DEPARTMENT OF HOME AFFAIRS ISSUES RELATING TO THE CHILDREN'S BILL [ B70-2003(Reintroduced)]

BRIEFING BY HOME AFFAIRS TO THE PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT

1. DEPARTMENT'S PROGRAMME FOR BRINGING ID SERVICES TO THE PEOPLE

Through the various ID Campaigns since 1994, the Department has reached large numbers of South Africans without identity documents and birth certificates.

As part of the Department's Service Delivery Improvement Plan, a decision has been taken to run these campaigns on a permanent ongoing basis with specific focus on South Africans in rural and farming communities, as well as schools.

For purposes of targeting those areas where the need is greatest as a first priority, the Department, in conjunction with Statistics South Africa, is presently developing a programme to run a country-wide survey of areas where there are concentrations of South Africans without identity documents and birth certificates. In this programme the Department of Social Development will be a close partner.

To further expand services to rural and farming communities, the Department has already invited tenders for 67 additional mobile units.

Furthermore, an online birth registration project in terms of which births of newborns are registered by the Department at state hospitals and the birth certificates issued on the spot has been launched in KwaZulu-Natal, Limpopo and North West and is in the process of being rolled out to the other Provinces. The initial launch will cover linking 57 key hospitals across the country and will be followed by a full rollout in each Province in accordance with a rollout plan developed for each in consultation with the Department of Health. The project will also cover death registrations at the hospitals.

2. POLICY WITH REGARD TO THE INTERFACE BETWEEN DATABASES HELD BY VARIOUS GOVERNMENT DEPARTMENTS

The Department is fully committed to co-operative governance and has been assisting departments with access to data in the National Population Register (NPR) for a long time. Social Development, for example, has been running their SOCPEN interface with the NPR for many years.

3. PROGRESS BEING MADE TO ENSURE THAT THE HOME AFFAIRS DATABASES ARE ELECTRONIC AND ACCESSIBLE TO OTHER GOVERNMENT DEPARTMENTS

The Department is in the process of revamping all its IT systems and in this process the NPR database will be rewritten and all databases in the Department be consolidated into one single database. Project teams have been appointed to deal with the various issues.

Concerning the rewrite of NPR, the Project Team concerned has investigated probable technologies and best practice approaches in regard to the integration and updating of population registration information.

With regard to the needs of other departments to access information in the Department's databases, the Team is presently engaged in a consultative process with inter alia Social Development, Statistics South Africa, SARS, I EC and various others with a view to incorporating their needs in the development and re-engineering of the Department's databases.

4. REGISTRATION OF CHILDREN BORN WITHIN AND OUT OF WEDLOCK

The registration of births is regulated by the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992). The registration of birth of a child constitutes officially giving the child a name, but more importantly providing confirmation and documentary proof of the child's status, namely whether the child is a South African citizen or a foreigner.

Only the births of South African citizens by birth and descent and permanent residents born in South Africa are recorded in the computerized National Population Register. In the case of a foreign child born in South Africa who sojourns temporarily in the country, a full birth certificate is issued and the issuing of such certificate is the registration thereof.

In the case of a child born within wedlock, section 9 of the aforesaid Act provides that the child may be registered under the surname of either of the parents, or under the surnames of both parents joined together as a double-barrelled surname.

The birth may be reported by any one of the parents or, if neither of the parents is able to do so, the person having charge of the child or a person requested to do so by the parents or requested by the person having charge of the child.

In the case of a child born out of wedlock, the child is registered under the surname of the mother, or under the surname of the biological father provided the father acknowledges paternity and the mother confirms same and both mother and father jointly request, in the presence of an authorized Home Affairs official, that the child be registered under the father's surname.

The Act does not provide for double-barrelled surnames in the instance of children born out of wedlock and in this regard it may be seen as discriminatory. Save for this aspect, the measures relating to the surname of a child born out of wedlock are based on practicality and considered justifiable.

5. POLICY IN REGARD TO IDENTITY AND/OR TRAVEL DOCUMENTS TO CHILDREN OF REFUGEES AND UNACCOMPANIED REFUGEE CHILDREN

On arrival in the Republic of South Africa, an unaccompanied child must be presented by a legal representative who has been designated by the office of the United Nations High Commissioner for Refugees (UNHCR) to a Refugee Reception Office for registration and issuance of an asylum seeker section 22 permit with thirteen digit bar coded numbers. This is a project scheduled for end of March 2005.

The Children's Court must issue an order for the protection of an unaccompanied child (be it an asylum seeker or refugee child) to the responsibility of the Social Welfare Department (Social Worker).

A child who may find himself or herself without parents as result of unforeseen circumstances must be handed to the responsibility of the Social Welfare Department. The Department of Home Affairs must ascertain proper documentation, which could be a section 24 (3) (a) permit.

Refugee children under sixteen years of age are issued with a Refugee Child Certificate printed on a Bl-5. This is a document with thirteen digit bar coded numbers identifying that child.

The re-unification of separated children or unaccompanied minors is the responsibility of the UNHCR and the International Red Cross Tracing Unit. It is imperative for the parents or relatives of that separated or unaccompanied child to be traced so as to make arrangements for family re-unification.

Unaccompanied refugee children should remain within the Social Welfare facility. Any refugee above the age of sixteen years may apply for a Refugee Identity Card.

Any unaccompanied minor/refugee child may be issued with a United Nations Convention Travel Document (UNCTD), which may be endorsed on the parents travel document or may be an individual child travel document.

6. PROTECTION OF CHILDREN FOUND TO BE THE VICTIMS OF HUMAN TRAFFICKING

The Department of Home Affairs has a particularly important role to play in supporting South Africa's efforts to combat human trafficking, and also to assist and rehabilitate victims of trafficking. It is believed that many trafficked women and children identified in South Africa are without adequate documentation, lacking either passports and/or visas required to stay in the country. In order to assist in the protection of children found to have been the victims of human trafficking the following may be considered:

Involve the International Organisation for Migration in respect of the following measures:

(a) to provide a 3 or 6 month temporary permit for victims of trafficking identified as beneficiaries of the lOM's victim assistance and rehabilitation initiative. The permit will be issued exclusively to women and children who have been trafficked to South Africa;

(b) to consider that such a permit be issued to those victims of trafficking identified solely by IOM offices or immigration officers in the RSA as SACTAP beneficiaries:

(c) identify Department of Home Affairs counter-trafficking focal points in all provinces. Identified DHA officials will liase with IOM in issuing temporary residence permits to women and children entering lOM's assistance programme:

(d) not to charge women and children identified as beneficiaries of lOM's victims and rehabilitation initiative;

(e) to instruct all immigration officers to treat cases of trafficked women and children with dignity and to deal with the cases urgently.

Currently, if such a child is detected and is not in possession of any documents, the Department should consult the relevant authorities for a travel document in which case a temporary residence permit in terms of regulation 18(6) of the Immigration Regulations will be considered.

Further steps by other role-players should be introduced to rehabilitate and ensure the necessary care for these victims.

7. IMPLEMENTATION PLAN WITH REGARD TO THE CAMPAIGN TO POPULARISE THE AMENDMENTS TO THE FILMS AND PUBLICATION ACT

The South African Police Service Child Protection Unit and a number of Public Prosecutors have requested workshops on the amendments.

The Board plan to organise, in consultation with the National Prosecuting Authority (NPA), several regional workshops, to involve as many law enforcement agents as possible. This process will be started now that the President has signed the Bill into law.

The Board has also started work on a paper on the amendments and how they may be applied in practice. This would form the basis of the workshops.

The Board has put plans in place for press releases to be implemented once the amendments have been signed into law by the President. The Board is also confident that it will be able to give the amendments national coverage in the print, television and radio media.

The Internet Service Providers Association will inform all its members and may also organise a special workshop for service providers.

The Board itself will organise a workshop for all Board members who will then, as part of the Board's media education project, disseminate the information to groups in their areas.

Given the fundamental changes that the amendments will introduce, the Board is aware of the need to ensure that the general public is made fully aware of all the implications, specifically, since there is now an obligation to report child pornography to the police, the Board will ensure that all computer maintenance/repair outlets and photo-processing shops are advised of the amendments.

8. INPUT IN REGARD TO SPECIFIC CLAUSES OF THE BILL

The Department of Home Affairs, in its execution of its core functions, interacts with children in the following spheres of activity:

• Registration of births and deaths, amendment of personal particulars and insertion of biological father's particulars on birth register as regulated by the provisions of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992)

• Solemnization and registration of civil marriages in terms of the Marriage Act, 1961 (Act No. 25 of 1961)

• Registration of customary marriages in terms of the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998)

• Acquisition, loss, renunciation and restoration of citizenship in terms of the South African Citizenship Act, 1995 (Act No. 88 of 1995)

• Issuing of passports and travel documents in terms of the South African Passports and Travel Documents Act, 1994 (Act No. 4 of 1994)

• Entry into, departure and removal from the Republic in terms of the Immigration Act, 2002 (Act No. 13 of 2002)

• Handling of refugees in terms of the Refugees Act, 1998 (Act No. 130 of 1998)

In the Bill, various elements of the above-mentioned functions are being impacted upon, namely:

• Clause 11: Every child has the right to a name and nationality from birth. The Births and Deaths Registration Act, 1992, and the South African Citizenship Act, 1995, respectively, already provide for these issues.

• Clause 12: Every child below the minimum age set by law for a valid marriage has the right not to be given out in marriage or engagement. Both the Marriage Act, 1961, and the Recognition of Customary Marriages Act, 1998, contain a provision in terms of which the Minister of Home Affairs can authorize a marriage of a child below the minimum age for marriage. The question is whether Clause 12 seeks to repeal this.

• Clause 17: A child, whether male or female, becomes a major upon reaching the age of 18. With reference to the comments under Clause 12 above, the position of a child under 18 that enters into a valid marriage wilt have to be considered. Presently a minor that has entered into a valid marriage is regarded as a major.

• Clause 21: In terms of this clause a biological father can acquire full parental responsibilities and rights after having lived with the mother or cared for the child with the mother's informed consent for a specified period. From the definition of parental responsibilities and rights it is understood that in this scenario the biological father would have joint guardianship of the child which means that his consent would inter alia be required for the child to enter into marriage or apply for a passport. In this regard it would be difficult for Home Affairs to determine whether the father does indeed comply with this Clause. For proper administration confirmation by the Children's Court or High Court would be advisable in such instances.

• Clause 25: In terms of this Clause the biological father of a child born out of wedlock may apply, subject to the consent of the mother, for the insertion of his particulars in the child's birth register. Section 11(4) of the Births and Deaths Registration Act, 1992, already provides for this.

• Clause 30: In terms of sub clause 5(a), and (d), all persons holding parental responsibilities and rights must consent to the contracting of a marriage by the child and the application for a passport by or on behalf of the child, respectively. This is in line with present procedure and prescripts and would not pose a problem. A problem that does frequently arise though is applications for passports lodged abroad and where the other parent cannot be located to consent to the application or refuses to consent. Provision should be made for such cases with a clear indication which court should be approached or how otherwise consent should be obtained bearing in mind that most of the time the passport is required urgently.

• Clause 38: A child born of parents who marry each other after the birth of the child must for all purposes be regarded as a child born of parents married at the time of his or her birth. The Births and Deaths Registration Act, 1992, already provides for the re-registration of such a child as born within wedlock from date of birth.

• Clause 45: This clause deals with the matters a children's court may adjudicate. Consideration of applications for consent to the issuing of a passport to a child where the other parent cannot be located or refuses to give consent should be included as a specific matter. The Regulations issued in terms of the Passports and Travel Documents Act, 1994, contains a provision to this effect. It would however be expedient to have this specifically provided for in the Children's Bill.