Children’s Bill: Discussion of Public submissions

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
5 November 2004
CHILDREN’S BILL: DISCUSSION OF PUBLIC SUBMISSIONS

Acting Chairperson: Mr B Solo (ANC)

Documents handed out:
Implications of the Children’s Bill - Department presentation
The Children’s Bill [B70 - 2003] Reintroduced
Draft report on public hearings on the Children’s Bill, 11 – 13 August 2004

SUMMARY
The Committee completed discussion of the public submissions on Chapters 17, 18, 20 and 22 of the Children's Bill. Key issues as outlined by interest groups were discussed and the relative position of the department expressed. Queries raised by Members included questions on the infringement of existing legislation and policy, local conditions regarding adoption, implications of bilateral agreements, issues pertaining to surrogacy and the interaction of proposed legislation with existing legislation.

MINUTES
Mr B Solo (ANC) acted as Chairperson in the absence of the incumbent.

Public submissions on Children's Bill

Chapter 17: Inter-Country Adoptions
Ms Ronel Van Zyl (South African Law Reform Commission) dealt with a submission by the Community Law Centre on inter-country adoptions which suggested that mechanisms be introduced to give effect to the Hague Convention to protect children’s rights. The role of attorneys was recommended to assist the process. The Department advocates the participation of attorneys in inter-country adoptions but operating as part of a team and not individually. Only accredited Child Welfare organisations could be involved with attorneys included. Inter-country adoptions would be considered as last-resort options.

Adv M Masutha (ANC) asked for clarity on the role of attorneys in relation to inter-country adoption.

Ms van Zyl replied that the Department did not want to exclude attorneys but they should not operate unilaterally. The CLC recommended that Clause 257(1) of the Bill include reference to a rank of Director or higher within the Department and that Clause 258(1) include an accredited attorney.

Mr Solo requested finality on the role of an attorney as envisaged by the Department.

Ms van Zyl stated that attorneys could not operate on their own without social welfare involvement but provide a support function to a team. The Department had identified corruption at the international level involving attorneys. Another submission recommended that the placement of children within a family environment was preferential to orphanages irrespective of prevailing standards.

Adv Masutha provided evidence of poorly-run orphanages encountered during constituency visits.

Ms van Zyl stated that the Department intended to promote the use of private social workers in inter-country adoptions due to their significant skills base.

Adv Masutha noted the vested interest of private social workers in desiring continued involvement in international adoptions but regulatory standards were questioned as well as availability of adequate information on the scale of activity. Investigation was needed to identify existing standards and size of operation. He requested that the Committee be provided with information and figures on inter-country adoption, such as in which countries children were being placed; racial breakdowns of children and parents; and the current supervision arrangements.

The Chairperson asked whether the private service providers were delivering an acceptable standard.

Dr M Mabetoa (Chief Director: Children) replied that some uncertainty prevailed regarding level of activity, but that information would be provided next week. The Department preferred to see children remaining within the country utilising local adoption opportunities.

Adv Masutha inquired whether a uniform code of practice was in place to govern activity within the international context.

Mr Solo suggested that private providers should not be sole operators and referred to certain high-profile court cases involving disputes over adoption.

Dr Mabetoa responded that inter-country adoptions were governed by the Child Care Act of 1993 but certain improvements were needed to address weaknesses. An interim central authority had been established within the Department to formulate guidelines, norms and standards. The Department was aware of the activities of private agencies and interacted on a regular basis. Approximately 250 children were on an inter-country adoption database. The proposed Bill would increase the power of the Department to monitor and regulate activity. Further detail on the breakdown of children involved would be forwarded to the Committee.

Ms S Rajbally (MF) asked whether the local demand for adoption was met before inter-country was considered and whether continued monitoring of adopted children took place post facto.

Mr M Waters (DA) asked whether the Department was involved in inter-country adoptions and recommended the continued use of private practitioners due to high skill levels. Private involvement could render improved effectiveness and expedite the process.

Dr Mabetoa stated that most international adoptions were carried out by private agencies due to their having the necessary specialist skills. International social services were monitored within the Department but continuous interaction with central authorities in each country had still to be instigated. A Deputy-Directorate had been established to address this and would begin operating once the legislation was finalised.

Mr Solo asked whether the Department would interact with international institutions in accordance with the Hague Convention.

Ms Rajbally repeated whether local demand for adoptions was being met before international options were considered.

Dr Mabetoa replied that local demand was not being met and inter-country should be used as a last resort.

Ms C Dudley (ACDP) asked for further detail on local adoption waiting lists to assist in oversight.

Dr Mabetoa indicated that the information was available and would be provided in due course.

Adv Masutha enquired about the impact on employment migration, and whether enabling private sector partners to process domestic and inter-country adoptions would lead to the movement of social workers from the public to th eprivate sector. He also asked whether adoption agencies should be supported by government to improve service delivery.

Ms H Weber (DA) asked about the process to be followed when children were dumped by parents or guardians.

Clause 259: Entering into working agreements with a prescribed foreign country
Ms van Zyl continued with the CLC submission which recommended the expansion of Clause 259 to include working agreements with "prescribed foreign countries" to enable adoptions to occur.

Ms I Mars (IFP) asked for further clarity on the nature of prescribed countries, which countries could be included, who would determine which ‘prescribed countries’, and what procedures they would use.

Adv Masutha asserted that bilateral agreements would need to be in place with countries not signatories to the Hague Convention in order to facilitate adoption. The Children’s Bill would need to clarify this and the Department of Foreign Affairs would have to be approached to ensure compliance with current policy.

Dr Mabetoa replied that bilateral agreements could place the Department in a difficult position as the stipulations of the Hague Convention could be ignored or compromised. The rights of children could be compromised.

Adv Masutha reasserted that the Hague Convention would be a safeguarding mechanism as  it set standards to protect children. He stated that the Department should only engage with countries that met the standards of the Hague Convention. He questioned whether any African countries were signatories, and cautioned that if they insisted that they only engage with signatories, that the system would exclude inter-country adoption in Africa. Thus care should be taken in cross-border adoptions within the SADC region.

Mr Solo agreed that the issue of bilateral agreements needed further clarity and research should indicate how many countries were excluded from the Convention.

Ms van Zyl stated that the CLC wanted the Children’s Court to reject an adoption if the process involved a denial of natural justice or fundamental human rights.

Adv Masutha reiterated that the key question was whether adoption should move beyond the parameters of the Convention. Any considered bilateral arrangements had to comply with the norms and standards of the Convention. The Department should discuss the issue with Foreign Affairs.

Mr Solo recommended that senior officials be involved in discussions so that substantive decisions could be taken.

Adv Masutha added that Department officials should have issues clearly worked out before engagement to avoid the imposition of policy by Foreign Affairs.

Ms van Zyl stated that the CLC wanted the Children’s Court to play a role in evaluating an adoption procedure.

Ms Mars made reference to the use of the word "tribe" within the CLC’s submission and questioned its appropriateness.

Chapter 18: Child abduction
Ms van Zyl responded that the Department would consider wording used within submissions when contemplating the relevance of proposed amendments and inappropriate wording would be removed. The CLC proposed that child trafficking be dealt with by general legislation already existing.

Ms Rajbally questioned a statement that suggested that parents could abduct their child from a caregiver.

Ms van Zyl replied that the issue related to divorce and the custody battle that might ensue where one parent removed a child from the estranged spouse. The current approach was to recommend the return of the child until the custody battle had been resolved.

Adv Masutha added that the submission contained strange wording which seemed to imply that parents could abduct their children. This notion should be discouraged.

Chapter 22: Administration of Act
Ms van Zyl stated that the National Alliance for Street Children welcomed the proposed outsourcing of services regarding the administration of the Act but cautioned that the state did not possess a realistic uniform financing model and certain sectors were grossly under funded. The role of courts in resolving disputes was questioned as many people would find the costs prohibitive.

Adv Masutha asserted that the Children’s Bill was in danger of becoming a super-Act encompassing areas not falling within its jurisdiction. Intergovernmental relations had to be considered when formulating the Bill. The Bill should not be creating policy for other Departments but encourage an integrated approach to address the needs of children. Foster care grants should be issued once placement had occurred and not before. The Bill should not be seen as an extension of the Social Assistance Act.

Ms van Zyl dealt with Chapter 20 of the Bill. Submissions highlighted the dangers of hormone treatments and drugs with regard to surrogate mothers and to prevent the domination of business activity.

Ms Weber asked whether the proposals fell under Health legislation.

Adv Masutha concurred that the submissions proposed a policy of health that already existed.

Ms Dudley asked whether a separate Bill on surrogacy should be produced as the issues were important and distinctive.

Ms van Zyl replied that the chapter on surrogacy had been inserted into the Bill following its earlier formulation. Medical aspects were not dealt with but procedural issues were key including legal requirements and protection of rights to prevent exploitation.

Ms Rajbally recommended that the Committee focus intently on the issue of surrogacy to protect the interests of children.

Ms van Zyl stated that Save the Children Sweden wanted the National Policy Framework to be reinserted into Chapter 7 dealing with early childhood development. The Disabled Children’s Action Group wanted local authorities to be responsible for the well-being of disabled children. This responsibility had now been imposed upon the provinces as some municipalities lacked capacity. The provincial departments would assign authority to perform functions to those municipalities with sufficient capacity.

Mr Solo claimed that such provisions could be setting up municipalities to fail as inadequate monitoring systems were in place to evaluate performance.

Adv Masutha, with reference to the call for Chapter 2 to be reinserted and the establishment of the NPF, warned against creating duplicate systems and a careful examination of existing processes should be undertaken. The disability desk within the Presidency should be invited to brief the Committee on arrangements in place.

Mr Solo asked the Department to provide a report on current strategies implemented in conjunction with other departments.

Dr Mabetoa replied that a report had been compiled detailing implications of the Bill to each department. The Committee should meet with Foreign Affairs to discuss cross-cutting issues such as inter-country adoptions and unaccompanied minors.

Mr Fukula, the Committee Secretary advised the Committee that he was putting together the report on the provincial visits. He hoped to have the final report ready for next week’s meeting.

Implications of the Children's Bill for other departments
Ms van Zyl presented a document that considered the implications of the Bill for other Departments. The Bill emphasised the right to basic social services and protection from maltreatment, neglect, abuse and degradation. The Department recommended that Clause 104 of Chapter 8 be reinserted into the Section 75 Bill. The Bill should not intrude on current Home Affairs legislation such as the Refugees Act and the Immigration Act but unaccompanied foreign children fell within the Bill. Home Affairs would play a role in terms of child trafficking and guardianship involving the issuing of relevant documentation. Foreign Affairs would be involved with international instruments such as international social services. The powers and duties of provincial and local government would be considered when considering the right to basic social services. Discussions would be held with Transport to determine any programmes in place regarding subsidised transport for children. The role of the Legal Aid Board in representing children would be determined.

The Bill created extensive powers for magistrates as the commissioners of child welfare. Family advocates received new functions in terms of the Bill and the relevance of these additions had to be determined. Discussions had been held with the Public Protector and the South African Human Rights Commission regarding overseeing of the implementation of the Bill. The right to basic education was covered by the Schools Act and the Bill did not include education provision. However, the Bill placed the onus on certain individuals such as teachers and therapists to report children in need of care. The right to basic health care services was covered by health legislation. The Child Justice Bill would deal with issues of incarceration and children awaiting trial. The SAPS would be involved in concerns around detention of children. Discussions would be held with the Department of Justice regarding waiting periods for the Children’s Court. Death occurring within alternative care would be investigated by the SAPS and the police would be involved in the apprehension of absconded children. Investigations would occur in accordance with the Criminal Procedure Act. Mr Fukula would brief the departments on the focus issues to identified by the Committee.

The meeting was adjourned.