Implementation of the Children’s Act

1. Portfolio Committee on Women, Children and People with Disabilities. 16 September 2009 Implementation of the Children’s Act

2. Content of Presentation • Background • Content of the Children’s Act 38 of 2005 as amended. • Implementation readiness. • Costing. • Implementation plans. • Regulations – Norms and Standards. • National Policy Framework and Strategy. • Monitoring and Evaluation Framework. • Training guidelines. • Norms and Standards and Practice Guidelines. • Child Care and Protection Forum. • Communication material.

3. 1 Background • During 1997 the Minister for Social Development requested the South African Law Reform Commission to investigate the Child Care Act. • The findings revealed that the said Act did not have a rights based approach. The new legislation namely; the Children’s Act which is a combination of both the Children’s Act No 38 of 2005 and the Children’s Amendment Act No 41 of 2007 focus much more on children’s rights and the best interest of children. • Both these two pieces of legislation will be consolidated into one document which will be named the Children’s Act as amended.

4. 2. The Objects of the Children’s Act 38, 2005 • The Children’s Act seeks to protect all children in the following manner • 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;

5. The Objects of the Children’s Act 38, 2005 • Paramouncy of the best interests of a child • To give effect to the Republic’s 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; • To recognise the special needs that children with disabilities and chronic illnesses may have

6. 3. The Content of the Children’s Act 2005 and Children’s Amendment Bill

7. Contents of the Act • The Act has 22 chapters, which can be summarized as follows: • Chapter 1 deals with the interpretation, objects, application and implementation of the Act. • Chapter 2 provides for children’s rights and deals with issues such as the best interest of the child, child participation, social, cultural and religious practices, access to children’s courts and the age of majority. • Chapter 3 deals with all matters pertaining to 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 fertilization.

8. Contents of the Act cont… • The functioning, powers and jurisdiction of children’s courts, the conduct of proceedings before the children’s court and presiding officers and other court officials from the subject matter of chapter 4. • Chapters 5, 6 part of chapter 7,8,11,12,13 and 14, respectively, are in the Children’s Amendment Act. These chapters deal with provincial competencies regarding service deliver to children. • Chapter 7 is a crucial part of the Act as it provides for the National Child Protection Registers A and B and measures relating to the health of children, consent to medical treatment and HIV and AIDS testing and provisions for child-headed households

9. Contents of the Act cont… • 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. • Chapter 15 and 16 respectively provide for adoption and inter country adoption and give effect to the Hague Convention of Inter-Country Adoption. • Chapter 17 makes provision for the protection of children against child abduction and Chapter 18 deals with child trafficking. • Chapter 19 introduces new legislation into the South African Legal System by formally providing for surrogate motherhood. • Chapter 20 provides for the enforcement of the Act through powers of inspection and the creation of offences.

10. Contents of the Act cont… • Chapters 21 and 22 deal with general administrative issues and other miscellaneous matters such as regulations, delegations and assignments, outsourcing of services and transitional measures.

11. 4. Costing • The Children’s Act as amended has been through an extensive and detailed costing process. The process involved all national and provincial departments that play a role in the implementation of the Act. The final costing report was submitted to the Minister in July 2006.

12. 5. Implementation Plans • Costing results revealed that: • The Children’s Act creates additional responsibility on the State to make plans for, and encourage, the development of a range of new services including partial care, prevention and early intervention services, child and youth care centres and drop-in centres where these are deemed necessary. This was not an expectation within the Child Care Act. • The Act also requires additional human resources especially social workers and other social service professionals

13. Implementation Plans cont… • Overall, the Children’s Act extends the responsibility of the State, and regulates a wider range of services than those covered by the Child Care Act. In practice, this creates the need for greater State capacity for the registration and monitoring of a range of new services, as well as a responsibility on the State to create such new services where they do not exist. • The new obligations extend to other departments such as SAPS, DOH, DOJ&CD, DOE, and Cooperative Government and Traditional Affairs.

14. Implementation Plans cont…. • In line with the costing report, National Departments and Provinces developed Implementation Plans. • The draft national intersectoral plan consist of a situation analysis, activities, projects, budgets and human resource requirements for the implementation of the Act. • Individual plans still have gaps and DSD is visiting all Provinces to assist them to update and finalize their plans. • All plans need to be finalised for the national intersectoral plan to be comprehensive and complete.

15. 6. Regulations • DSD & DOJ drafted the regulations as required by the Act. • The draft DSD regulations were finalized and approved by the Select Committee on Social Services and the National Council of Provinces on 17 & 19 March 2009 respectively. • The Act requires the Minister of DSD to consult with other Ministers who have obligations in terms of the Act on the regulations. The draft DSD regulations were submitted to the respective Ministers for consultation and the office of the Chief State Law Advisor for review and certification on 10 February 2009.

16. Regulations cont… • The Departments of Basic Education, Health and Police responded and made proposals on the draft Regulations. • The Office of the State Law Advisor reviewed and certified the draft DSD Regulations and provided feedback in May 2009.

17. Regulations cont… • To implement the Act the following processes need to be finalized: • The DSD is in the process of revising and finalizing the Regulations. • The Justice & DSD Regulations should be approved by the respective Ministers. • Both Regulations need to be proclaimed before the Act may be implemented. • The Minister of Justice and the Minister of Social Development need to agree on the remaining sections of the Act that may be promulgated and the possible date of promulgation.

18. 7. National Policy Framework and Strategy • DSD in conjunction with USAID are in the process of drafting a national policy framework and strategy to ensure that the Act is implemented in a uniform, coordinated and integrated manner. • The policy will include a strategy and will be finalized by end of September 2009.

19. 8. Monitoring and Evaluation Framework • DSD finalized a framework to monitor and evaluate the implementation of the Children’s Act. • The 1st phase involved developing indicators. 201 Indicators were developed and 60 were prioritized for the 1st year of implementation. • The M&E framework will monitor and evaluate the quality of services, as well as children’s access to services. • It will evaluate how the Act impacts on, or improve the quality of life of children. • It will also monitor the enforcement of the legislation to ensure that children’s rights are protected.

20. 9. Training Guidelines • DSD is in the process of developing training guidelines for the practical implementation of the Children’s Act. The guidelines will be divided into three modules: • Phase 1 – Orientation/foundation training. • Phase 2 – Intermediate phase training. • Phase 3 – Advanced phase training. • Phases 1&2 – have been finalized. • Phase 3 will be finalized by end of September 2009. • When phase 3 is finalized, training guidelines for trainers will be developed.

21. Training Guidelines cont… • National DSD is continually engaged with Provincial DSD and other Departments. • In 2006 after the Amendment Act was passed, social workers in the Provinces were briefed. • After the 43 sections were promulgated in July 2007, representatives from Provinces were trained on the promulgated sections. • In 2008 the National office visited the Provinces to provide broad orientation on the Act. • Some Provinces contracted service providers to train staff in their Provinces.

22. 10. Norms and Standards Practice Guidelines • Project started in May 2009 and will be finalized in May 2010. • The project will start with business process mapping which will lead to the development of practice guidelines. • The practice guideline will determine the norms and standards. • There are some norms and standards available, however some are not in line with the Act. • There are norms and standards in the regulations.

23. 11. Child Care and Protection Forum • An Inter-sectoral Steering Committee on the Children’s Bill was constituted during the process of drafting the Children’s Bill. It composed of the children’s focal points within the various Departments. This Committee was best placed to deal with issues pertaining to the Children’s Act, its implementation and enforcement. • The Committee included the following Departments: DSD, DOH, DOE, Home Affairs, DCS, ORC, Treasury, DOJ, SAPS, UNICEFF, Foreign Affairs and Cooperative Governance and Traditional Affairs.

24. 11. Child Care and Protection Forum (CCPF) • In February 2008 DSD established the CCPF. • It extended membership of the Children’s Bill Steering Committee to National NGO’s and additional Departments like Arts and Culture, Sports and Recreation, Housing and Transport. • It comprises of representatives from Provincial DSD, National Departments which have obligations to implement the Act and National NGO’s. • The Forum will continue to assist with the implementation of the Act.

25. 12. Communication • DSD with the support of USAID developed a training DVD on the Act. • With the support of UNICEF three child-friendly/low literacy booklets were developed on the Act. • Use of media : electronic and print media

26. Way Forward • Finalization of Regulations. • Promulgation of the Act. • Implementation plans finalized, approved and resourced. • Finalization of the National Policy Framework and Strategies. • Implementation of Monitoring and Evaluation Framework/Indicators. • Finalization of training guidelines and training. • Communication material distributed. • Norms and Standards and Practice Guidelines to be developed and finalised.