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Children’s Amendment Bill, 2018 Prof Julia Sloth-Nielsen jsloth-nielsen@uwc.ac.za

The Children’s Amendment Bill, 2018 aims to enhance child protection measures by amending the Children’s Act, 2005. It focuses on parental rights and responsibilities, unmarried fathers, children’s courts, alternative care, and more.

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Children’s Amendment Bill, 2018 Prof Julia Sloth-Nielsen jsloth-nielsen@uwc.ac.za

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  1. Children’s Amendment Bill, 2018 Prof Julia Sloth-Nielsenjsloth-nielsen@uwc.ac.za

  2. Introduction • Background • Process • Contents overview • Specifics related to parental rights and responsibilities • Specifics related to unmarried fathers • Jurisdictional and procedural issues: children’s courts • Partial care; ECD • Child protection • Alternative care • Corporal Punishment

  3. Preamble • To amend the Children’s Act, 2005, to further promote and protect the child’s right to physical and psychological integrity; to further regulate the position of unmarried fathers; to introduce a civil mechanism for refusal of contact with children; to extend the children’s court jurisdiction to hear applications for guardianship;

  4. Preamble • to regulate the care of abandoned or orphaned children by family members; to further regulate the initiation of care and protection proceedings; to further regulate the medical testing of children for foster care and adoption purposes; to clarify procedures for children in alternative care; to further regulate matters relating to adoption and inter-country adoption; etc

  5. Parental responsibilities and rights • Heading of Part 1 changes to “automatic” acquisition and loss of PRR • Amendment to section 19 – the biological father of the child of an unmarried mother has no guardianship of the child unless he has guardianship ito section 20 or 21 • S 21 will be amended to read that the father will acquire PRR if at the time of the child’s conception, birth or at any time in between conception and birth he was living with the child’s biological mother (so mirrors s 20 re married fathers).

  6. Parental responsibilities and rights • Reference to having had to be a “permanent life partnership” has been deleted • Second criterion also changed: regardless of whether he was living with biological other, if he shows “contribution (or attempt to contribute) to a child’s upbringing” • Deleted: ‘in good faith’ and ‘for a reasonable time’

  7. Parental Responsibilities and rights • Next subsec also amended: if he has “contributed or has attempted to contribute towards expenses in connection with the maintenance of the child” • Deleted: ‘in good faith’ and ‘for a reasonable period’ • Was historical: too difficult now for fathers of newborns to comply

  8. Parental Responsibilities and rights • Insertion of new subsec 1A in s 21: • “(1A) The family advocate may, in the prescribed manner, issue a certificate confirming that the biological father has automatically acquired full parental responsibilities and rights in terms of subsection (1)(a) or (1)(b) on application from- • (a) the mother and biological father applying together; • (b) the biological father, after the mother and biological father completed mediation referred to in subsection (3) and the outcome of the mediation was that the biological father automatically acquired full parental responsibilities and

  9. Parental responsibilities and rights • Sub sec 3: cosmetic changes with deletion of reference to mediation by a social worker (social service practitioner), and deletion of clause providing for any party being able to refer the outcome of mediation to a court for review. • Easier for unmarried father to acquire paper proof of his status

  10. Parental Responsibilities and rights rights in terms of subsection (1)(a) or(1)(b); or • (c) the biological father, who has approached the family advocate for mediation in terms of subsection (3) if- • (i) the mother, after receiving notice of mediation in terms of subsection (3) in the prescribed manner, has unreasonably refused to attend the mediation; and • (ii) the biological father has shown to the satisfaction of the family advocate that he has automatically acquired full parental responsibilities and rights in terms of subsection (1)(a) or (1)(b).”;

  11. Parental responsibilities and rights • Section 22 (PPR agreements) – insertion of new subsec: • “(2A) The child who is the subject of a parental responsibilities and rights agreement, if of sufficient age, maturity and stage of development, must be given the opportunity to express his or her views regarding the contents of such agreement which views must be recorded in the prescribed manner.” • Already in regulations

  12. Parental responsibilities and rights • S 23: references to contact and care deleted, replaced by broader concept of parental responsibilities and rights (cf s 28 too) • S 23(3) replaced with: “When bringing an application contemplated in subsection (1), the parties must inform the court of any other proceedings that are pending in any other court in respect of the child” (no explicit reference to adoption)

  13. Parental Responsibilities and rights • See too amended s 29(2): • “(2) An application in terms of section [24] 23 for guardianship of a child must contain the reasons why the applicant is not applying for the adoption of the child.”

  14. Parental Responsibilities and rights • New s 25: “Subject to section 45(4), when application is made in terms of section [24] 23 by a non-South African citizen for guardianship of a child, the application [must be regarded as], if heard in the High Court or a regional court, must be referred to a children’s court having jurisdiction to be dealt with as an application for an inter-country adoption for the purposes of the Hague Convention on Inter-country Adoption and Chapter 16 of this Act. • (2) The Central Authority of the Republic contemplated in section 257 (1)(a) must be cited as a respondent in the event of an application referred to in subsection (1).”.

  15. Parental Responsibilities and Rights • New s 29 1A: • “(1A) Any party to an application in terms of section 22 (4) (b), 23, 24, 26 (1) (b) or 28 may, in the prescribed manner, refer the matter to the family advocate or a social worker for an investigation.” • S 24 was to be to deleted in toto: now removed from gazetted Bill • Social worker added to above in the gazetted version

  16. Part 2: Exercise of PRR • New section 30A inserted: • “Residence of child • 30A. (1) The parents must agree on the residence of the child.

  17. Exercise of PRR • (2) The residence of the child must be determined in • accordance with the best interests of the child and may include- • (a) residence with both parents where the parents are living together; • (b) residence with one parent; • (c) residence with both parents, where the parents are not living together, but not equal time with both parents; or • (d) residence with both parents, where the parents are not living together, with equal time with both parents.

  18. Exercise of PRR • (3) The residence of the child does not affect the joint • exercise of parental responsibilities and rights by co-holders of parental responsibilities and rights. • (4) The term “parent” or “parents” as used in this section • may include any co-holder of parental responsibilities and rights if appropriate in the context.”.

  19. Exercise of PRR • New subsec 32(5): • “(5) Despite subsection (3), an administrative process allowing the provincial head of social development to recognise the exercising of parental responsibilities and rights by a person other than a parent caring for a child may be applied as prescribed.”.

  20. Exercise of PRR • New subsection 4A (changed in gazetted version) • “(4A) An application contemplated in subsection (4) must be submitted in the prescribed form and manner and an application for— • (a) amendment of the parenting plan and must be accompanied by a copy of the proposed amended parenting plan; or • (c) termination of a parenting plan and must include written reasons for the termination of the parenting plan.”.

  21. Exercise of PRR • Sec 35 wsa to be repealed in its entirety • ““[Refusal of access or refusal to exercise parental responsibilities • and rights]” • Now amended:

  22. Exercise of PRR • Any person having care or custody of a child who, contrary to an order of any court, [or to] a parental responsibilities and rights agreement or parenting plan that has taken effect as contemplated in section 22 (4), and 23 refuses another person who has [access to] • contact with that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such [access] contact or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.”; and

  23. Exercise of PRR • Sub 2 also amended, not deleted • “(2) (a) A person having care or custody of a child whereby another person has [access to] contact with that child or holds parental responsibilities and rights in respect of that child in terms of an r of any court, [or] a parental responsibilities and rights agreement or a parenting plan as contemplated in subsection (1) must upon any change in his or her residential address forthwith in writing notify such other person of such change.”

  24. Regulations to chap 3 • Eg: (a) the format of and particulars to be contained in the certificate relating to biological fathers contemplated in section 21(1A); • (b) the categories of persons who may be regarded as suitably qualified persons for purposes of sections 21 (3)(a) and 33 (5)(b); • (c) the format of and particulars to be contained in a parental responsibilities and rights agreement contemplated in section 22 (3); • (d) the format of and particulars to be contained in an application for registration of a parental responsibilities and rights agreement contemplated in section 22 (4);

  25. Regulations to chap 3 • (e) the format of and particulars to be contained in an application for amendment or termination of a responsibilities and rights agreement contemplated in section 22(6); • (f) the format of and manner in which an application for • granting parental responsibilities and rights should be • lodged in the children’s court as contemplated in section • 23 (1); • (g) the manner in which an investigation may be referred to the family advocate as contemplated in section 29(1A); • (h) the format of and particulars to be contained in a parenting plan contemplated in section 34 (1);

  26. Regulations to Chap 3 • (i) the format of and particulars to be contained in an application for registration of a parenting plan as contemplated in section 34 (3); • (j) the format of and particulars to be contained in an application for amendment or termination of a parenting plan as contemplated in section 34 (4A); • And any other matter…

  27. Jurisdictional and procedural issues • “party”, in relation to a matter before a children's court, • means…..- • (e) the [department] Department, provincial department of social development or the designated child protection organisation managing the case of the child; [definitions section]

  28. Chapter 3 • “1 (4) Any proceedings arising out of the application of [the Administration Amendment Act, 1929 (Act 9 of 1929)], the Divorce Act, the Maintenance Act, the Domestic Violence Act, 1998 (Act 116 of 1998), Civil Union Act, and the Recognition of Customary Marriages Act, 1998 (Act 120 of 1998), in so far as these Acts relate to children, may not be dealt with in a children's court.”. Significance??

  29. Chapter 3 • All references to “divorce court” changed to regional court in a divorce matters (eg s 22(4); s 28; s 29) • Chapter 4: Children’s Courts • New s 44(3):“ (3) A matter may be transferred from one children’s court to another in accordance with the prescribed procedure if such transfer would be in the best interests of the child.”.

  30. Children’s Courts • New subsection 45(3): • “(3A) The High Courts and the children’s court have concurrent jurisdiction over the guardianship of a child as contemplated in section 24. • (3B)The High Court, children’s court and the regional court have concurrent jurisdiction over the assignment, exercise, extension, restriction, suspension or termination of guardianship in respect of a child.” • Deletion of section 74 (??)

  31. Partial care • Now definition is taking care of ore than 5 (not 6) children • Inclusion of municipalities as service providers • Prioiritision of where funds are spent is spelt out

  32. ECD • New definition • Requirement that MEC for DSD MUSt (not may) set aside money for ECD from the provincial legislature • May prioritise and fud ECD (and how to prioritise • MEC may delegate some functions to municipal managers

  33. Child Protection • QA assurance introduced by law for all child protection services contemplated in chapter 9 (reporting and follow up of child abuse and neglect) • New s 107 (1)(A)“(1A) The provincial head of social development may, on receipt of a written application designate any organisation that complies with the prescribed criteria as a child protection organisation to perform all or any specific designated child protection services in the relevant province.”;

  34. Child Protection • Q as to whether that means different criteria at provincial level? • New section provides for an appeal process if aggrieved child protection organisation loses accreditation • List of obligated reporters (s 110) extended: DHA, ward councillors) • Registrar of the National ChildProtection register to be appointed

  35. Child Protection • (1) A child or person whose name appears in Part A of • the Register may in terms of subsection (2) apply for the removal of • his or her name and any information relating to him or her from the • Register. • Application to Registrar or Children’s Court • Speaks of ‘entry made in error’

  36. Child Protection • Part B: clarified that only persons 18 years of older when offence committed liable to have names included • J v Minister of Justice (CC) • S 126 (1) amended: • “(1) An employer or the affected person must establish every two years whether the name of the person is in Part B of the Register [Before] before a person is allowed….

  37. Child Protection • S 150: (a) has been abanodoned or orphaned and who is not in the care of a family member (without visible means of support deleted); case law difficulties • 3 categories added: unaccompanied migrant child from another country; victim of trafficking; has been dols by a parent, caregiver or guardian

  38. Child protection • New s 150A: any person who on reasonsble grounds believes a child is in need of care and protection may approach the relevant children’s court to report this under oath. Follow up provided for in remainder of the section • Children’s court hearing now postponed for 30 days (not 14) • Extension of orders that have lapsed (s 159(3)

  39. Alternative care • S 167 rewritten – time limits! • Temporary safe care – 72 hours, then must get a court order (C v Min of Health and Welfare, CC) • May not be in TSC for more than 6 months unless court permits extension, but stay not to exceed 12 months • May not be in foster care or a CYCC without a court order (AT ALL) • CYCC can be designated TSC

  40. Corporal punishment • Round 3 (4? – september version changed in gazetted version!) • Now: 12A: “(1) any person caring for a child, including a person who has parental responsibilities and rights in repsect of a child, must not treat or punish the child in a cruel, inhuman or degrading way. • (2) any punishment within the home or other environment, in which physical force

  41. Corporal punishment • or action is used and intended to cause some degree of pain or harm to the child is unlawful. • (3) Any person who is reported for contravening subsection (1) must be dealt with in accordance with s 110 of the Act. • Does not expressly abolish the defence of reasonable chastisement • Does not require reporting of unlawful physical conduct (2)

  42. Corporal punishment • Wording of sub (2) leaves intact the intention of the parent as the key citerion

  43. Corporal punishment • YG v S (19 October 2017) • Criminal appeal: court found defence of reasonable chastisement not compatible with the Constitution • FORSA (amicus) appealed to CC • Heads on CC website • Hearing 29th November 2018 – judgment awaited

  44. Care and Protection • New definition of “orphan” • New definition of “abandoned” • New section clarifies that Act applies to unaccompanied and separated migrant children (both defined)

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