FOSTER CARE PROGRESS REPORT

FOSTER CARE PROGRESS REPORT Presentation to Portfolio Committee on Social Development 04 September 2019

OUTLINE • Purpose of presentation • Introduction • Background • North Gauteng High Court Order, 2017 • Progress made in implementing the North Gauteng High Court Order/judgement, 2017 • Status of foster care orders in provinces • Challenges pertaining to foster care system • Interventions undertaken to address the challenges • Implementation of the Portfolio Committee’s resolutions. • Recommendations

PURPOSE OF THE PRESENTATION • To brief the Portfolio Committee on the backlog in the Foster Care Care System, progress made in its eradication and plans to further manage foster care programme.

INTRODUCTION • Foster care is a statutory intervention programme legislated in the Children’s Act 38 of 2005 for implementation by the provinces. • The programme contributes to the Department’s overarching outcomes 3 and 13 aimed at ensuring that ‘all people in South Africa are and feel safe’ and contributing to an ‘inclusive and responsive social protection system’ respectively. • The purpose of foster care is to provide care and protection to children in a nurturing, safe and healthy environment with positive support. • It seeks to promote the goals of permanency planning, promoting family reunification, or by connecting children to other safe and nurturing family relationships intended to last a lifetime; and respect the individual and family demonstrating a respect for cultural, ethnic and community diversity. • It targets children who are found to be in need of care and protection by the Children’s Courts, placing them in the care of a cluster foster care scheme, unrelated person or a family member other than their biological parents.

INTRODUCTIONcont… • The desired outputs of the programme are to: • Assess the children’s circumstances to ensure that the placements are responsive to their needs; • Place children in foster care through valid foster care orders; • Provide therapeutic and psycho-social support through planned social work interventions; • Provide regular supervision to strengthen the foster care placements.

BACKGROUND • In July 2010 the South African Social Security Agency (SASSA) submitted to the Chief Directorate: Children a national list of 299 076 foster children with lapsed foster care orders who received foster child grants per province. This resulted to the Department’s litigation by Centre for Child Law. • A court order was issued by the North Gauteng High Court (NGHC) on 11 May 2011 and a varied order on 2 June 2011 as a transitional mechanisms from Child Care Act 74 of 1983 to the provisions of the Children’s Act, 38 of 2005. • The order instructed the Department to extend the foster care orders administratively until 31 December 2014. • The North Gauteng High Court Order (NGHCO) was subsequently extended on 12 December 2014 making provision for the Department to continue to extend foster care orders administratively since the backlog of lapsed orders was not completed. This 2014 NGHCO was due to lapse on 31 December 2017. • A subsequent Order by agreement between Centre for Child Law and the Department was issued on 28 November 2017 providing an interim regime for management of foster care orders, and this order lapses 28 November 2019.

BACKGROUND CONT… • Department took a decision in August 2017 that provinces must revert to the provisions of the Children’s Act regarding the extension of the foster care orders from 2 January 2018. This was intended to normalise the functioning of the department not be ruled by court orders. • Provinces were prepared through provincial meetings to put systems in place to respond to the decision. However some provinces were not in a position to eradicate the backlog and revert back to the provisions of the Children’s Act. • Subsequently, Centre for Child Law continued in agreement with DSD to approach court for an interim regime. • The court order was issued on the 28 November 2017 with the following provisions:

NORTH GAUTENG HIGH COURT ORDER, 28 November 2017 Prayer 2- It is declared that: 2.1 The delay by the first respondent in preparing and introducing before Parliament amending legislation to produce a comprehensive legal solution in respect of the foster care system is unconstitutional, unlawful and invalid; and 2.2 The delay in putting in place the necessary mechanisms, structures, resources to ensure that the foster care system operates in a sustainable and effective manner is unconstitutional, unlawful and invalid. Prayer 3 : The declarations of invalidity in paragraph 2 are suspended for 24 months from the date of this order Prayer 4- The first respondent is directed, within 15months of this order, to prepare and introduce before Parliament the necessary amendments to the Children’s Act 38 of 2005 and/or the Social Assistance Act 13 of 2014, to produce a comprehensive legal solution regarding the foster care system.

CONTENTS OF THE ORDER… Prayer 5: During the period of suspension referred to in paragraph 3 and notwithstanding section 159(1)(a) of the Children’s Act 38 of 2005, the following interim regime will be in place: 5.1 Any foster care order which, as at the date of this order, is in existence or has lapsed due to non-extension as at the date of this order will remain valid for 24 months from the date of this order or until the child subject to the order turns 18, whichever comes first; 5.2 Any foster care order which has lapsed due solely to a failure to obtain an extension in terms of section 159(1)(b) of Children’s Act shall be deemed to be validly in place for 24 months from the date of this order or until the child subject to the order turns 18, whichever comes first; and 5.3 Notwithstanding the terms of this order, nothing shall prevent a Children’s Court during the existence of this order and/or after it has lapsed, from hearing a matter and making an appropriate order in terms of the Children’s Act regarding a foster care order falling within the ambit of this order. which may include extending, terminating or varying the foster care.

CONTENTS OF THE ORDER… Prayer 6- The second respondent (SASSA) is directed to effect payments of all foster care orders referred to in paragraph 5 above, effective from the date of this order. Prayer 7 - At six-monthly intervals calculated from the date of this order, the first Respondent (Minister) must file a report with this Court and the applicant, setting out 7.1 - The progress made in giving effect to paragraph 4 of this order; and 7.2 - any other matter she may consider necessary to report on. Prayer 8 - At six-monthly intervals calculated from the date of this order, the third to eleventh respondents, and the thirteenth to twenty first respondents, must file a report with this Court and the applicant, setting out any difficulties experienced in relation to the interim regime dealt with by paragraph 5 of this order. Prayer 9 The first respondent is directed to publish a copy of this order in the Government Gazette.

PROGRESS IN IMPLEMENTING THE NGHCO, 2017: Par 2.1 and 2.2 • In compliance with the paragraph 2.1 of the Court Order in providing comprehensive legal solution to foster care; the Department submitted the Social Assistance Bill, 2018 to Parliament on 16 March 2018. • The Department developed a Child Care and Protection Policy. • The Minister submitted an Amendment Bill to Parliament on 19 February 2019. • The following clauses to the 3rd Amendment Bill form part of the Department’s comprehensive legal solution: • Ad Clause 60: Amendment of section 105: Quality assurance of child protection services; • Ad Clause 84: Amendment of section 142: Establishment of well resourced designated child care and protection units with quality assurance units; • Amendment of section 150 of Act 38 of 2005: Clarification of an abandoned or orphaned child that is in need of care and protection;

PROGRESS IN IMPLEMENTING THE NGHCO, 2017: Par 2.1 and 2.2 (cont…) • Ad Clause 94: Amendment of section 159: provides discretion to extend lapsed court orders or issue interim orders. • Ad Clause 102: Amendment of section 186: Revised timeframe for monitoring of foster placements by social service professionals and further supervision services as contemplated in section 65(2)(a)(ii) by the Children’s Courts; • Ad Clause 93: Amendment of Section 157: Promotion of the placement of abandoned and orphaned children in adoption. • In relation to paragraph 2.2 provinces are making progress to eradicate all cases that are due to lapse in November 2019, with the limited resources available. It must be noted that there was no additional budget allocation to implement the court order.

PROGRESS IN IMPLEMENTING THE NGHCO, 2017: Paragraph 5 • The provinces are implementing the interim regime provided in paragraph 5 of the NGHCO that deem all the affected foster care orders to be valid. • Furthermore, the provinces are taking the matters to the Children’s Courts for extension of these orders to have a duration that extends beyond 28 November 2019. • The cases taken to court are inclusive of the new court enquiries for placement of children in foster care. • The following tables presents the court orders that must be taken to court by November 2019. • In addition, subsequent tables reflects projections between December 2019 to December 2020 which will assist in planning.

STATUS OF FOSTER CARE ORDERS AFFECTED BY THE NGHCO (SASSA SOCPEN, JULY 2019)

PROJECTIONS OF FOSTER CARE ORDERS DUE TO LAPSE IN DEC 2019(SASSA SOCPEN, 14 JUNE 2019)

PROJECTIONS OF FOSTER CARE ORDERS DUE TO LAPSE IN 2020 (SASSA’S BIS, 14 JUNE 2019) cont…

CHALLENGES: SYSTEMIC FACTORS IMPACTING NEGATIVELY THE FOSTER CARE PROGRAMME In response to Para 2.2, there are inadequate allocation of Human, Financial and Technical resources whichnegatively impact on the implementation of the programme. • The shortage of social workers, social work supervisors and canalisation officers inhibits the provision of foster care services. The OSD impacts negatively on the appointment of social work supervisors resulting to non-compliance to a ratio of 1:12 supervisor to social workers. The social workers rendering generic services are carrying high case loads which is non-compliant to a ratio of 1:60. This results to officials feeling overwhelmed, burn out and some social workers eventually leave the profession. • Insufficient tools of trade, however some provinces have made strides to provide for tools of trade, office space and appointment of social workers and supervisors.

CHALLENGES: SYSTEMIC FACTORS IMPACTING NEGATIVELY THE FOSTER CARE PROGRAMME (cont…) Partnerships: • Inadequate budget allocation for NGOs rendering child protection services; this resulted to NGOs scaling down their services and some closing down, transferring their cases to DSD, leading to increased workload for DSD. Information management system: • Lack of an integrated information management system results to: • Inefficient management and decision making for improvement of foster care services. • Limited interfacing of information with other departments and the monitoring and evaluation of foster care services; • Tracking and management system of all foster care orders.

CHALLENGES: SYSTEMIC FACTORS IMPACTING NEGATIVELY THE FOSTER CARE PROGRAMME (cont…) Governance • Foster Care programme of action was developed and shared with provinces for standardisation of foster care programme; however due provincial autonomy, implementation is done differently. Legislation: • Varying interpretations of the legislation by magistrates. In some magisterial areas presiding officers are not of the view to place orphaned children with the grandparents due to the varying interpretation of Section 150 of the Children’s Act. • Minimal utilization of Section 186 of the Act for long term placement of foster children due to the lack of mechanisms to strengthen the supervision of foster placements, result to bringing matters to court every two years. • Regulation 56 of the Children’s requires advertisement and there are no allocated budgets by provinces; in some instances; the adverts delays the finalisation of extension.

CHALLENGES: SYSTEMIC FACTORS AFFECTING THE FOSTER CARE PROGRAMME (Cont..) Social work administration and case management • Social work administration and case management processes are not standardized across the regions in all the provinces (e.g. allocation card system, record keeping, filing system etc.) Intersectoral collaboration • Some of the requirements for the implementation of the legislation impacts negatively on the implementation of the foster care programme as there are dependencies in the execution of the roles and responsibilities within the foster care value chain e.g. some district surgeons refuse to examine children without birth certificates; time frame for issuing unabridged birth certificate by Home Affairs including payment of unabridged certificate fee. These impacts on the finalisation of foster care cases. Monitoring and evaluation: • Inconsistent application of oversight function for the foster care programme across provinces. In some provinces oversight role is peached at HOD, DDG level which provides accountability whilst some would leave at provincial coordinator level.

INTERVENTIONS UNDERTAKEN TO ADDRESS CHALLENGES • National DSD is developing an integrated M&E framework for foster care aimed at strengthening the monitoring and evaluation of the programme. • An Electronic Foster Care Monitoring Tool has been developed and rolled out in provinces. This tool has a warning system for foster care orders that are due to lapse and a database of children in foster care. It also provides a capability to be used as a management tool by the social workers and the supervisors. An Alternative Care Information Management System is in the process of being developed that will make provision for the migration of information collected through the Foster Care Monitoring Tool.

INTERVENTIONS UNDERTAKEN TO ADDRESS CHALLENGES (cont…) • National office in collaboration with provinces conducts quarterly provincial monitoring meetings jointly with SASSA. • Conducts quality assurance and monitoring of compliance to norms and standards (actual files of foster children). • Quarterly monitoring of progress in foster care at a inter-sectoral National Child Care and Protection Forum meeting. • Foster care is a standing agenda item at DSD internal fora i.e. Welfare Services Forum, HSDS and MINMEC. • Revised the foster care project plan into a programme of action (POA) where provinces were trained and assisted to develop provincial POA.

INTERVENTIONS UNDERTAKEN TO ADDRESS CHALLENGES • Provinces implement various measures in an effort to implement foster care programme of action and to ensure compliance to the North Gauteng High Court Order which is due to lapse in November 2019. • The good practices which include: • Direct provision of oversight and monitoring of the implementation of the foster care Project Plan and the North Gauteng High Court Order regarding the extension of the foster care orders on a monthly basis by SASSA Regional Executive Managers (REM) and the Heads of Social Development (HOD). • Shift in focus from administrative foster care to provision of therapeutic social work intervention. • In most provinces SASSA shares its resources with DSD e.g. by driving social workers and conducting home visits as a team.

INTERVENTIONS cont… • The Department continually engages with the Judiciary and the Department of Justice and Constitutional Development nationally and provincially, strengthening the relations toward improving the foster care services. • Regular case flow meetings are held with representation from the key stakeholders (e.g. Judiciary, DSD, other government departments), that are instrumental in resolving implementation challenges. • Additional new social workers deployed in areas with high backlogs and retired social workers employed to supervise and provide support , some doing group supervision; • Auxiliary social workers utilized to assist i.e. update data base, gather information & support documents including follow up with SASSA;

INTERVENTIONS cont… • The National Department of Social Development identified that there are social work graduates that are not employed due to the unavailability of budget allocations. The Department approached the National Treasury to convert the scholarship fund into conditional grant for this purpose. National Treasury allocated R 846 011m over a period of 3 years commencing in 2017. This allocation facilitated appointment of 566 total number of social workers. • The Department also engaged the veteran social workers to assist the Department to strengthen the social work force and to assist with the supervision of social work graduates. • The Department finalized a costing model to strengthen child protection services rendered by NGOs.

INTERVENTIONS TO IMPLEMENT THE KEY RECOMMENDATIONS OF THE FOSTER CARE COMMITTEE • Provision of prevention and early intervention programmes is strengthened. Core package of services has been developed. • Some provinces have established the alternative care units which will be expanded into child protection units.

RECOMMENDATIONS It is recommended that the Portfolio Committee: • Take note of the status of the foster care programme in relation to the backlog and the implementation of the North Gauteng High Court Order; • To support the introduction of the Children’s Amendment Bill which will support the foster care programme. • To support the mobilisation of resources to appoint more social workers and provide tools of trade.

FOSTER CARE PROGRESS REPORT