PROPOSED PORTFOLIO COMMITTEE AMENDMENTS

(Clauses in section 76 Bill to be added to section 75 Bill)

TO

CHILDREN’S BILL

[B 70―2003]

 

CLAUSES TO BE ADDED TO BILL 70―2003 (Reintroduced)

_________________________

CLAUSE 1

1. On page 8, in line 6, to insert the following definition:

"abandoned", in relation to a child, means a child who—

(a) has obviously been deserted by the parent, guardian or care-giver; or

(b) has, for no apparent reason, had no contact with the parent, guardian, or care-giver for a period of at least three months;

2. On page 9, in line 58, to insert the following definition:

"contribution order" means an order referred to in section 161, and includes a provisional contribution order referred to in section 162(2);

3. On page 11, in line 24, to insert the following definition:

"National Child Protection Register" means the register referred to in section 111;

4. On page 11, after line 61, to insert the following definition:

"person unsuitable to work with children" means a person listed in Part B of the National Child Protection Register;

5. On page 12, in line 28, to omit the definition of "residential care programme".

7. On page 12, in line 30, to insert the following definitions:

"respondent" means any person legally liable to maintain or to contribute towards the maintenance of a child for whose maintenance, treatment or special needs a contribution order is sought or was made in terms of Chapter 11;

"school" means—

(a) an independent school registered or deemed to be registered in terms of section 46 of the South African Schools Act, 1996 (Act No. 84 of 1996); or

(b) a public school contemplated in Chapter 3 of the South African Schools Act, 1996 (Act No. 84 of 1996);

 

CLAUSE 76

Clause rejected.

CLAUSE 91

Clause rejected.

NEW CLAUSES

1. That the following clauses be new clauses to follow clause 75:

Part 2

National Child Protection Register

Keeping of National Child Protection Register

111. (1) The Director-General must keep and maintain a register to be called the National Child Protection Register.

(2) The National Child Protection Register consists of a Part A and a Part B.

Confidentiality of Register

112. (1) All Parts of the Register must be kept confidential and information in the Register may be accessed and disclosed only as provided for in this Act.

(2) The Director-General must take adequate steps –

(a) to protect the information in the Register; and

(b) if the Register is kept in electronic format, to secure the Register from unauthorised intrusion.

Part A of Register

Purpose of Part A of Register

113. The purpose of Part A of the National Child Protection Register is –

(a) to have a record of abuse or deliberate neglect inflicted on specific children;

(b) to have a record of the circumstances surrounding the abuse or deliberate neglect inflicted on the children referred to in paragraph (a);

(c) to use the information in the Register in order to protect these children from further abuse or neglect;

(d) to monitor cases and services to such children;

(e) to share information between professionals that are part of the child protection team;

(f) to determine patterns and trends of abuse or deliberate neglect of children; and

(g) to use the information in the Register for planning and budgetary purposes to prevent the abuse and deliberate neglect of children and protect children on a national, provincial and municipal level.

Contents of Part A of Register

114. (1) Part A of the National Child Protection Register must be a record of–

(a) all reports of abuse or deliberate neglect of a child made to the Director-General in terms of section 105(5)(c)(iii);

(b) all convictions of all persons on charges involving the abuse or deliberate neglect of a child; and

(c) all findings by a children’s court that a child is in need of care because of abuse or deliberate neglect of the child.

(2) Part A of the Register must reflect –

(a) in the case of reported incidents referred to in subsection (1)(a) –

(i) the full names, surname, physical address and identification number of the child;

(ii) the nature and a brief account of the incident, including the place and date of the incident;

(iii) the full names, surname, physical address and identification number of the parents or care-giver of the child; and

(iv) the name and physical address of the child and youth care centre, partial care centre or shelter or drop-in centre, if the incident occurred at such a place;

(b) in the case of a conviction referred to in subsection (1) (b) –

(i) the full names, surname, physical address and identification number of the child;

(ii) the full names, surname, physical address, identification number and occupation of the convicted person;

(iii) the nature and a brief account of the charge and conviction, including the place and date of the incident of which the person was charged; and

(iv) details of the relationship between the convicted person and the child;

(c) in the case of a finding by a children’s court referred to in subsection (1)(c) –

(i) the full names, surname, physical address and identification number of the child;

(ii) a brief summary of the court’s reasons for finding the child to be in need of care;

(iii) information on the outcome of the court’s finding on the child;

(iv) the full names, surname, physical address and identification number of the parents or care-giver of the child; and

(v) a brief summary of the services rendered to the child found to be in need of care; and

(d) any other information as may be prescribed by regulation.

Access to Part A of Register

115. Only the Director-General and officers of the Department designated by the Director-General have access to Part A of the National Child Protection Register, but the Director-General may, on such conditions as the Director-General may determine, allow access to –

(a) a provincial head of social development, or an official of a provincial department of social development designated by the head of that department, for the purpose of performing his or her functions in terms of this Act;

(b) designated child protection organisations;

(c) a member of the unit of the South African Police Service tasked with child protection; or

(d) any other person for the purpose of conducting research on child abuse or deliberate neglect or related issues: Provided that the information referred to in section 114(2)(a)(i) must be excluded.

Disclosure of information in Part A of Register

116. (1) No person may disclose any information in Part A of the National Child Protection Register except –

(a) for the purpose of protecting the interests, safety or well-being of a specific child;

(b) within the scope of that person’s powers and duties in terms of this Act or any other legislation;

(c) for the purpose of facilitating an investigation by the South African Police Service following a criminal charge involving abuse or deliberate neglect of a specific child;

(d) to a person referred to in section 117 on written request by such person; or

(e) when ordered by a court to do so.

(2) The general rule with regard to the disclosure of information in Part A of the Register is that it must be in the best interest of the child, unless the information is disclosed following on an inquiry in terms of section 117.

Inquiries on information in Part A of Register

117. (1) Anyone has the right, upon presentation of sufficient proof of his or her identity, to establish whether or not his or her name appears in Part A of the Register, and if so, the reasons why his or her name was entered in the Register.

(2) Inquiries in terms of subsection (1) whether a person’s name appears in Part A of the Register must be directed in the prescribed format to the Director-General on a confidential basis.

(3) The Director-General must respond to such inquiries and indicate whether the relevant person’s name is in Part A of the Register within 21 working days.

Part B of Register

Purpose of Part B of Register

118. The purpose of Part B of the National Child Protection Register is to have a record of persons who are unsuitable to work with children and to use the information in the Register in order to protect children in general against abuse from these persons.

Contents of Part B of Register

119. Part B of the National Child Protection Register must be a record of persons found in terms of section 120 to be unsuitable to work with children, and must reflect the following:

(a) the full names and surname of the person;

(b) the last known physical address of the person;

(c) the identification number of the person;

(d) a brief summary of the reasons why the person was found to be unsuitable to work with children; and

(e) any other information as may be prescribed by regulation.

Finding persons unsuitable to work with children

120. (1) A finding that a person is unsuitable to work with children may be made by –

(a) a children’s court;

(b) any other court in any criminal or civil proceedings in which that person is involved either as a party or a witness; or

(c) any forum established or recognised by legislation in any disciplinary proceedings concerning the conduct of that person relating to a child.

(2) A finding in terms of subsection (1) may be made by a court or a forum contemplated in subsection (1) of its own volition or on application by –

(a) an organ of state involved in the implementation of this Act;

(b) a prosecutor, if the finding is sought in criminal proceedings; or

(c) a person having a sufficient interest to protect children.

(3) The question whether a person is unsuitable to work with children may be heard by the court or legislative forum in disciplinary proceedings either in the course of or at the end of its proceedings.

(4) In criminal proceedings, a person must be found unsuitable to work with children on conviction of murder, attempted murder, rape, sexual abuse or assault with the intent to do grievous bodily harm with regard to a child.

(5) A person must be found unsuitable to work with children if that person has been convicted of an offence referred to in subsection (4) during the five years preceding the commencement of this section.

(6) A finding in terms of subsection (1)(b) that a person is unsuitable to work with children is not dependent upon a finding of guilty or innocent in the criminal trial of that person.

Disputes concerning findings

121. The person in respect of whom a finding in terms of section 120 has been made may –

(a) appeal against the finding to a higher court, if the finding was made by a court, or

(b) have the finding reviewed by a court, if the finding was made by a forum contemplated in section 120(3).

Findings to be reported to Director-General

122. (1) The registrar of the relevant court, or the relevant administrative forum, or, if the finding was made on application in terms of section 120(2), the person who brought the application, must notify the Director-General in writing –

(a) of any finding in terms of section 120 that a person is unsuitable to work with children; and

(b) of any appeal or review lodged by the affected person.

(2) The Director-General may not enter a person’s name in Part B of the National Child Protection Register –

(a) until the time for noting of an appeal or review has expired; or

(b) if an appeal or review has been noted, until the appeal or review proceedings have been concluded.

(3) (a) The Commissioner of Correctional Services must, in the prescribed manner and within six months after the commencement of this Chapter, forward to the Registrar the particulars referred to in section 27 of every prisoner, who, at the commencement of this Chapter, is serving a sentence of imprisonment as the result of a conviction for a sexual offence against a child and the Registrar must forthwith endorse the Register accordingly.

(b) The Commissioner of Correctional Services must, in the prescribed manner and period, inform each prisoner whose particulars who have been forwarded to the Registrar of the implications thereof.

(5) The Commissioner of the South African Police Service must, in the prescribed manner and within six months after the commencement of this Chapter, forward to the Registrar the particulars referred to in section 27 of every person, who, at the commencement of this Chapter, has a previous conviction for a sexual offence against a child and the Registrar must forthwith endorse the Register accordingly

 

Consequences of entry of name in Part B of Register

123. (1) No person whose name appears in Part B of the National Child Protection Register may –

(a) manage or operate, or participate or assist in managing or operating, a child and youth care centre, a partial care facility, a shelter or drop-in centre, a cluster foster care scheme, a school, a club or association providing services to children;

(b) work with children at a child and youth care centre, a partial care facility, a shelter or drop-in centre, a school, a club or association providing services to children, or in implementing a cluster foster care scheme, either as an employee, volunteer or in any other capacity;

(c) be permitted to become the foster parent, kinship care-giver or adoptive parent of a child;

(d) work in any unit of the South African Police Service tasked with child protection; or

(e) work in any other form of employment or activity as may be prescribed.

(2) No person managing or operating a child and youth care centre, a partial care facility, a shelter or drop-in centre or a school may allow a person whose name appears in Part B of the Register to work with or have access to children at the centre, facility, shelter or school, either as an employee, volunteer or in any other capacity.

(3) No designated child protection organisation may allow a person whose name appears in Part B of the Register to work with or have access to children on its behalf, either as an employee, volunteer or in any other capacity.

(4) The South African Police Service may not allow a person whose name appears in Part B of the Register to work in a unit of the Service tasked with child protection.

Disclosure of entry of name in Part B of Register

124. If the name of a person is entered in Part B of the Register and that person –

(a) works with or has access to children at a child and youth care centre, a partial care facility, a shelter or drop-in centre or a school either as an employee, volunteer or in any other capacity, that person must disclose that fact to the person who manages or operates the centre, facility, shelter or school;

(b) works with or has access to children on behalf of a designated child protection organisation either as an employee, volunteer or in any other capacity, that person must disclose that fact to the organisation; or

(c) works in a unit of the South African Police Service tasked with child protection, that person must disclose that fact to the South African Police Service.

Access to Part B of Register

125. (1) Only the following persons have access to Part B of the Register:

(a) the Director-General;

(b) officers of the Department designated by the Director-General;

(c) a provincial head of social development; and

(d) officers of the provincial department of social development designated by the provincial head of social development.

(2) The Director-General may, on such conditions as the Director-General may determine, allow officers of a provincial education department designated by the head of that department access to Part B of the Register for the purpose of implementing section 123 in relation to schools under the jurisdiction of that department.

Establishment of information in Part B of Register

126. (1) Before a person is allowed to work –

(a) with children at a child and youth care centre, a partial care facility, a shelter or drop-in centre or a school, the person managing or operating the centre, facility, shelter or school must establish whether or not that person’s name appears in Part B of the National Child Protection Register;

(b) with children on behalf of a designated child protection organisation, the organisation must establish whether or not that person’s name appears in Part B of the Register; or

(c) in a unit of the South African Police Service tasked with child protection, the Service must establish whether or not that person’s name appears in Part B of the Register.

(2) Anyone has the right, upon presentation of sufficient proof of his or her identity, to establish whether or not his or her name appears in Part B of the Register, and if so, the reasons why his or her name was entered in the Register.

(3) Inquiries in terms of subsection (1) or (2) whether a person’s name appears in Part B of the Register must be directed in writing to the Director-General on a confidential basis.

(4) The Director-General must respond to such inquiries and indicate whether the relevant person’s name is in Part B of the Register within 21 working days.

Disclosure of names in Part B of Register prohibited

127. (1) No person may disclose the fact that the name of a particular person appears in Part B of the National Child Protection Register except –

(a) within the scope of that person’s powers and duties in terms of this Act or any other legislation;

(b) to a person or institution referred to in section 126(1) or (2) on written request by such person or institution;

(c) when ordered by a court to do so; or

(d) when the disclosure is made to a person whose name appears in Part B of the Register.

(2) The general rule with regard to the disclosure of information in Part B of the Register is that it must be in the best interest of the child, unless the information is disclosed following on an inquiry in terms of section 126.

Removal of name from Register

128. (1) A person whose name appears in Part B of the National Child Protection Register may in terms of subsection (2) apply for the removal of his or her name and any information relating to that person from the Register.

(2) Application for the removal of a name and particulars from the Register may be made –

(a) to any court, including a children’s court;

(b) to the Director-General, if the entry was made in error; or

(c) to the High Court if the Director-General refuses an application in terms of paragraph (b).

(3) An application in terms of subsection (1) to remove a person’s name and particulars from Part B of the Register on the ground that the affected person has been rehabilitated, may only be made after at least five years have lapsed since the entry was made and after considering the prescribed criteria.

NEW CLAUSE

1. That the following clause be a new clause to follow clause 128:

Regulations

142. The Minister may make regulations in terms of section 299–

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(g) prescribing criteria for finding persons unsuitable to work with children;

(h) prescribing criteria for the assessment of applications for the removal of names of persons from Part B of the National Child Protection Register; and

(i) prescribing

(j) prescribing any other matter necessary to facilitate the implementation of this Chapter.

 

NEW CLAUSE

1. That the following clauses be new clauses to follow clause 75:

Removal of children to temporary safe care by court order

151. (1) If, on evidence given by any person on oath or affirmation before a presiding officer it appears that a child who resides in the area of that presiding officer is in need of care and protection, the presiding officer must order that the question of whether the child is in need of care and protection be referred to a children’s court for decision.

(2) A presiding officer issuing an order in terms of subsection (1) may also order that the child be placed in temporary safe care if it appears to the court that it is necessary for the safety and well-being of the child.

(3) In deciding the question whether the child is in need of care and protection in terms of subsection (1) or when making an order in terms of subsection (2), the children’s court may exercise any of the functions assigned to it in terms of section 50(1) to (3).

(4) An order issued in terms of subsection (2) must identify the child in sufficient detail to execute the order.

(5) A person authorised by a court order may, either alone or accompanied by a police official –

(a) enter any premises mentioned in the order;

(b) remove the child from the premises; and

(c) on those premises exercise any power mentioned in section 50(3)(a) to (d).

(6) A police official referred to in subsection (5) may use such force as may be reasonably necessary to overcome any resistance against the entry of the premises contemplated in subsection (5)(a), including the breaking of any door or window of such premises: Provided that the police official shall first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter such premises.

(7) The person who has removed a child in terms of the court order must–

(a) without delay but within 24 hours inform the primary care-giver of the child of the removal of the child, if that person can readily be traced; and

(b) not later than the first court day bring the matter to the clerk of the children’s court for referral to a children’s court in terms of section 68.

(8) The best interest of the child must be the determining factor in any decision whether a child in need of care and protection should be removed and placed in temporary safe care, and all relevant facts must for this purpose be taken into account, including the safety and well-being of the child as the first priority.

Removal of children to temporary safe care without court order

152. (1) A designated social worker or a police official may remove a child and place the child in temporary safe care without a court order if there are reasonable grounds for believing –

(a) that the child –

(i) is in need of care and protection; and

(ii) needs immediate emergency protection;

(b) that the delay in obtaining a court order for the removal of the child and placing the child in temporary safe care may jeopardise the child’s safety and well-being; and

(c) that the removal of the child from his or her home environment is the best way to secure that child’s safety and well-being.

(2) If a designated social worker has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the social worker must—

(a) without delay but within 24 hours inform the primary care-giver of the child of the removal of the child, if that person can readily be traced;

(b) not later than the next court day inform the relevant clerk of the children’s court of the removal of the child.

(3) If a police official has removed a child and placed the child in temporary safe care as contemplated in subsection (1), the police official must–

(a) without delay but within 24 hours inform the primary care-giver of the child of the removal of the child, if that person can readily be traced;

(b) without delay but within 24 hours notify the provincial department of social development or a designated child protection organisation of the removal of the child and where the child has been placed in temporary safe care; and

(c) not later than the next court day inform the relevant clerk of the children’s court of the removal of the child and the provincial department of social development or the designated child protection organisation notified in terms of paragraph (b).

(4) The best interest of the child must be the determining factor in any decision whether a child in need of care and protection should be removed and placed in temporary safe care, and all relevant facts must for this purpose be taken into account, including the possible removal of the alleged offender in terms of section 153 from the home or place where the child resides, and the safety and well-being of the child as the first priority.

(5) Misuse of a power referred to in subsection (1) by a designated social worker in the service of a designated child protection organisation –

(a) constitutes unprofessional or improper conduct as contemplated in section 27(1)(b) of the Social Service Professions Act, 1978 (Act No. 110 of 1978) by that social worker; and

(b) is a ground for an investigation into the possible withdrawal of that organisation’s designation.

(6) Misuse of a power referred to in subsection (1) by a police official constitutes grounds for disciplinary proceedings against such police official as contemplated in section 40 of the South African Police Service Act, 1995 (Act No. 68 of 1995).

(7) Any person who removes a child must comply with the prescribed procedure.

Written notice to alleged offender

153. (1) A police official to whom a report as contemplated in section 105(1) or (2) or a request as contemplated in section 105(7) has been made, may, if he or she is satisfied that it will be in the best interest of the child if the alleged offender is removed from the home or place where the child resides, issue a written notice which –

(a) specifies the names, surname, residential address, occupation and status of the alleged offender;

(b) calls upon the alleged offender to leave the home or place where the child resides and refrain from entering such home or place or having contact with the child until the court hearing specified in paragraph (c);

(c) calls upon the alleged offender to appear at a children’s court at a place and on a date and at a time specified in the written notice to advance reasons why he or she should not be permanently prohibited from entering the home or place where the child resides: Provided that the date so specified shall be the first court day after the day upon which the notice is issued; and

(d) contains a certificate under the hand of the police official that he or she has handed the original of such written notice to the alleged offender and that he or she has explained to the alleged offender the importance thereof.

(2) The police official must forthwith forward a duplicate original of the written notice to the clerk of the children’s court.

(3) The mere production to the court of the duplicate original referred to in subsection (2) is prima facie proof of the issue of the original thereof to the alleged offender and that such original was handed to the offender.

(4) The provisions of section 55 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) apply, with the necessary changes, to a written notice handed to an alleged offender in terms of subsection (1).

(5) A children’s court before which an alleged offender to whom a written notice in terms of subsection (1) has been issued, appears, may summarily inquire into the circumstance which gave rise to the issuing of the notice.

(6) The court may, after having considered the circumstances which gave rise to the issuing of the written notice and after having heard the alleged offender–

(a) issue an order prohibiting the alleged offender from entering the home or place where the child resides or from having any contact with the child, or both from entering such home or place and having contact with the child, for such period of time as the court deems fit;

(b) order that the alleged offender may enter the home or the place where the child resides or have contact with the child upon such conditions as would ensure that the best interests of the child are served;

(c) order that the alleged offender will be responsible for the maintenance of his family during the period contemplated in paragraph (a); and

(d) make any other order with regard to the matter as the court deems fit.

(7) Misuse of a power referred to in subsection (1) by a police official constitutes grounds for disciplinary proceedings against such police official as contemplated in section 40 of the South African Police Service Act, 1995 (Act No. 68 of 1995).

Siblings in need of care and protection

154. If there are reasonable grounds for believing that a sibling of a child placed in temporary safe care in terms of section 47, 151 or 152 is in need of care and protection, any of the following persons may bring the sibling before the children’s court to determine whether the sibling is in need of care and protection:

(a) A designated social worker or authorised officer;

(b) a person under whose care the child placed in temporary safe care is; or

(c) the provincial head of social development.

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CHAPTER 11

CONTRIBUTION ORDERS

Issue of contribution orders

161. (1) A children’s court may make an order instructing a respondent to pay a sum of money or a recurrent sum of money –

(a) as a contribution towards the maintenance or treatment of, or the costs resulting from the other special needs of a child –

(i) placed in alternative care; or

(ii) temporarily removed by order of the court from the child’s family for treatment, rehabilitation, counselling or another reason; or

(b) as a short-term emergency contribution towards the maintenance or treatment of, or the costs resulting from, the other special needs of a child in urgent need.

(2) A contribution order takes effect from the date on which it is made unless the court orders that it takes effect from an earlier or later date.

(3) A children’s court may vary, suspend or rescind a contribution order or revive the order after it has been rescinded.

(4) If a court other than the court which made a contribution order varies, suspends, rescinds or revives the order in terms of subsection (3), the clerk of the first-mentioned court must immediately inform the clerk of the last mentioned court of such variation, suspension, rescission or revival.

Jurisdiction

162. (1) A contribution order may be made, varied, suspended, rescinded or revived by the children’s court of the area in which –

(a) the respondent is ordinarily resident, carries on business or is employed; or

(b) the child involved in the matter is ordinarily resident.

(2) A provisional contribution order may be made by a children’s court having jurisdiction in terms of subsection (1)(b) against a respondent resident in any country which is a proclaimed country within the meaning of the Reciprocal Enforcement of Maintenance Orders Act, 1963 (Act No. 80 of 1963), or a designated country within the meaning of the Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act, 1989 (Act No. 6 of 1989).

Effect of contribution orders

163. (1) A contribution order and a provisional contribution order have the effect of a maintenance order and a provisional maintenance order in terms of the Maintenance Act and the Reciprocal Enforcement of Maintenance Orders Act, 1963 (Act No. 80 of 1963), as may be appropriate.

(2) Sections 31 and 40 of the Maintenance Act, read with such changes as the context may require, apply to a person who refuses or fails to comply with a contribution order.

Payments to be made to person determined by court

164. A contribution order must instruct the respondent to pay the sum stated therein to the clerk of the children’s court or to such other person as the court may determine.

Attachment of wages of respondents

165. (1) A children’s court which has made a contribution order against a respondent may –

(a) order the employer of the respondent –

(i) to deduct the amount of the contribution which that respondent has been ordered to pay, from the respondent’s wages, salary or remuneration; and

(ii) to pay that amount to the clerk of the court or to any other person specified in the order; or

(b) vary, suspend or rescind such an order or revive the order after it has been rescinded.

(2) The employer must promptly pay any amount deducted under an order in terms of subsection (1) to the clerk of the children’s court or to such other person as is specified in the order.

Change of residence or work by respondent

166. A respondent against whom a contribution order is in force must –

(a) give notice, in writing, to the clerk of the children’s court which made the order of any change in that person’s residential address or place of work; and

(b) state in that notice the new residential address or the name and address of the new employer.

CLAUSE 167

Clause rejected.

CLAUSE 298

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