050119homeaffairs

CHILDREN’S BILL AND RELATED LEGISLATION: IMPLICATIONS FOR STATE DEPARTMENTS AND OTHER INSTITUTIONS

ISSUE	LEGISLATION AND POLICIES	ROLES AND RESPONSIBILITIES	FINANCIAL IMPLICATIONS	GENERAL COMMENTS
Home Affairs
S 28 of the Constitution: Every child has a right to a name and nationality from birth	SALRC Children’s Bill Clause 15 of the SALRC version of the Bill: Name, nationality and identity Other legislation/policies South African Citizenship Act, No. 88 of 1995 Births and Deaths Registration Act, No. 51 of 1992	The Department of Home Affairs is responsible for the implementation of these Acts.	The Department of Home Affairs already provide these services. The issuing of birth, marriage and death certificates is catered for in the Population Register Subprogram which has a budget of R962.6 million allocated for the 2004/2005 financial year. The figures provided are not specific to services for children, but indicate the budget allocation for services that have services to children as a component.	This matter should be addressed in legislation pertaining to citizenship and birth registration administered by the Department of Home Affairs.
Refugee children	SALRC Children’s Bill Clause 24 of the SALRC version of the Bill: Refugee and undocumented migrant children Other legislation/policies Refugees Act, No. 130 of 1998	A clear demarcation of functions between the Departments of Social Development and Home Affairs in respect of child refugees is necessary.	The extension of services to refugee children might hold financial implications. The following subprograms deal with refugees at present: Refugee Affairs –R 6.5 million Standing Committee for Refugee Affairs – R1.2 million Refugee Appeals Board – R1.8 million (figures for 2004/2005)	Clarification is required on whether the current provisions of the Refugees Act and the Children’s Bill make adequate provision for refugee children. The Departments of Social Development and Home Affairs will discuss possible amendments to the Bill to ensure that refugee children are sufficiently provided for. The Refugees Act adequately provides for the processing and documenting of refugees. The social care of refugees falls within the ambit of Social Development.
Undocumented migrant children / unaccompanied foreign children	SALRC Children’s Bill Clause 24 of the SALRC version of the Bill Children’s Bill Clause 150 chapter 10: Child in need of care and protection Other legislation/policies Immigration Act, No. 13 of 2002	A clear demarcation of functions between the Departments of Social Development and Home Affairs in respect of undocumented migrant children is necessary.	The extension of services to undocumented migrant children might hold financial implications.	Clarification is required on whether the current provisions of the Immigration Act and the Children’s Bill make adequate provision for undocumented migrant children. The Departments of Social Development and Home Affairs will discuss possible amendments to the Bill to ensure that refugee children are sufficiently provided for. Final clarification is required on the terminology to be used to refer to these children. The proposal from the Department of Home Affairs is that the term "illegal unaccompanied foreign minor" should be employed. In terms of a recent court order, children up to the age of 18 years may not be detained in the Department’s immigration holding facility (Lindela). Children’s court rules must be followed. Social Development is the main role player in this. Clear provision should be made in the Children’s Bill for the care and protection of these children.
Trafficked children	Children’s Bill Chapter 19: Trafficking of children Other legislation/policies Criminal Procedure Act, No. 55 of 1977 Sexual Offences Amendment Bill Victims’ Service Charter	Roles and responsibilities are uncertain. The Director-General of the Department of Social Development is responsible for the administration of the trafficking measures in the Children’s Bill, but the responsibility for eventual trafficking legislation will probably reside with the Department of Justice. Inter-sectoral co-operation and co-ordination is handled through the Trafficking Task Team, lead by the Sexual Offences and Community Affairs Task Team Unit (SOCA) of the National Prosecuting Authority. Their mandate is to advise and develop legislation, policy and implementation guidelines on fighting the increasing international and inter-country trafficking in women and children. The members of the Trafficking Task Team are as follows: SOCA, the National Prosecuting Authority, the Lower Court Judiciary, Court Services, Dept of Social Development, SAPS, SA Law Reform Commission, NGOs in the field and the International Migration Organisation.	SOCA requested funding for the Task Team from the European Union. The various Government departments have been requested to provide for funding on their respective budgets. Costing will have to be done with regard to the trafficking clauses in the Bill.	The SALRC is busy with an investigation into trafficking of persons (Project 131). The chapter on trafficking of children should remain in the Bill pending the finalisation of the Commission’s investigation.
Child pornography	SALRC Children’s Bill Clause 239 of the SALRC version of the Bill: Child pornography on the Internet Other legislation/policies Films and Publications Act, No. 65 of 1996	The Department of Home Affairs is responsible for the implementation of this Act.	The Department of Home Affairs is responsible for the administration of the Films and Publications Act. The funding of this function is addressed in the expenditure framework of that department.	This matter is addressed in the Films and Publications Act, No. 65 of 1996. The Act was amended recently to improve control, especially with regard to the Internet as a means to distribute child pornography.
Documents for children: birth certificates, identity documents, passports etc.	Other legislation/policies Births and Deaths Registration Act, No. 51 of 1992 Identification Act, No. 68 of 1997 South African Passports and Travel Documents Act, No. 4 of 1994 Refugees Act, Act 130 of 1998 Immigration Act, Act 13 of 2002	The Department of Home Affairs is responsible for the implementation of these Acts.	The Department of Home Affairs is responsible for the administration of these Acts. The issuing of birth, marriage and death certificates is catered for in the Population Register Subprogram which has a budget of R962.6 million allocated for the 2004/2005 financial year. The figures provided are not specific to services for children, but indicate the budget allocation for services that have services to children as a component.	Clarification is required on what assistance should be rendered to refugee children and illegal unaccompanied foreign minors. Three categories of children should be distinguished, namely: 1) SA citizens The legislation listed in column 1 of this issue provides for the issuing of birth certificates, identity documents and passports to SA children. Documenting street children has been identified as a problem. To register the birth of a child the identity and status of a child must be established as accurately as possible. In the case of street children the parents are mostly not traceable to complete the birth registration documentation and the Department has to rely on a social worker report as supporting documentation to effect the registration. Social Development has flagged the shortage of social workers as an operational concern in this regard. 2) Refugee children The Refugees Act, 1998, provides for the issuing of a Refugee Child Certificate to children under 16, and a Refugee Identity Card to children 16 and above. 3) Foreign children other than refugee children Residence Permits in terms of the Immigration Act, 2002, are issued.