Review of Child Care Act: briefing by SA Law Commission

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
24 APRIL 2002
REVIEW OF THE CHILD CARE ACT: BRIEFING BY THE SA LAW COMMISSION

Chairperson: Prof Saloojee (ANC)

Documents handed out:
Briefing by the South African Law Commission on the Review of the Child Care Act (see Appendix)

SUMMARY
The meeting dealt with issues arising out of the review of the Child Care Act, and the drafting of new legislation dealing with children, by the Law Commission. The issue of legislation regarding children was viewed as a critical issue for the government, since it was felt that there had been a serious need for such legislation for a number of years. The Law Commission felt that they were on track with the review and drafting process, and that the legislation would be available for comment within the deadline agreed on at the Gordon's Bay conference the previous year (2001). The meeting also dealt with some of the concerns that the committee had raised in a previous meeting with the Law Commission.

MINUTES
The Chairperson started the meeting by welcoming Prof Mbadi back to the committee after a period of absence due to illness. He also welcomed the representatives of the Law Commission, present to give feedback on the progress of the drafting of new child care legislation. He then asked Prof Zaal to introduce the team, and proceed with the briefing.

Briefing
Prof Zaal indicated that the focus of the presentation would be on the four areas of concern that the Portfolio Committee had indicated previously. He went onto say that he was always grateful for the support and interest which the committee showed in the work of his team. He then highlighted the four areas of concern (i) the time-frame for the completion of the review, (ii) who was responsible for the drafting of the new bill, (iii) how the issues raised at the Gordon's Bay conference had been dealt with and (iv) how the issue of the public participation was being handled, and how the issues raised by this process were being incorporated into the new legislation.

In terms of the time-frames issue, he indicated that the committee felt that it was on track, and that, as agreed at the Gordon's Bay meeting, the report and the draft legislation were due to be submitted by June 2002. The final recommendations and the draft Bill had to be accepted by the Law Commission, at which time the legislation would be submitted to the Minister, who could implement it, and look at the recommendations to decide whether or not he agreed with the recommendations. If the legislation was acceptable, the Cabinet memorandum could be drawn up. He concluded by reiterating that they were on track to meet the deadline.

In terms of the second concern, the Professor indicated that the commission bore the responsibility for drafting both the report and the Bill, at which time other processes took over and the responsibility for the legislation passed to the Department. He went on to say that the Commission would like to offer any and all support to the Department. He also said that much of the legislation had already been drafted.

In response to the issue of how the Portfolio Committee's concerns were being incorporated into the new legislation, he indicated that they had been taken on board, and ways were being sought to incorporate them at the drafting stage. He went on to give examples, such as the fact that the issue of corporal punishment by parents had been raised, and had led to discussion. He indicated that the view was that the law should seek to discourage such practices, and for this reason, while it was difficult to include a direct prohibition, it was felt that the removal of the parents common law defence of 'reasonable chastisement' would be incorporated into the legislation, to take the law forward.

Another example was the Committee's desire to deal with parents who allowed their children to beg. He pointed out that this issue needed to be handled carefully, to avoid the situation where the criminalisation of the parents conduct led to the children being in a worse situation, with their parents in jail.

In terms of the access to information in adoption procedures, it was felt that this issue also had to be handled cautiously in order to not deter the already limited number of adoptive parents. For this reason, information available would be limited to medically relevant information. However, for the adopted child, information on their birth parents would be available once they reached the age of 18.

It was also felt that children living under customary law should be subject to the same child care legislation as other children, in the same way that there should be no discrimination between children irrespective of their 'legitimacy'. The reason for this was that it was felt that as soon as some children were protected and not others, it would open up a wedge which could be widened. There was also a specific provision included which protected children from harmful cultural practices. For example, virgin testing would only be allowed if consent was given by the child. Overall, the underlying view was that the legislation would need to be nationally applied.

In relation to the concerns raised in connection with social security for children, Prof Zaal said that the commission was aware of the need to propose realistic and workable provisions in a resource-poor context. He pointed out that the Taylor Commission's report was still with the government, which made the Law Commission's work more difficult, as the provisions may need alteration after the release of that report. He suggested that the aim should be to use grants strategically to protect children at-risk, and in this way save the State money by circumventing the need for expensive and invasive tertiary interventions. He added that the commission supported subsidised adoptions, the extension of the child support grant, and the provision of 'top-up' grants for children with special needs.

In terms of the fourth concern, that dealing with the inclusion of public perspectives in the draft legislation, he said that there had been limited public consultation after the release of the discussion document, but that due to the time pressures in place, it would not be possible to engage in the level of public consultation which would normally accompany the Law Commission's drafting of new legislation. He added that there had been lots of consultation with those involved on the welfare side, but that more input was needed for those involved in the legal aspects of child care etc. He indicated that there had been an overwhelmingly positive response to the proposed legislation from the public, but proceeded to draw attention to some of the concerns and suggestions. The first of these was the issue of when childhood begins. The professor pointed out that some people had raised religious arguments, to justify the need to include unborn children in the definition, essentially to address the issue of abortion. Yet this issue was dealt with in the Termination of Pregnancy Act, and the commission was unwilling to override the existing legislation.

In relation to concerns raised over the issue of children having access to contraceptives, Prof Zaal said that it was appreciated that this was a sensitive position, but that the commission had succeeded in drawing up something of a nuanced position, which recognised a distinction between contraceptives which protected individuals from HIV/AIDS i.e. barrier methods, and other forms of contraception. It was suggested that those which protect from HIV/AIDS should be available, along with confidential access and advice, but that there was scope to include a limit for access to other methods, at around twelve years, depending on maturity etc.

The issue of corporal punishment was raised by members of the public, resting on essentially a biblical defence. Prof Zaal restated the position that the response was to remove the common law defence that allowed the physical chastisement of children, despite objections that the State should not regulate this sort of interaction between parent and child.

The issue of the rights and responsibilities of those unmarried people in relation to children. It was felt that a way should be found to allow domestic partners to share a measure of responsibility, despite objections from some quarters to the idea that same sex partners might be allowed to care for children.

The issue of the Basic Income Grant was similarly raised, and supported by the majority of the respondents, and the commission supported the grant as well. It was however pointed out that some people had expressed the fear that this would act as a perverse incentive to have more children.

There were a number of issues which were raised which had not been part of the discussion paper, but which were nevertheless felt to be relevant. The SAPS had raised the issue of children who were taken from other countries and held for ransom, for example in Hillbrow. The concern was that, even when such children were found and rescued, they were often unwilling to give evidence. It was requested that a new offence be created, the wrongful holding of a child, which would place the onus on the accused to prove why they had the child with them. This would effectively minimise the need for the child to give evidence.

Another concern was the suggestion that religious leaders should be obliged to report any knowledge that they had of abuse, since due to the nature of their work, they may become aware of abuse earlier than other people. The commission sought to encourage the general public, but only compelled health care staff, because it was felt that there was some difficulty in defining 'religious leader' in legal terms. However, the issue was open for debate. This was the final element of the presentation.

Discussion
The Chair asked committee members for their input.

Mr De Camara (DP) asked for an expansion on the issue of grants. He also made the comment that he did not agree with the compromise position on contraceptives. He also asked how the conjugal relationship was to be defined i.e. in terms of length etc. With regard to the issue of religious leaders, he asked if the definition could not be left up to the prosecuting authority and the court.

Prof Zaal said that the Taylor Commission was dealing with the issue of grants, so the Law Commission had set up a hierarchy, with the ideal being a basic grant for all, then the adoption grant, to prevent the current trend whereby children were being fostered for long periods, without being adopted, because people needed to make use of the foster care grant. It was also recommended that grants be provided for children with special needs. There was also support for a short-term, three-month grant to prevent children having to be removed from their parents care for short periods due to poverty. In relation to the issue of contraceptives, he said that the group was not strongly against the more inclusive view towards contraception, but that the logic of the distinction was to circumvent some of the arguments against the provision of contraceptives to children. In terms of the conjugal relationship, he said that the aim was to secure more responsibility for unmarried fathers. As an example, he said that one of the potential solutions would be for the father and mother to sign an agreement, which they could register at the court, which specified responsibilities for the children, giving it legal force. Another method would be for the person concerned to apply to the Child and Family Court to have some parental rights recognised. The definition of the unmarried father might be either a purely biological link, i.e. the father acknowledges paternity, or if he has lived with the mother for more than a year, or if he has cared for the child for more than a year, with the consent of the mother.

Mr da Camara (DP) asked if, aside from the biological father, there were other ways for example of determining a reasonable bonding period.

The response was that the method of a private agreement recognised by the court would deal with this. The professor added that it was felt best not to tie the courts hands, and for this reason there was reluctance to define the time-frame too prescriptively, since the reality was that a social worker was likely to be involved, who was trained to make such judgements. He asked for clarity on the question in relation to the religious leader.

Mr da Camara (DP) said that he thought the idea had merit, but that the courts should be able to define what constituted a 'religious leader'.

Prof Zaal said that this was possible, but the commission remained wary of introducing legislation that could not stand on its own without court decisions.

Ms Stuurman, from the Law Commission addressed the issue of contraceptives, saying that part of the reason for the distinction was that there were side effects associated with oral and injected contraceptives, which might require the involvement of the parents in order to establish consent. These forms of contraception might also require a medical exam.

Ms Tsheole (ANC) asked for clarity on the issue of the time-frame, asking whether the submission by the end of June included the Cabinet's meeting, adding that the Committee had hoped for the Act to be implemented as soon as possible.

Prof Zaal said that the agreement reached last year was that the Commission would finish its report, as well as the draft legislation, by June. This had the effect of limiting the amount of consultation which was possible. He added that the Law Commission did not approach Cabinet, and thus the Law Commission's direct involvement was due to end at that time.

Mr Theron, acting as a representative for both the Law Commission and the Department of Social Development said that the Department was aware of the urgency, but accepted the Law Commission's time frames. He went on to say that the department would fast-track the legislation to try and have it done by the end of next year. He added that the urgency was clear from the limited hearings, but that amendments could be introduced to existing legislation as a way of addressing the more pressing issues. He also advised against separating the three consultative process, i.e. those of the Department, the Law Commission and the Portfolio Committee. Combining these would speed up the process as well.

The Chair said that he felt this was an excellent time-saving proposal.

Ms Sodi (ANC) said that she was happy with Mr Theron's suggestions, adding that if the Committee waited until June, the process would in all likelihood take even longer, given what were felt to be somewhat inevitable parliamentary delays. She asked whether the Department had begun costing the legislation and looking at the financial implications of the Bill in order to make adjustments to the budget.

In responding, Mr Theron returned first to the issue of deadlines, saying that the reason for the urgency stemmed in part from the fact that some deadlines had already been missed, although the process was on target. He added that exact costing was not possible at present, because the Bill had not been finalised, but some costing had been done. He introduced Mr Daniel Plaatjies, from the Treasury, saying that the costing could not be divided from the drafting of workable legislation. He also said that the Bill was not entirely new, and those features which were shared between the new and the existing legislation could be fairly comfortably costed at this stage.

Mr Plaatjies said that the process of costing had begun, and the Bill had serious financial implications which begged the question of whether there was the fiscal space to address all the needs. He said that they were looking at a progressive realisation of the objectives, and for this reason there was the need for research in relation to the targeting of grants. He added that they were looking at various financial implications, such as the provision of an adoption grant. Linked to this was the need to look at the existing disability and care dependency grants, with the Department. Mr Plaatjies also pointed out that the bill raised issues of administration and management which also had to be factored into the implementation. He concluded by saying that various funding issues for care institutions were being examined, that the issues of targeting and the entitlement requirements for the adoption grant needed to be clarified and that they were currently busy with the new budget process.

Prof Mbadi (IFP) said that he was happy with the report, in particular the recommendation for extending the age for grants to eighteen years. He did however ask how the 'poor child', as the person eligible for the grants, was defined. He also raised the issue of a grandparent supporting a child on her disability pension, asking whether this might make a child ineligible for an additional grant, because it was felt that the child fell outside the means test range. In relation to the issue of two women deciding to live together, he asked whether this did not reflect a decision on their part not to have children, and therefore what logic was there in making such a thing legal.

Prof Zaal said that he agreed that if the grandmother was receiving a grant for her own needs, this shouldn't prevent the child from receiving a grant, and that there should be an express provision in the legislation dealing with this issue. He also said that they were in favour of the Basic Income Grant, due to the high number of children living in poverty. This would circumvent the need to define a 'poor child' as all children under 18 would receive the grant. He said that there would be a need for additional staff to carry out means testing, and it was felt that, in a context where 70% of the children in the country were likely to be eligible anyway, it was better to spend the money on the children than on infrastructure and bureaucracy. He did however point out that if this was not feasible, the definition of a 'poor child' would go into the regulations.

In response to the issue of a gay couple raising a child, he said that there was still no research to prove that being raised by a gay couple had a negative influence on a child. However, in general, there was a need to ensure that it was easy to return to the courts if it was felt that an adoption was not working well. This was true for all cases where adoptive parents were later found to be unsuitable. The idea was to move away from a situation which favoured the rights of the parent over the child.

Mr Theron said that, due to the provision for a means test, it should not happen that because a grandparent is receiving a subsidy, a child is prevented from receiving a grant. He added that foster grants could still be made use of, even after adoption grants were in place, although this would depend on the context. In relation to the child care support grant, he said that the Minister had indicated that the amount of money available is too little. He also said that the Minister requested the age for the grant to be raised to seven, with a progressive realisation to 12, then 14 etc. Mr Theron also indicated that as yet, the grants were still not reaching all the eligible children.

Ms Tsheole (ANC) suggested that, in relation to targeting the grants, it might be wise to first target older children in the same household as those who currently received grants. She also said that 29% of the population are currently defined as poor, and wondered if this could not be used to target the grants. She asked whether the Department had taken note of the financial implications of the additional staffing needs, such as the need for more social workers.

A member of the ANC said that a child in her constituency had been taken to her father's country after her mother had died, against the wishes of other family members. The move was also felt to have not been in the child's interests. She asked if there was any way this could have been prevented.

Ms Southgate (ACDP) asked how the basic income grant was to be introduced. She also asked whether the group had thought of engaging with religious leaders, rather than legislating that they be compelled to disclose abuse, as she felt that they would be amenable to suggestions on the issue. She raised her concern that the State was taking over the role of the parents, and said that this would not work. She raised her objections to the handling of the issues of corporal punishment and contraception. She also expressed concern over the issue of paternity tests for fathers unwilling to claim their paternity, which cost the State a lot of money. She also raised the issue of the trafficking of children, saying that children must be better protected.

Mr Plaatjies said that there had not as yet been a decision to extend the grant, and the Treasury was looking at developing a policy position, together with the Department of Social Development. He said that they were currently considering various options.

Mr Theron said that the issue of social workers would form part of the costing exercise.

Prof Saloojee pointed out that at present, there were not enough social workers to meet current needs.

Mr Theron agreed, saying that social workers were being lost to foreign countries, and NGO's were losing social workers to the State.

Mr Hollamby, from the Law Commission, also pointed out that there was a need to factor in the costs of additional court personnel.

Prof Zaal said that, in relation to the issue of children outside South Africa's borders, there were practical difficulties, although there was a chapter in the forthcoming legalisation devoted to international issues such as child abduction. He said that this was linked to a problem related to family advocates, who at present served as the central authorities on the issue, when in fact Social Development should serve as the central authority, to prevent the confusion of roles on the part of the child and family advocates. He did say that the Child and Family Court may issue an order for the child's return, although the enforcement of such an order would depend on the other country concerned.

Mr Theron also raised the issue of inter-country adoption, saying that the Department was in the process of tabling a Cabinet memorandum to ratify the relevant convention. He also said that the Department had an international social services unit which dealt with these issues and liased with foreign governments etc.

Prof Zaal said, in response to Ms Southgate's question over the religious leaders, that it might be possible to engage with them on the issues, but there was a concern that, given the time pressures and the wide variety of religious leaders in the country, that any engagement might be biased. He did however agree that an effort would be made in this regard. He also agreed that the State was secondary to the parent, but suggested that the harsh reality was that many children lacked parents, and this situation was being made worse as the AIDS epidemic grew. He said that all efforts should be directed at not removing the child from the parent until absolutely necessary. In relation to the issue of contraception, he said that this was wide open to debate, but sex between children was happening, and in the current context, there was a concern for protecting children from HIV, which should over-ride other concerns. He pointed out that trafficking was expressly illegal in the new Bill. He returned to the issue of the Basic Issue Grant (BIG), saying that ultimately, Parliament and the Treasury would decide. He said that they supported the BIG for all under the age of 18, particularly given the issue of additional expenditure on administrative machinery.

Mr da Camara (DP) said that, in the executive summary, there was no mention of the abuse of grants. He suggested that such abuse be criminalised, and alternative provisions be made, such as the provision of food parcels.

Dr Baloyi (IFP) inquired if social development was viewed as a system, had it clustered its various interventions. He said that, for example, health was clustered into primary care which then meant a package of care. He asked if something similar happened in this instance, for example with poverty, to clearly address the relationships. If this was done, legislation could be focussed on a certain issue.

Mr Theron said that previously, Health and Welfare were linked, with Welfare forming part of the primary intervention, but this had fallen away. He said that there were three types of system: preventive, early intervention and intervention. He also said there was a need to go back and clarify these.

Prof Zaal said that, in relation to the issue of misuse, they were aware of the realities of the issue, and the emphasis had been on protection, rather than on criminalising. He said that sometimes the child was forced to lie in court, but if the court system worked better, there would be a better chance of preventing this. He also suggested that abuse of the grants might be covered in terms of the common law crime of fraud. He did not however rule out the possible inclusion of provisions to deal with questions of doubt, for example to oblige people to account for where the money from the grant had been spent.

Prof Mbadi also pointed out that food parcels were being given out by the Department of Social Development in places, but there had been instances of government officials selling the food parcels.

Prof Zaal said that the Child and Family Court could call anyone, including the government officials to account for 'failures to the child', in the new Bill, and this would be in their personal capacity, in which case they could be fined.

The Chair said that the proposals had implications at provincial and local government level. He asked if there had been consultation at the various levels. He also asked how the Bill interacted with the Department of Justice's processes relating to children and legalisation.

Prof Zaal said that the new Bill contained a Statement of Rights. He said section 2 contained the objectives of the bill, Chapter 2 contained the General Principles, and Chapter 3 sets out the rights of the child, including non-discrimination, labour, harmful cultural practices etc. In terms of fitting with juvenile justice, he said that Mr Hollamby sat on both Committees. He asked him if there was sufficient liaison.

Mr Hollamby said that he was confident that the Child Care Bill and the Juvenile Justice Bill fitted well together, and there were also links to the Sexual Offences Bill.

The Chair suggested that his committee should liase with the Justice Committee.

Prof Zaal said that there would be more responsibility for local government in particular, for example local authorities would need to keep registers, which made note of children, and those with disabilities in the area. if there was a legal obligation to do this, there would also be financial issues.

The Chair asked if there had been consultation.

Prof Zaal said that there hadn't been focus workshops, but that many government official had attended meetings on various subjects.

The Chair reiterated his concern for delivery at the local government level.

Prof Zaal agreed that this fitted with their research.

Ms Tsheole (ANC) asked what processes there were in the Department to identify children at risk. She said that there had been a Committee which dealt with such issues, and asked if the Department had made records or had up-to-date data to assist in targeting.

Mr Theron said that Project Go was still engaged in monitoring the number of children, for example, in prisons. There was a need for more resources devoted to diversion programs. He said that it was impossible to talk about this process without addressing the issue of funding.

Ms Casanyani (ANC) said that, as a parent, she would encourage children to abstain. But she asked whether the size of the condoms had been accounted for.

Prof Zaal said that there was a need for children to be able to access services without their parents consent, since confidential access allowed them to know what is most appropriate for them.

Ms Casanyani (ANC) replied that she was from a poor area, with high numbers of young children having babies. She said that boys were saying that the condoms were not the right size for them.

Ms Stuurman said that she agreed, there was a need for the right size condoms, and possibly this could be taken up with Health.

Dr Baloyi (IFP) said that condom size did not relate to age, and that those boys were lying.

Returning to the issue of consultation, Mr Theron said that there was a National Plan of Action Steering Committee, which was also represented a provincial level, and similar steering committees were in the process of being set up at local level. He pointed out that there were eight components, one of which was devoted to children in need of special protection. He said that they were training people at local level, and added that there were fora for taking consultancy forward. He reiterated that there was a need to take the debate to all the different levels of government. He suggested that MP's could interface and engage with these various structures.

Ms Tsheole (ANC) said that she hoped the local fora were considering the involvement of traditional leaders.

The Chair concluded the meeting by saying that the session had been very encouraging, and it was clear that there was real progress towards a new Child Care Act. He expressed thanks for the enormous amount of work that had been done.

Prof Zaal thanked the Chair and his Committee for their support.

The meeting was adjourned.

APPENDIX:
SOUTH AFRICAN LAW COMMISSION
PROJECT 110: REVIEW OF THE CHILD CARE ACT
PROGRESS BRIEFING TO THE PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT:
PARLIAMENT: 24 APRIL 2002

1. Introduction

The South African Law Commission welcomes the opportunity to discuss progress made in our investigation into the Review of the Child Care Act with the Portfolio Committee on Social Development. We would like to record our appreciation to the Committee for its sustained interest in this investigation and the valuable contributions made to the process.

As requested by the Chairperson, our briefing today will address the following four aspects:

- Time frames for the completion of the investigation
- Responsibility for the drafting process
- The extent to which the concerns of the Portfolio Committee as raised at the Gordon's Bay workshop have been incorporated
- The main issues raised by the public participation process.

Members are obviously welcome to pose questions and raise concerns on any other matters related to the investigation.

2. Time frames for the completion of the legislation

Despite some setbacks, the Commission remains confident that the Commission's investigation into the Review of the Child Care Act (Project 110) is on tract. As agreed at the Gordon's Bay workshop, the Commission plans to submit to the Minister its report and draft Bill on child care at the end of June 2002. The report will contain the Commission's final recommendations and a draft Bill. However, it is also important to bear in mind that the Commission, as an independent statutory body, must first approve the report. Once the Commission has approved the report, it becomes functus officio and our involvement in the process technically end.

The Commission's report is submitted to the Minister for Social Development. It is the prerogative of the Minister to implement the Commission's final recommendations as embodied in the report and accompanying draft Bill, but he is not obliged to do so.

The usual practice is that the Minister is advised by his Department on the desirability, workability, and practical implications of the Commission's recommendations. Should the Department support the recommendations and draft legislation, the Minister is so advised. Where the Minister agrees with the departmental assessment, a cabinet memorandum is prepared by his Department wherein it is recommended that the proposed draft legislation be introduced in Parliament. Once Cabinet approval has been obtained, the Bill is introduced in Parliament and the parliamentary process starts.

A lot can happen at departmental and ministerial level. The Commission is not in control of these processes and we are in no position to predict with certainty what is going to happen to the draft Bill proposed by the Commission after June 2002.

3. Responsibility for the drafting process

The Commission is responsible for the drafting of its report and the draft Bill giving effect to its final recommendations. Once the report with draft legislation is submitted to the Minister, the Commission's investigation is over.

On receipt of the Commission's report and draft Bill, the Department for Social Development becomes responsible for the drafting process (provided the Commission's recommendations as contained in the report is accepted by the Minister). The Department should advise the Minister as to whether the Department agrees with the Commission's recommendations. The Department should assume responsibility for drafting any proposed amendments to the draft Bill; for drafting the Cabinet memorandum; for costing the proposed legislation; for introducing the legislation in Parliament, for providing legal drafting expertise to the parliamentary process; for drafting the supporting regulations; and for the eventual implementation of the legislation.

The Commission has a vested interest in securing the smooth passage of the proposed child care legislation. Should the Department therefore not have adequate legal drafting capacity to support its own or the Parliamentary legislative drafting processes, the Department can request the Commission to provide it with some support. Personnel of the Commission could be seconded to the Department for a period of time. Details of such secondment would have to be resolved at departmental level.

4. Incorporating the concerns of the members of the Portfolio Committee as raised at the Gordon's Bay workshop

Obviously the Commission has taken the concerns raised by the Committee in Gordon's Bay on board - indeed, the purpose of the workshop in Gordon's Bay was to elicit the views of the members of the Committee on the draft discussion paper. Those views were incorporated in the discussion paper released in December 2001. Some examples of how this was done should suffice:

4.1 Corporal punishment

It will be recalled that the issue of prohibiting parents to inflict corporal punishment took up much time at the workshop (and at the dinner table). Professor Julia Sloth-Nielsen presented the Commission's preliminary position as one where parental corporal punishment would be prohibited (and prosecuted) as assault. She suggested that this could be achieved simply by removing the common law defence of reasonable chastisement. Linked to the criminal law sanction would be an education / awareness campaign to empower parents in finding alternative forms of discipline. The workshop itself was divided. Some argued that the envisaged measure did not go far enough: They said the new act should ban corporal punishment outright. Others were concerned that the proposal encroached way to far on the
private domain where parents should bring up their children as they see fit. The Committee was also invited to state its position but declined to do so. The public consultation process conducted subsequent to the release of the discussion paper also highlights these two opposing viewpoints.

The Commission accepted as its preliminary position the dual approach where the criminal law is amended to remove the defence of reasonable chastisement to a charge of assault linked to public education and awareness training. See pages 28 - 31 of the Executive Summary.

4.2 Criminalising parents who allow their children to beg on the street

Some members of the Portfolio Committee did express the view in Gordon's Bay that parents or care-givers who allow their children to beg should be guilty of a criminal offence, despite the fact that by doing so (putting the parent in jail) the child and possibly other siblings might be deprived of parental care. The Commission therefore did not recommend the inclusion of a criminal prohibition on parents who allow their children to beg.

4.3 Access to information in adoption proceedings

At the workshop in Gordon's Bay the position was advanced that access to information on adoptions generally should be free and open. This was in opposition to the existing system where access to information contained in the adoption register is more circumscribed both as to whom may access such information (limited categories) and when such information may be accessed (from age 18 onwards). Here the Commission reverted to the current, more restrictive position.

4.4 Children living under customary law

Professor Mbadi was appointed custodian of customary law at the Gordon's Bay workshop. He pointed out that for people living under customary law it is not uncommon for a father to bring up the children of his unmarried daughter as his own children. Such children are then regarded as the legitimate children of that father. Other members raised questions regarding the proper place of customary law in the hierarchy of laws in South Africa. The suggestion was made that customary law should be subservient to the new child care act (the general law of the land) to prevent a dual system from continuing to operate (in terms of which large numbers of children would not receive the protection offered by the new legislation).

The Commission made several recommendations in this regard (see Chapter 21 of the discussion paper). Firstly, it is the Commission's position that there should be no discrimination on the basis of a child's birth status: the distinction between legitimate and illegitimate children in law will therefore fall away. Secondly, the Commission recommends the adoption of a provision prohibiting harmful cultural practices. Virginity testing, for instance, would constitute an assault where such test was conducted without the consent of the person on whom it was performed. As for male circumcision, it is recommended that initiation schools be regulated by appropriate health care legislation. Thirdly, the Commission recommends that the new child care act should be of uniform, national application - in other words, it should apply to all children living in South Africa. The effect of this recommendation is children living under customary will be entitled to all the protection measures afforded by the new child care act.
4.5 Social security for children (The basic income grant)

Throughout its deliberations the Commission has been acutely aware of the need to propose realistic and workable legislation for a system known for its lack of resources and the ever growing demands placed on that system.

At the workshop Mr Masutha reiterated the need for coordination between the Commission's process and that of the Taylor Committee in order to present a holistic socio-economic package for children to Government. Unfortunately, this has not happened. In response, the Commission included Chapter 25 in the discussion paper. This Chapter sets out the Commission's views on grants and social security. Some of the recommendations made are:

- A stronger focus on prevention and early intervention to combat child abuse and neglect, as an adjunct to the more expensive and invasive tertiary intervention strategies;
- Altering the focus of the present foster care system by restricting payment of foster care grants to court ordered temporary placements;
- Subsidised adoptions;
- Extension of the child support grant to a more universal social security system, targeting all poor children under 18 years of age ( a non-means tested basic income grant).
'- Add-on grants' for children with special needs.

Should the Taylor Committee release its report before the middle of June 2002, the Commission will be able to incorporate the views of that Committee into its final report.

5. The public consultation process following the release of the Discussion Paper

Since the release of the Discussion Paper the Commission has embarked on a public consultation process, albeit a limited one. In addition to several media briefings and interviews held, the following workshops / briefing sessions were attended:

The Commission's preliminary proposals as contained in the discussion paper have also been analysed and discussed at several national and international conferences, such as the Miller du Toit Conference held in Cape Town on 25 to 27 March 2002.

In response to the Commission's invitation to make written submissions on the discussion paper, 166 submissions have been received to date. Some of these submissions are very comprehensive. The joint submission from the Children's Institute (UCT), ACESS and the Wits Law Project (CALS), endorsed by the AIDS Consortium and the AIDS Legal Network, for instance, was 69 pages long. Although not that long, most other submissions were equally impressive.

6. The main debates raised by the public consultation process

The Commission is pleased to submit that it has received an overwhelming positive response to its Discussion Paper on the review of the Child Care Act. The respondents to the discussion paper supported the majority of the Commission's recommendations. Some respondents have also made helpful suggestions to strengthen certain areas in order to ensure maximum protection for children. For purposes of today's briefing, we will concentrate on those issues on which a substantial number of submissions have been received. Some of these issues have also been raised as points of concern by members of this Portfolio Committee at the second Gordon's Bay Conference. We will then highlight issues which were not addressed in the discussion paper, but brought to the Commission's attention.

6.1 Issues raised by the majority of respondents to the discussion paper

(a) The beginning of childhood

A substantial number of respondents to the discussion paper argued that the new child care legislation should be extended to unborn children. This is linked to the view that no woman should be allowed to terminate a pregnancy. The majority of the submissions in this regard were made from a biblical point of view. It seems that most of the respondents are unaware of the fact that abortion has been legalised by the Choice on Termination of Pregnancy Act (Act 92 of 1996). They also seem unaware of the High Court decision in Christian Lawyers Association of S A v Minister of Health in which it was held that an unborn child is not a legal person.

Doctors for Life, for instance, argued that by defining childhood as beginning at birth, the Commission denies unborn children the right to medical treatment such as the provision of nevirapine to pregnant women. The respondent also mentioned various laws in other countries that protect an unborn child against actions by his or her mother and others that may result in harm to the unborn child.

(b) Access to abortion services without parental consent

The Choice on Termination of Pregnancy Act provides a girl child of any age with the right to choose to terminate a pregnancy without parental consent. Some respondents to the discussion paper submitted that it is the right and duty of parents to guide their children with regard to a decision to terminate a pregnancy. They stated that a child mother may haemorrhage hours after the abortion and may also experience emotional, psychological problems and suicidal tendencies after an abortion. Thus, if parents are unaware of the fact that their child has undergone an abortion, they may dispel the seriousness of the situation. Doctors for Life have also submitted a detailed submission on recent scientific research into the effects of abortion on a child undergoing and abortion, and new evidence applying to anyone having an abortion. The argument seems to be that the new child care legislation should override the Choice on Termination of Pregnancy Act by requiring parental consent for the termination of a pregnancy. The Commission also wants to bring to this Portfolio Committee's attention that the Christian Lawyers Association has instituted action in the High Court of Pretoria against the Minister of Health, the Premier and MEC for Health of Gauteng to challenge section 5 of the Choice on Termination of Pregnancy Act which provides a minor with the right to terminate a pregnancy without parental consent.

(c) Access to contraceptives

The Commission has recommended that confidential access to contraceptives should be provided to all sexually active persons regardless of age. A substantial number of the respondents to the discussion paper did not support this recommendation. They have argued, from a biblical point of view, that no child under the age of 18 should be provided with access to contraceptives and that children should be taught to abstain from sex before marriage. Those respondents who were in favour of the Commission's recommendation have proposed that confidential access to contraceptives should only be provided to children over the age of 12 years.

The Commission will revisit these recommendations. It seems clear, however, that given the increase of HIV/AIDS, especially amongst teenagers, all children should be provided with confidential access to condoms. (Most parents will rather let their children have protected sex without their knowledge, than to let them engage in unprotected sex as they could not obtain a condom without parental consent).

The Commission takes cognisance of the fact that oral contraceptives and medroxyprogesterone (injectable contraceptives) can have side effects, some of a severe nature. Furthermore, the only benefit of taking these contraceptive is that it may prevent pregnancy. It does not prevent the user from sexually transmitted diseases such as HIV/AIDS. Perhaps the answer lies in restricting confidential access to oral/injectable contraceptives to children over the age of 12 years after a proper medical examination and counselling.

(d) Corporal punishment (physical punishment of children by their parents or caregivers)

The Commission recommended that the common law defence that physical punishment was justified on the grounds of the rights of parents to impose reasonable chastisement on their children be repealed. The Commission thus proposed that on any criminal charge of assault or related offence, it will not be a defence that the accused as a parent, or a person designated by a parent to guide the child's behaviour, was exercising a right to impose reasonable chastisement upon his or her child. A substantial number of respondents to the discussion paper objected against this recommendation. They submitted that it is a biblical duty that parents should chastise their children. The majority of respondents substantiated their views with the following verse from the Bible: "Proverbs 13:24 He who spares the rod hates his son, but he who loves him is careful to discipline him."

It, however, seems that the majority of the respondents did not have a clear understanding of the Commission's recommendation with regard to corporal punishment. For example, some respondents were under the impression that preventing your child from putting his/her finger in an electrical socket by pulling him/her away, will leave one open to a criminal charge of assault. This was clearly not the intention of the Commission. However, should a criminal charge of assault on child be laid against a parent or caregiver, the Commission is of the view that it should be left to the discretion of the prosecuting authority to determine whether the facts of a specific case justify the action taken. Furthermore, our common law is also clear on the elements of the crimes of assault and assault with the intent to do grievous bodily harm.

(e) Partners in a domestic relationship

Various respondents to the discussion paper objected to the Commission's recommendation that a partner in a domestic relationship who does not have parental rights and responsibilities in respect of a child can acquire such rights and responsibilities either by agreement in the prescribed form with the other partner, or an application to the court. Some respondents also did not support the Commission's recommendation that same sex partners be able to adopt a child jointly. They argued that it is not in the best interests of a child to be placed in a 'same sex household'. Most of the views were expressed from a biblical point of view.

(f) Basic income grant

The Commission has recommended that the Child Support Grant (CSG) be extended to target all poor children under the age of 18. This proposal accords with the recent lobby for the introduction of a Basic Income Grant (BIG). This recommendation was welcomed by the majority of the respondents to the discussion paper. However, some respondents expressed concern over the possible abuse of a BIG. For example, Africa Christian Action argued that the proposed BIG will encourage people to have more children in order to obtain an extra income, while not committed to the well-being these children. Other respondents mentioned that the current CSG is already being abused and stated that the Commission could restrict the possible abuse of the proposed BIG by limiting the number of children to whom such grant can be paid within a household.

6.2 Issues which were not addressed in the discussion paper, but brought to the Commission's attention

(a) Possession of a child for purposes of prostitution

The Family Violence, Child Protection and Sexual Offences Investigation Unit of the S A Police Services mentioned that it is investing cases where children are taken from the Democratic Republic of the Congo and Zimbabwe and are then kept in flats in the Hillbrow and Berea areas until their parents who are illegally in South Africa pay ransom. The respondent added that although these children are removed from the flats, the suspects are, due to the lack of legislation, only fined on a lesser charge, i.e. contravening boarder control legislation, and thus continue with their trade. The respondent also mentioned that children are removed via form 4 from homes in the Southern suburbs of Johannesburg from where child prostitution is facilitated. However, the perpetrators are later released as these children would not testify against them because they are often emotionally, financially and most often drug dependant on the so-called pimp. The respondent is thus of the view that the lack of legislation makes the form 4 a useless document. In order to address the situation, the respondent recommended that any person must be able to justify his or her possession of a child, and if a person cannot provide a reasonable explanation for such possession, he or she should be guilty of an offence. Furthermore, the following question's could be asked to determine whether a person is rightfully in control of a child: (a) how long have you known this child?, (b) where does the child live? (c) who does the child live with?, (d) who is the child's parents? The respondent stated that the following persons would not be found guilty of an offence: (a) a person who has signed a form 4, (b) a person who is a parent or guardian, (c) a person who has the child's parent's or guardian's permission, (d) a person transporting a child to the SAPS or social services.

(b) Mandatory reporting of cases of child abuse by religious leaders

Ms Krystyna Smith recommended that all religious leaders should be added to the list (s42 of the current Child Care Act) of specified mandatory reporters of suspected or alleged cases of child abuse. She submitted that religious leaders engender deep trust and for this reason may often be the first people to hear about reports of child abuse in their communities. In addition, religious leaders usually have pastoral, teaching, social outreach roles and responsibilities in their communities. This brings them into constant professional contact with children and adults. Ms Smith submitted that media and other reports have indicated that there is a problem across a wide spectrum of religions regarding sexual offences committed by religious leaders. Furthermore, most of these cases are not reported to the relevant civil authorities, but are treated as a problem of internal discipline, and these crimes may often be covered up. The matter is thus not taken beyond the religious community, for fear of scandal that may be caused to the religious community or damage to the image of the religious authority. Ms Smith questioned a religious authority's ability to punish an offender appropriately, and to protect the victim and community from further harm. She stated that a religious authority that find a religious leader guilty may insist that he should undergo rehabilitative treatment and can also remove him from ministry, but cannot sentence or imprison the offender, even if dangerous, e.g. a paedophile. Furthermore, the offender will have no criminal record and there will be no reliable restraint on the offender continuing the criminal behaviour. Ms Smith also proposed that internal disciple hearings by religious authorities should not be regarded as a substitute for the criminal justice system.

6.3 Conclusion

The Commission under took to provide the Minister of Social Development with a report which will contain its final recommendations and a refined children's statute by the end of June this year. Given the time needed to make arrangements for workshops in the various provinces, to collate the submissions received and to compile the draft report, the Commission will not embark on an official consultation process as initially envisaged.

22 April 2002
Louisa Stuurman and Gordon Hollamby