Promoting children’s socio-economic rights through law reform

The proposed Children’s Bill

Julia Sloth-Nielsen

The constitutional protection of children’s rights in section 28 of the 1996 Constitution and South Africa’s ratification of the UN Convention on the Rights of the Child have provided the impetus for redrafting legislation affecting children, to give effect to constitutional and international law commitments. In 1997, the South African Law Commission (the Commission) was mandated to investigate and review the Child Care Act, 74 of 1983, and to make recommendations to the Minister of Social Development on its reform.

Consequently, after a six-year period of drafting and consultation, the Commission released the Report on the Review of the Child Care Act (the Act) accompanied by the draft Children’s Bill (the Bill) in December 2002.

The Commission’s primary goal was to replace the Act, which is widely regarded as being inadequate and has been found, in a number of instances, to be inconsistent with the Constitution. The Commission envisaged a comprehensive process.

Accordingly, it not only reviewed the Act, but also examined a wide range of existing legislation, future needs and pressing concerns affecting children in the country. A major concern was the need to improve mechanisms for protecting children from abuse and neglect, as provided for in section 28(1)(d) of the Constitution.

However, equally significant was a need to focus upon the socio-economic conditions necessary to ensure children’s survival and development in line with section 28(1)(c).

It is therefore not surprising that the Bill describes its aims as: ‘to make provision for structures, services and means for promoting and monitoring the sound physical, intellectual, emotional and social development of children’, and generally to ‘promote the protection, development and well-being of children’.

In this sense, child protection – broadly speaking – and children’s access to socio-economic rights are viewed as closely intertwined with one another.

They reflect the situation at grass roots level that children are frequently victims of neglect not only through design, but also as a consequence of grinding poverty.

Comprehensive and co-ordinated policy framework

The adoption of a national policy framework is at the centre of the Bill’s implementation mechanisms. The draft legislation provides for the Minister of Social Development to develop and publish a national policy framework, which will bind all three spheres of government, designated child protection organisations and other non-governmental organisations involved in implementing government-aided programmes and projects concerning children.

This national policy framework must, among other things, specify national objectives to secure the well-being of all children. It must spell out priorities and strategies to achieve these objectives and outline performance indicators to measure progress.

Most importantly, it will have to include:

measures to ensure that adequate funds for securing the protection and well-being of all children in the Republic, including such funds as are required for the implementation, enforcement and administration of this Act.

The national policy framework envisaged by the Commission will be a valuable tool in setting government objectives to deliver on the socio-economic rights contained in section 28(1)(c). In effect, it will constitute a programmatic plan to address and advance children’s material conditions.

This approach is supported by the reasoning of the Constitutional Court in Government of the Republic of South Africa v Grootboom (2000) 11 BCLR 1169 (CC) (hereafter Grootboom) insofar as it required government – within the context of the right of access to adequate housing – to devise and implement a comprehensive and co-ordinated programme to progressively realise socio-economic rights.

Early childhood development

The Bill’s other provisions highlight further areas for policy development.

One example relates to a provision for formulating ‘a properly resourced, co-ordinated and managed early childhood development system’. Early childhood development concerns the process of emotional, intellectual, physical and social development of children from birth to nine years of age.

The idea of focusing on young children is supported and regarded internationally as key both in the quest to prevent child abuse and neglect, and in promoting optimal child development.

Thus, the inclusion of the childhood development aspect in the legislative framework is a novel step towards meeting international and constitutional obligations.

 

Prevention and early intervention

Another novel feature of the Bill is its inclusion of the provision on prevention and early intervention services. The Bill provides that a national policy will have to be formulated for rendering those services that seek to preserve family structures, and develop parenting skills and the capacity of parents and care-givers to safeguard the well-being and best interests of children within the family.

Intervention services should be aimed at promoting children’s well-being and realising their full potential. They should also ensure that the removal of children from families is avoided and child neglect and abuse are prevented.

These services should be aimed at preventing the recurrence of problems in the family that may harm children or adversely affect their development.

Furthermore, the Bill specifies that the national policy will have to include issues concerning the distribution of resources among all spheres of government to provide for early intervention and prevention services.

It will also have to spell out how capacity building must occur at all levels of government in order to deliver these services.

This aspect of the policy is premised on the principle that redirecting resources towards children of the most tender age category will decrease the possibility of their becoming the victims of social ills such as neglect, abuse, malnutrition and stunting. The provisioning of these services will, it is believed, prevent children from becoming vulnerable to dislocation from their families and ending up on the streets, as well as being involved in delinquency, child labour or commercial sexual exploitation.

The socio-economic dimensions of the Bill’s focus on prevention and early intervention are even more evident from its provisions on the role of local government in delivering these services.

The Bill requires municipalities to keep statistics on specified groups of children, such as street children or children living in child-headed households. They must also undertake a needs analysis of the children in their jurisdiction every three years, and ‘apply those statistics and such needs for the purposes of budgeting and the provision of services, including…access to basic nutrition, shelter, health care and social services’ for those categories of children.

This provision recognises that identifying children whose socio-economic rights are not being fulfilled needs to happen at grassroots (municipal) level, in order for delivery to be better targeted.

 

Children in especially difficult circumstances

Significantly, the Bill also focuses on providing protection to specified groups of most vulnerable children.

The Bill defines these as children in especially difficult circumstances, including those children affected by malnutrition and HIV/AIDS, children with disabilities and chronic illnesses, those living in child-headed households, those living or working on the streets and children who are subject to exploitative labour practices and commercial sexual exploitation.

The Bill proposes that specific strategies be adopted in the national policy framework to deal with their needs. For example, children affected by malnutrition must be provided with sufficient and appropriate food, including emergency measures, and those that are impoverished should be given free access to health care services.

The national policy framework should also provide for incentives to private sector health care institutions to assist impoverished children with access to their services.

The court-ordered emergency grant

Securing children’s immediate survival needs is further enhanced by the proposed introduction of a court-ordered emergency grant, which would ensure that where a child is at risk of removal into alternative care purely because of poverty, the court would be able to get immediate assistance to the child’s parent or primary care-giver.

This is one of an array of proposed grants. The emergency grant – and the extension of other grants – represents a host of provisions in the Bill relevant to children’s access to socio-economic rights.

They illustrate the drafters’ comprehensive vision that the fulfillment of children’s rights is intertwined with access to social security.

The Bill does not determine the amounts that would be payable for any of the proposed grants, nor whether existing grants would be payable at the same level of benefit as they are at present. This function is assigned to the Minister of Social Development to determine, taking into account available financial resources.

This article has highlighted only those parts of the Bill that affect, and seek to improve, children’s access to socio-economic rights. There can be little doubt that this Bill is an endeavour to use the window of opportunity created by the legislative drafting process to advance children’s access to their constitutional rights in a SMART (specific, measurable, achievable, realistic and time-linked) manner.

The overall product is progressive, situation- and needs-related, and makes a leap forward in addressing our international obligations.

In conclusion, implementation of the Bill described above would lead to measurable gains for children in the socio-economic rights arena.

 

Julia Sloth-Nielsen is Professor of Law and Senior Researcher in the Children’s Rights Project of the Community Law Centre, University of the Western Cape.