Submissions to Portfolio Committee on Social Development on Bill B13- 2015

1. Submissions to Portfolio Committee on Social Development on Bill B13- 2015 Professor Ann Skelton Director Centre for Child Law, University of Pretoria

2. This presentation will deal with two issues • The National Child Protection Register • Why do we have 2 registers (or any register?) • Problems with the alignment between the National register for sex offenders (NRSO) and the National Child Protection Register (NCPR) • The amendments to section 150(1)(a) • How a court order is preventing the foster care system from collapsing • Problems with the amendment

3. Why two registers? • The SA Law Reform Commission committee decided to include the National Child Protection Register in the Children’s Act • Another committee of the SA Law Reform Commission was drafting the Sexual Offences Bill. They decided not to include a register • The Justice Portfolio Committee added the NRSO to the Sexual Offences Act

4. Do we need any register? • What is the purpose of the registers? To prevent adults who have been convicted of certain crimes to be able to work with children (NRSO + mentally disabled) • Why can this not be achieved through the normal criminal record system? Eg when employing a person who will work with children, check their criminal records and if convicted of certain offences, do not employ • More efficient system, cheaper, all victims

5. More specific problems with the proposed amendments • Not opposed to bringing this in line with the Sexual Offences Act (although this includes a wide range so for child offenders this has implications eg sexting) • This register was not aimed at child offenders, rather adults who work with children. But it does not exclude them, so therefore it applies to them • Let’s look first at how any person can go on the register • A children’s court (not criminal. Findings re child perpetrator would be very rare); • Disciplinary proceedings (worrying, if includes school); • Criminal proceedings

6. The amendments • The amendments focus on criminal proceedings • They add certain offences (also accidentally deletes [attempted murder…] • The say that ‘must be found’ should be changed to ‘deemed’ – sounds similar but there are problems • No follow through • So section 121 and 122 contain the words ‘finding’ and not ‘deemed’

7. This has serious effects • S 121 gives people the right to appeal the ‘finding’ that they are unable to work with children, but not people who are ‘deemed’ • S 122 creates a mechanism to place the names of people ‘found’ unsuitable on the register but not deemed • Cannot just replace ‘found’ with ‘deemed’ • Recommendation: Do not change ‘found’ to ‘deemed’

8. Child offenders • In the case of J v NDPP (2014) the Centre for Child Law acted for Childline, Teddy Bear Clinic and NICRO as friends of the court • The Constitutional Court ruled that the law that automatically placed children on the sex offender’s register was unconstitutional because it prevents their rehabilitation and reintegration and because evidence showed they do not necessarily grow up to be adult sex offenders

9. Alignment with Act 5 of 2015 NSRO (Act 5 of 2015) NCPR (Bill B13 of 2015) A child who is convicted of a listed offence automatically goes on the NCPR because of must ‘be deemed/found’ A children’s court/disciplinary hearing will making finding or deem No assessment or report Children rarely have legal representation at children’s court or disciplinary forums Cannot come of earlier than 5 years • A child who is convicted a sexual offence does not automatically go on the NSRO • Application to place child on NSRO initiated by a prosecutor • An assessment and probation officers report and other evidence • Child is always legally represented • Can apply to come off register earlier than 5 years

10. Recommendations • Bring the provisions of this Act precisely in line with Act 5 of 2015 – this will probably mean amending other aspects • Or consider removing children altogether by adding in the word ‘adult’ in front of person • Confine the operation of this register with regard to convicted children only to criminal proceedings

11. Amendments to s 150(1)(a) • The foster care system is in crisis because we take all children – even those living safely with grannies and aunties – through this systems so there are 500 000 in a system that cannot cope because too few social workers • CCL supports grannies and aunties getting a higher grant than the child support grant – but asks: Is foster care the correct vehicle for the delivery of social assistance? • We need a complete system overhaul

12. The court order obtained by Centre for Child Law • In Feb 2012 the Centre for Child Law went urgently to the High Court because over 120 000 foster care cases had lapsed (ie court had not renewed, payments stopped) • The DSD did not oppose. The court order gave them 3 years to come up with a systemic solution, clear backlogs using ‘administrative’ rather than court process

13. New court order • In December 2014 DSD rushed to court – end of 3 years. They asked to extend for another 3 years. Still no systemic solution. • CCL did not oppose but asked that DSD reports every 6 months on progress to the Court and to CCL • They have reported once – there is still a backlog of 58 246 foster care cases (it has improved) but nothing on systemic solution

16. Systemic solution must be concluded in law by end 2017 • This Bill is clearly not the place to try to put in the systemic solution – the DSD is undertaking various processes towards a more comprehensive Bill • Nevertheless we need to ask: Why are the amendments in this Bill being proposed? • Will they assist with alleviating the current crisis or worsen it?

17. High Court judgment • The Manana case was the second case to deal with what is meant by ‘orphaned or abandoned and without visible means of support’ • It should be noted that this is only a High Court judgment • High Courts interpret the law every day – but Parliament does not change the law every time – so there is no requirement to make this amendment • Sometimes it helps to provide clarity

18. Will it help to clarify? • No because the word ostensibly will cause further confusion • Also confusing because the amendment introduces a means test for foster care (conflict with the Social Assistance Act) • The means test applies to the child. Why should a child be expected to have ‘the ability to support him or herself’. • Inheritence and a recent Constitutional Court case Coughlan NO v RAF

19. Recommendation on s 150(1)(a) • Wait for systemic solutions in a bigger amendment that the Department plans to bring • It may be tempting to do the amendment because it will arguably allow more grannies and aunties to get the foster child grant, but will also add a further burden to the system • Therefore we recommend that the committee should not make these small amendments that might create further confusion