REPORT: RECOMMENDATIONS OF THE DEPARTMENT OF SOCIAL DEVELOPMENT AND THE CHILDREN’S BILL STEERING COMMITTEE ON THE NCOP PUBLIC HEARINGS: 11 OCTOBER 2005

 

ISSUE

LEGISLATION

CULTURAL ASPECTS

RELIGIOUS FACTORS

RECOMMENDATIONS

Virginity Testing

(Clause 12)

Constitution

Section 30 & 31 give people the right to participate in cultural activities, in a manner consistent with any provision of the Bill of Rights.

Section 36 provides for limitation of rights to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. However in a democratic society freedom can never be absolute. It must be exercised with due regard to other members of society, and the countervailing claims of other constitutional values.

Not in favour

According to Section 10, 12, 14, and 28 of the Constitution, virginity testing undermines the child’s right to bodily integrity, dignity, and, privacy because the test is invasive. The test results are made public and that can be psychologically damaging for those who do not pass the test.

Virginity testing also contravenes provisions of Section 9 of the Constitution as it discriminates on the basis of gender.

The accuracy of the results is unreliable, as the hymen can be severed for reasons other than sexual penetration.

The promotion of equality and prevention of Unfair Discrimination Act.

Virginity testing impairs on the dignity and wellbeing of the girl child and discriminates on the grounds of gender as boys are not tested.

Girls who do not pass the test are often stigmatized and degraded. Their Constitutional Right against degradation as provided in Section 28 of the Constitution is thus undermined.

Those who pass the test could become victims of abuse or even trafficking.

Virginity testing is not seen as an answer to the HIV/Aids pandemic, as there are other non intrusive ways of addressing the issue.

 

 

In favour

- Prevention of premarital sex.

- Prevention of teenage pregnancy.

- To assist the child to focus on their personal development.

- Helps children to maintain their cultural values.

- Besides testing, the programme involves education on how children should handle themselves.

 

 

Virginity testing to be allowed for children over 16 years but there should be limitations. It should be practiced under the following conditions;

  • It should be conducted in private.
  • The child has the right not to be subjected to unhygienic testing. For example, the tester should use sterile apparatus for each test, and the environment should be hygienic.
  • The test results should not be made public.
  • The child must give informed consent before being tested or the results are disclosed.
  • Children who pass the test should not be marked.
  • The child has the right to refuse to be tested.

Circumcision

(Clause 12)

Constitution

Section 30 & 31 give people the right to participate in cultural activities, in a manner consistent with any provision of the Bill of Rights.

Section 36 provides for limitation of rights

Section 9 in the Bill of Rights of the Constitution provides for equality for all persons. Section 12 provides for freedom and security of a person, which includes the right to bodily and psychological integrity.

National Health Act

It mandates and guides the Minister of Health to oversee the process of developing a National Policy Framework on Circumcision.

Traditional Practitioners Health Act

The Act regulates traditional circumcision.

Eastern Cape Province Application of Health Standards in Traditional Circumcision Act:

The act requires the minimum age of 18 years for circumcision.

Not in favour

Male circumcision should not be isolated from female circumcision or intersexes genital modification.

Section 9 of the Bill of Rights in the Constitution provides for equality for all persons. The state must not discriminate on the basis of sex. Therefore children’s rights must apply to all children.

 

The right to bodily integrity as enshrined in Section 12 of the Constitution is denied by removing healthy human tissue. Only a consenting adult over 18 years have the right to surgical alter his or her body without medical justification.

Male children and infants are seldom denied their right to freedom as provided in section 12 of the Bill of Rights of the Constitution because they are often not in a position to exercise their right to refuse circumcision especially when they are too young to give consent.

 

In favour

Circumcision prepares boys for adulthood.

Going to circumcision school involves the circumcision process and life skills process where education takes place.

Circumcision at an early age reduces health risks and complications.

 

Circumcision is practiced in some religions for example Muslim and Jewish religions.

Not in favour:

When a baby is circumcised, he does not give consent. His parents decide on his behalf.

Option 1.

If the procedure is done purely on cultural reasons, there needs to be an age limit of 18 years.

At the age of 18 years the child is mature enough to make decisions.

Option 2.

In order to maintain consistency in the Bill with regard to age, 16 years is recommended.

Forced Marriages

(Clause 12)

Marriage Act

Both parties should give consent.

The Constitution protects all people’s right to freedom.

In favour:

This is as a well established custom. In practice the will of the families is invariably respected by the girl when she comes of age to marry and after traditional rituals have been performed.

Not in favour:

The child is forced into a lifetime commitment without consent.

The child if forced to engage in sexual activities irrespective of the fact that they are prepared or not.

They take adult responsibilities at a young age and can no longer enjoy childhood.

It is seen as a disgrace for a virgin girl who is married to return home. If she returns her family refuses to take her back and return her to the husband’s family.

 

A child might not be given out for marriage without consent by the girl child. .

Child protection register

(Clause 126)

Children’s Bill

Establishment of information in Part B of Register.

   

Professionals in all spheres of Government working with or having access to children should have their names checked in Part B of the Register.

Consent to medical treatment-age. (Clause 129-134)

Access to contraceptives-age.

(clause 134)

Termination of Pregnancy Act

The Act is not age specific.

Child Care Act

The Act provides for children over 14 years to give consent for their medical treatment.

Constitution

Every person has the right to freedom of choice in terms of Section 12.

Not in favour:

At 12 years children are too young to make informed decisions. They need guidance from adults.

In favour :

Children get engaged in sexual activities at a young age. By giving them access to contraceptives, the aim should be to protect them against unwanted pregnancies or sexually transmitted infections.

Not in favour:

Allowing children access to contraceptives at an early age encourages them to get involved in sexual activities.

 

Minimum age for consent to medical treatment to be changed from 12 years to 14 years. At 12 years a child is not mature enough to make informed decisions.

In the Child Care Act the minimum age to give consent to medical treatment is 14 years and no problems have been reported with that provision.

Option 1.

The minimum age for access to contraceptives to be changed to 14 years because at that stage, the child is matured and can make informed decisions on certain mattes.

Option 2

Age to be changed to 16 years in order to maintain consistency in the Bill with regard to age.

The Sexual Offences Bill proposes that sex with a child under 16 years is a criminal offence.

Consent to adoption

(Clause 233)

Child Care Act

A minor parent of a child may consent to the adoption of his or her child whether or not he or she is assisted by his or her parent or guardian.

 

 

 

 

Children’s Bill :

A child may be adopted only if consent for the adoption has been given by each parent of the child, regardless of whether the parents are married or not: Provided that, if the parent is a minor, that parent is assisted by his or her guardian.

In favour of the Child Care Act provision:

The provision in the Children’s Bill makes it difficult for adoption to proceed where the guardian is deceased or missing, or where the mother has left home and is fending for herself, or where there is undue duress from the guardian.

In favour of the Children’s Bill provision:

Children need guidance especially in taking serious decision like adoption.

   

The Clause in the Bill to remain as it is due to the following reasons;

  • To prevent child trafficking. Currently in KZN there is a practice of baby farming where young girls get pregnant and give up their babies.

 

  • A child who falls pregnant and finds herself without a parent or guardian or without visible means of support should be seen as a child in need of care and should be treated likewise. Her baby should also be found to be a child in need of care. Children’s Court proceedings should then be instituted.

Definition of child

 

 

 

 

 

 

Definition of child

Child Care Act

Children’s Bill

Child means a person under the age of 18 years.

In favour of the definition including other vulnerable children such as foreign children:-

To ensure that the interpretation apply to foreign children.

Not in favour

If foreign children or a child’s nationality is included in the definition, other aspects of vulnerability such as gender, disability, health status etc. will have to be included thus clouding the definition.

   

The definition should not be changed.

  • If foreign children are included in the definition, other categories of children will have to be included and that would cloud the definition.

 

  • The definition as it is presently is clear and understandable.