WOMEN'S LEGAL CENTRE SUBMISSION

INTRODUCTION
:

The Women's Legal Centre ("WLC") welcomes the opportunity to make submissions before the Portfolio Committee on Social Development on the Social Assistance Bill.

The WLC is a public interest law centre started by women to enable women to use the law in advancing and achieving their rights to equality. WLC employs two main tools in fulfilling its objectives: Litigation and Advocacy.

THE SOCIAL ASSISTANCE BILL

The WLC's key submission is that the Social Assistance Bill ("the Bill") ignores a crucial segment of our society that are among the most vulnerable, child headed households. More and more prevalently, children are orphaned by the ravages of HIV/AIDS or other plagues, or abandoned by parents who cannot afford to care for them, or who leave to obtain work and never return. These children are left, often with younger siblings, to fend for themselves, finding some form of income and attempting to remain in school at the same time. In an ideal South Africa, child-headed households would be unnecessary, or would at the least have adequate supervision and guardians to ensure their well-being. Each child would have the security guaranteed to him or her in the Constitution. It is not ideal to reinforce children in adult roles, and there will certainly be instances in which remaining in a child-headed household is not in the best interests of the child. However, the reality is that we need to provide for these children right now, in what may be merely the interim position between the new constitution and achievement of the constitutional ideal: the best way of doing so is to explicitly give child-heads of household direct access to social grants, particularly the child support grant, in the Social Assistance Bill.

International standards set the acceptable bar for human rights internationally, and where we have ratified a Convention, we are in fact bound by it. In the case of Children, these standards primarily derive from the International Convention on the Rights of the Child (CRC). Though at first child-headed households may seem contrary to the ideals the convention espouses, this may not be the case given the alternatives which may split up siblings and children from their local communities. Karin Landgren, in her article 'Rights-based Approach to the Care and Protection of Orphans,' published 27 October 1998, says that "strictly speaking, [child headed households] appear[] inconsistent with the Convention [on the Rights of the Child]." She continues, "Governments are supposed to ensure alternative care to such children, not reinforce them in adult roles. And yet, we are finding that supported child-headed households, possibly with community supervision, may be a model form of care." Perhaps direct access with supervision should be the final goal. More research needs to be done on the subject. Specifically, the convention guarantees the right to know and be cared for by his or her parents (Article 7), and requires states parties to recognize "for every child the right to benefit from social security, including social insurance" and to take "the necessary measures to achieve the full realization of this right." (Article 26). Article 27 goes a step further, requiring states to recognize "the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development." Each of these provisions requires the party states to recognize, protect and provide for the rights of children. Though, like the SA constitution, some provisions require states to act within their means, some are absolute, demanding basic recognition of children's rights.

The provisions of the Constitution raise several constitutional issues in respect of child-headed households and child support grants, briefly:

Children's Rights as guaranteed by Chapter 2 Section 28 of the Constitution. Section 28(1), similar to Article 7 of the CRC, guarantees children the right to "family care or parental care, or to appropriate alternative care when removed from the family environment." In addition section 28(2) states, that the "child's best interest are of paramount importance in every matter concerning the child." This language suggests that child-headed households should not exist as each child is entitled to family or parental care or an appropriate alternative. However, there will be some situations where a child-headed household could constitute 'appropriate alternative care' given the correct supervision. It will, as mentioned above, keep siblings together and allow them to remain in the communities they have grown up in. However, this point need not be belabored. Even if child-headed households should be abolished in the long run, right now, the reality is that we have child-headed households and these children need to have access to social assistance, arguably more so than any other households. Unlike adults, these children have little capacity to obtain jobs or find other means of income.

The Right to Social Assistance. Section 27 grants everyone access to social assistance if needed, and requires that the state take reasonable legislative and other measures within its available resources, to achieve the progressive realization of these rights.' "Everyone" includes children, even those in child-headed households. The recent Grootbloom and TAC judgments hold that de facto, a program that excludes a significant segment of the society cannot be said to be reasonable. The judgments also state that programs disregarding the particularly vulnerable cannot be reasonable. Children without adult caregivers and their families clearly qualify here as a significant, if not in number, in importance, segment and certainly a particularly vulnerable group. Denying them access to social assistance or requiring that a grant recipient be over age 16 will have a detrimental impact on one of the most vulnerable groups in South Africa.

The Right to Equality: The right to equality is implicated in many ways in the context of child-headed households, and children's ability to receive child support grants. The different treatment of children and adults (age), pregnancy, social origin, and birth (to parents with AIDS) are among those possibly included under section 9(3). Naturally, as women are the primary primary care givers (PCGs), gender is implicated, as is race, as black South Africans are the most likely to be in need of social assistance. Additionally, one general principle of the February 2003 Draft of the Social Assistance Bill explicitly prohibited unfair discrimination in the distribution of social grants. How can it then deny access to children?

The three rights above are not the only rights relevant to the discussion. Grants to child-headed households also affect those households' members' rights to dignity and bodily integrity. A child's right of autonomy is not absolute, but evolves over time as the child ages and gains life experience. If the right were absolute, it would conflict with the motivations for the provisions of Section 28 guaranteeing parental care or an alternative, but again, a child does have a constantly evolving right to autonomy as he gains capacity to make important decisions and becomes an adult. It is not the case that at age 18, or even 16, a child suddenly gains capacity for all aspects of adult life and decision-making. These capacities are ever increasing throughout the child's life until the point of adulthood, and as such, should be recognized as they are accrued. Finally, if the grant is the child-headed household's only means of income, and therefore, sole source for food, shelter, and water, then even the right to life is implicated, in addition to the right to housing.

We acknowledge and in no way discount the rights guaranteed to children by the constitution. Unfortunately, the government's available resources at present are limited, and as such, we are often forced to make due with the current, less than ideal situation. It is this present situation that this bill needs to address because though constitutional guarantees should be paramount, they are not presently being adequately provided for, and in the interim, when we have so many child-headed households in the country, we cannot deny these children and their families assistance while an appropriate program is developed to provide for alternative parental care or supervision of parentless households. By allowing child heads of households to directly access child support grants with less red tape and bureaucracy, we not only provide much needed support to these families, but at the same time cut the costs of the red tape currently in place.

COMMENTS ON VARIOUS CLAUSES OF THE BILL

We respectfully submit that the Social Assistance Bill needs to make explicit provision for grants to child-headed households. The Bill makes no mention of them whatsoever, and imposes an age requirement on the availability of grants. As currently phrased, these provisions will ensure that child-headed households have no access to the much needed social assistance that will enable them to have at least a basic standard of living. The absence of provisions which cater for grants for child-headed households will force these children out of any potential school, and on to the street to scavenge for food and money to survive. We suggest that this clear violation of the Constitution will not withstand Constitutional Court scrutiny for its violation of the fundamental rights discussed above. Additionally, the current scheme, is unreasonable, excluding such a distinct and vulnerable portion of the population, and therefore, unconstitutional, in accordance with Grootboom and TAC. Including child-headed households in the Bill would not admit that child-headed households are an acceptable standard to strive for, but merely acknowledge the present reality that they do exist and until that time that alternative care can be provided for these children, an interim measure must be taken. We generally support the Joint Submission to the Portfolio Committee by ACESS, the Children's Institute, the Community Law Centre, the Gender Advocacy Programme, et al ("Joint Submission") with respect to child-headed households, primary caregivers, and street children, and suggest an additional inclusion in the language of the Bill set out below.

In the SALC discussion paper concerning the Children's Bill, the Commission acknowledged the need to "remove administrative impediments and hurdles caused by over onerous [Social Assistance Act] regulations . . . which specify conditions for the payments of grants." Under the Current Social Assistance Act's regulations, the formalities required to apply for the Child Support Grant are exactly that, onerous, requiring identity documents that many children do not possess when they become child-heads of household. Under the current regulations, one regulation provides that the director-general may accept alternative proof of any of the documents required in the other subregulations, 'including, where applicable, a statement or statements made by the applicant under oath.' This may be a viable solution for child-headed households who do not have identity documents, but presents a problem of potential fraud on the system. It does not include safeguards to ensure that many children per household claim or that children who are not heads of households or not in child-headed households claim. Many suggestions have been made including acceptance of letters of reference from local leaders, teachers, clergy, or social workers, implementation of a biometric form of identification once a child's fingerprint stabilises, or more effective registration at birth. Though none will be 100 percent free of potential fraud, they are better than the alternative of leaving South African children without any access to the crucial funds they need to obtain food, water and shelter. We submit that the age and identity document requirements should be abolished and amended, respectively, to ensure compliance with the constitutional and international mandates that require provision of assistance to the vulnerable group of child-headed households.

Social Assistance Bill (Draft February 2003)

The primary achievement of this draft was the inclusion of child-headed households in the new Bill itself. Chapter 1 defined "child-headed household" as "a household where:

  1. A parent or primary caregiver of the household is terminally ill or has died;
  2. No adult family member lives with and provides care for the children in the household; and
  3. A child has assumed the role of primary care in respect of a child or children in the household."

The language of the February Draft did not preclude a child of any age from assuming the role of a primary care giver. However, two omissions make it inadequate. First, it fails to explicitly provide that any child who may have capacity to assume the role of primary care giver, or who has demonstrated such capacity de facto by caring for his or her siblings, may apply for and collect the grant. Second, it fails to provide a means of assessing capacity of children at the heads of child-headed households. Making capacity turn on age will lead to both the under and over-inclusion of capable children. Some 7 year olds may have assumed the care of their younger siblings despite their young age, and some 17 year olds may still entirely lack capacity due to immaturity. Although it is essential to develop a method for assessing the capacity of a given child, in situations where it is clear that a child is already caring for family members, this should not be questionable; capacity should be assumed for the purposes of receiving the child support grant. If it is determined that remaining in a CHH is not in the best interests of the child, then in the long run, other appropriate arrangements should be made. However, until such time as alternative placement is arranged, a child head of household who has capably run his family should have direct access to the child support grants to which the members of his household are entitled. It is not our position that all children currently in CHHs should remain in them, but merely that all those currently in CHHs have access to the child support grants they so desperately need via the current child at the head of the household. The omission from the present draft of the bill is unacceptable. Striving for constitutional ideals, we cannot ignore the reality of South Africa today.

Mentors

Chapter 1 of the February Draft included the definition of "mentor". "'Mentor' means an individual or organisation who has been appointed [by] a relevant provincial department of national department, a designated non-governmental organisation, or the Child and Family Court, to apply for, or collect and administer a grant on behalf of a street child or a child living in a child-headed household." (emphasis added). The Joint Submission suggests a definition similar to this, but which changes the "or" italicized above to "and." While we support their submission generally, we believe that the definition should use "or" as originally proposed. Though "and" may not preclude direct access to grants by child-headed households, we submit that it may be interpreted as exclusive and therefore should be amended. The use of the word "or" instead of "and" in the context of what the mentor may do may be interpreted as allowing children to apply for the grant on their own, or, in the alternative, after receiving assistance in the application, to collect and administer the grant without supervision. Though this interpretation is not explicit, it was arguably permissible for a child to apply for and/or collect the grant on his own. Again, omitting this from the present Bill will unacceptably leave children in CHHs in destitute circumstances.

Chapter 1 should define primary care giver as "a person, whether or not related to the child, who takes primary responsibility of meeting the daily care needs of the child." There should not be an age minimum included here, nor a prohibition against child primary care givers. It is our view that it should be included in the definition explicitly that a child can be a primary care giver so as to avoid confusion among those who actually administer the bill. However, even without this explicit inclusion, the new inclusion of the 16 year old age requirement is likely to be unconstitutional, given the future to which it dooms children without adult caregivers.

The original objects of the Act stated in Section 3 of the February Draft was "to ensure the efficient, effective, economical, and just administrative action" (emphasis added) in the rendering of social assistance. Providing direct access to grants to the heads of child-headed households will be the most efficient, avoiding a middleman and additional paperwork, effective in getting aid to these children, economical in cutting the costs of additional red tape and a middleman, and just because these children need and are entitled to social assistance. This crucial, and humane object has since been omitted, leaving the present bill with only administrative objects of providing for financing of social assistance, and the administration thereof and robbing it of the true purpose of ensuring that no one slips through the cracks of society, being forced into more poverty than they currently endure.

Though children may not always have the capacity of adults to make decisions, the decision to receive social assistance and spend the inevitably limited amount of the grant on food and shelter to survive is not one that requires much capacity. Certainly, society broadly and even Parliament have acknowledged the capacity of children in much more difficult situations than accepting a social grant.

CURRENT ACKNOWLEDGMENT OF THE CAPACITY OF MINORS: LOCAL AND INTERNATIONAL CONTEXTS

One of the more noticeable developments relating to children in law has been the reordering of the parent/child relationship and the recognition of children's autonomy and their ability to make decisions in various spheres, depending on the nature of the decision and the maturity and capacity of the child. For example, Article 12(1) of the United Nations Convention on the Rights of the Child provides that:

'State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child shall be given due weight in accordance with the age and maturity of the child.'

It is now accepted that on account of their age or maturity children are capable of taking even important decisions about their welfare and that any choices that they make should be accorded weight, bearing in mind their capacity.

Evolving Capacity

The Convention on the Rights of the Child, as mentioned above, acknowledges the notion of evolving capacity. It is a common sense idea; a child's capacity for understanding and decision-making is constantly evolving as he experiences life and attends school. It is not the case that miraculously, at the age of 18, a child suddenly obtains every decision-making faculty he or she will ever require that he did not possess on the eve of his or her 18th birthday. First a child learns how to make small decisions, is he hungry, what does she want to eat or wear. Slowly, decisions increase in complexity as a child gains experience and understanding. A child who is responsible for an entire family has already demonstrated capacity beyond his or her years and should not be prohibited from caring for his or her family because the government wants to determine something that is already evident from his or her current behaviour. Often capacity evolves more quickly when circumstances demand, and a child's capacity must be determined on an individual basis.

Informed Consent

Generally, informed consent is a concept used as a safeguard to ensure that important or far-reaching decisions are properly understood when made. It strives to equip the individual to make those choices. However, informed consent is rarely defined, and a person's capacity to consent will vary markedly based on age, maturity, and available information. Sometimes, counseling will be ideal, the only true means to make a consent informed, but this may not always be the case. Some decisions are clear once an individual has the facts. In medical cases, some form of counseling is often necessary to inform the individual of these facts, but it is patently clear to a hungry child who needs to feed his hungry siblings that food is what must be purchased at the store on a given day. In Castell v. Greef, Ackerman J held that in the context of medical negligence, 'informed consent means exercising the fundamental right to self-determination with full knowledge of the risks involved.' Importantly, comparative authority suggests that in relation to capacity, informed consent does not require overall competency for personal functioning, only specific capacity to make decisions concerning healthcare. An analogy is easily made to the child who may not be capable of understanding the implications of terminating medical treatment but who can clearly understand a need for money to provide food and shelter.

Current Status of the Law in South Africa

One familiar area in which minors are acknowledged to have capacity to consent is abortion. In the Choice on Termination of Pregnancy Act, Section 5 requires: "the termination of a pregnancy may only take place with the informed consent of the pregnant woman." (emphasis added). Section 5(3) states: "In the case of a pregnant minor, a medical practitioner or a registered midwife, as the case may be, shall advise such minor to consult with her parents, guardian, family members or friends before the pregnancy is terminated: Provided that termination of the pregnancy shall not be denied because such minor chooses not to consult them." (emphasis added). Here, though counselling is recommended, the law acknowledges that a young woman's understanding of her own body and desires for her future are sufficient to make the decision about terminating a pregnancy on her own.

The current Child Care Act, Section 39(4), recognised the ability of a 14 year old child to consent to medical procedures, but the current proposed bill actually lowers that age to 12. Section 129 of the current bill recognizes children's ability to consent, if they are over 12, and of sufficient maturity and mental capacity to understand the benefits, risks, social and other implications of the treatment or operation, and only with assistance of parents or primary care giver.

However, the HIV section of the current Children's Bill acknowledges a child's capacity to understand decisions often more difficult than those required to consent to medical procedures. Section 130(2) states that, "[c]onsent for a HIV-test on a child may be given by (a) the child, if the child is:

(i) 12 years of age or older; or

(ii) under the age of 12 years and is of sufficient maturity to understand the benefits, risks and social implications of such a test (emphasis added).

The sections of the Children's Bill mentioned above clearly accept that there are cases in which a young child may be of sufficient maturity to make very important, often life-altering decisions in his or her life. When compared to having capacity to accept and administer a grant, the latter seems to require trivial capacity. A minor is deemed capable to elect to have an abortion at a young age after displaying only a capacity to have intercourse and think through the decision to terminate the pregnancy. When compared to a child who has already demonstrated adult capabilities by providing for a family and caring for siblings, it seems incredible that we would not recognise the capacity of these children to receive social assistance grants.

Distinctions Between the Aforementioned Situations and Direct Access to Grants

It is important to acknowledge the differences between medical consent cases and child-heads of household claiming capacity to collect grants. Most noticeably, in medical cases, there is always a doctor who can assess the capacity of the child to understand and make the appropriate decision. The bills generally call for not only determination of a child's status as head of a household, but provides, as mentioned above, for supervision of child-headed households. Right now, however, there is no supervision for a majority of these households, but that does not mean that we can not provide for these children until they are assigned a mentor. As mentioned earlier, some screening process will need to be put in place. However, once a child has been determined to be eligible for a grant, he or she should be able to access it directly and supervision should be waived. It is about recognising the de facto relationships here where a child is the primary caregiver, whether ideal or not. In that case, children at the head of the household should be able to access the grants with as little red tape as possible. They should be able to make a statement that they are a child head of household, and that should suffice to access the grant. The decision-making power should not be left to officials or bureaucracy. These children have enough to deal with surviving without parents or other income.

CONCLUSION

The changes made in the Social Assistance Bill reflect a regression in the position of children in Child-headed households. Denying the existence of Child-headed households will not make them disappear. It will not make the denial of support to these children suddenly constitutional. They are still without parental care or any alternative. They will still be denied access to social assistance despite living well-below an acceptable standard of living. They are denied equal treatment on so many grounds: age, gender, race, family status, pregnancy status, potentially HIV/AIDS status. They are denied their dignity, forced to live in destitute conditions. They are often denied education and housing. Some are arguably denied their very right to life. Accepting the existence of child-headed households and providing interim aid to them will not mean acceptance of less than the Constitution requires for these children. It merely attempts to alleviate the present situation where so many vulnerable children are being denied the aid crucial to their survival. Requiring that an applicant for social assistance be at least 16 years of age and failing to acknowledge the existence and make provisions for the care of child headed households are intolerable flaws in the present version of the Social Assistance Bill which must be remedied before the Bill can be passed.

PROPOSALS

We respectfully submit, in addition to the insertions suggested by the Joint Submission in respect of child-headed households and street children, many of which are set out below, that the Bill include an interim provision in the proposed clause for child-headed households and street children that provides for direct access to social assistance grants for child-headed households and street children in the absence of a mentor or other guardian. Our additions to the Joint Submission are in bold italics.

CHAPTER 1 - DEFINITIONS, APPLICATION AND OBJECTS OF ACT:

1. Definitions

Insert new definitions:

"child-headed household" means a household where -

  1. the parent or primary care-giver of the household is terminally ill or has died because of AIDS or another cause, or has abandoned the family
  2. no adult family member lives with and provides care for the children in the households; and
  3. a child has assumed the role of primary care-giver in respect of a child or children in the household

"child support grant" means a grant awarded to a child in terms of section 6 of this Act;

"mentor" means an individual or organisation who has been appointed by the relevant provincial Department of Social Development, a designated non-governmental organisation, or the Child and Family Court, to apply for, collect or administer a grant on behalf of a street child or a child living in a child-headed household.

"street child" means a child who -

  1. because of abuse, neglect, poverty, community upheaval or any other reason, has left his or her home, family or community and lives, begs or works on the streets for survival; or
  2. because of inadequate care, begs or works on the streets for survival but returns home at night;

Suggested amendments to existing definitions:

"primary care giver" means a person older than 16 years, whether or not related to a child, who takes primary responsibility for meeting the daily care needs of that child;

Chapter 1 Section 3 Objects of Act

Insert new clause (a) in addition to the existing clauses (a) to (e)"

3. The objects of this Act are to -

    1. to advance the progressive realisation of the right of access to appropriate social assistance for everyone who is unable to support themselves and their dependents.

Insert "Chapter 1 Section 4 General Principles of Act"

4. The general principles of this Act are the following:

  1. The rendering, suspension or termination of social assistance benefits must take place without any form of unfair discrimination;
  2. All administrative action pertaining to social assistance benefits must be lawful, reasonable and procedurally fair;
  3. All applications for social assistance must be expeditiously processed, and payment made to eligible beneficiaries within a reasonable period of time.
  4. The human dignity of all applicants and beneficiaries of social assistance in terms of this Act must be respected and protected.
  5. Measures must be taken to facilitate consultation of and participation by social assistance beneficiaries and other relevant stakeholders in matters pertaining to the realisation of social assistance rights.

CHAPTER 2 - SOCIAL ASSISTANCE

Suggested Amendments/Insertions:

Child Support Grant

Insert new sections after section 6:

6. (a) A person is, subject to section 5, eligible for a child support grant if he or she is the primary care giver of that child.

  1. Every child of 18 years or younger is entitled to a child support grant if he or she is not adequately supported
  2. The above grant is payable to the primary care-giver of the child concerned or in the case of a street child or a child living in a child-headed households, to a mentor appointed in terms of section 15 of this Act.
  3. In the event that a child-headed household or a street child does not function under the general supervision of an organ of state or NGO, until such time that the child headed household functions under such general supervision- the child who has assumed the role of primary care giver in respect of a child or children in the household may collect and administer for the child-headed household, any social security grant or other grant or assistance to which the household is entitled.

Motivation:

Please refer to the Joint Submission, supra, for the general motivation. (d) is inserted to ensure that until such time as the mentor or supervision provisions may be effected in practice, children on the street or in child-headed households are provided for in some capacity. Though provision of mentors may suffice as alternative family care under the Constitution, it is necessary to acknowledge that it will take time and resources to give effect to this provision and therefore, an interim measure must be implemented.

CHAPTER 3 - ADMINISTRATION OF SOCIAL ASSISTANCE

Insert the new Section 15 as suggested by the Joint Submission, supra.

We believe that these provisions, particularly Section 6(d), would insure that some of South Africa's most vulnerable citizens are at least minimally provided for until such a time that their constitutional rights can be adequately secured.