Children's Amendment Bill [B19B-2006]: public hearings

Meeting report

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
18 September 2007
CHILDREN’S AMENDMENT BILL: PUBLIC HEARINGS

Chairperson: Adv M Masutha (ANC),

Documents Handed Out
Community Law Centre Submission
Legal Resource Centre Submission
South African Council of Churches(SACC) Submission
Life Enrichment Ministries Submission
Justice Alliance South Africa (JASA) Submission [will be available tomorrow]
Children’s Amendment Bill [B19B - 2006]
Doctors for Life International Submission
National Association of Child and Youth Care Workers (NACCW) Submission
South African Human Rights Commission Submission
Western Cape Networking AIDS Community of South Africa Submission
South African Congress for Early Childhood Development AND Early Learning Resource Unit (ELRU) Submission
Christian Action Network Submission
Carol Bower Submission

Audio recording of meeting [Part 1] & [Part 2]

SUMMARY
A number of organisations delivered submissions on the Children’s Amendment Bill. Many of these submissions mentioned the need for cross-cutting and inter-sectoral interventions, and the need to ensure that those departments and provincial and local government sectors responsible for implementation were properly enabled to do the work, that time limits were clearly set out in the Bill and that proper mechanisms were set up. Concerns were expressed by some organisations about banning corporal punishment and there was a general indication that there should be clear definitions, and separation should be made of what constituted abuse, inhumane and degrading from loving parental discipline. Differing results of the Swedish banning on corporal punishment were cited by two different organisations. The Community Law Centre raised that torture was not criminalised in South Africa under any legislation, and needed to be included, and that special attention should be drawn to child and youth care centres. The obligation to fund on the part of the MEC was also raised by several organisations in the use of must and not may. The issue of inclusivity of disabled children in the Early Childhood Development system was brought up and the need to change the system to include all children. There was also a submission that schools and teachers needed to be specifically involved, particularly where schools were assisting with dysfunctional families. The National Association of Child Care Workers called for the need to recognise the profession of Youth and Child Care Worker and to accord it special treatment under the Bill. There was furthermore a call for further detail in the Bill in relation to Child-headed Households. Further submissions would be considered in the following meetings.

MINUTES
Community Law Centre (CLC) Submission
Mr Lukas Muntingh, Manager of the Civil Society Prison Reform Initiative (CSPRI), a project of the Community Law Centre, University of the Western Cape, delivered the presentation focussing on the United Nations (UN) Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) and the Optional Protocol to the Convention against Torture (OPCAT), and their applicability to the Children’s Amendment Bill (the Bill). He informed the Committee that there were four requirements for torture. Firstly, it must be intentional, secondly, it must be committed by an official, thirdly, it must result in severe mental and physical suffering, and lastly, pain and suffering as a result of lawful action would be excluded. He continued that the essence of the Convention against Torture was to ensure that the perpetrators were prosecuted, held accountable and punished appropriately. He alluded to a few examples which illustrated that torture on children existed in South Africa and that necessary legislative procedures needed to be put in place to deal with them. Mr Muntingh reminded the Committee that despite South Africa’s ratification of the CAT Convention, the act of torture had not been criminalized under South African law as was required by article 4 of the Convention.

He referred to Clause 104(1) of the Bill which referred to the strategy concerning child protection and urged that it was important to ensure that the Department of Correctional Services’ interventions with children were aligned to a supportive inter-sectoral strategy aimed at securing a properly resourced, co-ordinated and managed national child protection system.

Mr Muntingh, with reference to Clauses 139(2), 139(5)(a) and (b), raised concerns that the focus on discipline may not be of sufficient scope to provide adequate protection for children against torture and other cruel, inhuman or degrading treatment or punishment, as alluded to in Clause 139(1) of the Bill and Section 12(1)(c), (d) and (e) of the Constitution. Children could be subjected to torture and other cruel, inhuman or degrading treatment outside the context of discipline. The Community Law Centre submitted that Clauses 139(4) and (5) must be amended to incorporate the general prohibition on torture and other cruel, inhuman and degrading treatment or punishment, and that this should not be limited to punishment, and corporal punishment in particular.

He informed the Members and the Public that the definition in Clause 106 of the Bill, which referred to a child that had been ‘abused in a manner causing physical injury, sexually abused or deliberately neglected’ – was too limiting, as it did not include mental suffering. It was proposed that the Bill incorporate the definition of torture (Article 1 of CAT) and an absolute prohibition as a general protective measure as presented in the written submission.

He also submitted that Clause 194 be amended to provide for the regular review of norms and standards and that such a review should be done every four years at least in compliance with Article 11 of CAT. He suggested that Clause 194(2) be amended to make specific reference to the development of norms and standards that would apply to all child and youth care centres in respect of complaints mechanisms and procedures, and that it further be amended to provide for norms and standards applicable to all youth care centres in respect of the investigation of allegations of torture and other forms of cruel, inhuman and degrading treatment or punishment.

Discussion
Ms C Dudley (ACDP) asked if the present law, relating to reasonable chastisement, made it impossible for parents and authorities to be found guilty where there had been abuse. She also asked if defining parental corporal punishment would still expose children to lack of protection, or inhumane torture, which was different to loving parental discipline.

Mr Muntingh responded that the definition issue had been discussed. Torture was deliberately drafted in an open manner so that it did not list specific activity, but rather was defined according to whether it was intentional and resulted in severe physical and mental suffering.

The Chairperson asked if having a clause to prohibit torture of children would adequately address the problem.

Mr Muntingh answered that it was more about communicating the definition to everyone involved, especially those in the public institutions. Corporal punishment was one action that could severely affect children and another was mental abuse. He maintained that he supported a more comprehensive definition.

The Chairperson commented that the issue of corporal punishment in the bill has triggered much interest and that the Committee wanted to be addressed on that issue, specifically with respect to the views that corporal punishment be banned. He asked if there were any constitutional imperatives based on previous court interpretations, and wondered if there were constitutional imperatives relating to the Committee. He also raised the appropriateness of the Convention on Torture as it was not really focusing on children specifically, but aiming at all who were vulnerable to torture. He asked also about the specific procedures, norms and standards that needed to be developed in relation to facilities for children.

Mr Muntingh responded that there were provisions in Section 12 of the Constitution referring to torture, but no other legislation addressed the issue. He also mentioned that the Convention also encouraged regular review of institutions. He suggested that sector specific mechanisms and legislations should be developed to give effect to provisions of the Convention. In terms of criminalizing of torture, some issues should be dealt with at national level, but where children were concerned, it was important for the relevant departments to develop legislation to deal with that sector. With regards to norms and standards, there was no specific submission how they should be dealt with, though there were examples in the local arena that could be studied, to make procedures child friendly.

Ms H Weber (DA) asked if Clause 191 was sufficient for protection, or whether it was desirable to insert a definition for torture.

The Chairperson asked if the measures already existing for protection against abuse and neglect could be adapted to include measures against corporal punishment and other forms of punishment as opposed to a general clause on torture.

Mr Muntingh responded that it was important to include the definition of torture in the Bill to ensure absolute prohibition of torture, and that this definition be communicated to officials whoever they may be. He urged that this was an international obligation reflected in the Constitution. The Community Law Centre felt that there was a need to be bold and include it in order to protect children against torture, and also to stress that this included mental and physical suffering. Perhaps the definition provided was a good start and then it could be added to. In terms of protection against abuse and neglect, the focus was on child and youth care centres, and not private situations. He emphasised that it was important to incorporate the definition of torture to ensure perpetrators were convicted of crime of torture once legislation was passed. Corporal punishment should not be allowed in facilities. The issue of assault was also important to consider. The Committee on Torture commented that current law was not sufficient as it did not cover mental suffering.

Legal Resources Centre (LRC) Submission
Ms Sarah Sephton, Director, Legal Resource Centre related several experiences to the Members and the Public present to complement the written submission delivered at an earlier time. She indicated that her input at the public hearings arose mainly from her experience in assisting child and youth care centres. The Legal Resources Centre represented a range of clients from individuals to children in places of safety and children’s homes and LRC was working with Child Law Centre on issues around Reform Schools. She started with the issue of safe temporary placement, either in individual homes or children’s homes, for children pending final placement. Part of the problem was that the caregivers were entitled to fees. She indicated at the time of the hearings that it was R12 a day per child, and the Eastern Cape Department of Social Development did not have a proper system to process application forms for the fees or pay them. The result was that over a period of at least three years no safety fees were paid and legal action was required. The LRC tried to intervene to try to settle the matter before instituting legal action, but despite the fact that they met with senior officials from the Social Development Department they were unable to resolve the matter, despite the fact that the fees were clearly owing and the institutional welfare had ordered the fees to be paid. Legal action was instituted in October last year, which brought an immediate commitment to settle the case. The clients were only paid in June this year, over eight months later. Some of them were due R12 a day for a period of three years. Unfortunately, many of the people who looked after children did not have private financial resources, and without the cooperation of the Department of Social Development (DSD) they were placed under a completely unreasonable burden.

The Chairperson requested clarification if the private individuals would also be paid fees for providing places of safety.

Ms Sephton confirmed that they would be paid fees for services they rendered. This also included children’s homes with a small space for children. It was not really their core business to provide temporary places of safety, as they operated more as longer term homing, but there was a lot of pressure for them to take in children and therefore well run homes were overburdened. The fact of the Department placing children but not paying placed a burden on those homes. Children’s homes currently could be paid, at the discretion of the Minister. She hoped this would become obligatory.

Ms Sephton added that the children’s homes had problems in accessing grants as they had to submit business plans in their request for funding and there was no acknowledgement of receipt, or indication of progress. LRC had tried to intervene to find out whether business plans had been received and when the request for funding would be considered. Without LRC’s interventions these children’s homes would not receive funding despite the fact that they were caring for a large number of children. All did private fundraising but this was not sufficient to care for the children. LRC also found there were children’s homes that were not registered and operating outside the parameters of law, particularly in the Eastern Cape, with early childhood development, or crèches. Attempts to get the DSD to assess these homes for compliance was very onerous.

Ms Sephton remarked that the basic administrative system in the DSD in the Eastern Cape was barely operating. Many times, the LRC had to launch court proceedings to get people to do their jobs.

The LRC also dealt with reform schools and had brought a legal case against the Department of Education and DSD to compel them to establish a reform school in the Eastern Cape.

She indicated that the Bill provided that reform schools would be run by the DSD. This was a positive development, but the functions of the Department needed to be clearly prescribed. Basic principles should be built into this bill so that government departments were aware that they needed to take a certain number of days to respond to a request to register, and then to provide funding for the registered institutions.

Discussion
The Chairperson remarked that much of what the presenter had shared related to the Committee’s work of oversight over government service delivery, and he urged that these examples be furnished to the Committee Secretary so that the matter could be raised with the Minister, so that he could follow up with the Department and with the relevant provincial MECs. He asked if the presenter thought the matter of implementation of registration was covered adequately in the legislation, and if not, what were the shortcomings. He requested if some kind of norms and standards should be put in place.

Ms J Semple (DA) asked if this experience was confined to the Eastern Cape.

Ms Sephton did not have a clear picture of other provinces. The Eastern Cape was historically the worst-off province and there seemed to be the will at senior level, but at the district level there was a break down.

Ms Weber asked if keeping children in foster care was sufficient, or whether the route of children’s homes must be explored. She also asked if there should be easier norms and standards.

Ms Sephton indicated that she personally did not support children being brought up in institutions. More people needed to be encouraged to look after children. It was difficult to get payment of safety fees and this caused a burden on the family

Ms H Bogopane-Zulu (ANC) agreed that there was a need to follow the route of trying to raise children in individual homes rather than children’s homes. She asked whether putting demands in legislation would lead to quicker resolution.

Ms Sephton responded that administrative matters were largely covered in the bill but she would like to see time frames set for basic procedural matters. There was the understanding that people should deal with their provincial offices, but at district level there was a lack of willingness of officials to do their jobs. People had applied for registration and had not heard of progress for three years. Once institutions were registered, she would like to see an obligation for funding. At the moment there was no assurance of funding, even with registration, and the process of getting funding was extremely onerous. She indicated that the notion of obligation to progressive realisation of rights did not really work in the Eastern Cape and that the department needed clear obligations set out to perform its function properly.

South African Council of Churches (SACC) Submission
Rev A Cloete-Damons delivered the presentation for the Council of Churches, which focussed on Chapter 5 – Partial Care (PC), and Chapter 6 – Early Childhood Development (ECD), Chapter 8, and other areas of the Bill.

SACC recognised the need for the setting of norms and standards as well as for procedures of registration for partial care facilities. It cautioned, however, that unless procedures for registration were efficiently coordinated and integrated into inter-departmental responsibility, a cumbersome bureaucracy could result, and this could lead to disincentives for community involvement in partial care facilities, rather than an invitation to dedicated and gifted voluntary workers.

Rev Cloete-Damons communicated that the rationale for separating chapters 5 and 6 appeared unclear. She indicated support for the holistic view of development in the definition in Section 91(1). SACC called for the ECD programme and services to be provided "to age 9" (Section 91(1) and Section 91(2)(b)). She further indicated the Council’s support for the call by Disabled Children's Action Group (DICAG) to take into account not only the child's chronological age but also his/her developmental stage, since many children with disability would come late into ECD.

She also indicated that the MEC responsible should be obliged to fund the provision of programmes (Clause 93(1)) and therefore the wording should replace “may” with “must”. This recommendation should apply to all instances in the Bill where financial provision for services to be rendered was regarded as optional ("may"). The Council called for the creation of linkages amongst the ECD, PC and Prevention and Early Intervention (PEI) sections to ensure effective service delivery of the Bill; alternatively that these chapters be condensed into one comprehensive chapter.

With regard to Chapter 8, Rev. Cloete-Damons affirmed the paradigm shift from the earlier statutory (legal-criminal) approach to a social and human developmental model. She indicated that this transition required all round capacity development, training and a commensurate provision of resources for it to work effectively. A key point for the identification of and response to child vulnerability - like the provision of care support and/or professional referral - was at the school.

SACC repeated its previous recommendation that some form of inter-sectoral mechanism, enforcing the cooperation of the concerned government departments, be used and this should be widened to acknowledge the already active work performed by many civil society organisations and faith organisations. It also recognised that municipalities had an obligation to cooperate with government. As with the previous clauses, SACC believed that the obligations of the MEC to provide financial resources for this service should be clearly articulated as "must", and not "may" (Clause 146 (1)).

In terms of children with disabilities SACC reiterated their support as indicated by the Disabled Children's Action Group (DICAG) in terms of universal access to services for children as well as specialised services. It suggested the need for prevention services and programmes such as the elimination and prevention of diseases and disability associated with chronic poverty; appropriate training and capacity building for ECD, child care work and for police, to sensitise them to communicate and interact with children with disabilities.

On HIV & Aids, Foster Care and Cluster Foster Care, SACC recommended that the government needed to distinguish between "social services and protection services" and "poverty alleviation". Poverty alleviation needed to be de-linked from the court system. SACC indicated support for the call to stop the use of Foster Care Grant as a poverty alleviation mechanism. The exploration of formally bringing together "extended family" for support of orphans and vulnerable children in the spirit of Ubuntu/Botho would be worth exploring.

SACC welcomed Section 139 because it sought to advance a culture of dignity, respect and equity of relations through the proposal to prohibit corporal punishment as well abolish the common law defence of "reasonable chastisement". It supported its replacement by positive discipline and parenting in line with the Constitutional values of human dignity, respect and equity. The Council believed that this step would contribute positively and significantly to turning the cycles of reported violence, abuse and neglect against children in the long term. Rev Cloete-Damons informed the gathering that a section called “Frequently Asked Questions (FAQ) on Religion, Positive Discipline and the Abolition of Corporal Punishment” was included with the written submission.

She further indicated that in the Christian context there were differing approaches and interpretations to texts referring to violence in the past. She reported that the question that many religious supporters of corporal punishment refused to ask was whether the text was sacred or merely the interpretation. SACC believed that if there was no one interpretation agreed to by all Christians, there would not be an agreed “Christian” position. The task of the legislature was not to arbitrate between contending sides of scriptural interpretation, but the matter of punishment was a question of human rights. The Church therefore had a duty to the public and the citizens of South Africa to encourage legislation that sought the best Constitutional value, even if the "reimaging" of these values challenged the traditions and thought of the religious establishment. DSD should be commended in the same way that political institutions were commended for the abolition of slavery and the creation of the United Nations.

On the question of Child headed households, SACC expressed concerns that a requirement for the provincial DSD to recognise a child headed household - and therefore for them to receive assistance - was a social work investigation. The SACC called for the recognition that all children living in a child headed household be treated as children in need of care and protection - and that a mentor be appointed during the investigation. The Council suggested that abandoned children be included in the definition of child headed households.

SACC further called on government to secure the work of professional social and youth care workers and expressed concerns that delegation of responsibility for the registration of Shelters for Street Children to municipalities might be problematic, although it supported the spirit of inter-sectoral cooperation with provincial government.

Discussion
Ms Dudley requested clarification if programmes concerned could not be seen as having the same beneficial results without having to tamper with the concept of “reasonable chastisement”. She noted the comments that the legislature could not interfere in interpretation of scriptural texts, and asked if it would then be reasonable not to criminalise certain forms of parental discipline. She posed the question whether Clause 139)(2) should not rather read : “no child may be subjected to unreasonable corporal punishment, or punished in a cruel, inhumane or degrading way at any child or youth care centre”. She asked if this would substantially alter what SACC was saying in its submission. She commented that what was proposed here would outlaw a very large number of people who understood their responsibility as parents as administering reasonable parental discipline.

The Chairperson asked the presenters how, especially in rural areas, should the gap be bridged between the old traditional ways and the new way proposed by this legislation.

Rev Cloete-Damons responded that the three answers were educate, educate, and educate. SACC believed that human rights was not about traditions, but went further. There were different interpretations of how things were done in the past, and this must be balanced against respect for human rights. There was a humbling response in the church that the human rights culture might be clashing with some of the positional religious practices within the current culture. The question was how to advance all constituencies to 21st century human dignity. It was also often heard in the rural areas that some promoters’ understanding of tradition was clouded by colonialism, and this understanding should be put right. However, there was an overall need to learn and educate others into what the human rights culture demanded. SACC supported fully protection of children’s rights to be free from bodily harm and cruel punishment.

Rev Cloete Damons added that insofar as legal interpretation of reasonable chastisement was concerned, SACC was not sure what was reasonable or unreasonable or where to draw the line. Sometimes, physical chastisement was confused with an emotional response, hence this was a grey area. SACC, aware of differing interpretations, had rather chosen to support the bill against the human rights perspective of protection of children from harmful and cruel punishment. The legislature must explore the truth of human rights for children.

Ms Dudley justified that this was why the proposal was put forward of loving parental discipline, which had nothing to do with inhumane or cruel punishment. The two concepts must be separated. Reasonable was a well-known legal term.

The SACC responded that any form of violence was a symbolic act of using force to deal with conflict, and it was important to ask what the child had learnt from that action. SACC stressed that this legislation was about care and protection of vulnerable children. Promotion of positive discipline was the key. This was the kind of 21st century human rights culture SACC wanted to see develop into the future. The real need, as indicated in their submission, was about an inter-sectoral mechanism to cross reference relevant legislation such as the Child Justice Bill with this legislation.

Life Enrichment Ministries (LEM) Submission
Mr George Raath presented the submission of the Life Enrichment Ministries, which focussed on counselling in parenting and child issues. The presentation was limited to objections to Clause 139 on Corporal Punishment in the home. Mr Raath stressed that members should remember that what was reasonable was clearly set out in the Bible. The written submission deal with constitutionality aspects. The main thrust of the oral submission was on the spiritual basis. He was very concerned, when listening to debates, to hear that presenters propounded on biblical and spiritual issues without referring to the bible. Every argument had been referring to human rights and law, but all this flowed from the supremacy of God and of the bible. He referred to page 8 of the written submissions. There were commandments in the bible dealing with punishment. Disciplining the children in the larger context raised larger relationship issues. The parent was the representative of God, and it was through the parent that a child had a relationship with God. There were verses which created a framework for reasonableness, including disciplining with a rod if necessary.

He expressed that the Bill placed the Christian and shared ethos directly in contravention with biblical principles outlined before and there were no alternatives. This was the first time that the legislature was entering into the arena of punishment. There was a deliberate attempt to instruct people of particular faith to do something that was contrary to their beliefs, and therefore contrary to freedom of religion. He remarked that the thinking behind the Bill seemed to be based on secular thinking. His constituency believed that the State was compelled to listen to what they were saying. Mr Raath commented that Life Ministries was saying that if corporate punishment was administered in the biblical context, then it was an element leading to children who would obey authority, which was something desperately needed in this country.

Discussion
Ms Bogopane-Zulu asked Mr Raath to expand upon his comments that the State was compelled to listen, and why their constituency supported such views. She asked why Life Ministries had a particular problem with the banning of corporal punishment in homes. She noted that it was precisely in homes where abuse was happening. This Bill would assist those families who were managing to hold things together.

Ms Semple agreed and indicated that the home was the least monitored place. Discipline was the main issue, but there was a problem around corporal punishment and she was not sure if all parents had the same definition. She did not believe that inflicting violence was a good way to teach a child to resolve conflict. She asked if the presenter believed that corporal punishment should be applied also to other members of the family including a wife.

Ms M Gumede (ANC) indicated that the submission would take six months to interrogate because it was confusing. As a dedicated Christian herself, she believed that the bible had commented that a person should not use his hands to hurt anyone.

Ms Dudley asked the presenter if he saw value in defining what corporal punishment was, and if he believed that interventions were not necessary in the homes of parents who understood what loving parental discipline was.

The Chairperson indicated that it was a question of where to draw the line in discipline and punishment.

Mr Raath responded that this was the point, that corporal punishment was corporal discipline, which was the smacking of the body. This was supposed to address extreme cases of rebellion against authority embedded in parents by God.

The Chairperson countered that if this punishment failed, and more abuse increased rebellion, how would it be dealt with.

Mr Raath responded that there was a need to stop at a certain point. HE commented that Ms Gumede had not understood the bible correctly. He indicated that there was no option; this was the command of God and there was a need to obey God. It was clear from the discussions that everyone seemed to equate discipline in a loving home to abuse, and there was a big difference. He indicated to Ms Semple that their ethos indicated that violence against women had no place, and was totally unacceptable.

Justice Alliance of South Africa (JASA) Submission
Mr T Makamu, Justice Alliance of South Africa, requested that the Committee look at a study recommended in the written submission for guidance in drafting legislation in the areas of disciplining children, using mild form of corporal punishment.

He commented that South Africa was still a young democracy and that the past was abusive and disempowering to families. He indicated that one of the reasons for current problems might stem from the fact that so many fathers were present or were too busy to be involved in the upbringing of the children.

He further indicated that the question was about the most appropriate form of discipline required in various situations. The research had indicated that spanking was not detrimental to the child, as opposed to corporal punishment, and that the real issue was not about spanking, but the way in which it was done, and that it should be explained to the child why this was being done.

Therefore, the Justice Alliance proposed changes to sub-clauses 2 and 3 of the Clause 139, to replace the word corporal punishment with discipline. He also suggested other detailed changes as were outlined in the written submission.

Mr Makamu concluded that if a better way of disciplining children were found, government and legislature should work together with them as they tried to find ways to protect children. It should also be understood that there was no such a thing as a “new” church, and that Africans should hold on to their values as there was also no such a thing as a “new” Africa. Certain values had been around since time immemorial, but what was of concern was a failure to abide by values.

Discussion
The Chairperson asked the presenter if spanking was a value.

Mr Makamu responded that it was not a value.

Ms Weber asked if corporal punishment was not taken to extremes, and expressed the need to take it into context. What was in the Bill already was a clear indication that this Committee would not support abuse. Perhaps there was need to define what was extreme, and to see this whole Bill in context. There was also a need to educate people.

Ms Dudley asked if the educating needing to be done could be done without banning parental corporal punishment.

The Chairperson requested JASA to explain if it saw corporal punishment as being consistent with the Constitutional requirement that no one should be subjected to degrading abusive punishment. He commented that there used to be a time in the criminal justice system when a number of strokes with a cane could be imposed, and these were supposed to be administered “in a dignified way”. However, this was abolished even before 1994 because it was considered dehumanising. He informed the presenter that caning one’s own child could lead to a criminal charge.

Mr Makamu responded that he also did not like the term corporal punishment and that he would prefer use of the term “child discipline”, then it would be possible to look at the issue in a holistic way and empower parents. He had not referred to lashing or caning, but had said “spank”. He indicated that when this legislature was voted in, it needed to ensure that it would pass laws to regulate society and to commend those who were doing good in society, including parents training children who would be useful to society. There was a need to leave a good legacy for the next generation in laying right principles.

South African Congress for Early Childhood Development (SAECD) and Early Learning Resource Unit (ELRU) Joint Submission
Ms B Ngwevela and Ms Mary Newman delivered a summary of the submission in a presentation on behalf of the two bodies. They indicated that there was a general acceptance of the provisions of the Bill around ECD. She would refer to Clauses 91, 93 & 95. In terms of Clause 95, she highlighted that the registration of ECD facilities and difficulties of funding them meant they would not in practice be registered. They appealed that the process needed to be simplified and coordinated.

The presenters said that it was important for government to commit to the definitions outlined in Clause 92 around obligation to finance. An example was cited of a school in the Northern Cape, which had a name on paper, but the children were sitting under a tree. Government needed to commit funds to facilities. Furthermore, there were incidents where children were queuing up to share quarters of a loaf of bread and the young ones were not allowed to share this food. She related that she had given her own money to the teacher to buy food for the three to four year olds. The presenters appealed to government to provide funds for ECD and these challenges.

Ms Newman noted that ECD in the Bill covered the school-going age. It was the belief that this work should cover all those up to age 9. They argued that the needs of children outside of school hours should also be considered in funding. This would be more in line with the international instruments. She pointed out that a more comprehensive step-by-step approach by the organisations, setting out what else they would like inserted and changed in the Bill was contained in the written submission.

Discussion
Ms Bogopane-Zulu requested clarification if the presenters meant extending the school going age to include those who were late developers. She believed the system needed to be changed to ensure equality, as she would not like to see a twenty year old with a mental age of four in the same class as four-year olds, as this was degrading. She wanted to get an idea of what the understanding was of children with disability, as she was struggling to get this understanding in her efforts with her four year old. ECD should be accessible by everyone at the same age.

The Chairperson indicated that there was a national education policy where it was envisaged that mainstream education system would be so dynamic to accommodate diversity, so that within a single system there would be room for gifted children, slow learners, visual learners and oral learners. The same principle would relate to the question of ECD as part of continuing childhood learning. Within the new ECD system, he enquired to what extent the notion of disability would be factored in or continued across different stages of development.

Ms Dudley commented that the presentation was good and well laid out, but noted some blank pages in some copies.

Ms Ngwevela indicated that sometimes disabled children needed different treatment as they had different developmental needs to others, and therefore needed a different pace.

Ms Bogopane–Zulu clarified that she was referring to the notion that physical disability compelled a different treatment, and this should not be so.

Ms Newman indicated that their whole submission was arguing for inclusivity, and this was stressed over many years. The organisations had also argued the important of development by chronological age and not the biological age. They also expressed that certain chapters in the Bill needed to be integrated better so that children in the ECD age group could have access to preventative services. She indicated that there was no one model to suit all, but that a comprehensive plan was needed to take into account all needs of all the children. Even a child before birth needed services such as early screening, so that they could be helped to come on board. She related a personal experience in that her grandson, who suffered epilepsy at age 18 months, had benefited from being put in a special programme to help with language development. Special services were sometimes needed to help those children needing support. .

Carol Bouwer, Independent Consultant: Submission
Ms Carol Bouwer commended the Portfolio Committee and the decision-makers on a far-sighted piece of legislation that dealt with the serious issues facing children in South Africa. She indicated that although now she was an independent consultant, she had, until July 2006, worked as Director of an organisation that dealt with children’s rights. She had been engaged with the Children’s Bill for the past several years.

She felt that there were many reasons to prohibit corporal punishment (CP). These included rights arguments, international obligations that had to be met, in terms of the rights of the child, as well as obligations to the South African Constitution. She said that children were physically and emotionally vulnerable. She felt that CP did not work and the only “spin off” of it was the immediate compliance of the child. Referring to research done by Ms Elizabeth Gershoff, she said that the findings of this research made it unequivocally clear that CP did not work. CP not only had no long-term benefits but also was also extremely damaging. Studies had shown that it could result in increased risk of child and adult aggression, child anti-social behaviour, risk of being a victim of physical abuse, adult criminality and anti social behaviour and the risk of abusing one’s own children. CP could also result in decrease in moral internalisation, the quality of the relationship between child and parent, and child and adult mental health. She feels CP only taught children that a person bigger than them could hurt them. To beat a child and then embrace it was confusing. Research showed that positive discipline was a far better way to raise children to become disciplined adults.

One of the difficulties in the abolition of CP was making people understand that to work for the prohibition of CP was not to advocate for the prohibition of discipline. She added that CP and discipline were two different things.

In South African society, there was a trend that it was considered acceptable to hurt people that were weaker or to take what you wanted without worrying about the effect on others. There was unmistakable evidence that showed a link between violent behaviour and CP. South Africa was amongst the most violent societies and the way children were raised here should be revised.

She mentioned that an earlier presenter had commented that the legislature was interfering in the private lives of South Africans. She felt that that was not true. The Domestic Violence and Sexual Offences legislation were developed to protect people in the private domain. There seemed to be an idea that parents would automatically be criminalised if they were to physically discipline their children. The vast majority of children that were seriously abused did not report it. In addition, the law was very clear that it did not concern itself with trivial matters.

CP was brought to Africa by colonialism and was also entrenched by Apartheid. CP was incompatible with African culture, and there were many sayings in local languages that illustrated this. The abolition of CP was about protecting the rights of the most vulnerable. It was not possible to guarantee the safety of every child.

She said that this piece of legislation acknowledged that government had a role to play in education and awareness rising and to provide support to build parenting capacity. The Bill stressed that the best place to raise a child was in a supportive family environment.

She added that some people felt that the legislation interfered with people’s roles as parents. However, it was clear that the legislation was trying to build capacity and to ensure that children were raised in an environment that was conducive to raising happy and healthy adults.

She said that a child being physically disciplined in the bathroom was very problematic. Aside from the bedroom, the bathroom was the next most common place where sexual abuse took place.

Her final point was to distinguish between loving parental discipline and abuse. She asked who would draw the lines and make the decisions on what was allowed.

Finally she noted that there was an obligation and an opportunity to create the kind of society that we would like to live in, which would be just, equitable and full of responsible and disciplined adults.

Discussion
Mrs H Weber (DA) asked who was supposed to be educating the parents on discipline without violence.

Ms Bouwer said that the real work would start if the Bill was passed in its current form. The legal prohibition of CP was needed for many reasons. To raise children with positive discipline required more from parents than using CP. Parents needed to be an example to their children and teach them how to live life and make sensible decisions and not to hurt others. She said that there already many people using positive discipline as an alternative to CP. Parents needed to be conscientised, and given alternatives to CP. If South Africa were to prohibit CP, it would be the nineteenth country to do so. Contrary to what people may think, if CP was prohibited South Africa would not end up with the discipline problems of the United Kingdom and America, neither of which had prohibited CP. She added that Non Government Organisations (NGOs) were already doing much of this work but they would need support and need to work with government. She felt that it was possible. She mentioned that in one generation Sweden managed to swing public opinion figures around from 5% against prohibition of corporal punishment to 95% for the prohibition. It took a lot of work, but was possible.

Doctors for Life Submission
The presenter was not able to attend the meeting and no oral submission was made

National Association of Child Care Workers (NACCW): Submission
Mr Alfred Harris and Mr Francisco Cornelius, NACCW, stated that the focus of their presentation was going to be on the people who cared for children, who were termed Child and Youth Care Workers. Although they had established a professional board in 2005 the profession of Child Care worker was not recognised. He said that this made the work for Child and Youth Care Workers very problematic. Child and Youth Care workers gave direct life space work in the lives of vulnerable children and those in trouble with the law in various settings. He said that the National Association wished to have Child and Youth Care workers included in the Bill separately from other social service professions. They were currently in the Bill as part of the social services profession in a broad sense. A further problem was the question of regulations. He added also that UNISA had stopped offering the Youth and Child Care worker qualification. If people wanted to get this qualification or continue their studies in this field they were unable to do so.

Catholic Institution of Education: Submission
Mr Kevin Roussel stated that the Catholic Institute of Education was presenting as part of the Caring Schools Network, and he would focus on the role of schools in the Children’s Bill. The caring schools network was a network of civil society organisations, universities, research institutions and international donor organisations and government departments. He added that there was universal enrolment for primary schools. The Department of Education estimated that 98% of children who were of school going age were in school. At Secondary School level, 85% of children were enrolled. If, as the Bill intended, a whole host of services and interventions were to be set up the level of interventions would have to be up-scaled so that they could reach rural areas. This could be done through the schools network.

Schools had, in some cases where there had been a breakdown of the family structure, become an alternative family. Teachers had taken on roles far outside their normal duties, and there should be recognition and support of teachers playing this role.

The proposal was that the Department of Education department needed to identify children that were in need of services, and then refer them to the appropriate service provider. The department of Social Development would then have the responsibility of providing those services. He suggested that schools be included in the Prevention and intervention section of Chapter 8 of the Bill. He also proposed more inter-sectoral co-operation and recommended that in the wording of such a clause the relevant stake-holders be identified. He proposed a new clause be inserted into Chapter 8, which would state that the MEC of Education in each province must establish and maintain, for all schools in the province, a mechanism for identification, referral and support of children, and that this mechanism should be monitored by the MEC to ensure service delivery.

Discussion
Ms Gumede asked if he was referring to a particular province or all the provinces with regards to the proposed clause to be inserted into chapter 8.

Mr Roussel responded that since education was a provincial competency it would have to be delivered from all provincial levels.

Christian Action Network Submission
The presenter from Christian Action Network indicated that the CAN had already made a submission around parental corporal punishment to the South African Law Reform Commission in 2003. She pointed out that Sweden had had a smacking ban for the past 20 years. Apparently child abuse had increased, children had become more violent and more children had been taken away from their parents during this time. The thrust of her submission was that there was a major difference between loving parental discipline and child abuse, and the two concepts needed to be separated.

Discussion
The Chairperson said that it would be very difficult to define reasonable chastisement, asking what would be “reasonable” in a modern social context where violence was regarded as unacceptable.

Because of the time constraints the Chairperson noted that the outstanding presentations would be taken on the following day.

The meeting was adjourned.