INTRODUCTION

The lives of children are affected by various pieces of legislation and international conventions. Apart from section 28 of the Constitution, which deals with the rights of children specifically, some of the statutes pertaining to children currently on the statute book are the following:

• The Age of Majority Act, 1972 (Act No.57 of 1972);

• The Child Care Act, 1983 (Act No.74 of 1983);

• Children's Status Act, 1987 (Act No.82 of 1987);

• Guardianship Act, 1993 (Act No.192 of 1993; arid

• Hague Convention on the Civil Aspects of International Child Abduction Act, 1996 (Act No.72 of 1996)

Over the past few years, it has become clear that existing legislation is not in keeping with the realities of current social problems and no longer protects children adequately. In addition thereto, the Republic of South Africa has acceded to various international conventions, such as the UN Convention on the Rights of the Child and the African Charter on Children's Rights, the principles of which have to be incorporated into local legislation.

During 1997 the then Minister of Welfare, requested the South African Law Reform Commission to investigate the Child Care Act, 1983 and to make recommendations to the Minister for the reform of this particular branch of the law. After an extensive process of research and consultation, the Law Reform Commission finalised its report and proposed a draft Children's Bill in January 2003.

The Department of Social Development then took the process further through close liaison with the national Departments of Justice and Constitutional Development, Education, Health, Labour, the South African Police Service, the provinces, national non-governmental organisations and service providers as well as the Office on the Rights of the Child in the Presidency. Consultative workshops were also held with the Portfolio Committee on Social Development.

After these processes a further draft was prepared and submitted to Cabinet. At a meeting of Cabinet the Ministers of Social Development, Justice, Finance and Education discussed the draft Bill and proposed amendments to it. On 23 July 2003, after satisfactory consultations were conducted between the relevant Ministers, Cabinet approved that the Children's Bill be submitted to Parliament for consideration during the 2003 session of Parliament. Cabinet also noted that the agreed upon amendments should be effected by the Department before the submission of the Bill to Parliament.

After the necessary changes were made, the draft Bill was referred to the Office of the Chief State Law Adviser on 4 August 2003 for review and certification. The explanatory memorandum of the Bill was published in the Gazette of 13 August 2003 and arrangements were made for the translation of the Bill into Zulu. During October 2003 the State Law Adviser certified the Bill and submitted the Bill to Parliament.

The Portfolio Committee was first briefed on the Bill in November 2003 but decided at the time to deal with the Bill only after the General Election of April 2004. The new Portfolio Committee was briefed on 4, 5 and 6 August 2004 and public hearings were held from 11 to 13 August 2004.

From August 2004 up to June 2005 the Portfolio Committee held briefings with various relevant Departments to discuss their roles and responsibilities with regard to the implementation of the Children's Bill.

The Children's Bill was approved by the National Assembly on 22 June 2005.

LEGAL-TECHNICAL BACKGROUND OF THE BILL

The current Bill contains part of the envisaged Children's Act. The Bill which was initially submitted to Parliament ("the consolidated Bill") dealt with the full spectrum of protection of children in both national and provincial spheres and was to be dealt with in terms of section 76 of the Constitution (functional area of concurrent national and provincial legislative competence). It was later found to be a "mixed" Bill, including elements to be handled in terms of both section 75 (functional area of national legislative competence) and section 76 of the Constitution.

Due to its mixed character, the Deputy Speaker of the National Assembly requested the Executive to split the consolidated Bill, which has now been done.

The provisions of the consolidated Bill which will apply to the provincial government have been removed and, consequently, the current Bill only contains matters which have to be dealt with in terms of section 75 of the Constitution.

The numbering of the consolidated Bill has, however, been retained, hence the gaps in the current Bill, indicated by "*******". As soon as the current Bill is enacted, an amendment Bill containing the matters which apply to the provincial government only ("the amendment Bill") will be introduced. The amendment Bill will have to be dealt with in terms of section 76 of the Constitution. The amendment Bill will complete the current Bill by inserting the provisions which deal with welfare services.

The splitting of the Bill came as a surprise to us because in our view all the Welfare Bills in the past have been mixed. Even the Older Persons Bill which was approved by you earlier this year and which clearly contains section 75 and 76 provisions is not regarded as a mixed Bill.

The splitting of the Bill has also caused confusion amongst lawyers, civil society and members of Parliament and has certainly delayed the finalisation of the Bill at times.

AIM, PURPOSE AND OBJECTS OF BILL

The aim and purpose of the Bill is to replace the Child Care Act, 1983 (Act No.74 of 1983) and to deal with matters pertaining to children.

The Bill gives effect:

• To certain rights of children as contained in the Constitution in the following manner.

• To stipulate principles relating to the care and protection of children.

• To defines parental responsibilities and rights.

• To determine principles and guidelines for the protection of children and the promotion of their well-being.

• To regulate matters concerning the protection and well-being of children.

• To consolidate the laws relating to the welfare and protection of children.

The main objects of the proposed Children's Bill (the current Bill) are:

• to make provision for the structure, the services and the means for promoting and monitoring the sound physical, intellectual, emotional and social development of children;

• to strengthen and develop community structures which can assist in providing care and protection for children;

• to protect children from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical , emotional or moral harm or hazards;

• to provide care and protection for children who are in need thereof

• to give effect to the Republic's obligations concerning the well-being of children in terms of the international instruments binding on the Republic; and

• in general, to promote the protection, development and well-being of children.

I would like to emphasize the intersectoral nature of the Bill and the importance of working together in the best interest of our children.

The Bill emphasise that services to children should be prioritised by government on national, provincial and local levels and that all spheres of government should strengthen their own services and support and assist each other in terms of budgets to ensure services to children.

This Bill attempts to promote child participation and enables children to have a say in their own situation and future arrangements.

I would like to draw member's attention to the lowering of the age of majority from 21 years to 18 years.

The Children's Bill regulates for parental rights and responsibilities, the entering into agreements and that such agreements could be registered with the family advocate or the High Court or divorce court. Fathers of children born out of wedlock are provided with an opportunity to play a major role in their children's lives by been assigned rights and responsibilities under specific circumstances.

The RIII further provides for parenting plans, lay4orum hearings and family group conferences to act in the best interest of a child and to ensure more protection.

A two parts child protection register is provided for:

Part A of the register have a record of all reports of abuse or deliberate neglect of a child, all convictions of all persons on charges involving the abuse or deliberate neglect of a child, all findings of a children's court that a child is in need of care and protection.

Part B of the 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.

Another important provision is that an alleged offender could be removed with a written notice from the home or place where the child resides.

It will be in the best interest of the child not to be removed from the home or place where the alleged abuse took place, as the child is in a vulnerable position and should stay in familiar surroundings.

The Bill provides for the HIV testing of children for foster care and adoption purposes to ensure that children who are living with AIDS are provided with appropriate family care.

The provision to regulate inter-country adoptions give effect to the Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption.

This chapter safeguards and ensures that inter-country adoptions takes place in the best interests of a chi'1. These safeguards should be respected and thereby prevent the abduction, the sale of, or traffic in children.

Child Abduction aims to secure the prompt return of children wrongfully removed to or retained in another State. The chapter on Child Abduction promotes that the rights of custody and of access under the law of one State are effectively respected in another State.

The Children's Bill further provides for the prevention and combating of trafficking in children. International co-operation is of the utmost importance and particular attention should be paid to women and children.

The Bill attempts to protect and assist the victims of trafficking, with full respect for their human rights.

This Bill is forward looking and requires a new approach to implement the changes that must replace old practices. New skills are required to implement this Bill successfully. Existing service providers should be strengthened to take the challenges in implementing this Bill in to consideration.

There is also an important role for the private sector and civil society to assist in the implementation of this Bill and to be involved in the protection of children.

AMENDMENT BILL

The amendment Bill referred to in paragraph 2 will add to welfare service delivery and further protection of families and children. The amendment Bill will insert the following in the envisaged Act:

• Chapters 5, 6, 7, 8,11,12,13 and 14, respectively, deal with partial care, the definition of early childhood development and early childhood development services, the protection of children, prevention and early intervention services, children in alternative care, child and youth care centers, foster care and care by family members and shelters and drop-in centers.

FINANCIAL IMPLICATIONS FOR GOVERNMENT

In terms of section 35 of the Public Finance Management Act I of 1999, all draft national legislation that assigns an additional function or power to, or imposes any other obligation on, a provincial government, must, in a memorandum that must be introduced in Parliament with that legislation, give a projection of the financial implications of that function, power or obligation to the province.

It was therefore imperative that this draft Bill and the envisaged regulations be costed. Stakeholder expectations were raised while the reality is that Government cannot implement because of the large costs and resource requirements. This Bill will have a great impact on the budgets of other national departments and provincial departments. It would be prudent to have the costs detailed so that these organs of state could frame their discussions on the Bill within the constraints of their own budgets and their ability to implement.

The Department has appointed a service provider to cost the Bill and it is envisaged that the costing will be finalized by April 2006.

However, the Department has done an initial scoping exercise of the envisaged Act and identified the costing elements which may have intergovernmental fiscal and budgetary implications, which may include, amongst others:

a. fiscal risks: provisions that create implicit or explicit obligations on government;

b. administrative costs: additional processes, personnel, management practices and procedures, information and reporting etc;

c. institutional arrangements: new committees, units, associations etc;

d. transfer of functions currently performed by provinces to the national government; and

e. delegation or assignment of functions to provinces and municipalities.

CONSULTATION

Apart from the broad consultation process followed by the South Africa Law

Reform Commission during its review of the Child Care Act, 1983, the

Department of Social Development also distributed the draft Children's Bill to the provinces, national departments, non-governmental organizations and other service providers for comment. The explanatory summary of the Bill was also published for general comment in the Gazette of 13 August 2003.

Public Hearings took place in August 2004 and Workshops with Stakeholders and other Government departments were held in December 2004 and March 2005.

INTERSECTORAL STEERING COMMITTEE

Due to the intersectoral nature of the Bill, a Steering Committee consisting of officials from the Departments of Social Development, Health, Justice1 Education, Local Government, Safety and Secunty, Labour, Finance, Home Affairs and Correctional Services, the Office on the Rights of the Child in the Presidency and the South African Law Reform Commission was established during 2003 to -

i. oversee all the processes in the finalisation of the Bill;

ii. manage the intersectoral costing of the Bill; and

iii. oversee the development of the regulations to be made. In this regard each department accepted the responsibility to develop regulations pertaining to the sections regarding its own line function.

The Steering Committee meets regularly, especially with regard to the costing and future implementation of the Bill.

In conclusion, dialogue between government and civil society forms a sound basis for the protection of children and service delivery.

I want to emphasise the fact that Government cannot deliver services without the support of civil society.

Each one attending today are instrumental to make a difference in children's lives and together we can protect and care for our children.

I thank you.