THE SOUTH AFRICAN LAW COMMISSION'S CHILD CARE LEGISLATION PROJECT: ASPECTS RELEVANT TO CHILD SEXUAL ABUSE

By Professor F N Zaal: Project Leader, South African Law Commission Child Care Project Committee

1. Introduction

The new child care legislation which is currently being drafted deals with an extremely wide range of children's issues. In terms of range and scope, I understand that it is the largest legislation project ever undertaken by the South African Law Commission. Together with the new child justice legislation initiative and the sexual offences project, it forms part of the most extensive set of law reform proposals on behalf of children in the history of South Africa.

I understand that this Committee’s concern is particularly with the problem of sexual abuse of children. I was requested by the South African Law Commission to prepare a general overview of the proposed new Child Care of Legislation for these public hearings. I am prepared to report generally on the scope and content of the proposed new child care legislation if required to do so. However, in preparing for this meeting, I assumed that in the limited time available the Committee would wish to hear about parts of our proposed legislation that are particularly relevant to the problem of child sexual abuse. These parts tend not to deal with the criminal law aspects. The focus of the proposed new child care legislation is more on children than on adult perpetrators of child sexual abuse. This is because the legislation tends to concern prevention, early intervention, care and compensation of child victims, rather than punishment of perpetrators. If it is acceptable to the Committee, I would like to share with you and explicate aspects of our proposals that are likely to assist in addressing the problem of child sexual abuse. A distinction which might be useful to bear in mind is that between enabling provisions in our Bill and mandatory provisions.

2. Foundational Provisions

The second chapter of our Bill is a foundational one in which we propose a series of basic rights for children. The aim here is to spell out in more detail and thus help to implement or reinforce the rights which children already have under our Constitution and relevant international instruments which South Africa has signed. The other purpose is to use the rights in chapter 2 to apply to, and thus underpin, the more detailed provisions which are offered in the subsequent chapters of our Bill. Pertinent to the concerns of this Committee are some of the rights for children explicated in clause 13 of our Bill.

Parts of Clause 13 which are relevant to child sexual abuse read as follows:

" 1) Every child has the right to be protected, through administratrive, social, educational, punitive or other suitable measures and procedures, from-

a) all forms of torture, physical violence, mental harassment, injury, maltreatment, abuse, neglect, degradation, sexual molestation and exploitation;

b.) inducement, coercion or encouragement to engage in-

i) prostitution; and

ii) any form of pornographic performance.

2) Every child who has been maltreated, abused, neglected, degraded, molested or exploited has the right to have access to support services and, where appropriate, to medical treatment at state expense."

As can be seen, the above-quoted foundational provision regarding children's right to be protected is certainly wide enough to cover child sexual abuse.

3. The Parent-Child Relationship

One of our proposals which we believe is significant goes to the heart of the juristic nature of the parent child relationship. In the Roman Dutch common law, as still applicable today, this relationship has been viewed primarily as being, composed of parental rights. The three important parental rights have been guardianship, custody and access over children. We have proposed a substantial amendment to the common law which will reverse the juristic perspective from which the parent-child relationship tends to be viewed. We have proposed a system in which parental responsibilities will tend to be much more important then parental rights over children. You may perhaps be asking, what is the relevance of this to child sexual abuse? I would submit that the answer is that emphasising parental responsibilities for caring for children, rather than viewing children predominantly as merely the objects of parental rights, will tend to make parents more accountable in law. Firstly, more accountable regarding their behaviour towards their children. Secondly, more accountable with regard to the care of their children -for example, what they allow, within their available resources, to happen to their children.

  1. The Concept of "Children in Need of Care and Protection"

Chapter 5 of our Bill is entitled, "Children in Need of Care and Protection". Amongst the grounds for being defined as a Child in Need of Care and Protection is clause 84 (2) (C). This clause refers, inter alia, to a child who "lives in circumstances likely to cause or conduce to the child's seduction, abduction or sexual exploitation". Later in the same clause appears the category of a child who "has been or is being physically, emotionally or sexually maltreated, abused, neglected or degraded by a person having parental responsibility, or any caregiver, family member or person under whose control the child is". Yet another category in this clause is any child who "lives in or is exposed to circumstances which may seriously harm the child's physical, mental or social well-being".

Children defined in our proposed legislation as "Children in Need of Care and Protection" (as discussed in the previous paragraph, above) are subject to a reporting clause which is to be found in clause 85 of the Child Care Bill. In terms of this clause, "any person who believes that a child is in need of care and protection" may report this belief to a social worker, police officer for a local child and family court registrar. This is of course an enabling clause. Certain categories of trained or professional persons (such as social workers or police personnel) who encounter such a child must make the report and so here we have a mandatory clause.

Once a report has been made in terms of clause 85 (as discussed in the previous paragraph, above) a social work investigation can be launched to see whether the child concerned is in need of alternative care. Unlike under our present law (where only some reporters are protected), we recommend in our Bill that all reporters in good faith should be protected by an immunity provision which prevents persons reported against from launching a civil action for defamation against the reporter. Under our present law, there is considerable confusion because there are two very different reporting laws. We have recommended that these two provisions should be replaced by our simpler provision, which should hopefully encourage increased reporting of child sexual abuse because of the more-inclusive immunity protection.

5. More Accountability and More Flexibility

We have recommended a power for the proposed new child and family courts (see further the discussion in Part 6 below) to be able to "instruct a person who has failed to fulfil an obligation towards a child to appear before the court and give reasons for the failure". A person may be deprived of parental responsibilities or rights in respect of the child. And a person may be fined for contempt of a child and family court order. In order to allow for flexibility which takes into account the sometimes changing circumstances of children, we have recommended that the child and family court should be able to withdraw or amend its orders, or replace orders with new orders.

6. A New Name and Improved Capabilities for Children's Courts

At present, it is the children's courts that have to consider whether children should be removed into alternative care when a parent or substitute caregiver abuses a child or allows a child to be abused. Thus they are frequently involved in care aspects of child sexual abuse matters. Despite the important nature of their work, many of our children's courts are presently weak in status and resources. The officers called children's court assistants were withdrawn in the early 1980s, leaving only clerks to undertake their functions. Most of the children's court adjudicators do this work only on an occasional or part-time basis, and many of them have complained that they are insufficiently trained for working with sexually abused and other traumatised children. Besides the legally trained adjudicators, the other type of professional who is commonly involved in children's court hearings is the investigative social worker whose report is often the most significant piece of evidence. On the side of both adjudicators and social workers, a lack of cross-disciplinary understanding sometimes gives rise to communication barriers which lead to wrong decisions being made about vulnerable children. Failure to intervene correctly at the children's court stage may lead, for example, to the death of a child at the hands of an abusing family member.

In terms of personnel resources for the children's Courts, it is very important that we attract and retain staff were heavy interpersonal skills that enable them to interact constructively with traumatised children and dysfunctional families. We have therefore stressed proper selection and training of personnel in our Discussion Paper and Bill.

In preparing our legislative proposals, we have looked for cost-effective ways to improve the capabilities of the present children's courts so that they can work more effectively with children. We believe that in order to work appropriately with children they will often also need to work with the families of those children. We have therefore recommended a name change from children's courts to child and family courts. We have also proposed that family advocates be renamed child and family advocates and that they be legislatively empowered and sometimes required to represent children in the child and family courts. We have recommended a return of the children's court assistants, but with a title that accords more status -that of child and family court registrar.

7. A Wider Range of Remedies

In comparison with what the present children's courts are able to do for children, in the Child Care Bill and Discussion Paper we have recommended a much greater range of services for the proposed child and family courts. With your permission, I would like to provide some examples that are relevant, inter alia, to cases of child sexual abuse.

When it comes to abuse of children, we have recommended very broad powers of the child and family courts. In clause 40(1) of our Bill it is proposed that these courts should be able to adjudicate upon any matter relating to the care of abused, degraded or exploited children. We have also allowed for the simultaneous adjudication of delictual claims arising from abuse of children. Thus the child might claim for medical costs, damage to her clothing, and/or pain and suffering arising from sexual abuse. A parent who had been forced to witness such abuse might claim damages from the perpetrator for psychological shock. The victims would thus not be forced to go to another court and recount traumatic experiences again to that court before they can claim compensation. We believe that measures such as these will make it easier to render perpetrators fully accountable.

The present children's courts cannot make orders regarding the basic parental responsibilities because these fall within the jurisdiction of the high courts and divorce courts. Thus, whilst the children's court might order that a child can be removed from an abusing parent, it cannot terminate that parent’s guardianship, custody or even access. Thus the parent can continue demanding to have contact with the child. We believe that it is an essential part of care proceedings that the court concerned should have full powers to adjust parental responsibilities as best suits the interests of a child victim who is in need of alternative care arrangements.

When considering whether to provide social work services in the form of early intervention services on behalf of a particular child who may be at risk of sexual abuse , certain preliminary steps may be required. A social worker may need to investigate the place where the child lives. She may also need to have a child, or another person who is interacting with the child, professionally assessed. We have recommended that she should be permitted to approach the child and family court for an order to allow her to enter and investigate premises or seek an order requiring a relevant person to co-operate in receiving an assessment. The assessment orders might be thought to clash with constitutional rights to privacy and dignity, but this will have to be balanced against the concept of a child’s rights being paramount in all situations affecting the child as per section 28 (2) of the constitution. If our proposal for assessment orders is promulgated in legislative form, the constitutional court may be called upon to consider its constitutionality. We submit that the best interests right in section 28 (2) should trump the other rights. Thus, where it is believed by a social worker and the court that a certain person is likely to or is already abusing a child, that person could be required to submit to an assessment. Very similar to our proposal for assessment orders, is a proposal for treatment orders. With these, a person might be ordered by the court to co-operate in receiving a course of treatment -such as for alcoholism or drug abuse-where this is in the best interests of a particular child. As we have worded it- "where this is necessary for the well-being of a child".

Of course, the child herself might be the subject of an assessment or treatment order as discussed in the previous paragraph. A caregiver might be required to undergo a parenting skills programme. We have also recommended specific powers for the proposed child and family courts that would allow these courts to order early intervention services and or a family preservation programme on behalf of a child at risk. Yet another variation would be a supervision order. In terms of clause 41 of our Bill, this would place a care-giver of the child under the supervision of another person, such as a social worker. As an alternative to supervision, a court could order that continued care be subject to any other conditions which the court sees fit to impose.

As can be seen, in the Child Care Bill we recommend an extremely wide range of protective remedies for child and family courts which go very far beyond the present limited powers of the children's courts. Yet other examples of proposed remedies for these courts are a power to :

a) Order the removal of the perpetrator from the child's home, rather than the removal of the child;

b) Instruct a caregiver of child to undergo professional counselling, or to participate in mediation, a family group conference, or other appropriate problem-solving forum.

8. Prevention, Promotion and Early Intervention

The Child Care Project Committee has recommended that government should devote increased attention to three important categories of services for children. These are:

a) Services designed to prevent harm to children;

b) Early intervention services for children especially at risk of harm;

c) Services designed to promote the well-being of children.

It has been suggested that inter-sectoral cooperation will be needed in order to ensure that more children in South Africa receive these three categories of services. Both NGOs and different levels of government will need to be involved. Whilst it is not possible to go into detail in the present document, it is perhaps especially important to note that in our proposals we have recommended that local governmental authorities are potentially important role players who need to be legislatively empowered so that they can do more for vulnerable children. Examples of functions that it is recommended they should legally be required to perform are:

a) Keeping records of the numbers of children in need in their areas;

b) Providing safe recreational playgrounds for children;

c) Designing, implementing and overseeing prevention and early intervention services for children in the areas;

d) Conducting child needs analyses;

e) Inspecting child care facilities in their areas;

f) Arranging programmes that allow for nurses to do home visits on behalf of newborn babies;

g) Establishing programmes to promote the welfare of children according to local needs; and

h) Establishing One-stop Child and Family Centres.

9. Other Provisions

An enabling provision in our Bill which is directed at hospitals includes a recommendation for a power for hospitals to retain a child who "on reasonable grounds is suspected of having been the subject of physical or mental abuse, pending further inquiry". The hospital will thus be able to hold the child and refer the matter for investigation by police or welfare personnel.

In yet other protective provisions, we allow for a person's name to be listed in or removed from a national child protection register or any official, lawful record listing persons as child abusers.

We have also recommended power for the child and family court to instruct the return of the child to South Africa from abroad where this is essential in the have interests of the child.

  1. Conclusion

Obviously, with regard to child sexual abuse it is not possible in a short document to cover and explain fully all of the potentially relevant provisions in the new Child Care legislation. For a full understanding of these it would obviously be necessary to study the Discussion Paper and the completed portions of the Bill. However, the main relevant features of the proposed new legislation have been outlined above. As can be seen, a wide variety of innovative changes, including some significant amendments, have been proposed.

Prof. F.N. Zaal 13 Mar 2002

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