The Children

1
The Childrens Bill
NCOP Briefing Department of Social Development
25 August 2005

2
Purpose of Briefing

• Situational Analysis/context in which the Bill
  will be implemented
• Process of developing the Bill and deliberations
  in parliament
• Summary of chapters in the Bill
• Way forward

3
Situation analysis and context

• Population of children in the country 18,9m
• Childrens rights not adequately provided in
  existing legislation
• Children and poverty almost 45 live in extreme
  poverty
• 5,8 million in receipt of grants
• HIV and AIDS
• Child abuse, neglect and exploitation
• Psychosocial support and strengthening of
  families and communities

4
(No Transcript)
5
Policies

• Constitution
• White Paper for Social Welfare
• Ten point plan
• Transformation of the child and youth care system
  and other policies in other Depts
• Draft Strategy on child abuse and neglect
• Financial award policy
• Service delivery model
• Departments Strategic plans
• Childcare Act 1983 and related legislation
  developed and implemented by other Depts

6
Existing Major Programmes

• Established Developmental social welfare and
  statutory Services
• Services provided e.g by other departments
• Court system
• Social Security 5,8m children beneficiaries
  extension programme to 14
• Social security agency
• Home Community Based Care and Support
• Coordinated Action for Orphans and Vulnerable
  Children
• Expanded public works programme- ECD HCBC

7
Structures

• Office on the Rights of Children
• Clusters e.g Social Cluster and Justice cluster
• Various inter-sectoral committees
• Service delivery structures at provincial level
• National and provincial structures HSD and
  MinMEC and HSWS,
• NGOs structures
• Social welfare services forum on Childrens
  Issues.
• Cabinet
• Parliamentary structures

8
Challenges

• Full implementation of a child rights approach
• Insufficient budget
• Inaccessibility of services and courts
• Coverage and consolidation
• Human resources
• Policies
• Intersectoral collaboration
• The role of local government
• Research and monitoring and information
  management

9
Opportunities

• Costing of the Childrens Bill
• Repositioning of the Department
• Transformation of integrated social services the
  through financing policy
• Retention strategy
• Partnerships
• Linking grants and welfare services and other
  programmes
• International instruments
• Strong political leadership

10
General Background and Overview

• The lives of children are affected by various
  pieces of legislation and international
  conventions such as
• The Age of Majority Act (Act No. 57 of 1972)
• The Child Care Act (Act No. 74 of 1983)
• Childrens Status Act, (Act No. 82 of 1987)
• Guardianship Act (Act No. 192 of 1993)
• Hague Convention on the Civil Aspects of
  International Child Abduction Act (Act No. 72 of
  1996)
• Natural Fathers of Children born out of Wedlock
  Act (Act No. 86 of 1997)

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General Background and Overview

• Existing legislation was found to be not in
  keeping with the realities of current social
  problems and no longer protects children
  adequately
• SA has acceded to various international
  conventions, the principles of which has to
  be incorporated into local
  legislation

12
General Background and Overview

• During 1997 the then Minister for Welfare
  requested the South African Law Reform Commission
  to develop new comprehensive legislation for
  children
• After an extensive process of research and
  consultation, the Law Reform Commission finalised
  its report and proposed draft Childrens Bill in
  December 2002.

13
General Background and Overview

• This process was taken further by DSD, who in
  conjunction with national DOJ, DOE, DOH, SAPS,
  DOL, ORC, National Treasury, Provinces, National
  NGOs and Service Providers aligned the Bill to
  national policy directives and priorities
• This together with an scoping exercise of the
  Bill which identified the costing elements which
  may have inter-governmental fiscal and budgetary
  implications and litigation risks led to the
  subsequent changes of the Bill

14
Process

• Bill approved by Cabinet in July 2003 with
  further changes alignining it to the
  Constitutional mandates and realistic resources
• Bill published for comment and submitted for
  certification, translation by Legal Services
  Directorate
• Bill submitted to Parliament in August 2003,
  returned to DSD with request for splitting it
  into Sections 75 and 76 Bills, then resubmitted,
  returned again in Jan 2004, resubmitted and
  finally sent to Soc Dev PC for further
  deliberations
• 75 deals with national competencies and 76 with
  provincial direct service delivery responsibities

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Process

• The split has led to the moving of all Section 75
  chapters and clauses to revised Childrens Bill.
  
• Other chapters and clauses to be inserted in
  Childrens Amendment Bill once Childrens Bill is
  approved

16
Process

• The initial Portfolio Committee briefings were
  held in November 2003 before the elections.
• The new Portfolio Committee was briefed during
  August 2004 first by DSD then by other Depts
  Justice, Correctional Services, SAPS, Education,
  Home Affairs, Labour, Health, the Presidency and
  Treasury before and after the hearings on
  several occasions.
• Steering Committee
• Public Hearings held on 11-13 August

17
Process

• Workshop in December 2004 to identify existing
  responsibilities, policy and legislation as well
  as gaps in different Departments
• Output Report/Matrix
• Decision taken focus of the Bill on protection
  of children
• Workshop held in April 2005 to deal with
  unresolved issues e.g intersectoral
  collaboration, cultural and religious practices,
  customary law, guardianship, the role of social
  workers in investigating cases, children with
  disability, consenting to medical treatment,
  child headed households and inheritance.

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Process

• After the PC was satisfied that it had gathered
  all the relevant information, all the clauses
  were reviewed, scrutinized and amended where
  necessary.
• Significant changes were made to the original
  Bill
• The Bill was passed on 22/6/2005

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The Objects of the Bill

• The Bill provides for the following
• The preservation and strengthening of families
• To give effect to the following constitutional
  rights of children, namely
• (i) family care or parental care or appropriate
  alternative care when removed from the family
  environment
• (ii) social services
• (iii) protection from maltreatment, neglect,
  abuse or degradation

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Objects of the Bill

• Paramouncy of the best interests of a child
• To give effect to the Republics obligations
  concerning international instruments binding on
  the Republic and
• To make provision for structures, services and
  means for promoting and monitoring the sound
  physical, psychological, intellectual, emotional
  and social development of children
• To strengthen and develop community structures
  which can assist in providing care and protection
  for children

21
Contents of the Bill

• The Bill has 17 chapters, which can be summarised
  as follows
•  
• Chapter 1 deals with the interpretation,
  objects, application and implementation of the
  Bill. Chapter 2 provides for childrens rights
  and deals with issues such as the paramountcy of
  the best interest of the child, child
  participation, social, cultural and religious
  practices, access to childrens court and the age
  of majority.

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Contents of the Bill

• Chapter 3 deals with all matters pertaining to
  parental responsibilities and rights, parental
  responsibilities and rights agreements and the
  assignment of parental responsibilities and
  rights by order of court. This chapter also
  provides for the rights of fathers, presumption
  of paternity, parenting plans and the rights of
  children conceived by artificial fertilisation.
• The functioning, powers and jurisdiction of
  childrens courts, the conduct of proceedings
  before the childrens court and presiding
  officers and other court officials form the
  subject matter of Chapter 4of the Bill.

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Content of the Bill

• Chapters 5, 6, 7, 8, 11, 12, 13 and 14,
  respectively, will be in the Amendment Bill.
  These chapters deal with provincial competencies
  regarding service delivery to children such as
  ECD, Prevention and Early Intervention,Reporting
  abuse,neglect and exploitation. Partial Care,
  Foster Care, Child and Youth Care Centres,
  Shelters and Drop in Centres

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Contents of the Bill

• Chapter 7 is a crucial part of the Bill as it
  provides for the National Child Protection
  Registers AB and measures relating to the health
  of children consent to medical treatment and
  HIVAIDS testing.
• Chapter 9 deals with the child in need of care
  and protection, provides for the identification
  of such children and provides for actions to be
  taken with regard to children in need of care and
  protection.
• Chapter 10 deals with Contribution Orders

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Contents of the Bill

• Chapters 15 and 16, respectively, provide for
  adoption and inter-country adoption and give
  effect to the Hague Convention on Protection of
  Children and Co-operation in respect of
  Inter-Country Adoption.
• Chapter 17 gives effect to the Hague Convention
  on the Civil Aspects of International Child
  Abduction, while
• Chapter 18 similarly gives effect to the UN
  Protocol to Prevent, Suppress and Punish
  Trafficking in Persons, Especially Women and
  Children.

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Contents of the Bill

• Chapter 19 introduces new legislation into the
  South African legal system by formally providing
  for surrogate motherhood.
• Chapters 20 provides for the enforcement of the
  Bill through powers of inspection and the
  creation of offences.
• Chapters 21 and 22 of the Bill deal with general
  administrative issues and other miscellaneous
  matters such as regulations, delegations and
  assignments, outsourcing of services and
  transitional measures.

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New Proposals

• Significant new proposals include
• Inclusion of rights and responsibilities of
  children
• Recognition of the rights of children with
  disabilities and chronic illnesses
• Recognition of unaccompanied foreign minors
• Specific provision for the participation of
  children in matters affecting them
• The Bill proposes to lower the age of majority
  and provides for parental responsibilities and
  rights agreements

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New Proposals

• Significant new proposals include
• New child protection system for children National
  Child Protection register part B
• An extension of the rights of unmarried fathers,
  provision for a High Court procedure to allow
  persons other than parents to gain rights with
  regard to children,
• The need to formally recognise and provide for
  child-headed households and the protection of
  children.

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New Proposals

• Significant new proposals include
• Broadens the definition of Adoption Social Worker
  to include Social Workers in the employ of
  Provincial Departments of Social Development
• Adoption by same sex partners in a permanent
  domestic conjugal life-partnership
• Making provision for persons who previously was
  disqualified from adopting a child based on his
  or her financial status and allowing adoptive
  parents to apply for means tested social
  assistance
• Adoption register, open adoptions and
  inter-country adoptions

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New Proposals

• Significant new proposals include
• Provides for means to deal with inappropriate
  cultural practices prohibition of virginity
  testing
• Using the term Child and Youth Care Centres for
  Childrens Homes, Schools of Industry, Reform
  Schools
• Recognition of the Role of social workers in
  childrens court processes

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Current position and future plans