The Children’s Bill

1. The Children’s Bill NCOP Briefing Department of Social Development 2&5 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 • Children’s 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

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 Children’s Issues. • Cabinet • Parliamentary structures

8. Challenges • Full implementation of a child right’s 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 Children’s 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 • Internationalinstruments • 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) • Children’s 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)

11. 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 Children’s 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

15. Process • The split has led to the moving of all Section 75 chapters and clauses to revised Children’s Bill. • Other chapters and clauses to be inserted in Children’s Amendment Bill once Children’s 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.

18. 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

19. 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;

20. Objects of the Bill • 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;

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 children’s 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 children’s court and the age of majority.

22. 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 children’s courts, the conduct of proceedings before the children’s court and presiding officers and other court officials form the subject matter of Chapter 4of the Bill.

23. 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

24. Contents of the Bill • Chapter 7 is a crucial part of the Bill as it provides for the National Child Protection Registers A&B and measures relating to the health of children: consent to medical treatment and HIV&AIDS 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

25. 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.

26. 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.

27. 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

28. 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.

29. 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

30. 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 Children’s Homes, Schools of Industry, Reform Schools • Recognition of the Role of social workers in children’s court processes

31. Action Responsibility Time frame The approval of the Section 75 Bill National Council of Provinces November 2005 Promulgation of the Children’s Act DSD December 2005 or February 2006 Re introduction of Section 76 Bill DSD February 2006 Approval of the Amendment Act (76) Parliament (both houses) November 2006 or April 2007 Promulgation of the Amendment Act DSD June 2007 Costing of the Bill DSD/Steering Committee February 2006 Development of Regulations DSD September 2005-June 2007 Implementation of the Act Steering Committee/Depts/NGOs July 2007 Development of practice guidelines DSD/Steering Committee September 2005-June 2007 Training of service providers DSD/Steering Committee January 2006 Current position and future plans