INFORMATION SERVICES: RESEARCH

KEY ISSUES EMANATING FROM BRIEFINGS ON THE CHILDREN’S BILL [B70 – 2003 (REINTRODUCED)]

12 November 2004

1. Introduction

The Portfolio Committee on Social Development has, as part of its deliberations on the Children’s Bill [B70 – 2003 (Reintroduced)], called several government departments to brief it on how their work relates to children, and how they believe the Children’s Bill will impact on their line functions. Departments that participated in these briefings include:

This research paper will highlight those issues that have emanated from the briefings by the South African Police Service, the Department of Correctional Services and the Department of Education. It will also explore the discussions that followed the briefings. It does not engage with issues that have arisen out of discussions with the Department of Social Development, as this will be dealt with separately. Where departments gave more than one briefing, these will be dealt with on the basis of key issues, rather than the date on which a briefing took place.

 

2. Briefing by South African Police Service (SAPS), 5 August 2004 & 25 August 2004

The presentation by the South African Police noted that the police had been involved in drafting the Bill. It was also argued that the SAPS already performed most of the functions it had been allocated in the Bill, which also meant that the Bill would not have significant cost increases for the SAPS. However, the provisions of the Bill would require that certain procedures would have to change.

Removal of abuser

Among the clauses that have implications for the work of the police, attention was called to clause 152 (in the Section 76 Bill), which allowed for the removal of the abuser of a child from the premises, rather than the removal of the child from his/her home. This provision was in line with what is provided for in the Domestic Violence Act (Act No. 116 of 1998). However, the Committee noted that the continuing responsibility of the offender to support the occupants of the premises was a legal issue that needed to be explored.

In response, the SAPS argued that it was up to the children's court to settle the question of the legal rights and obligations in relation to an abuser who had been removed from the home. This provision was purely an emergency measure, which provided the means to remove the abuser from the home of the child. The implications on the abuser's rights and responsibilities to the child had to be resolved by the court within 24 hours if possible. However, this might require that the Committee pay attention to how this matter will be dealt with by the Courts, and to consider whether the Bill needs to include provisions that address the possible implications of the removal of an alleged abuser.

Street children

In response to a question on the role of the SAPS with regard to street children, and whether there were any gaps in the legislation, the SAPS said that street children qualify as children in need of care. As such, they should be removed from the street and placed in places of safety. The problem that the SAPS were faced with was that there were not sufficient places of safety available. Attempts to reunite these children with their families, after extensive investigations, often prove futile. The phenomenon could not be dealt with by SAPS alone and required involvement from social workers, ministers, etc. Available places of safety were often not ideal because they were seen as prisons. SAPS supported the work of several NGO's in this regard, because unfortunately it was also true that street children had a tendency to turn to crime in order to survive. The Committee needs to be informed about the policy with regard to street children, and whether all provinces apply this uniformly. It also needs to consider whether the Bill must address the procedure to be followed when a child is found on the street.

Children awaiting trial

A spokesperson from the Department of Justice said that an intersectoral child justice committee had been instituted to monitor statistics on children in police cells and in prison awaiting trial to look at ways of speeding up the process. Discussions were in process with the judiciary to bring court dates forward in cases involving children and women. A range of interventions had already been instituted, notwithstanding the fact that there remained approximately 2 100 children in jails awaiting trial. The Department of Education had been engaged to deal with children who had been sentenced and were awaiting relocation to reform schools. This is an issue that the Committee must be briefed on in order to ascertain what policy choices have been made in this regard, and to which extent it dovetails with the principles set out in the Children’s Bill.

Child-friendly police services, Child Protection Units (CPUs)

SAPS noted that specialised child protection units (48 CPUs nationwide) had been established with specially trained investigators. Special interview rooms had been designed where children could play out what had happened, and allowance was made for videotaping of interviews. However, the SAPS representative could not say how many of the 1 169 police stations in the country had special interview rooms. The SAPS was trying to set up specialised trauma centres at every police station, often with the assistance of specially trained volunteers who were also able to give guidance to parents. Trained psychologists who were volunteers from the community were on 24-hour standby at each centre and would be able to assist the child at the scene of the crime leaving the SAPS to concentrate on the scene itself. In addition, SAPS was also making use of forensic psychiatrists in multidisciplinary teams to provide information that would be valuable in court. However, it was noted that trauma centres could only be established where the local public was involved as this was not a core function of the SAPS, which raises the question of how these trauma centres are budgeted for. There has also been a chronic lack of staff in the CPUs, which had a direct impact on the caseload.

Vulnerable children and child witnesses

During discussions it was noted that children with disabilities are particularly vulnerable, and a Member asked what happened when children reported a crime, for example when a deaf child used sign language. Another issue raised was whether there were enough social workers and psychologists involved in police work that deals with children. It was noted that the SAPS did employ some forensic social workers but relied on social workers from other sources, such as other departments and NGO’s with whom there was excellent co-operation.

Evidence

The long time it took for DNA analyses to be completed was the result of a shortage of forensic scientists; however, a scarce skills programme had been implemented in 2003 to address this matter. It was also noted that there was a general problem of medical practitioners refusing to gather evidence from victims. The Department of Health still employed some district surgeons and, in rural areas, had entered into agreements with local clinics to provide services. It was further noted that dockets went missing regularly, but that a number of steps had been taken to prevent the disappearance of dockets, including a computerised system to track them. Where a very serious matter was involved, copies were made and locked in a safe. The staff shortages and the apparent gaps in coordination of services raise the question of whether the new children’s legislation should provide for mandatory structures and systems to ensure that children who come into contact with the criminal justice system (as survivors of abuse or as witnesses) are protected from secondary abuse.

3. Briefing by the Department of Correctional Services, 5 August 2004 & 25 August 2004

Children in prisons with their mothers

Section 20 of the Correction Services Act (Act No. 111 of 1998) provides for mothers to have children younger than five years with them in detention. Where practicable, the Department should ensure that mother and child facilities are available. Once children are over five, programmes need to be in place to ensure the continuation of the mother-child relationship. At the time of the presentation, 205 infants were in correctional centres with their mothers. However, a number of issues were raised in this respect. It was not clear how the cut-off age of five was determined, and whether there were adequate procedures in place to ensure that the child’s father was involved in caring for the child after he or she was removed from the prison. It is also not clear whether children should be placed in foster care at the time of birth in cases where the mother is serving a life sentence, or whether it was in the best interests of the child to remain with the mother for as long as possible. In addition, an issue that must be considered is whether the mother has certain rights of access to the child should she be released from prison at any time after the child had been removed from her. Once again, the "best interests of the child" standard may imply that post-detention services be available to mothers to facilitate their ability to take care of their children.

Educational needs of children in prisons

One of the issues raised was the question of what educational programmes there were for the approximately three thousand children already in prison, some of whom who were still in the main prison population. In addition, the question of secure care facilities was raised, as there were clearly very many unsentenced children in prisons, while secure care facilities were not operating at maximum capacity. It was noted that the Departments of Correctional Services, Education and Social Development were on the brink of signing a memorandum of understanding directed at getting the unsentenced children out of the correctional centres.

With regard to educational programmes, it was made clear that the Department of Correctional Services did not view the education of children in prisons as their core function, which suggests that unless there is a legislative framework for the provision of education in the context of prisons, this issue will not be addressed satisfactorily.

One of the examples of an educational programme is the one in Pollsmoor Prison in Cape Town, where the Department had received donor funding for an ECD centre where children of inmates could mingle with other children, outside the cells. This raises the question of who takes responsibility for early childhood development in the context of correctional facilities, as generally, the Department of Social Development was responsible for children younger than 5. Again, the question of a legislative and policy framework must be considered, so that such programmes are not offered in isolation at well-known urban corrections centres, but can be made available progressively throughout the country.

4. Briefing by the Department of Education, 25 August 2004

Removal of the "right to education" provision

The right to education had been provided for in the original version of the Bill, but has been omitted from the Bill that was tabled. This raised questions among Members as to who had been responsible for the removal of the provision, and what the motivation behind it had been. The Department of Education argued that the right to education was a Constitutional right, but that the earlier draft of the Bill spoke about the right to vocational guidance and information. This issue had vast implications, and the Department had expressed its reservations in this regard.

Early Childhood Development (ECD)

It was noted that Chapter 11 attempted to define early childhood development (ECD) but that the term was not used later in the Bill. The issue is whether the concept should be defined in the Definitions clause, rather than in the body of the Bill.

 

Education rights of children in need of care and protection

Another issue related to the educational needs of children in need of care and protection. Once the definition of children in need of care was established, the State needed to ensure that there was no violation of the child’s basic right to education. However, it is currently not clear whether courts, social workers or educators were responsible to ensure that there was as little interruption of the child’s education as possible.

Underlying to the issues discussed was the question of what the policy was with regard to the appropriate education for children in institutions, and what monitoring systems there were to ensure that children received the appropriate education. Another issue is whether there is a framework within which the intersectoral approach to children in institutions was ensured, for example in cases where a school of industries employs staff to operate the residential facilities, to provide children with counselling and other forms of support, while the school provided educational programmes. Consideration could also be given to how the entire system is budgeted for, and whether there were any mechanisms in place to ensure that the different departments involved budgeted appropriately for the system to function effectively. Further consideration could be given to whether the current system of institutionalisation has been assessed recently with the "best interests of the child" standard as outlined in the Children’s Bill as a point of departure.

Exclusion of children from schools because of financial considerations

It has been reported repeatedly that children were being excluded from schools because of school fees. A new financial education system policy had been drafted in order to ensure that schools do not require fees from children in receipt of any form of grant, and allowing schools serving the poorest communities not to charge fees, the situation on the ground was very different. The Department noted that the education laws gave parental bodies the right to charge school fees – the Department was looking at mechanisms to get around this. However, the departmental officials cautioned that the complex issue of exemption from school fees would not necessarily be solved by legislation. The Department felt it was urgent to get to those schools serving the poorest of the poor, but it was also important to get to all schools as no child could be excluded if unable to pay fees.

Special educational needs

It was noted that the special needs project was still in its pilot phase and that provinces had not yet started to integrate inclusive education in their budgets. Although the curriculum had been adapted and redefined, the Department was still finding it very difficult to measure advances. Funding had been acquired from donors, conditional grants had been applied for and there were funds in the special needs budget. The Department’s focus was on strengthening special schools and an outreach role. Two pilot projects had been completed. The Department had also involved universities and government departments to generate common understanding when drawing up the concept documents.

Sources

Minutes of meetings of the Portfolio Committee on Social Development, available at www.pmg.org.za

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