less easily achieved. It is submitted that while the principle of trying to preserve family ties, wherever possible, has resulted in many successful placements, there are placements that are not in the child’s best interests. Where foster care placements are not possible, these children are placed in places of safety of orphanages for lengthy periods of time. It is submitted that no matter, how good the care is in an orphanage, children are better off being raised in a loving and nurturing family to whom they belong.

It is also submitted that State Departments have not traditionally been involved in providing services for very young children, and that social workers employed by the Department seldom arrange adoptions. In addition, child protection organisations in KwaZulu-Natal scaled down specialist services such as adoption. Thus, private social workers with adoption experience have to a large extent filled the gap left by the transformation of traditional adoption agencies. Consequently, it is submitted that child protection agencies have few social workers with the necessary expertise and experience of adoption wok. In addition, huge staff turnovers mean that social workers seldom remain in these organisations for long enough to build the necessary skills. Neither the Department nor child protection organisations in KwaZulu-Natal perform inter-country adoptions.

Since inter-country adoptions became legal in July 2000, private accredited adoption social workers have been at the forefront of this work in South Africa. They have contributed to setting standards and procedures in adoption practice in accordance with the Hague Convention, and for some time several private accredited adoption social workers have had working agreements with licensed inter-country adoption organisations in counties that are signatories to the Hague Convention. It is submitted that if private accredited adoption social workers are excluded from performing inter-country adoptions in the future, their skills, expertise and the networks that they have established will be lost to the profession. It is further submitted that as the formal welfare sector has been unable to fully service the needs of its potential clients, this is an opportunity for the Department of Welfare to work with the private sector, thereby meeting the needs of those children who would benefit from inter-country adoptions.

In conclusion, adoption is never the first option when placing a child but that for some children it is for the best. Once it has been established that adoption is the best permanency plan for that particular child, it is imperative that the placement is arranged without undue delay. Should same-culture and local placement prove unsuccessful, cross-cultural and inter-country adoptions are regarded as a preferred option to institutional care.

Recommendation

It is recommended that private accredited social workers be permitted to apply for accreditation to perform inter-country adoptions.

Clause 259: Entering Into Adoption Working Agreements and

Clause 261: Adoption of Children from Republic by Persons Working in Non-Convention Countries

In the SALRC draft Bill there was provision for agreements only with agencies in Convention countries, or in "prescribed overseas jurisdictions". This was changed to allow for adoptions by persons from African countries, including neighbouring states, as although these are not Convention countries, they could be regarded as destinations preferable to countries on other continents for purposes of maintaining a child’s identity and heritage. It is submitted that there should not be restrictions; otherwise the Hague Convention loses its teeth. In addition, the field is left open to countries where questionable practices are common. Perhaps there could be a reference to "prescribed foreign jurisdictions" and a system for designating countries from or to which children may move for purposes of adoption, or at least a system for excluding a country where circumstances so indicate.

Recommendation

Chapter 18 Child Abduction

Submitted by the People’s Family Law Centre

The submission notes with concern the following omissions from this Chapter:

Clause 273 states that a purpose of the Chapter is "to combat parental abduction", yet the Chapter provides little guidance to the Courts, SAPS, etc. as to how to deal with parental child abductions within the country.

A clear definition of abduction or, in the terminology of the Hague Convention, on International Child Abduction, "an unlawful removal or retention of a child" is required. The Hague Convention defines the unlawful removal or retention of a child within the parameters of "custody". However, the Children’s Bill has introduced the concept of parental rights and responsibilities in a departure from the traditional concept of "custody".

Furthermore, the Bill needs to provide recognition that a holder of parental rights and responsibilities can in fact "abduct" his or her children from a caregiver. In addition, children are vulnerable to being snatched by one and then the other parent in circumstances where the parents are separated and no court order exists that states with which parent the children should live.

Recommendation

Chapter 22: Administration of Act

Submitted by the National Alliance for Street Children

Clause 305 makes provision for the outsourcing of services. The NASC welcomes this provision, however stresses that currently the State does not have a realistic uniform financing model. In most instances, services provided by the sector are under-funded.

General

Submitted by the Johannesburg Child Welfare Society

The SALRC draft Bill provided for an application to a court to terminate the relationship between a child and his or her biological parents in the country of origin if this had not already transpired in terms of the law of that country. This clause also provided for sufficient provision to be made for refugee children to retain and foster ties with family, tribe and country of origin, which is a concern that arises in some of the literature pertaining to foreign children.

Also omitted from the present Bill are clauses 297 and 300(3) of the SALRC draft Bill. The first provides for the adoption of a child from a prescribed jurisdiction to be recognised in SA, and the second allows for placements to be refused by a court if a denial of natural justice or a non-compliance with the requirements of substantial justice has occurred, even if the relevant procedures have been followed.

Recommendation

It is recommended that clauses 295, 297 and 300(3) of the SALRC draft Bill be reinstated.

The overall thrust of the original draft as it relates to foster care and kinship care has been significantly altered, with very negative consequences. Relevant changes include the following:

Recommendation

Submitted by Vivian, a member of the public, on Surrogacy

The submission focused on the fact that while egg donation is encouraged, it should be borne in mind that hormone treatment and drugs used for fertilisation are dangerous and may even cause cancer in later life. There is a lot of misinformation on the issue of surrogacy, which has now become "big business" in South Africa. Currently, there are no checks and balances on this phenomenon in South African law. In the meantime, Internet fertility safaris are undertaken advertise "the baby business" as a commercial one, and there are even cases of sex selection. This calls for controls since it has now become possible to buy human life. The submission contended that if a human carriers triplets, for instance, it could be regarded as a human rights violation, because women are not baby factories. In some instances, surrogacy promotes human trafficking, for example in East European countries.

Submitted by Save the Children Sweden

The submission by Save the Children Sweden argued that corporal punishment breaches the fundamental human right to respect for human dignity and physical integrity. The submission noted that the United Nations Convention on the Rights of the Child (UNCRC), to which South Africa is a signatory, protects children from all forms of mental and physical violence, and that this protection extends to corporal punishment. Similarly, the African Charter on the Rights and Welfare of the Child prohibits all forms of mental and physical abuse of children.

In support of its argument, the submission further pointed out that the United Nations Committee on the Rights of the Child, which monitors the implementation of the UNCRC, has recommended that South Africa takes effective measures to prohibit by law the use of corporal punishment in the family. In addition, the Committee has recommended that such a provision in law be accompanied by campaigns aimed at raising awareness and educating parents and caregivers on positive discipline. Save the Children Sweden also noted that a similar provision in Swedish law does not carry any penalty, but is believed to have had a positive impact on changing attitudes among Swedish parents and caregivers.

It was noted that South African law already prohibited corporal punishment of children in schools, in care institutions, foster care and in the juvenile justice system. The proposals contained in the draft Bill produced by the SALRC did not prohibit corporal punishment explicitly, but addressed the issue of parents invoking the defence of "reasonable chastisement" in cases where they are charged with the assault of their children.

Recommendation

The submission strongly recommended that the Bill provide for the prohibition of corporal punishment in all forms. The provision should also reiterate the prohibition that already applies to all schools and care facilities. Even if the explicit prohibition was not linked to a penalty for violating the law, it must give a clear message that corporal punishment is not an acceptable way of child rearing. In addition, the provision could, provide a clear legal basis for awareness raising and training. The submission further recommended that the clause abolishing the defence of reasonable chastisement be reinserted into the Bill, thus preventing parents charged with assaulting their children from escaping liability for physically punishing their children.

Intersectoral implementation of the Act (The National Policy Framework) and strategies for children in especially difficult circumstances

Submitted by the National Alliance for Street Children

Chapter 2 of the South African Law Commission’s (SALRC) draft bill, provided for a legislated intersectoral National Policy Framework that was aimed at guiding the implementation of the Act by all Government Departments.

The SALRC also envisaged that the National Policy Framework (NPF) would provide an intersectoral umbrella policy for the various strategies aimed at protecting the different categories of children in especially difficult circumstances. Street Children were one of the categories of children that were singled out for special protection and a dedicated strategy in chapter 16. The SALRC Draft Bill specified in clause 232 that the strategy must be aimed at:

Recommendation

Chapter 2 and 16 of the SALRC Draft Bill should be reincorporated into the Children’s Bill.

Submitted by the Early Learning Resource Unit (ELRU) and the South African Congress for Early Childhood Development (SACECD)

Most of the problems in the ECD sector are due to the lack of intersectoral collaboration. The SALRC Draft Bill addressed this problem by including a chapter aimed at ensuring better intersectoral co-ordination through the introduction of the NPF which would co-ordinate and bind all Government Departments and all civil society organisations providing services to children. Furthermore, the SALRC Draft Bill included a clause [106(A)] in the ECD chapter that called for a national intersectoral ECD strategy aimed specifically at ensuring better co-ordination and resourcing of ECD. This strategy would fall under the umbrella of the NPF.

Recommendation

The chapter(s) in the SALRC Draft Bill dealing with the NPF should be reintroduced. Also, clause 10 106A (1) should be reintroduced so as to replace clause 92 of the Bill, which would read as follows:

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.

Submitted by the Disabled Children’s Action Group (DCAG)

Provision for an intersectoral NPF has been removed from the Children's Bill. Such a framework (as proposed by the SALRC), would be binding on all government structures with responsibilities for children and are critical to ensuring co-ordinated and holistic approaches to the issues faced by children. The removal of the integrated framework is a serious threat to increased provision of services. In addition, responsibilities for local and traditional authorities to monitor and address the needs of children in their areas have been removed.

In keeping with an intersectoral approach, and under the umbrella of the NPF, the SALRC had recommended that municipalities be required to:

It is a matter of great concern that the provisions for a needs analysis and monitoring of the protection of the rights of children with disabilities and chronic illnesses have been removed from the Children's Bill.

Recommendation

Chapter 2 of the SALRC Draft Bill, containing the NPF should be re-incorporated into the Bill and the clauses obliging local government to monitor and do needs analyses must be re-inserted into the Bill.

Submitted by the HIV/AIDS Sector

Recommendation

It is recommended that the provisions for the NPF be reinstated to guide the implementation, enforcement and administration of the Act and to ensure that responsibility for the well-being of children is shared across relevant departments.

 

Strategies for children in especially difficult circumstances

Submitted by the Disabled Children’s Action Group (DCAG)

The Bill does not contain provisions designed to address the situation of children in especially difficult circumstances. Both the clause identifying children with disabilities and those with chronic illnesses as being those in especially difficult circumstances, as well as specific strategies concerning these children, which were to be included in a National Policy Framework, have been omitted from the Bill. The SALRC draft Bill contained a chapter on Children in Especially Difficult Circumstances (Chapter 16). This Chapter defined certain categories of children as being especially vulnerable. It further contained a list of strategies aimed at providing for these children’s needs. The chapter identified vulnerabilities of each group that are specific to South Africa’s situation and then specified that strategies would need to be drafted and incorporated under the umbrella of the National Policy Framework to ensure intersectoral coordination and service delivery.

Chapter 16 identified children with disabilities and chronic illnesses as one of the categories of children in especially difficult circumstances and then specified that the Minister of Social Development must draft strategies to provide for the needs of this category of children. These include strategies aimed at –

The Bill no longer contains this chapter and therefore removes the much-needed provisions and strategies that would have helped ensure a more co-ordinated and intersectoral approach to delivering services to children with disabilities and chronic illnesses.

Recommendation

The strategies and provisions to address children in especially difficult circumstances should be re-inserted into the Bill.