Report of the Portfolio Committee on Social Development on Study Tour to Britain, dated 31 October 2001:

A. Preamble

A delegation from the Portfolio Committee on Social Development undertook a study tour to Britain from 20 to 29 July 2001. The multi-party delegation was led by the Chairperson of the Committee, Mr E Saloojee (ANC), accompanied by Mr M Masuta (ANC), Ms M Ramotsamai (ANC), Ms R Southgate (ACDP), Ms S Kalyan (DP), Prof L Mbadi (UDM), Ms Z Adhikari (Committee Secretary), Mr F Abrahams (Researcher) and Ms N Ahmed (Parliamentary Researcher).

B. Background

The Committee and the Department were instrumental in advocating for the complete review and development of comprehensive childcare legislation for South Africa's children. This legislative review was underpinned by the belief that all children in this country should have a right to protection and promotion of human dignity.

The SA Law Commission was tasked with this undertaking and mandated to premise their investigation on "the best interest of the child". The "best interest of the child", as reflected in the Constitution, 1996, and International Instruments like the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, is the common thread in the development of comprehensive childcare legislation for South Africa. The SA Law Commission is finalising its legislative proposals.

C. Terms of reference

The Committee undertook this study tour in preparation for the critical assessment of the legislative proposals and to make recommendations based on a thorough understanding of what should constitute the key provisions in comprehensive South African childcare legislation.

Furthermore, the Committee wanted to evaluate proposed mechanisms to monitor the implementation of legislation and identify problems with implementation. This will, among others, assist the Committee in gaining understanding of what the budgetary implications are likely to be when implementing comprehensive legislation. Provisions for special family courts, child protection services and models of care were to be explored.

Objectives of tour

A consideration of international children's statutes indicated that a study tour to Britain would offer the Committee the most appropriate opportunity to realise the objectives of the tour. These objectives were to:

1. Critically review the British Children's Act of 1989 and other relevant childcare legislation.

2. Review legislative and policy measures that focus on protecting children in exceptionally difficult circumstances.

3. Identify existing gaps in the current legislation that negatively impact on children enjoying full protection.

4. Assess the ways in which the Children's Act is in line with the Convention on the Rights of the Child.

5. Identify measures that have been put in place to facilitate oversight of the implementation of such legislation.

6. Investigate partnerships between the government and children's rights activists in giving effect to legislative provisions to protect children.

7. Identify intersectoral mechanisms at national, provincial and local level that facilitate the promotion and protection of children's rights.

8. Evaluate ways in which all legislation that affects the Children's Act is in synergy, thus advancing children's rights.

A brief consideration of the UK legislation affecting children is presented as the context within which discussions were conducted by the Committee.

D. British legislation

Children's Act (1989)

The Children's Act codified legislation affecting children, and enshrined the rights of children as well as adults' responsibilities toward them. The Act is fundamentally based upon the belief that children are generally best looked after within the family, with both parents playing a full part and without resorting to legal proceedings. If a child is removed from the family, however, or is subjected to court proceedings, the welfare of the child must be the paramount consideration. The Act therefore makes it a requirement that the child's wishes are heard before a decision regarding his or her future is made, and that proceedings that involve children, must be finalised with minimal delay.

In terms of the Children's Act, a court may make a range of orders concerning the best interests of a child. However, the issue is approached from the "no-order presumption" premise, which means that it is assumed that parents should see a court application as a last resort when other options (including professional conciliation or mediation) have failed.

Should the court make an order, this may include:

1. A Parental Responsibility Order, which confers similar rights on an unmarried and married father.

2. A Contact Order, which requires the person with whom the child lives to allow the child to visit or stay with the person named in the order, or for that person and the child to have contact with each other.

3. A Residence Order, which stipulates where the child will live, but importantly, not to whom the child belongs. Where a residence order is made, the holder of the order cannot change the child's surname and neither can the child be removed from the UK without the written consent of all those with parental responsibility or by a court order.

4. A Specific Issue Order/Prohibited Steps Order, which enables the court to make orders requiring specific actions (Specific Issues Order) to be taken or prohibiting certain steps (Prohibited Steps Order) being taken in respect of children. These orders are intended to safeguard the interests of the children where major issues of concern arise.

5. Family Assistance Order, which provides short-term help to overcome any problems and conflict associated with separation or divorce. A Court Welfare Officer will normally supervise such an order.

6. An Assessment, Care and Supervision Order, which provides for the courts to deal with situations in which children are, or may be, at risk of significant harm, and which makes it possible for Social Services to seek, through the courts, orders for assessment (including medical examinations) and Care and Supervision Orders.

The Act further provides the framework for the delivery of a wide range of services and court-related proceedings, and makes statutory provision for the co-operation of different government agencies when the need to protect a child becomes apparent. This is done at local government level, where local authorities are required to prepare plans for the provision of children's services in their area and to keep those plans under review.

E. Additional legislative measures

Despite the wide purport for the Children's Act of 1989, the government has had to introduce a number of other legislative measures to supplement this Act, and to define the responsibilities of different levels of government.

1. Some more important changes

(a) New powers for courts to add exclusion requirements to interim care orders and emergency protection orders, where domestic violence is an issue, and allowing the child to remain at home but the violent person to be removed.

(b) Providing for certain orders under the Crime and Disorder Act, 1998, to be made in family proceedings.

(c) Linking the Family Law Act, 1996, with the Children's Act by designating FLA applications as "family proceedings".

(d) Extending the range of children who can qualify for advice and assistance to those who are accommodated in health authority settings.

(e) The introduction of the Protection of Children's Act, 1999, in order to restrict the opportunities for those with criminal records for offences against children to be employed or considered for fostering, adoption or work in certain settings with children.

(f) Requiring local authorities to prepare plans for the provision of children's services in their areas and to keep those plans under review.

(g) Requiring, through the Children's Act, 2000, that young people who have been looked after by a local authority, are assisted to move from care into living independently in as stable a fashion as possible. To this end, the Children's Act is amended by placing a duty on local authorities to assess and meet the care and support needs of children in care (aged 16 and 17) and children who leave care, as well as those who were in care before reaching the age of 18 years. The local authority will be obliged to maintain contact with all its care leavers who qualify for these new support arrangements, including those aged 18 to 21 years, and beyond in some instances.

(h) Enabling local authorities to offer new support to carers to help them maintain their own health and well-being. The Children's Act, 2000, gives local authorities the power to supply certain services - services that help the carer care for the person cared for - directly to carers following assessment. Secondly, the Act empowers local authorities to make direct payments to carers, while it also gives local authorities a power to charge carers for the services they receive.

2. Quality protection programme

In an important step to realise what is implicit in the Children's Act, eight comprehensive and outcome-focused objectives in respect of personal social services for children were published with the launch of the Quality protection programme in September and November 1998. In effect, they aim to expand on the meaning of safeguarding and promoting children's welfare and to strengthen some of the strategic planning underpinning the Act since its implementation.

The eight objectives were to:

(a) Ensure that children are securely attached to carers capable of providing safe and effective care for the duration of their childhood.

(b) Ensure that children are protected from emotional, physical and sexual abuse and neglect (significant harm).

(c) Ensure that children gain maximum mileage from educational opportunities, health care and social care.

(d) Ensure that children cared for gain maximum life chance benefits from educational opportunities, health care and social care.

(e) Ensure that young people leaving care, as they enter adulthood, are not isolated, but participate socially and economically as citizens.

(f) Ensure that children with specific social needs arising from disability or a health condition are living in families or other appropriate settings in the community where their assessed needs are adequately met and reviewed.

(g) Ensure that referral and assessment processes discriminate effectively between different types and levels of needs and production, and are timeously reported on.

(h) Ensure that resources are planned and provided for at levels that represent best value for money, and allow for choice and different responses for different needs and circumstances.

3. Guidance

Child protection services are governed by the Children's Act, 1989. The Act provides a comprehensive framework for the care and protection of children. The Act also places a statutory duty on local authorities to act when any child has suffered, or is likely to suffer, significant harm. In the event that the child is, or is likely to be, experiencing significant harm, he or she is placed on a child protection register. A child protection plan is then developed and the child is assigned to a care worker. There are approximately 30 000 children on child protection registers in Britain at any given time.

The Children's Act, 1989, is accompanied by Guidance developed by the Department of Health, the Home Office and the Department for Education and Employment. This document intends to provide a national framework within which agencies and professionals at local level need to work collaboratively to promote children's welfare and protect them from abuse and neglect. It is addressed to those who work in the health and education services, the police, social services, the probation service, and others whose work brings them in contact with children and families. Furthermore, it applies to those working in the statutory and voluntary sectors. The information contained in this document:

(a) Describes how actions to safeguard children fit within the wider context of support to children and families.

(b) Describes some of the ways to best operate child protection processes.

(c) Sets out the role and responsibilities of different agencies and practitioners.

(d) Outlines the way in which joint working arrangements should be agreed upon, implemented and reviewed through the mechanism of Area Child Protection Committees.

(e) Sets out the processes that should be followed when there are concerns about a child, and the action that must be taken to safeguard and promote the welfare of children who are suffering, or at risk of suffering, significant harm.

(f) Provides guidance on child protection in specific circumstances, including children living away from home.

Concept of significant harm

The Children's Act, 1989, introduced the concept of significant harm as the threshold that justifies compulsory intervention in family life, in the best interest of the child. A court may only make a care order (committing the child to the care of the local authority) or supervision order (placing the child under the supervision of a social worker or probation officer) in respect of a child if it is satisfied that:

* the child is suffering, or is likely to suffer, significant harm; and

* the harm or likelihood of harm is attributable to a lack of adequate parental care or control.

There are no absolute criteria on which to rely when judging what constitutes significant harm. Consideration of the severity of ill-treatment may include the degree and the extent of physical harm, the duration and frequency of abuse and neglect, the extent of premeditation, and the degree of threat and coercion.

The Guidance document, entitled Working Together to Safeguard Children, is issued under the Local Authority Social Services Act, 1970, requires local authorities in their social service functions to act under the general guidance of the Secretary of State. As such, this document does not have the full force of statute, but should be complied with, unless local circumstances indicate exceptional reasons that justify a variation.

F. Reforms to youth justice system

The UK government has also made some reforms to the youth justice system in an attempt to strengthen the link between that system and the protection of children, as contemplated in the Children's Act.

The Crime and Disorder Act, 1998, establishes the prevention of offending as the principal aim of the youth justice system and places a statutory duty on all those working within the youth justice system to have regard to that aim. The Act provides a range of new interventions and punishments to help local communities and youth justice agencies take effective action to tackle youth crime.

These include new powers to enable early, targeted intervention to deal with anti-social behaviour and to divert the very young from crime - local child curfew schemes to protect children under 10 in a particular area from getting into trouble.

Under these powers, local authorities may apply to the Home Office to establish a local scheme which may, for example, form part of local crime and disorder strategies required under section 6 of the Act. This includes:

1. Child safety orders, to provide targeted intervention with children under 10 at risk of getting into trouble.

2. Anti-social behaviour orders, to deal with serious, but not necessarily criminal, anti-social behaviour by those aged 10 and above.

3. Empowering the police to remove truants to designated premises to allow the police, working with local authorities and schools, to tackle truancy, one of the factors that put young people at risk of committing offences.

New structures at local and national level have been introduced to provide the framework to tackle youth offending. Youth offending teams will bring together the staff and wider resources of the police, social services, the probation service, education and health, in the delivery of youth justice services, with the scope to involve others, including the voluntary sector. At national level, the Youth Justice Board for England and Wales will provide oversight of the operation of the teams and the youth justice system.

The Crime and Disorder Act also includes provision for setting statutory time limits for young offender and persistent young offender cases, as well as for adult cases. In addition to measures currently being piloted, the Act also introduced a range of other procedural changes specifically relating to the youth court.

The Youth Justice and Criminal Evidence Act, 1999, introduce reforms that ensure effective intervention with first-time offenders, emphasising personal responsibility, reparation and the role of the family, friends and other responsible adults in addressing offending behaviour. Under these measures, first-time offenders who plead guilty and do not require a custodial sentence will be referred through a referral order to a panel drawn from the community and facilitated by the youth offending team. The panel will consider the causes of offending and draw up a contract with the young offender and their parents to address these.

G. Organisations

The Committee met with the following organisations:

1. State agencies

(a) Juvenile Offender Unit

This office forms part of the Home Office and is responsible for the planning of policies for juvenile offenders.

(b) Youth Justice Board

The Youth Justice Board is an executive non-departmental public body, established under the Crime and Disorder Act, 1998. The Board believes that the youth justice system must aim to prevent offending by early intervention in the lives of young people, effective local systems, strong intervention by the Board where local agencies are failing, and a co-ordinated approach across government to tackle youth offending as a priority.

The Board is responsible for:

* Advising the Home Secretary on the operation of the youth justice system in delivering its aim to prevent offences by young people;

* Monitoring operation and performance of the youth justice system, including the youth court, the work of the offending teams and the delivery of secure accommodation;

* Advising the Home Secretary on drawing up standards for the work of youth offender teams and juvenile secure estates, and monitoring and publishing performance indicators;

* Identifying and disseminating good practice, including commissioning research and providing grants for developing best practice.

The Youth Justice Board is responsible for reforming conditions for young offenders in custody, and will ensure that time is well spent so that when young persons are released, they do not commit offences again. Vulnerable young offenders will be placed in appropriate institutions, as close to their homes as possible.

The new sentence for young offenders - the Detention and Training Order - will mean that offenders serve their sentences half in custody and half under the supervision of the Youth Offender Teams in the community. The Youth Justice Board believes that achieving continuity between both elements is vital to preventing further offending. Multi-agency Youth Offender Teams (Yots) look at the causes of the offences and exercise oversight on sentence requirements.

The system of restorative justice, which forms the basis of the work of the Yots, is relatively new in the UK, and is based on the premise that it is more beneficial to society to order the offender to make reparations to the victims of their offences than to send such young persons to prison. The Yots must assess the youth and their families, and within 15 days a community panel will be established for the offending youth and victim to meet and decide on reparation.

2. NGOs/charities

(a) Young Minds

This organisation has been dealing with children's mental health issues for the past 10 years. Their work is based on the philosophy that adults have the capacity to stimulate children to enjoy good mental health. Their manifesto lists the following issues:

* Support for parents through a national transition to a parenthood programme.

* Help for schools to support children with mental health problems.

* Mental health services for young offenders and those at risk of offending.

* Comprehensive services to meet the needs of adolescents.

* Accessible, well co-ordinated emergency services for young people.

* Greater access to training for those who work with children and young people.

* Co-ordination across health, education and social services.

* The provision of well-staffed, specialist children's mental health services.

* Increased accountability for children's mental health services.

* An end to the postcode lottery of service provision.

The organisation believes that through lobbying it has contributed to the launch of a government policy called "Together We Stand", which covers various sectors. There has been a move to understanding health as being more than physical.

Critique of Children's Act

The Children's Act, with its emphasis on children's rights and parental responsibility, has been an important breakthrough in their work. However, the organisation is concerned about the many children being left undiagnosed and therefore untreated. Studies conducted suggest that one in four children have a mental health problem, while specialist services tend to reach only 900 000 throughout the country. This means that the majority of children in need of remedial care are not being catered for by the health care system.

(b) Family Rights Group

Solicitors, social workers and anti-poverty workers formed this organisation 25 years ago, focusing on the rights of the family. The organisation was involved in the drafting of the Children's Act, and it feels very strongly that the State should only intervene in families if there is a clear indication that the child is in danger. They also noted the link between poverty and childcare problems within families.

The Family Rights Group works towards its aims by:

* Providing an advice and advocacy service for families.

* Undertaking policy and research projects.

* Producing a range of publications, including advice materials for families and models of good practice.

* Providing training and consultation for local authorities and voluntary agencies.

* Campaigning for changes in legislation, policy and practice that support the concept of "working in partnership".

Critique of Children's Act

While noting that the Children's Act is an example of innovative legislation, this organisation expressed reservations. The legislation needs to place children in the context of their families, and the rights of families must be respected. Similarly, the organisation feels that there is an over-emphasis on child protection, which gives social services strong investigative powers, sometimes at the cost of the family. In addition, the mechanisms to ensure partnerships between different arms of government, service providers and families have not been sufficiently developed.

3. Children in Crisis

This organisation targets four- to 11-year-olds with its drug education programme. They had previously worked with 11 to 18 year olds, but had found the impact of their message reached this group too late. They have a holistic approach that focuses on social, health and personal development. Teachers are closely involved and are trained and provided with resources by Children In Crisis. In addition, they work directly with local authorities and social services.

Internationally, they work in six countries where children are in crisis situations. These countries do not have legislation pertaining to children, but most have ratified the UNCRC. Their work in these countries is based on the rights set out in the UNCRC, while at the same time respecting the legislation and culture of those countries.

Critique of Children's Act

The organisation sees the Children's Act as enabling legislation, but feels that it still has some gaps, especially with regard to the issue of child soldiers. Children as young as 16 are able to enlist in the army, but are only considered majors at the age of 18 years. They feel this contravenes the UNCRC and international labour law.

4. National Society for Prevention of Cruelty to Children (NSPCC)

This charity was established in 1884 and is the only organisation that has the right to remove children from their homes in the case of suspected abuse. They have a 24-hour helpline, which they run in conjunction with Childline. In addition, the NSPCC has a database of social services and is able to contact service providers directly.

The organisation has gained public trust, as members of the public would rather contact the NSPCC than Social Services. They also conduct a range of professional and public awareness programmes about child protection, particularly in relation to parenting advice and the responsibility of the whole community for the care and safety of children.

In 1999 the NSPCC launched a campaign, Full Stop, in collaboration with two other charities, Barnados and the Child Poverty Action Group. The organisation's Public Policy Department contributed to much of the thinking behind the Children's Act, and together with a consortium of 10 organisations lobbied over the contents of the Family Law Act, 1996. It has also campaigned extensively for changes to the criminal justice system.

Among the amendments successfully lobbied for, was one in the Criminal Procedures and Investigations Act, 1996, which allows children to give evidence by video, including during cross-examination. The NSPCC was also a leading supporter of the Protection of Children's Act, 1999, which was developed to ensure that paedophiles were prevented from working with children. It requires childcare organisations in England and Wales to provide the Department of Health with details of anyone known to them who is suspected of harming children or putting them at risk.

5. Barnados

It is the UK's largest children's charity, supporting over 50 000 children and their families through more than 300 projects in England, Northern Ireland, Scotland and Wales.

Their belief is that the lives of all children should be free from poverty, abuse and discrimination, and they use their expertise and knowledge to campaign for better care for children and to champion for the rights of every child. Their work focuses on what they regard as the vital components that make for a happy, healthy childhood, under which a family can cope, protecting children from harm, providing for their emotional, physical and mental health needs, creating a sense of belonging in the community, and giving them opportunities to learn and take their rightful place in society.

Barnados works with the most disadvantaged children to ensure that their vital needs are met. Although the organisation's history is closely tied to residential care, there is a strong feeling now that children are best cared for within the family. Homes require suitable staff that will benefit children and are relatively expensive to manage. Only in extreme cases are children institutionalised, and there are currently about 7 000 children in residential care. They feel that the opportunities for looked after children (a term used in Britain to refer to children looked after by the state need to be improved.

Critique of Children's Act

With reference to current children's legislation in the UK, Barnados noted that while the Children's Act gave some expression to the UNCRC, there were some provisions that were not adhered to, such as the status of asylum-seeking children and the aspect of corporal punishment. In general, however, they maintained that the Children's Act allowed for children to be seen as individuals with their own rights within the context of their families.

The organisation believes that too much emphasis and resources are placed on the investigation of child abuse, and that more attention should be given to a resolution of emerging problems before a formal investigation. Furthermore, the sentiment was expressed that often children who are removed from abusive situations are exposed to abuse from incompetent and poorly trained staff in care institutions.

The organisation expressed the sentiment that resources will be utilised more effectively in preventative programmes, rather than focusing too strongly on looked after children in the care system. The latter option is also considered a very expensive one.

6. Children's Society

The Children's Society works throughout England and Wales on over 100 projects, aiming to build safer communities and seeking to develop them. They focus on projects that are not covered by government policies, such as the effect of domestic violence on children.

The organisation concentrates its resources on tackling the root causes of the problems these children and young people face. Their Social Policy Unit collaborates with MPs, Ministers and departments, as well as professional networks, to research and advise on key issues of concern to children and young people. These issues cover broad policy areas such as children's health, children's rights and participation, poverty, social exclusion and youth justice. The Social Policy Unit is currently operative in the following areas:

(a) Children's Fund: This fund is part of the governments' strategy to tackle child poverty and social exclusion, and aims to provide additional resources to complement the work of mainstream services or specific initiatives.

(b) Children's Rights: The organisation is writing a report, asking children and young people what they think about their rights in England and Wales.

(c) Child Poverty: This is addressed through campaigning and lobbying, both as an individual organisation and as part of the End Child Poverty Coalition.

(d) Young Runaways: The organisation has campaigned for the rights of children who run away from, or are forced to leave, home or substitute care. They are currently working with the government on developing a national strategy for the UK's 100 000 young runaways.

(e) Health: The Social Policy Unit, together with a consortium of charities, have produced an analysis of Health Improvement Programmes across England to assess the impact of the emphasis being placed on children and young people's health.

(f) Youth Justice System: The Children's Society is working to make the youth justice system more child-focused and more effective at solving the problems of youth crime. According to Tough Justice, a recent report on young people in prison produced by The Children's Society, over half of all young people in prison have a diagnosable mental illness. The report calls for an immediate end to remand in custody for 15- and 16-year-olds and a reappraisal of the policy of incarcerating children and young people in trouble with the law. The Children's Society opposes all use of prison custody for persons younger than 18.

Critique of Children's Act

While the children's legislation sets the framework, the organisation believes that the manner in which the Act is operationalised, may not deal effectively with the problems. While they recognise the need for statutory interventions, they emphasise the importance of community involvement, as members of the community have more intimate contact with children than professionals. The organisation therefore acknowledges the importance of working with communities and other agencies to protect children and young people from harm and to promote their welfare.

7. National Children's Homes (NCH)

The NCH was founded in 1869, and run over 460 projects in the UK, supporting more than 89 000 children at risk, vulnerable young people and families in need of support.

Although the NCH believes that children are best cared for by their families, for some children this is not possible, and therefore the organisation offers a range of alternatives. They run a few small residential homes, where each child has an individual care plan that focuses on their individual needs. They are also registered as an adoption agency and find foster and adoptive families for hundreds of children each year. In addition, they run specialist education services for children, which follow the national curriculum.

The NCH was one of the first charities to set up a network of projects, offering therapeutic support for sexually abused children and their non-abusing relatives. Their children's rights services encourage children to speak out about the services they receive and the issues that affect their lives.

In the same way as the other charities, the NCH lobbies government about its policies and proposed legislation. These interventions range from conferences around an issue to submissions to select committees, expert briefings and advocacy work. They also focus on making their opinion heard by individual MPs.

Critique of Children's Act

When looking at the Children's Act and considering whether it adequately addresses the UNCRC and children's rights, the NCH feels that while the legislation sets sound principles, the "Quality Protects" document specifies the foundations for the realisation of children's rights. They note that guidelines are often taken less seriously than legislation, are open to interpretation and will vary, depending on the area in which people live. A further comment was that the principle that children's rights be paramount, should be extended to all other legislation that affects children.

The NCH further feels that the legislation does not adequately address the needs of poor children - children in need, as contemplated in section 17 of the Children's Act. The organisation therefore devotes the bulk of its services to supporting family life and helping children to reach their full potential, especially in the context of families who face social exclusion through poverty. The NCH's family centres offer parenting skills, playing and development opportunities for their children. Their community centres provide a community network, advice and, in some cases, credit unions and food co-operatives, all of which attempt to place a strong emphasis on preventative work with families at risk.

H. Implications for South Africa

In considering the content and merits of the discussions held with the different organisations, the Committee has identified numerous issues that must be considered in view of forthcoming legislative proposals from the SA Law Commission. Some of the issues include principles that must inform the development of legislation, while others address provisions that must give effect to the identified principles. Financial considerations also merit special attention, as this issue was consistently raised by all the organisations working in the areas of children's rights and protection.

1. Issues for consideration

(a) Principles

* It is important to consider the weight that is attached in a children's statute to the issue of child protection and statutory intervention. While this is clearly a critical area, due consideration must be given to promoting and supporting healthy children and their families. Thus, there must also be a focus in legislation on prevention and early intervention activities. In giving effect to the Convention on the Rights of the Child, national legislation must be comprehensive insofar as it gives effect to all the rights that children must enjoy.

* A strong emphasis on child protection and statutory intervention is likely to result in large numbers of children being in the care system. Cognisance must be given to research in Britain, that highlights that children in care have consistently poorer outcomes than those not in care. These apply to social, emotional, health and education indicators. Consideration must be given to such research findings in evaluating legislative proposals.

* It is necessary to ensure that the principle of "children first" must inform all legislation that affects children. Consideration must be given to the way in which comprehensive childcare legislation will facilitate this principle being operationalised and given effect to in other legislation that affects children.

* The need to extend existing legislation to include young people up to the age of 21 years. There is a need in legislation to protect individuals who want to continue with their studies in their quest to become mature and responsible adults. Particular attention must be given to children in care whose activities may exceed those that are appropriate for their age.

* Careful consideration must be given in legislation to duties conferred and powers given to those agencies tasked with child protection. The rights of the child to protection, support and development must inform these decisions.

* It is necessary to duly consider those provisions that are included in the statute, and those in regulations. Furthermore, where intersectoral roles and responsibilities are delineated, it may be worthwhile to include these in the legislation, as it places statutory responsibilities on the responsible agencies.

* Children's protection and the establishment of their well-being has historically been considered the preserve of the social development sector. It must be recognised that all sectors must support children's development, as this is integral to human development. Due consideration must be given to the duties that all government departments have in being responsive to the needs of children, as they traverse all sectors. It may be necessary in a children's statute to consider placing statutory responsibilities on government departments to develop policies and programmes that target the protection and well-being of children.

* While the law is able to establish a framework for the protection and development of children, consideration must be given to the ways in which this framework is applied in practice. This includes mechanisms for implementation as well as censure where children's rights are violated. Consideration must therefore be given to the institutional arrangements that can facilitate good practice in respect of children.

* In giving effect to the principle of participation by children in decisions that affect their lives, careful thought must be given to the ways in which such participation is facilitated and implemented.

(b) General Provisions

* Very careful consideration must be given to the most suitable implementing agencies rendering services to children and their families. British practice has established local authorities as the most appropriate vehicle for delivery, as it is at the local level that resources can be mobilised to effect intervention and prevention in children's lives. It is also at this level that maximum effect can be given to the principle of intersectoral collaboration.

* Thought has to be given to the family as the context in which many children live. There may thus be a need to consider the provision of family services within the statute. There is an inherent danger in legislation that is very strongly focused on child protection, to pay less attention to the family.

* It is necessary to undertake a thorough review of all legislation affecting children, as well as envisaged provisions in the legislative proposals that will have an impact on other sectoral responsibilities. Careful consideration must be given to such provisions, as the principle children's statute must bear direct relevance to all other provisions that affect children.

* In establishing family courts, it is necessary to ensure that one judge presides over all proceedings affecting children, as such consistency is important in developing the trust of children and their families in the judicial process.

* Attention has to be paid in legislation to the issue of kinship placements. Specific discussions need to consider what role the State should play in supporting relatives who are looking after children. The form that such State support should take, also requires due consideration.

* On the issue of adoption, discussions must be conducted that focus on the role of adoption in social development policy - specifically, the conventional practice of adoption as a placement option for a child who may be in need of care. It must be considered whether the practice of severing biological ties may not be misguided, as such severance may in fact not be in the best interest of the child. It has been suggested that children form lasting familial attachments, and severing these do more harm than good. Severing of biological ties must be interrogated in respect of whose best interest is being served in severing such ties.

* With regard to implementation, it is necessary to review the current service delivery paradigm operative within the domain of children's services. It may be necessary to consider a mix of social service delivery, including the voluntary sector, without undue dependence on the statutory sector. Such provisions are directly related to a well-defined balance between preventative and promotive services, and statutory intervention in the lives of children and families.

* In view of South Africa's policy focus on family preservation, it may be advisable to consider the issues of parenting skills as a mandatory requirement in all programmes targeting children and families. This should apply to the State and the voluntary sector.

* It may be worth considering the emphasis in British legislation on partnerships in endeavouring promoting children's rights. Such partnerships may include the different levels of government, as well as those with the not-for-profit and private sectors as well as communities.

* Given the current realities of poverty and HIV and AIDS, legislative provisions must attempt to challenge and address conventional practices in the area of childcare, as well as conventional models of care. Practice needs to be guided by the best interest of the child, in the context of material conditions that exist in this country.

(c) Financial Considerations

* Envisaged children's legislation must be thoroughly costed before enactment, as cost determines the success of implementation. A cost-benefit analysis may also be very appropriate in this regard.

* Any children's legislation needs to be adequately resourced to ensure that it is fully implementable. Lack of resources can seriously undermine the impact of the most well-intended legislation.

* Resources must be allocated to preventative and promotive initiatives in the lives of children and families. With a strong focus on child protection, resources can quite easily be targeted at state intervention and subsequent residential care activities. The British experience indicates that money spent in the care system seems not to be yielding expected benefits, as children in the care system generally have poorer outcomes.