DEPARTMENTS / ORGANISATIONS TO PORTFOLIO COMMITTEE

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

ISSUE	LEGISLATION AND POLICIES	ROLES AND RESPONSIBILITIES	FINANCIAL IMPLICATIONS	GENERAL COMMENTS
Justice
Children’s courts	Children’s Bill Chapter 5: Children’s courts Other legislation/policies Child Care Act, No. 74 of 1983 (to be repealed by Children’s Bill) Magistrates’ Courts Act, No. 32 of 1944 Family Court Policy (being developed) Children’s Courts Policy (being developed)	The Department of Justice is responsible for the operation, administration and management of all the magistrate’s courts in the country. All magistrates’ courts are also Children’s Courts. The Court Services Unit of the Department of Justice plays a co-ordinating role and is responsible for planning and budgeting for the courts. The unit also liaises with Justice role-players such as the magistrates, presiding officers of Children’s Courts, the Chief Family Advocate and the Justice Steering Committee.	The Department of Justice already provide these services. The funding of the courts is addressed in the expenditure framework of that department. The current requested budget for the implementation of the Children’s Courts as indicated in the Children’s Bill for 2005/06 is R15 million. Children’s Courts are also included as part of the comprehensive Family Courts Project. The budget for the Family Courts Project for the 2004/05 financial year is R19 million.	A family court system is under development. Once the family court system has been fully developed, all legislation affected by the family court system will be amended to be in line with the new system. The Court Services Branch was requested to clarify the role and appointment of children’s courts assistants, also taking into consideration their function as Children’s Courts case-flow managers under the envisaged family court registrar. The Department is endeavouring to appoint additional temporary administrative staff, which will include Children’s Courts Clerks, with existing funds, and is also incorporating the projects for Case-flow Managers and Family Court Registrars into its planning for Children’s Courts and Family Courts. However, this is a long-term project. As Children’s Courts will be dealing with the alteration of the status of a child and the placement of children, the Office of the Chief Family Advocate is of the view that the role of the Family Advocate needs to be extended to Children’s Court. However, the capacity of the Family Advocate will have to be increased. The Chief Family Advocate indicated that they are appointing Family Counsellors and are planning to appoint paralegals to assist the Family Advocates’ Office. The Family Advocate’s Office is performing some of the functions of the children’s courts’ assistants as part of their work, as is already happening at the Durban Family Court.
Jurisdiction of children’s court	Children’s Bill Clause 44: Jurisdiction of children’s courts Clause 45: Matters that children’s court may adjudicate Clause 45: Orders that children’s court may make Other legislation/policies Magistrates’ Courts Act, No. 32 of 1944 Supreme Court Act, No. 59 of 1959 Child Care Act, No. 74 of 1983 Common law: High Court is upper guardian of all children Programme for Promotion of the Rights of Vulnerable Groups (established in the Court Services Branch) Roll-out of Family Courts dealing with maintenance, domestic violence, divorce matters and children’s court matters.	The following institutions are involved: Lower Court Management Committee; Justice College and Justice Steering Committee	An expansion of the jurisdiction of Children’s Courts will have training implications for magistrates and clerks of the Children’s Court. Awareness campaigns will also be necessary.	Pending the establishment of the family courts, the status quo with regard to the jurisdiction of the Children’s Courts will be maintained. The roll-out of family in all magistrates’ districts is a long-term project. The five existing Family Courts are being strengthened and five additional Family Court Centres will be established by 2007. Since all magistrates’ courts are Children’s Courts as well, the establishment of Children’s Courts is not dependent on the roll-out of Family Courts.
Jurisdiction of High Court	Children’s Bill Clause 22(3): Exclusive jurisdiction of High Court with regard to guardianship Clause 23(3): Exclusive jurisdiction of High Court with regard to guardianship Clause 45(3): Exclusive jurisdiction of High Court and Divorce Court Clause 285: Surrogate motherhood agreement must be in writing and confirmed by High Court Other legislation/policies Supreme Court Act, No. 59 of 1959; Common law: High Court is the upper guardian of all children;	The Department of Justice is responsible for the operation, administration and management of all the High Courts in the country.	Any amendment of the jurisdiction of the courts will hold training implications for the Department of Justice.	Pending the establishment of the family courts, the status quo with regard to the jurisdiction of the High Court will be maintained.
Accessibility of courts	Children’s Bill Chapter 5: Children’s Courts 5 References to the Children’s Court throughout the Bill Other legislation/policies Re Aga Boswa strategy ("We are rebuilding") – bringing service delivery closer to the people) Policy on legal representation for children at State expense (under development) Guidelines for magistrates (under development)	The Department of Justice is responsible for the operation, administration and management of courts in the country.	Cost of litigation/ legal representation still being researched – at least R20 million necessary for first year for Legal Aid Board.	Litigation costs, protraction of court proceedings and long waiting periods for hearing of cases are still causes for concern. Individual cases and complaints that take too long to be heard in Children’s Courts should be referred to the Cluster Heads / Chief Magistrates of Courts, the Lower Court Management Committee or the Department of Justice and Constitutional Development for urgent prioritisation and follow-up of complaints. Where possible and within budgetary constraints, additional magistrates and administrative staff are being appointed, such as the Additional Children’s Court Magistrate in Port Elizabeth. Awareness campaigns and training for Children’s Commissioners and administrative staff have been prioritised. Important policy issues are brought to the attention of court officials through circulars and training.
Guardianship	Children’s Bill Definition of "guardianship" Definition of "parental responsibilities and rights" Clause 22(3) of chapter 4: Responsibilities and rights agreements Other legislation/policies Guardianship Act, No. 192 of 1993	Guardianship should continue to be the responsibility of the courts.	The Department of Justice and the High Courts deal with guardianship at present.	The Children’s Bill proposes to repeal the Guardianship Act.
National Child Protection Register	Children’s Bill Chapter 8 Part 3: National Child Protection Register Other legislation/policies Sexual Offences Amendment Bill	The Department of Social Development is already busy developing Part A (dealing with information on children being abused or neglected) of the National Child Protection Register. The Department will require assistance from the provincial departments of Social Development to obtain the necessary information. Part B of the Register (a record of persons who are unsuitable to work with children) must still be established. Establishing Part B of the Register will require close co-operation between the Departments of Social Development and Justice and the SAPS.	The financial implications still have to be established and will form part of the costing of the Bill.	It is envisaged that Part B of the National Child Protection Register will contain a record of all persons found unsuitable to work with children on various grounds, including persons convicted of a sexual offence against a child. The Sexual Offences Register envisaged by the Sexual Offences Amendment Bill will only contain a list of persons convicted of a sexual offence against a child. To avoid duplication, the Departments of Social Development and Justice will recommend a joint sitting of the Portfolio Committees for Social Development and Justice to consider establishing a single National Child Protection Register in the Children’s Bill that will incorporate the proposals of both the Children’s Bill and the Sexual Offences Amendment Bill. A technical committee consisting of officials from both departments will investigate the differences and similarities between the proposed registers.
Lawyers and inter-country adoptions	Children’s Bill Chapter 17 of the Bill: Inter-country adoptions Other legislation/policies Attorneys Act, No. 53 of 1979 International instruments Hague Convention on the civil aspects of International Child Abduction Hague Convention on protection of children and co-operation in respect of inter-country adoption	This matter should be jointly attended to by the Departments of Social Development and Justice. The Chief Family Advocate is the designated central authority in respect of civil child abductions. Common ground needs to be found between the CFA and DSD on international adoptions. Adoption is a conferment of ex lege parental rights and responsibilities and the Family Advocate needs to be placed in a position to advise the court adjudicating on the matter as envisaged by section 4 of the Mediation in Certain Divorce Matters Act.	People utilising these services pay for it privately. Legislation on a fee structure and proper procedures for inter-country adoptions should be introduced as a matter of urgency.	Clarification is required on the advisability of the accreditation of lawyers for inter-country adoptions The Department of Justice recommends that lawyers should not be excluded, but that the criteria for persons accredited to deal with inter-country adoptions should be tightened up to ensure that inter-country adoptions do not degenerate into baby farming, but is conducted in a manner that ensures that the best interests of children are served at all times.
Legal Aid Board (Department of Justice and Constitutional Development)
S 28 of the Constitution: Every child has the right to have a legal practitioner assigned to the child by the state and at state expense in civil proceedings affecting the child if substantial injustice would otherwise result	Children’s Bill Clause 55 chapter 5: Legal representation of children Other legislation/policies Legal Aid Act, No. 22 of 1969 Child Care Act, No. 74 of 1983	Although it is envisaged that the Legal Aid Board should fulfil this function, the Legal Aid Board’s current capacity to represent children is uncertain.	The financial implications still have to be established and will form part of the costing of the Bill. It is estimated that at least R20 million will be required to fund this function for the first year.	The Child Care Act was amended in 1998 by the Adoption Matters Amendment Act to provide for legal representation of children, but the provisions concerned have not been put into operation yet. The Children’s Bill proposes to repeal the Child Care Act.
Office of the Master of the High Court (Department of Justice and Constitutional Development)
Orphans: property grabbing, intestate succession, guardian’s fund.	SALRC Children’s Bill Clause 17 of the SALRC version of the Bill Other legislation/policies Intestate Succession Act, No. 81 of 1987 Administration of Estates Act, No. 66 of 1965 Guardianship Act, No. 192 of 1993	The Department of Justice is responsible for the administration of legislation relating to the protection of the interests of orphans. The Master’s Office has been requested for an input on problems being experienced with the protection of children’s property interest. The matter is receiving attention.	The Master of the High Court provides these services. The funding of the Master’s Office is addressed in the expenditure framework of the Department of Justice.	This matter should be addressed in legislation pertaining to succession, the administration of estates and guardianship. The SALRC also recently completed an investigation into Customary law of Succession (Project 90).
Lower Court Management Committee (Dept of Justice and Constitutional Development)
Children’s courts	Children’s Bill Chapter 5: Children’s courts Other legislation/policies Magistrates’ Courts Act, No. 32 of 1944 Magistrates’ Act, 1993	Lower Court Management Committee will take the lead in identifying and training presiding officers of Children’s Courts. The Department of Justice will be responsible for the provision of children’s courts assistants and children’s courts case-flow managers.	Appointment of additional magistrates: R12,5 million Appointment of children’s courts assistants: R36 million if one assistant is appointed for each court.	The Lower Court Management Committee is busy developing guidelines for magistrates to ensure uniformity in the handling of matters before the Children’s Courts.
Family Advocate (Department of Justice and Constitutional Development)
Parental responsibilities and rights agreements	Children’s Bill Clause 22 of chapter 4: Parental responsibilities and rights agreements Clause 28 of chapter 4: Who may approach court Other legislation/policies Mediation in Certain Divorce Matters Act, No. 24 of 1987	The Chief Family Advocate is responsible for the functions to be performed	Additional family advocates and family counsellors are required: R33 million extra.	Additional family advocates must be appointed and the new post class of family counsellors must be implemented. The Chief Family Advocate indicated that they employ family counsellors and that they are planning to appoint paralegals to assist family advocates. The Family Advocates’ Office will then be able to exercise some of the functions of children’s courts’ assistants, as is already happening at the Durban Family Court. This will happen within budgetary constraints.
Parenting plans	Children’s Bill Clause 33(4) of chapter 4: Parenting plans Clause 34 of chapter 4: Formalities Other legislation/policies Mediation in Certain Divorce Matters Act, No. 24 of 1987	The Chief Family Advocate is responsible for the functions to be performed	Additional family advocates and family counsellors are required: R33 million extra. It is envisaged that additional administrative support will be necessary. A ball-park figure of R2 million will suffice for now.	Additional family advocates must be appointed and the new post class of family counsellors must be implemented. The Chief Family Advocate has indicated that they are willing to assist with the preparation and submission of parenting plans to the court.
Public Protector (Department of Justice and Constitutional Development)
Children’s Protector, monitoring the implementation of the Act.	SALRC Children’s Bill Chapter 22 of the SALRC version of the Children’s Bill Other legislation/policies S 181 and 182 of the Constitution Public Protector Act, No. 23 of 1994	The Public Protector does not have the mandate or the capacity to perform all the functions envisaged to be performed by the Children’s Protector as proposed in the SALRC version of the Children’s Bill	The institution of a children’s protector will have significant financial implications. A decision to institute a children’s protector could only be taken at a high level after a thorough investigation of the matter.	The Office of the Public Protector has indicated that they can only investigate misconduct and corruption complaints against the State. The Public Protector cannot institute investigations against families or private individuals. They are willing to assist where they can and are willing to attend Portfolio Committee hearings.
SA Human Rights Commission (Department of Justice and Constitutional Development)
Children’s Protector, monitoring the implementation of the Act.	SALRC Children’s Bill Chapter 22 of the SALRC version of the Children’s Bill Other legislation/policies S 181 and 182 of the Constitution Human Rights Commission Act, No. 54 of 1994	The Human Rights Commission does not have the mandate or the capacity to perform all the functions envisaged to be performed by the Children’s Protector as proposed in the SALRC version of the Children’s Bill. They can only monitor broad compliance and observance of children’s rights.	The institution of a children’s protector will have significant financial implications. A decision to institute a children’s protector could only be taken at a high level after a thorough investigation of the matter.	The South African Human Rights Commission has not yet indicated whether they will be able to attend Portfolio Committee hearings.
Children awaiting trial and convicted child offenders	Children’s Bill Conversions from Child Justice Court to Children’s Court-hearings. Other legislation/policies Child Justice Bill Criminal Procedure Act, No. 51 of 1977 Correctional Services Act, No. 111 of 1998 Interim Protocol for the Management of Children Awaiting Trial Inter-sectoral Child Justice Steering Committee: Monthly monitoring of Children Awaiting Trial	The Department of Justice is broadly responsible as Chair of the Inter-sectoral Child Justice Steering Committee	R7 million: Implementation of Legislation; R6 million: Establishment of One Stop Child Justice Centres.	It is envisaged that the Child Justice Bill will be discussed by the Justice Portfolio Committee early in 2005. A joint briefing on the Child Justice and Children’s Bills by the Department of Justice to the Portfolio Committee on Social Development has been arranged for 2 February 2005.