IMPLEMENTATION OF THE CHILDREN’S ACT 38 OF 2005 AND THE SECOND AMENDMENT TO THE ACT

1. IMPLEMENTATION OF THE CHILDREN’S ACT 38 OF 2005 AND THE SECOND AMENDMENT TO THE ACT PRESENTATION BY MS M DAVIDS

2. OVERVIEW • Background • Implementation risks • Operational implementation challenges • Legislative implementation challenges • Implementation challenges that will be addressed by the Second Amendment Bill • Adoption services • Interpretation of section 150 • Unconstitutionality of section 151 and 152 • Extension of court orders • Transfer of persons over 18 years in alternative care • Finding persons unsuitable to work with children • Way forward

3. BACKGROUND • Fourty three sections of the Children’s Act were promulgated on 01 July 2007 and the remaining sections on 01 April 2010. • Since promulgation, the Department has been monitoring implementation, which revealed that there are areas where implementation is good and areas that are challenging and necessitate the amendment of certain provisions of the Act. • The Department commenced with the process of reviewing the Act in April 2011, to consult relevant stakeholders and identify implementation challenges and possible solutions. • The Department conducted extensive consultations in 2011 and 2012 to engage with stakeholders on proposed amendments to the Act. • Substantive submissions on proposed amendments were received from individuals, organizations, coalitions and several workshops that were conducted.

4. IMPLEMENTATION RISKS • Before the implementation of the Act, the Department undertook a costing exercise to estimate the costs and personnel implications presented by the new Act. • The costing also focused on Constitutional risk studies, litigation risk studies, as well as regressive provisions of the Act. • All relevant stakeholders developed implementation plans that were costed. • The major risks for the implementation of the Act were funding and human resources. • The Department approached National Treasury for additional funding to mitigate the anticipated implementation risks. • In some areas, the new obligations were not funded and available funds and personnel were stretched to cover them.

5. Operational implementation challenges • Lack of staff to implement the Children’s Act including social workers, child and youth care workers, social auxiliary workers and social work supervisors. • To mitigate this challenge, the Department has been awarding social work scholarships to increase the number of social workers. • Furthermore, training of child and youth care workers has commenced and it is envisaged that 10 000 child and youth care workers would have been trained in 5 years time. • The Children’s Act has imposed new obligations on the Department and other relevant stakeholders. However, budgets have not increased significantly and this affects the quality and prospects for extension of services.

6. Operational implementation challenges • With the new obligations introduced by the Act, the Department had to re-align its structure and create new posts in order to provide new services. • One challenging area that required extensive re-alignment and re-structuring was the management of the Child Protection Register (CPR). • Part B of the CPR is a new function and it proved very challenging in the initial stages of implementation, but the situation is stabilising and under control.

7. Legislative implementation challenges • The provision and quality of early childhood development (ECD) services is another area of concern. The Department is investigating this area and will finalise a policy that will provide policy options for the provision and funding of ECD services. • The Act requires the Minister and provincial MECs to develop national and provincial strategies on partial care, ECD, child and youth care centres, drop in centres and prevention and early intervention. • These strategies must be informed by information contained in provincial profiles that have to be finalised by provinces. • The process in finalising provincial profiles is slow and it affects the finalisation of some strategies.

8. Legislative implementation challenges • National strategies for partial care, prevention and early intervention and drop-in centres have been finalised. • The Act provides for automatic registration of facilities and organisations that were previously registered in terms of the Child Care Act. • These inlcude ECD centres, child and youth care centres and child protection organisations. • Notwithstanding this, there are new provisions for registration and approval of ECD programmes and programmes offered at child and youth care centres. • The process of registering these programmes is slow as it is new and should be accompanied by training and guidance on processes and procedures.

9. Legislative implementation challenges • Foster care and the care of children by relatives is one challenging area. It is a social work intensive process that entails investigations, children court proceedings, supervision, counseling, administration, monitoring and support. • Due to the high foster care cases, the Department often experiences backlog in foster care services. • The issue of foster care will be investigated through a comprehensive investigation into services for orphaned children. Foster care is one option for such children. It is a most popular option available to families because it is funded through the foster child grant. Other favourable options are adoption, guardianship or awarding of parental responsibilities and rights.

10. IMPLEMENTATION CHALLENGES: ADOPTION SERVICES Legislative provision • Section 1 of the Act defines an adoption social workers as a social worker in private practice, who has a speciality in adoption services and is registered in terms of the Social Service Professions Act, 1978 (Act 110 of 1978), or a social worker in the employ of a child protection organisation which is accredited. • This definition excludes social workers in the employ of the Department of Social Development. Challenge • Social workers in private practice and child protection organisations that offer adoption services charge a fee to clients that require the service. • By virtue of being excluded from the definition of an adoption social worker, departmental social workers cannot appear in court to present adoption matters.

11. IMPLEMENTATION CHALLENGES THAT WILL BE ADDRESSED BY THE SECOND AMENDMENT BILL ADOPTION SERVICES: CHALLENGES • Clients who require adoption services from the Department cannot receive such services. Some approach the service providers mentioned above and some abandon their plans to adopt if they are not in a position to pay the prescribed fees. • Furthermore, the Department promotes adoption as a preferred method of placement of children who are in need of care and protection and need permanent family placement. • To increase the number of adoptions for children who need family placements, there should be free State adoption services available to parents who wish to adopt but cannot afford the prescribed fees. PROPOSED LEGISLATIVE SOLUTION • To overcome the highlighted challenges, social workers in the employ of the Department of Social Development must be included in the definition of an ‘adoption social worker’ and be allowed to render adoption services.

12. INTERPRETATION OF SECTION 150(1)(a) Legislative provision • Section 150 (1)(a) states that ‘a child is in need of care and protection if the child has been abandoned or orphaned and without any visible means of support’ Implementation challenges • There are different interpretations of the term ‘visible means of support’ . Two cases were heard at the High Court where one of the judgments clarified the term. Proposed legislative solution • To add a new definition of ‘visible means of support’ • To add a new subsection (d) in section 160. Section 160 deals with Regulations for children in need of care and protection. The new subsection (d) to read as follows: (d) procedure for determining whether a child has visible means of support.

13. Unconstitutionality of Section 151 and 152 Legislative provision • Sections 151 and 152 do not provide for judicial review of the social worker’s decision to remove a child and placement of that child in temporary safe care. Implementation challenge • The omission does not allow the court to confirm or dismiss the social workers decision soon after the removal of the child. Proposed legislative solution • To make provision for the social worker who has removed a child into temporary safe care to place the matter before the children’s court for review, a day after the removal.

14. Duration of court orders : Section 159 Legislative provision • Section 159 requires all orders issued by the children’s court to be extended by it. Implementation challenge • Previously, court orders issued by the children’s court were extended by the Department of Social Development. Section 159 removed this function and placed it on the children’s courts, most of which failed to cope with the new function. The High Court issued an order directing the Department of Social Development to extend certain foster care orders. Proposed legislative solution • To amend section 159 to allow the Department of Social Development to extend court orders issued by the children’s court.

15. TRANSFER OF A CHILD IN ALTERNATIVE CARE: SECTION 171 Legislative provision • Section 171 does not allow transfer of a person over the age of 18 years but below 21 years to be transferred from one form of alternative care to another. Implementation challenges • If the care arrangements of a person over 18 years change, and it is evident that this person is still in need of care and protection, the social worker does not have any legal option to transfer such person. These persons are automatically discharged from the provisions of the Children’s Act or forced to remain in the current care situation. Legislative solution • To amend section 171 to allow the transfer of a person between 18 and 21 years from one form of alternative care to another.

16. Finding persons unsuitable to work with children: Section 120 Legislative provision: Section 120 (4) This section reads as follows: “In criminal proceedings, a person must be found unsuitable to work with children- (a) on conviction of murder, attempted murder, rape, indecent assault or assault with the intent to do grievous bodily harm with regard to a child; or (b) if a court makes a finding and gives a direction in terms of section 77 (6) or 78 (6) of the Criminal Procedure Act, 1977 (Act 51 of 1977) that the person is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence or was by reason of mental illness or mental defect not criminally responsible for the act which constituted murder, attempted murder, rape, indecent assault or assault with the intent to do grievous bodily harm with regard to a child”

17. Finding persons unsuitable to work with children: Section 120: Challenges Implementation challenges Challenge no 1. • Currently the court may convict an offender of an offence mentioned in section 120 and thereafter has to make a 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. • The Department cannot 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’ not the ‘convictions’ must be reported to the Department. • The Department is often compelled to contact various courts that submitted convictions and request them to make ‘findings of unsuitability to work with children’. • This is a time-consuming exercise which does not always yield positive results.

18. Finding persons unsuitable to work with children: Section 120: Challenges Implementation challenges Challenge no 1 (continued) • These situation results in the number of convictions being higher than unsuitability findings and consequently lower numbers of offenders registered in the CPR. Proposed legislative solution • To add new wording in 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 a court convicts a person of any offence mentioned in section 120.

19. Finding persons unsuitable to work with children: Section 120: Challenges Challenge No 2 Section 120 does not provide for attempted sexual offences that are stated in section 55 of the Criminal Law Amendment (Sexual Offences and Related Matters) 32 of 2007. Proposed legislative solution • It is proposed that a person convicted of an ‘attempted’ sexual offence against a child be included in section 120 (4)(a). Challenge No 3 • The Children’s Act was passed before the Criminal Law Amendment Act, hence some of the terms used in the Children’s Act are obsolete. Proposed Legislative Solution • To align the wording in the Children’s Act with the wording in the Criminal Law Amendment Act.

20. Way forward • The Department intends to introduce an Amendment Bill containing the proposed amendments listed above. • These amendments are urgent and will not have financial implications for the Department or any stakeholder involved. • The amendments will facilitate implementation of the Act and alleviate challenges experienced by service providers. • A further Amendment Bill which will focus on more substantial matters that need policy decisions and costing will be introduced at a later stage.

21. THANK YOU