PROPOSED SELECT COMMITTEE AMENDMENTS
TO
CHILDREN'S BILL
[B70B ─ 2003]
-------------------------------------------------------
[B 70C ─ 2003]
AMENDMENTS AGREED TO
______________
CHILDREN’S BILL
[B70―2003]
______________
TABLE OF CONTENTS
1. On page 3, in line 35, to omit "parental responsibilities and rights" and to substitute "contact and care".
2. On page 3, in line 40, to omit "parental responsibilities and rights" and to substitute "guardianship and care".
3. On page 5, in line 1, to omit "Part 3".
4. On page 5, in line 2, to omit "Clerks of the children’s courts".
5. On page 5, after line 4, to insert:
Part 3
Pre-hearing conferences, family group conferences and other lay forums
6. On page 7, in line 51, to omit "a".
7. On page 7, in line 52, to omit "children" and to substitute "child".
8. On page 7, in line 54, to omit "a".
8. On page 8, in line 1, to omit "a".
9. On page 8, in line 2, to omit "a".
CLAUSE 1
1. On page 10, after line 49, to insert:
"circumcision", in relation to a female child, means the removal of the clitoris by any means;
2. On page 10, from line 50, to omit the definition of "clerk of the children's court" and to substitute:
"clerk of the court" means clerk of the court of the relevant magistrate's court;
3. On page 11, after line 52, to insert:
"genital mutilation", in relation to a female child, means the partial or complete removal of any part of the vagina;
4. On page 12, in line 30 and 31, to omit "Mental Health Act, 1973 (Act No. 18 of 1973)" and to substitute "Mental Health Care Act, 2002 (Act No. 17 of 2002)".
5. On page 12, in line 42, to omit "*****".
6. On page 13, from line 7, to omit the definition of "presiding officer" and to substitute:
"presiding officer" means a presiding officer contemplated in section 42;
7. On page 13, after line 22, to insert "*****".
8. On page 13, in line 49, after "youth worker" to insert ", social auxiliary worker".
9. On page 13, in line 61, to omit "*****".
10. On page 14, in line 9 and 10, to omit "of a kind that may be prescribed,".
11. On page 14, after line 29, to insert:
"unaccompanied foreign child" means a child who is not a citizen or permanent resident of the Republic and includes a refugee as defined in section 1 of the Refugee Act, 1998 (Act No, 130 of 1998);
12. On page 14, in line 30, to omit "*****".
13. On page 14, after line 41, to insert:
(4) Any proceedings arising out of the application of the Administration Amendment Act, 1929 (Act No. 9 of 1929), the Divorce Act, 1979, the Maintenance Act, 1998, the Domestic Violence Act, 1998 (Act No. 116 of 1998), and the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998), in so far as these Acts relate to children, may not be dealt with in a children's court.
CLAUSE 12
Clause rejected.
NEW CLAUSE
1. That the following be a new Clause to follow Clause 11:
Social, cultural and religious practices
12. (1) Every child has the right not to be subjected to social, cultural and religious practices which are detrimental to his or her well-being.
(2) A child—
(a) below the minimum age set by law for a valid marriage may not be given out in marriage or engagement; and
(b) above that minimum age may not be given out in marriage or engagement without his or her consent.
(3) Genital mutilation or the circumcision of female children is prohibited.
(4) Virginity testing of children under the age of 16 is prohibited.
(5) Virginity testing of children older than 16 may only be performed―
(a)
if the child has given consent to the testing in the prescribed manner;(b) after proper counselling of the child; and
(c) in the manner prescribed.
(6) The results of a virginity test may not be disclosed without the consent of the child.
(7) The body of a child who has undergone virginity testing may not be marked.
(8) Circumcision of male children under the age of 16 is prohibited, except when―
(a)
circumcision is performed for religious purposes in accordance with the practices of the religion concerned; or(b) circumcision is performed for medical reasons on the recommendation of a medical practitioner.
(9) Circumcision of male children older than 16 may only be performed―
(a)
if the child has given consent to the circumcision in the prescribed manner;(b) after proper counselling of the child; and
(c) in the manner prescribed.
CLAUSE 21
1. On page 20, in line 9, after "father" to insert "or pays damages in terms of customary law;"
CLAUSE 23
1. On page 21, in line 12, to omit "parental responsibilities and rights" and to substitute "contact and care".
CLAUSE 27
1. On page 22, in line 3, to omit "parental responsibilities and rights" and to substitute "guardianship and care".
CLAUSE 29
1. On page 23, in line 17, to insert ", subject to section 55".
CLAUSE 34
1. On page 25, after line 19, to add the following subclauses:
(4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan.
(5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application—
(a) by the co-holders of parental responsibilities and rights who are parties to the plan;
(b) by the child, acting with leave of the court; or
(c) in the child’s interest, by any other person acting with leave of the court.
(6) Section 29 applies to an application in terms of subsection (2).
CLAUSE 35
Clause rejected.
NEW CLAUSE
1. That the following be a new Clause to follow Clause 34:
Refusal of access or refusal to exercise parental responsibilities and rights
35. (1) Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22(4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
(2) (a) A person having care or custody of a child whereby another person has access to that child or holds parental responsibilities and rights in respect of that child in terms of an order of any court or a parental responsibilities and rights agreement as contemplated in subsection (1) must upon any change in his or her residential address forthwith in writing notify such other person of such change.
(b) A person who fails to comply with the provisions of paragraph (a) is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
CLAUSE 42
1. Clause rejected.
NEW CLAUSE
1. That the following be a new Clause to follow Clause 41:
Children's courts and presiding officers
42. (1) Every court which is established in terms of section 2(1)(f) of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), is a children's court and has jurisdiction on any matter arising from the application of this Act for the area of its jurisdiction.
(2) Every –
(a) magistrate is the presiding officer of the children's court; and
(b) additional magistrate is an assistant presiding officer of the children's court, for the district of which he or she is magistrate or additional magistrate, as the case may be.
(3) The presiding officer of the children's court or an assistant presiding officer thereof must perform such functions as may be assigned to him or her under this Act or any other law.
CLAUSE 45
1. On page 28, from line 4, to omit "Except where this Act, the Divorce Act or the Maintenance Act expressly provides otherwise", and to substitute "Subject to section 1(4)".
CLAUSE 47
1. On page 29, in line 52, after the second "of", to insert "Administration Amendment Act, 1929 (Act No. 9 of 1929),"
2. On page 29, in line 53, to omit "or" and to substitute ",".
3. On page 29, in line 54, after "(Act No. 116 of 1998)," to insert "the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998),".
CLAUSE 53
1. On page 31, in line 45, to omit "children’s".
CLAUSE 56
1. On page 32, in line 19, to omit "children’s".
CLAUSE 57
1. On page 32, in line 25, to omit "children’s".
2. On page 32, in line 30, to omit "the clerk of the children's court or".
CLAUSE 59
1. On page 33, in line 2, to omit "children’s".
CLAUSE 63
1. On page 34, in line 30 and 31, to omit "professional" and to substitute "suitably qualified".
CLAUSE 65
1. On page 35, in line 23, to omit "children’s".
Part 3 of CHAPTER 4
1. On page 35, in line 34, to omit "Part 3".
2. On page 35, in line 35, to omit "Clerks of Children's Courts".
CLAUSE 67
1. Clause rejected.
NEW CLAUSE
1. That the following be a new Clause to follow Clause 66:
Clerks of court
67. (1) Every clerk of the court at the relevant magistrate’s court must assist the children's court in question in performing its functions, as may be prescribed in this Act or by way of regulation or in any other law.
(2) If a clerk of the court is, for any reason, unable to assist the children's court or if no clerk of the court has been appointed for that court, the presiding officer concerned may designate any competent officer in the Public Service to act as clerk of the court for purposes of assisting that children's court for as long as the clerk of the court is unable to so assist or until a clerk of the court has been appointed, as the case may be.
CLAUSE 68
1. On page 36, in line 1, to omit "children’s".
2. On page 36, in line 2, to omit "children’s".
NEW HEADING
1. That on page 36, after line 4, to insert:
Part 3
Pre-hearing conferences, family group conferences, other lay-forums, settling matters out of court
CLAUSE 72
1. On page 36, in line 49, to omit "children’s".
CLAUSE 73
1. On page 37, in line 5, to omit "children’s".
CLAUSE 75
1. On page 37, in line 19, after "courts" to insert "and the powers, duties and functions of clerks of the court in so far as they relate to the proceedings of children’s courts".
CLAUSE 119
1. On page 40, in line 19, after "person" to insert ", if available".
CLAUSE 120
1. On page 40, in line 31, to omit "either as a party or a witness".
CLAUSE 122
1. On page 40, from line 19, to omit subclause (2) and to substitute:
(2) The Director-General must enter the name of a person found unsuitable to work with children as contemplated in section 120 in Part B of the Register regardless of whether appeal proceedings have been instituted or not.
(3) If, after repeal or review proceedings have been concluded, a finding in terms of section 120 that a person is unsuitable to work with children is reversed, the DG must forthwith remove the name of the person from the register.
CLAUSE 123
1. On page 41, in line 37, to omit "or".
2. On page 41, after line 37, to add:
(e) be employed in terms of the Public Service Act, 1994 (Proclamation No. 103 of 1994) in a position where that person works with or has access to children; or
(f) be employed in terms of the Municipal Systems Act, 2000 (Act No. 32 of 2000) in a position where that person works with or has access to children; or
3. On page 41, after line 49, to add:
(5) The head of a state department may not allow a person whose name appears in Part B of the Register to be employed in a position where that person works with or has access to children.
(6) The municipal council of a municipality may not allow a person whose name appears in Part B of the Register to be employed in a position where that person works with or has access to children.
CLAUSE 124
1. On page 42, in line 10, to omit "or".
2. On page 42, after line 13 to add:
(d) is employed in terms of the Public Service Act, 1994 (Proclamation No. 103 of 1994) in a position where he or she works with or has access to children, that person must disclose that fact to the head of the department in which he or she is employed; or
(e) is employed in terms of the Municipal Systems Act, 2000 (Act No. 32 of 2000) in a position where he or she works with or has access to children, that person must disclose that fact to the municipal council of the municipality concerned.
CLAUSE 126
1. On page 42, in line 39, to omit "or".
2. On page 42, after line 42 to add:
(d) to be employed in terms of the Public Service Act, 1994 (Proclamation No. 103 of 1994) in a position where he or she works with or has access to children, the head of the department in which he or she is to be employed must established whether or not that person’s name appears in Part B of the Register; or
(e) to be employed in terms of the Municipal Systems Act, 2000 (Act No. 32 of 2000) in a position where he or she works with or has access to children, the municipal council of that municipality must established whether or not that person’s name appears in Part B of the Register.
3. On page 42, in line 50, to omit "and".
4. On page 42, after line 53 to add:
(d) the head of every state department must establish whether the name of any person employed in terms of the Public Service Act, 1994 (Proclamation No. 103 of 1994) in a position where he or she works with or has access to children appears in Part B of the Register; and
(e) the municipal council of every municipality must establish whether the name of any person employed in terms of the Municipal Systems Act, 2000 (Act No. 32 of 2000) in a position where he or she works with or has access to children appears in Part B of the Register.
CLAUSE 128
1. On page 43, from line 40, to omit subsection (4) and to substitute:
(4) The name and particulars of a person convicted more than once of an offence with regard to a child may not be removed from Part B of the Register.
CLAUSE 129
1. On page 43, in line 52, to omit "12" and to substitute "14".
2. On page 44, in line 3, to omit "12" and to substitute "14".
3. On page 44, in line 9, to omit "12" and to substitute "14".
4. On page 44, in line 14, to omit "12" and to substitute "14".
5. On page 44, after line 29, to insert:
(8) The Minister may consent to the medical treatment of or surgical operation on a child if the child unreasonably refuses to give consent.
6. On page 44, in line 30, to omit "(8) and to substitute "(9)".
7. On page 44, in line 33, to omit "(9)" and to substitute "(10)".
CLAUSE 130
1. On page 44, in line 51, to omit "12" and to substitute "14".
2. On page 44, in line 52, to omit "12" and to substitute "14".
3. On page 44, in line 54, to omit "12" and to substitute "14".
4. On page 44, in line 57, to omit "12" and to substitute "14".
5. On page 45, in line 2, to omit "12" and to substitute "14".
6. On page 45, in line 5, to omit "12" and to substitute "14".
CLAUSE 133
1. On page 45, in line 39, to omit "12" and to substitute "14".
2. On page 45, in line 40, to omit "12" and to substitute "14".
3. On page 45, in line 42, to omit "12" and to substitute "14".
4. On page 45, in line 46, to omit "12" and to substitute "14".
5. On page 45, in line 49, to omit "12" and to substitute "14".
CLAUSE 134
1. On page 46, in line 8, to omit "12" and to substitute "14".
2. On page 46, in line 9, to omit "12" and to substitute "14".
3. On page 46, in line 13, to omit "12" and to substitute "14".
CLAUSE 150
1. On page 47, in line 8, to omit all the words after "worker" up to and including "155(2)" in line 9.
2. On page 47, in line 12, after "trafficking" to insert "and".
3. On page 47, in line 13, to omit "(e) a street child; and".
4. On page 47, in line 14, to omit "(f)" and to substitute "(d)".
CLAUSE 151
1. On page 47, in line 17, to omit "of that presiding officer" and to substitute "of the children's court concerned".
2. On page 47, in line 22, to omit "to the court".
CLAUSE 152
1. On page 48, in line 7, to omit "children’s".
2. On page 48, in line 19, to omit "children’s".
3. On page 48, after line 33, to insert:
(6) Misuse of a power referred to in subsection (1) by a designated social worker employed in terms of the Public Service Act, 1994 (Proclamation No. 103 of 1994) constitutes unprofessional or improper conduct as is contemplated in section 27(1)(b) of the Social Service Professions Act, 1978 (Act No. 110 of 1978) by that social worker.
4. On page 48, in line 34, to omit (6) and to substitute (7).
5. On page 48, in line 37, to omit (7) and to substitute (8).
CLAUSE 153
1. On page 48, in line 57, to omit "children’s".
CLAUSE 158
1. On page 52, in line 16, to omit "or programmes".
2. On page 52, in line 19, to omit "or programmes".
3. On page 52, in line 21, to omit all the words after "programme" up to and including "programmes" in line 22.
CLAUSE 164
1. On page 53, in line 46, to omit all the words after the first "to" up to and including "other" and to substitute "such".
2. On page 53, in line 46, after "person" to insert "or institution".
CLAUSE 165
1. On page 54, in line 8, to omit all the words after the first "to" up to and including "other" and to substitute "such".
2. On page 54, in line 8, after "person" to insert "or institution".
CLAUSE 166
1. On page 54, in line 12, to omit "children’s".
CLAUSE 231
1. On page 55, in line 30, to omit "the clerk of the children's court or".
2. On page 55, in line 32, to omit "children’s".
CLAUSE 233
1. On page 56, in line 15, to omit "minor" and to substitute "child".
2. On page 56, in line 41, to omit "children’s".
3. On page 56, in line 46, to omit "children’s".
CLAUSE 235
1. On page 57, in line 22, to omit "designated".
2. On page 57, in line 22, after "organisation" to insert "accredited in terms of section 251 to provide adoption services"
3. On page 57, in line 28, to omit "designated".
4. On page 57, in line 28, after "organisation" to insert "accredited in terms of section 251 to provide adoption services.".
CLAUSE 236
1. On page 58, in line 16, to omit "children’s".
CLAUSE 237
1. On page 58, in line 27, to omit "children’s".
2. On page 58, in line 36, to omit "children’s".
3. On page 58, in line 37, to omit "children’s".
4. On page 58, in line 44, to omit "children’s".
CLAUSE 238
1. On page 58, in line 46, to omit "the clerk of the children's court" and to substitute "an official designated by the Director-General".
CLAUSE 239
1. On page 59, in line 16, to omit "children’s".
2. On page 59, in line 17, to omit "children’s".
3. On page 59, in line 19, to omit "children’s".
CLAUSE 243
1. On page 60, in line 31, after "time" to insert "but".
CLAUSE 244
1. On page 60, in line 54, to omit the second "that" and to substitute "the".
CLAUSE 247
1. On page 61, in line 35, to omit "children’s".
CLAUSE 249
1. On page 62, in line 32, to omit "designated".
CLAUSE 250
1. On page 62, in line 38, to omit "designated".
2. On page 62, in line 42, to omit "designated".
CLAUSE 251
1. On page 62, in line 52, to omit "designated".
2. On page 62, in line 54, to omit "designated".
CLAUSE 252
1. On page 63, in line 6, to omit "designated".
CLAUSE 253
1. On page 63, after line 21, to insert:
(e) prescribing the requirements that a child welfare organisation has to comply with for accreditation to provide adoption services as contemplated in section 251;
(f) prescribing the requirements that a child welfare organisation has to comply with for accreditation to provide inter-country adoption services as contemplated in section 259;
2. On page 63, in line 22, to omit "(e)" and to substitute "(g)".
3. On page 63, in line 23, to omit "(f)" and to substitute "(h)".
CLAUSE 258
1. On page 64, in line 25, to omit "designated".
CLAUSE 259
1. On page 64, in line 29, to omit "designated".
2. On page 64, in line 34, to omit "designated".
3. On page 64, in line 37, to omit "designated".
CLAUSE 260
1. On page 64, in line 47, to omit "designated".
2. On page 64, in line 50, to omit "designated".
CLAUSE 264
1. On page 66, in line 50, to omit "for" and to substitute "to".
CLAUSE 283
1. On page 69, in line 48, to omit "to" and to substitute "or".
CLAUSE 84
1. On page 70, in line 2, to omit "84" and to substitute "284".
CLAUSE 286
1. On page 70, in line 34, to omit "a".
CLAUSE 287
1. On page 71, in line 1, to omit "children" and to substitute "child".
CLAUSE 288
1. On page 71, in line 10, to omit "a".
2. On page 71, in line 14, to omit "288(1) and to substitute "289(1)".
CLAUSE 288
1. On page 71, in line 15, to omit "a".
2. On page 71, in line 16, to omit "288" and to substitute "289".
CLAUSE 290
1. On page 71, in line 26, to omit "a".
2. On page 71, in line 27, to omit "288(2)" and to substitute "289(2)".
CLAUSE 305
1. On page 76, in line 3, after "12" to insert "(2),".
2. On page 76, in line 3, after "(4)" to insert ",".
3. On page 76, in line 4, to omit "or".
4. On page 76, in line 4, after (6) to insert "(7) or (8)".
5. On page 76, in line 7, after "section" to insert "12(5), 12(9)".
6. On page 76, in line 7, to omit "or" and to insert ",".
7. On page 76, in line 7, after "134(1)" to insert "232(6).
8. On page 76, in line 19, to omit "*****".
9. On page 76, in line 29, after "notice" to omit "or".