Introduction

MOLO SONGOLO SUBMISSION ON THE CHILDREN’S BILL

This submission reflects the discussions and recommendations workshopped which was workshopped and written by 70 children, all between 14 and 17 years of age. These young people are from Molo Songololo’s It’s Your Move – Youth Action Group and young people from the Children’s Resource Centre, Homestead, Berth Uriel, Khayelitsha Youth Group and the West Coast Childern’s Network.

4^th October 2005

Introduction

Who we are:

Molo Songololo is a Child Rights organisation. Our primary function is to lobby and advocate for the rights and protection of children. The organisation symbolises the unity of children from diverse communities, working together for the advancement of society. Its aim is to provide a platform for children to communicate with each other and discuss their concerns and aspirations.

We deeply believe in the value of children’s participation as the people directly concerned by child protection strategies and hold that from their particular perspective they are highly enabled to inform policy makers on the issues they are struggling with and their proposals of how to deal with them.

Therefore we developed a task team who discussed the contents of the Children’s Bill and its adequacy to provide good solutions for the problems of the children of South Africa.

Who is the Task Team?

At the end of May 2005, Molo Songololo hosted a Camp with 40 students from in & around Cape Town to educate them on the Children’s Bill. This was our organizations second camp of such a nature. Out of these participants a group of 20 students was selected to go for further training around the Children’s Bill as well as the legislative process and democracy in general.

These students were selected as follows:

Committed to making a Change;

Willing to learn; and

Interested in the Realisation of the Children’s Rights

This Task Team, which dedicated many hours to inform itself, to discuss the opinions of the members and to find solutions for raised problems consisted of students who were all between the ages of 14 – 20 years.

In order not to be in a closed circle of discussion and to broaden their knowledge these students were able to go into the field and ask people as to what they think are the strengths and weaknesses of the Children’s Bill. These field-visits included also meetings at places like, Ons Plek (a shelter for street girl children), the Magistrates Court in Wynberg, and the Family, Child and Sexual Violence (FCS) unit of the South African Police Services.

The meetings and discussion were a great success as the children were able to understand the issues they were questioning and to compare the explanations with their every day realities. These knowledgeable discussions resulted in numerous reflections and recommendations for the following areas of the children’s bill.

Objects of the Bill

Children’s Rights

Parental Responsibilities and Rights

Children’s Court

Children in need of Care and Protection

Alternative Care

Trafficking in Children

Our submission proudly presents these focal areas in the following pages and we also request an opportunity to make an oral presentation at the public hearings on 11^th October 2005, where we will also present such issues as:

male circumcision

virginity testing

human trafficking victim compensation

The Right thing to do…

We, the 70 young people, aged between 14 and 17 years, from different communities, backgrounds and experiences, representing different organisations and groups, this opportunity to participate in the law making process concerning our well-being, needs, protection and rights.

It is high time to improve our legislation concerning children! Huge efforts have been made to improve the situation of people in general in South Africa during the last 10 years. Yet, the major indicators for child welfare are going down. We don’t have to mention the statistics regarding different forms of child rights violations to make it clear how precarious the situation of the most vulnerable in our society is, we see the sufferings surrounding us.

During the workshops we attended we had the opportunity to talk to different people who could give us insight into their work, their possibilities and difficulties as well as their perspectives. We put our questions forward to Police, Social Worker, Magistrate and also Member of Parliament and we were pleased to see that the issues children are facing, seem to be taken serious.

Nevertheless there are many situations in which we don’t understand why nothing or not the right things happen. And therefore we feel compelled to give you our view of the situation. You want to help us – so we want to help you. We don’t assume that we have the absolute truth on our side, but please consider our statement as the words of the people at stake, your and our future, the children of South Africa.

Our recommendations on 75 Children’s Bill

Chapter 1: Interpretation, objects, application and administration of the Act – Section 2: Objectives of the Bill

We, the children feel that there is a need to interpret the Bill in a manner that all citizens, especially children, can understand. We, however, feel that the bill does not make provision for effective child participation, in the section as mentioned, in the current bill. To address this need, we submit that the following should be inserted:

For children to participate, in a child friendly manner, in all government initiatives and law making processes where child rights and protection is concerned.

To strengthen and develop child and youth organisations which can assist in providing support and strategies for prevention.

Chapter 3: Children’s Rights

Here we feel that section 10 and 11 needs specific attention and are concern that the Bill does not make provision for all of the child’s rights to be considered.

Section 10: Child Participation

We wish to submit the following on this section:

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, without dictation of discrimination.

Section 11: Rights of Children

Only eight rights have been mentioned in the Bill. We the children feel that it is vitally important for all our rights to be mentioned in the Bill so that people can understand our needs as children. We submit that the following be inserted into this section:

Education, irrespective of the child’s social and health status

Fee exemption for education for children who’s parents are unemployed

To be heard and taken seriously

To privacy and respect

To beliefs and to express their beliefs without being unfairly discriminated against

To be loved and cared for

Right to dignity

To be treated equally, regardless of disabilities

Children have the right to display their talents without being discriminated against

Subsection 1(g)

Not to be detained for longer than 1 hour without inform the parents of the child or caregiver or guardian.

Subsection 1(g) ii

Treated in a manner, and kept in a room that the child feels comfortable in, under supervision, and not be detained in a cell or confined space, that takes into account of the age of the child.

For the child to make contact with that child’s parents, caregiver or guardian

Chapter 4: Parental Responsibilities and Rights

Section 22: Parental Responsibilities and Rights agreements

We wish to submit that the following be inserted:

Right to discipline their children, but should not physically abuse them

The responsibility to put the needs and emotional well being, of the child first; in divorce or any other form of separation proceedings.

Chapter 5: Children’s Courts

Part 2 Court Proceedings

Section 53: Who may approach the court

Subsection (2)(a)

A child who is, regardless of age, gender, status, racial or religious background, and that child’s place in society, affected by the matter that is to be adjudicated

Section 54: Legal Representation

A person who is a party in a matter before a children’s court is entitled to appoint a legal practitioner, that the child feels comfortable with and if the child wants, a representative that is of the same gender, racial, religious and social background as that child and at his or her own expense and this legal representative needs to represent the child’s needs and rights in the court and not take decisions for that child.

Section 57: Compulsory attendance of persons involved in proceedings

The parents, guardians or caregiver of that child and with whoever that child feels comfortable to testify.

Chapter 7: Protection of Children
Section 105 Reporting of children in need of care and protection

We welcome the idea of a legal obligation to report children who are abused or neglected as stated in subsection (1). yet, we consider that every person has a moral obligation to report children in need of care and protection. Thus we recommend a stronger wording for subsection (2). "Any person who believes that a child is in need of care and protection because of abuse, sexual abuse or deliberate neglect, may report that belief to the provincial department of social development, a designated child protection organisation, police official or clerk of the children’s court" should be rephrased by replacing:

may with either should or must depending on the situation of the person/s holding the knowledge. Generally we feel that it has to be a legal obligation to report (must). But we agree that in cases of possible danger for this person as a consequence of its reporting it would be disproportionate to hold him/her legally responsible. In this case a moral obligation (should) is to be used.

believe with reasonable suspicion. A believe differs from culture to culture and might be misjudged as it is be based on uncertain personal impressions. In the case of reasonable suspicion ones level of certainty is considerably higher and the information given to the provincial department of social development child protection organisations, police officers or clerks of children’s court will be more accurate.

These two amendments are complementary to the process of reporting as the higher degree of certainty provided by reasonable suspicion should lead to a stronger obligation to report (must).

Our recommendation for subsection (2) reads as follows:

(2)(a) Any person who has reasonable suspicion that a child is in need of care and protection because of abuse, sexual abuse or deliberate neglect, must report that suspicion to the provincial department of social development, a designated child protection organisation, police official or clerk of the children’s court.

(b) In cases where the person holding the information could be at risk as a consequence of the reporting subsection (2)(a) is not applicable.

Section 106 Provision of designated child protection services

The national norms and standards for the designation of child protection services should be stated in the Children’s Bill. They should appear in subsection (2) of this section in order to give clarity and security to the service providers.

Section 107 Designation of child protection organisations

The prescribed criteria for the designation of a child protection organisation should be stated as subsection (2) of this section in order to clarify the conditions with which such an organisation has to comply.

As the final decision on the authorization to perform specific designated child protection services depends on the Director-General or provincial head of social development a rejecting verdict should be motivated, as to why an application, fulfilling all the stated criteria, was unsuccessful.

Section 110 Withdrawal of designation

We feel that to protect the best interest of the child a withdrawal of a designation of a child protection organisation has to be preceded by a warning procedure in order to give the organisation the possibility to rectify the issue. The Director-General or provincial head of social development should also have the option to suspend a designation instead of withdrawing it completely. Nevertheless, in a case of unsuccessful suspension or remediation the Director-General or provincial head of social development shall be bound to a definite withdrawal.

A separate clause shall state, that if it is in the best interest of the child an immediate withdrawal without warning or suspension notice must be done.

Our recommendation for Section 110 reads as follows:

(1) The Director-General or provincial head for social development may withdraw or suspend the designation of a child protection organisation to perform any, or any specific, designated child protection service –

(a) if the organisation –

(i) breaches or fails to comply with any conditions subject to which the designation was made;

(ii) contravenes or fails to comply with a provision of this Act; or

(b) if it is in the best interest of the protection of children.

(2) The withdrawal or suspension must be preceded by an adequate warning procedure and possible assistance if needed.

(3) If it is in the best interest of the child the Director-General or provincial head for social development must immediately withdraw the designation.

Section 135 Application to terminate or suspend parental responsibilities and rights

We are not able to understand how parents should consent to their Rights being taken away from them as it is stated in subsection (2). The Director-General, a provincial head of social development or a designated child protection organisation shall be authorized to apply for the suspension or termination of parental responsibilities and Rights even without the parental consent if they conclude upon personal observation that such a person is not fit to care for the child.

Our recommendation reads as follows:

(2) An application in terms of subsection (1) may be brought without the consent of a parent or care-giver of the child if the applicant concludes on personal observation that such an intervention is needed.

Section 136 Child-headed households

A general concern arouse around the cut-off age of 18 years for the provision of guidance. We felt that guidance should be available up until the age of 21 upon request.

Moreover we do not consider that all the conditions to cause a child to be head of its household are mentioned in subsection (1)(a). Parents might not be dead or terminally ill and their children still heading their household. In cases such as abandonment or forced removal children might be left without their parents even though these are still alive. The provisions of subsection (1)(a) should therefore also provide for situation where the parents would be able to care for their children but simply don’t do so.

Our recommendation reads as follows:

(1) A provincial head of social development may recognise a household as a child-headed household if –

(a) the parent or primary care-giver of the household is terminally ill, has died, has been forcefully removed or has abandoned the children he is responsible for -

Section 139 Corporal punishment

We welcome the general ban of violence whether from public or private sources as stated in section 12 of the Constitution of the Republic of South Africa and confirmed by this section of the Children’s Bill. We still, feel that the provisions made in subsection (1)(a) of this section are not sufficient as there is no clear definition of what "respect to the fullest extent possible the child’s rights to physical integrity" means. We sense discomfort by the vagueness of this paragraph and would commend an unambiguous definition of the limits to corporal discipline.

Section 141 Worst forms of child labour prohibited

We commend the endorsement of the statements invigorating the ILO conventions on worst forms of child labour (No. 182). Nonetheless we question the cutoff age of 15 for all forms of employment. Furthermore we ask ourselves what the difference is between a child which is employed for its work and one who works without being employed. Further investigation have to be lead on this issue.

Chapter 10: Children in need of Care and Protection

We the children insist that this chapter address the following issues and concerns:

The rights of refugee children and there needs to be included in the children’s rights chapter, regardless if that refugee child has an asylum or has arranged for temporary citizenship in the Republic of South Africa.

Like all other children in the Republic, all legal refugees will have access to the services that children of this Republic enjoys

Chapter 12: Children in Alternative Care

This chapter needs to address the following:

That children will have the right to live on the street by choices and should not be discriminated against

Government protection officials should do all possible to protect children living on the street from harm.

Chapter 19: Trafficking in Children

Section 280: Purpose of this chapter

This section needs to include…

To give effect to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the African Child.

Subsection (c)

To put an end to child trafficking in the Republic whether this is internal or cross-border in nature.

Section 282: Assistance to Children who are victims of Trafficking

To include…

Provide emotional, physical and mental support and services to victims of Trafficking

Arrest the perpetrator, if certain, immediately

Set up comfortable courts for victims of Trafficking

Conclusion

We thank parliament, the parliamentary portfolio committee on Social Development and the Minister and Department of Social Development for this opportunity and for considering our submission. We commend the institutional bodies for the effort which is being done for prevention, protection and reintegration with regards to children and we thank Parliament and government for their dedication and will to improve the situation of children in South Africa.

This paper reflects our opinion on the very important law for children that the children’s bill shall become. We believe that this new legislation can change the future of the children of South Africa and thereby of the nation in its entirety. For this reason we want to contribute with our best ideas and following our best knowledge to the elaboration of this fundamental document.

Thank you for giving our dreams and efforts their due place in your heart.

And lastly, again we request to make an oral presentation at the public hearings on the Children’s Bill on 11^th October 2005.

No.3 Braeside Road, Kenilworth, 7700, Cape Town, South Africa, - PO Box 43326, Salt River, 7915, Cape Town, South Africa -Tel: +27 (0)21 762 5420 - Fax: +27 (0)21 762 5431

Email: [email protected] or [email protected]