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 Childrens Amendment Bill [PMB
1 - 2013], dated 20 August 2013
The
Portfolio Committee
on Social Development
(the
Committee), having considered the Childrens 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 Childrens Amendment
Bill [PMB 1 - 2013], a private members 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 Childrens Act, 2005 (Act 38 of 2005), so as to
amend the Childrens 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 Childrens 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 Childrens Act
was passed before the
2007 Act
; hence some of the
terms used in the Childrens Act are obsolete. It proposed
that a legislative solution would be to
align the wording in the Childrens Act with the wording in the
2007 Act
. The Childrens 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
Childrens 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 Childrens 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 members 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 departments 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.
Documents
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