ATC130821: Report of the Portfolio Committee on Social Development on the Children’s Amendment Bill [PMB 1 - 2013], dated 20 August 2013

Social Development

Report of the Portfolio Committee on Social Development on the Children’s Amendment Bill [PMB 1 - 2013], dated 20 August 2013

The Portfolio Committee on Social Development (the Committee), having considered the Children’s Amendment Bill [PMB 1 - 2013] (National Assembly – section 75), referred to it and classified by the Joint Tagging Mechanism (JTM) in terms of joint rule 160 as a section 75 Bill, reports as follows:

The Children’s Amendment Bill [PMB 1 - 2013], a private member’s bill, was tabled and referred to the Committee on 13 March 2013. The Committee met with the sponsor of the Bill, Mr Mike Waters, MP, on 18 June 2013, in order to receive a briefing on the Bill.

The Bill seeks to amend the Children’s Act, 2005 (Act 38 of 2005), so as to amend the Children’s Act, 2005, to provide for a person convicted of attempted rape to be found unsuitable to work with children and to provide for matters connected therewith.

The proposed amendment was the insertion of ”attempted rape” in sections 120(4) and (5) of the Act to provide for a person who has been convicted of attempted rape to be found unsuitable to work with children.

The sponsor of the Bill, Mr Waters explained that Part B of the Child Protection Register, stipulated in the Act, was introduced to protect children from people who have been found unsuitable to work with them. At present the Act determines that such people include those convicted of murder, attempted murder, rape, indecent assault or assault with the intent to do grievous bodily harm with regards to a child. He also informed the Committee that the crime of “attempted rape” was inadvertently omitted from the Act and ought to have been added to the crimes listed in the Act that constitutes a disqualification when it comes to working with children.

On 13 August 2013, the Committee received a briefing from the Department of Social Development and the Department of Justice and Constitutional Development responding to the proposed amendments. The Department of Social Development also briefed the Committee on some legislative and operational implementation challenges with the Act. These included challenges regarding the implementation of Adoption Policy, National Child Protection Register, Foster Care System, Human Resources and funding of ECD programmes. In order to address these challenges the department initiated a process of reviewing the Act.

With regard to section 120 (4) and (5) of the Children’s Act, the department acknowledged that there had been challenges pertaining to the interpretation of the term “unsuitability” and this impacted on the implementation of this section. Currently the court may convict an offender of an offence mentioned in section 120. Another legal process has to be launched to make the finding of ‘unsuitability to work with children’. Most courts just convict offenders and fail to make unsuitability findings. These courts then submit the convictions to the Department of Social Development. The department would then be unable to place the particulars of those convicted persons in Part B of the National Child Protection Register (CPR) because section 122 states that the ‘findings of unsuitability’ and not the ‘convictions’ must be reported to the department. The department is often then compelled to contact various courts that submitted convictions and request them to make ‘findings of unsuitability to work with children’. This had proved to be a time-consuming exercise which did not always yield positive results. The amendment of the department therefore proposes section 120 (4) to read as follows: “ In criminal proceedings, a person must be deemed to be found unsuitable to work with children …” This addition will allow automatic ‘finding of unsuitability to work with children’ immediately when a court convicts a person of any offence mentioned in section 120.

Furthermore, section 120 does not provide for “attempted” sexual offences that are stated in section 55 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) (the 2007 Act) . The amendment proposed that a person convicted of an ‘attempted’ sexual offence against a child be included in section 120 (4 )( a).

The Department of Justice and Constitutional Development informed the Committee that the Children’s Act was passed before the 2007 Act ; hence some of the terms used in the Children’s Act are obsolete. It proposed that a legislative solution would be to align the wording in the Children’s Act with the wording in the 2007 Act . The Children’s Act did not make stipulations for all common law sexual offences and those offences which related to children which are contained in the Sexual Offences Act, 1957 (Act 23 of 1957). Because of this omission the practical effect of section 120 (5) of the Children’s Act was applicable in respect of the convictions that took place after 31 March 2005, but do not refer to the sexual offences that had been committed against children after 16 December 2007 when the 2007 Act came into effect. It therefore cautioned that reference to “attempted rape” without any reference to the 2007 Act could be interpreted as a reference to a conviction of attempted rape in terms of the common law only. The department advised that it would be more appropriate to amend section 120 (4) and (5) of the Children’s Act by including a reference to section 55 of the 2007 Act .

Having deliberated on the aforementioned presentations, the Committee adopted a motion that the proposed legislation is not desirable at the moment based on the reason that the Department of Social Development intends to introduce an amendment bill that will contain the above mentioned proposed amendments, which have reference to the proposed amendment in the private member’s bill. The department informed the Committee that it would table the bill to Cabinet in August 2013 and once approved it would be gazetted for public comments. Thereafter it would be introduced in Parliament.

The Committee noted the department’s explanation that these amendments were urgent and would not have financial implications for the department or any stakeholder involved. The amendments would facilitate implementation of the Act and alleviate challenges experienced by service providers.

The committee is of the opinion that it should not proceed with the proposed legislation because the department is yet to introduce the amendment bill to Parliament. The amendment bill will contain other amendments, including amendments to section 120 (4) and (5), that will address certain implementation and legislative challenges of the Act. It will wait for the formal referral of the amendment bill.

Report to be considered.

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