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

ISSUE	LEGISLATION AND POLICIES	ROLES AND RESPONSIBILITIES	FINANCIAL IMPLICATIONS	GENERAL COMMENTS
S 29 of the Constitution: Everyone has the right to basic education	Legislation /policies National Education Policy Act, No. 27 of 1996 South African Schools Act, No. 84 of 1996 Adult Basic Education and Training Act, No. 52 of 2000 Employment of Educators Act, No. 76 of 1998 South African Council of Education Act, No. 31 of 2000 Admission Policy for Ordinary Schools, Notice No. 2432 of 1998 Policy for the registration of Learners for Home Education, Notice No.1411 of 1999	The national and provincial Departments of Education are mainly responsible for the implementation of these provisions.	The Department of Education is responsible for the administration of these Acts. The funding of the services delivered in terms of these Acts is addressed in the expenditure framework of that department.	This matter should be addressed in legislation pertaining to education administered by the Department of Education.
S 29 of the Constitution: Everyone has the right to further education, which the state, through reasonable measures, must make progressively available and accessible.	Legislation/policies National Education Policy Act, No. 27 of 1996 Higher Education Act, No. 101 of 1997 Further Education and Training Act, No. 98 of 1998 General and Further Education and Training Quality Assurance Act, No. 58 of 2001	The national and provincial Departments of Education are mainly responsible for the implementation of these provisions.	The Department of Education is responsible for the administration of these Acts. The funding of the services delivered in terms of these Acts is addressed in the expenditure framework of that department.	This matter should be addressed in legislation pertaining to education administered by the Department of Education.
Education of incarcerated children	Other legislation/policies Section 19 of the Correctional Services Act, No. 111 of 1998 Child Justice Bill Draft SA Correctional Services Youth Policy and Guidelines / Procedures SA White Paper on Corrections (Chapter 12)	In terms of section 19 of the Correctional Services Act, children that are prisoners must have access to and must attend educational programmes. Close co-operation between the Departments of Correctional Services and Education is necessary to give effect to this duty. A Memorandum of Understanding between the Departments of Correctional Services, Education and Social Development to clarify their respective roles regarding children awaiting trial is not yet finalised. A framework is available.	Financial implications are the responsibility of the Department Of Correctional Services The Budget of the Directorate Formal Education makes provision for this matter.	DCS takes full responsibility for the educational needs of sentenced children at thirteen Youth Correctional Centres and various other units. The current facilities were built for security purposes and are not sufficient and do not fully complement the educational needs of all offenders. The White Paper on Corrections makes provision for compulsory educational programmes for all youth offenders and this will be prioritised as a matter of urgency in the Department. The Department is in the process of implementing Centres of Excellence and educational needs of offenders will be fully addressed in these facilities.
Early childhood development (school-going age to 9 years) (section 76 matter)	Children’s Bill Chapter 7: Early childhood development Other legislation/policies National Education Policy Act, No. 27 of 1996 South African Schools Act, No. 84 of 1996 Interim Policy for Early Childhood Development (under development) Education White Paper 5 on ECD (2001) Education White Paper 1 on Education and Training (1995) Interim ECD Policy (1996) The White Paper for Welfare and the Child Care Act, 1983 makes provision for the care of and social services to preschool children	Social Development (provincial and national) The Department of Social Development has the primary responsibility for Early Childhood Development Services for children ages 0-4 years old. The Department of Education takes over from the reception years (Grade R) to 9 years old. Education (national & provincial) The Department of Education is responsibility for the education of all children at schools from Grade 1 to 3. The Department is expanding this provision progressively to include a Reception Year. The intention is that all children would have participated in an accredited Reception Year programme on admission to Grade 1 by 2010.	The funding of services delivered as part of the normal functions of a department is addressed in the expenditure framework of each department. Additional financial implications still have to be established and will form part of the costing of the Bill. A conditional grant was allocated to ECD for the financial years 2001 to 2004. It was increased from 21 million in 2001 to R88 million when it was stopped in 2004. Funding for ECD forms part of the equitable share and is appropriated through the provinces.	The Children’s Bill must clearly indicate the demarcation of functions between the Departments of Social Development and Education. The two departments will engage to ensure that this is achieved.
Children of incarcerated mothers: early childhood development	Children’s Bill Chapter 7 of the Bill Other legislation/policies Section 20 of the Correctional Services Act, No. 111 of 1998 DCS Policy on Infants and Mothers SA White Paper on Corrections (Chapter 12)	Correctional Services Section 20 of the Correctional Services Act: The Department of Correctional Services is responsible for the provision of facilities to ensure the healthy development of the child for the period that he or she is in prison with the mother. Children can remain in prison with the mother up to the age of 5 years. Close co-operation and an integrated approach between the Departments of Correctional Services, Education and Social Development are necessary to give effect to this duty. Education & Social Development (national) Establishing norms and standards for ECD Education & Social Development (provincial) Implementation and monitoring of ECD	The funding for this function is addressed in the expenditure framework of the Department.	The current facilities were built for security purposes and do not complement the process of early childhood development. The Policy on Infants and Mothers makes provision for development and educational needs of children of incarcerated mothers, e.g. basic stimulation programmes et cetera. There is currently 7 Mother and Child Units out of 8 Female Correctional Centres; however some of the facilities are not adequately equipped. The new generation facilities will make provision for fully equipped Mother and Baby Units.
Education of sentenced child offenders in correctional centres / other institutions	Children’s Bill Clause 191: Child and youth care centre Other legislation/policies Section 19 of the Correctional Services Act, No. 111 of 1998 Child Justice Bill Draft SA Correctional Services Youth Policy and Guidelines / Procedures SA White Paper on Corrections (Chapter 12)	Correctional Services Section 19 of the Correctional Services Act: Children that are prisoners must have access to and must attend educational programmes. Close co-operation between the Departments of Correctional Services and Education is necessary to give effect to this duty. A Memorandum of Understanding between the Departments of Correctional Services, Education and Social Development to clarify their respective roles regarding children awaiting trial is not yet finalised. A framework is available. Education (national) Establishing norms and standards Education (provincial) Implementation and monitoring	Financial implications are the responsibility of the Department The Budget of the Directorate Formal Education makes provision for this matter Costing of the financial implications would have been as part of the Child Justice Bill process	DCS takes full responsibility for the educational needs of sentenced children at thirteen Youth Correctional Centres and various other units. The current facilities were built for security purposes and are not sufficient and do not fully complement the educational needs of all offenders. The White Paper on Corrections makes provision for compulsory educational programmes for all youth offenders and this will be prioritised as a matter of urgency in the Department. The Department is in the process of implementing Centres of Excellence and educational needs of offenders will be fully addressed in these facilities.
Corporal punishment	Children’s Bill Clause 139: Protection of children Other legislation/policies Policy in Safety and Security (the policy deals with the protection of prisoners in general) Section 10 of the South African Schools Act, No. 84 of 1996	Correctional Services The Department of Correctional Services is responsible for the safety of prisoners. Education Corporal punishment has been prohibited in schools in terms of the schools Act. It is uncertain who will be responsible for the policing of Clause 139 of the Children’s Bill	The financial implications still have to be established and will form part of the costing of the Bill.	Corporal punishment is not allowed in correctional facilities. It was done away with in 1994. It appears that children are adequately protected from corporal punishment, provided that the prohibitions imposed are properly enforced.
School fees	Children’s Bill Clause 188 of the SALRC version of the Bill: Free and subsidised state services Other legislation/policies South African Schools Act, No. 84 of 1996 Norms and Standards for School Funding (1998) National Student Financial Aid Scheme Act 56 of 1999 Exemption of Parents from Payment of School Fees Regulations, Notice No.1293 of 1998. National Norms and Standards for School Funding, Notice No. 2362 of 1998 Draft legislation Education Laws Amendment Bill, 2004, published in Notice No. 2274 of 2004 for comments. The proposed Bill aims to abolish school fees, starting with the poor of the poorest schools. The Bill further aims to establish a learner’s right to participate in the total programme of a public school despite non-payment of school fees. Regulations for the Exemption of Parents from Payment of School Fees, Published in Notice No. 2793 of 2004 for comments. The proposed regulations deal amongst others with automatic exemptions for orphans, kinship caregivers, child-headed households, children in youth care centres and parents or children receiving social grants from the payment of school fees.	Education Foster children are exempted from the payment of school fees.	The Department of Education is responsible for the policy with regard to school fees. The funding of schools should be addressed in the expenditure frameworks of the national and provincial Departments of Education. There is no specific budget allocated for the exemption of learners from paying school fees. Schools are required to budget for this function within the funds it receives from the provincial departments of Education. Guardians who cannot afford school fees have to apply to the school governing body for exemption.	This matter should be addressed in legislation / policy pertaining to school fees administered by the Department of Education. Clarification is required on the exemption of other categories of children such as disabled children, children for whom child support grants are paid and children in child-headed households.
School feeding programmes	Other legislation/policies A policy on school feeding programmes is under development.	Education The school feeding programmes had been transferred to the Department of Education from the Department of Health.	The financial implications of the school feeding programmes are uncertain. The Budget allocated for 2004/2005 financial year is R832.2 million. This is allocated to Provinces in the form of a conditional grant.	This matter should be addressed in legislation / policy pertaining to school feeding programmes managed by the Department of Education.
Children with disabilities and chronic illnesses	Children’s Bill None Other legislation/policies Mental Health Act White Paper on Integrated National Disability Strategy (developed by the Office of the President)	All departments The Child Care and Protection Unit must develop a policy and a strategy on children with disabilities and chronic illnesses in collaboration with the Directorate: Disability of the Department of Social Development and other State departments.	The financial implications are unknown.	This has been identified as a gap and all the State departments involved will have to investigate and interrogate this issue.
S 28 of the Constitution: Every child has the right to basic nutrition	Children’s Bill No provision for this in Bill Other legislation/policies Regulations relating to the fortification of certain foodstuffs – Government Notice No. R7634 of 7 April 2003. SA Breastfeeding guidelines for health workers The Integrated Management of Childhood Illness Strategy addresses this in detail	Health The national and provincial Departments of Health are mainly responsible for the implementation of these provisions.	The Department of Health is responsible for the administration of these Acts. The funding of the services delivered in terms of these Acts is addressed in the expenditure framework of that department.	This matter should be addressed in legislation / policy pertaining to basic nutrition administered by the Department of Health. The Department of Health is of the opinion that there should be an overarching legislative framework which the Department of Health legislation/policy fits into; else there will always be a piece-meal approach to issues relating to children.
S 28 of the Constitution: Every child has the right to basic health care services	SALRC Children’s Bill Clause 22 of the SALRC version of the Bill: Basic health care Other legislation/policies National Health Act, No. 61 of 2003 Health Sector Strategic Framework for 1999 – 2004	Health The National Health Act does not refer to children as a specific vulnerable group, mainly because it was thought that the Children’s Bill would be referring specifically to children – hence there is a gap.	The Department of Health is responsible for the administration of these Acts. The funding of the services delivered in terms of these Acts is addressed in the expenditure framework of that department.	The Department of Health is of the opinion that there should be an overarching legislative framework which the Department of Health legislation/policy fits into; else there will always be a piece-meal approach to issues relating to children.
Information on health care	Children’s Bill Clause 13: Information on health care Other legislation/policies National Health Act, No. 61 of 2003	Health The National Health Act covers roles and responsibilities and administrative issues relating to governance and health care. It does not relate specifically to information on health care, and certainly not specifically to information relating to children.	The financial implications still have to be established and will form part of the costing of the Bill.	This matter should be addressed in the Department of Health regulations related to the National Health Act as well as in the Children’s Bill.
Harmful social and cultural practices (circumcision, female genital mutilation, virginity testing)	Children’s Bill Clause 12: Harmful cultural and social practices Other legislation/policies National circumcision policy and possibly legislation are under development	Health & Social Development It is uncertain who will be responsible for the policing of Clause 12 of the Children’s Bill	The financial implications still have to be established and will form part of the costing of the Bill.	The overarching principles relating to harmful social and cultural practices need to be stipulated in the Children’s Bill, with detail covered in the Policy being developed by the Department of Health.
Monitoring of circumcision, initiation schools and virginity testing	Provincial legislation exists in Eastern Cape, Limpopo, Free State and North West. National policy, and possibly legislation on circumcision, is under development. Provincial policy guidelines exist in Gauteng.	Health (provincial) While the provinces that promulgated legislation on circumcision will be responsible for the enforcement thereof, it is not clear how policy guidelines will be implemented	The financial implications are uncertain	Four provinces have their own legislation on circumcision at present, but clarification is required on how this function will be addressed in the other provinces.
Consent to medical treatment	Children’s Bill Clause 129: Consent to medical treatment and surgical operations Other legislation/policies Section 7 of the National Health Act, No. 61 of 2003	Health & Social Development The National Health Act does not specifically refer to consent by children. It is therefore imperative that consent in children is dealt with in the Children’s Bill.	The financial implications still have to be established and will form part of the costing of the Bill.	The National Health Act does not focus on consent to medical treatment of children specifically. Therefore the details of consent in relation to children need to be detailed and clearly articulated in the Children’s Bill.
HIV/AIDS testing	Children’s Bill Clause 130: HIV testing Other legislation/policies Integrated Management of Childhood Illness Strategy Programme to prevent the transmission of HIV from mother to child	Health There is no reference to HIV testing and counselling specifically for children in the National Health Act or in other policies. The Integrated Management of Childhood Illness Strategy and the Programme to prevent the transmission of HIV from mother to child call for testing without providing a human rights/legislative framework within which these should occur. The Department of Health has not developed a specific framework for HIV testing in children and is therefore dependant on the Children’s Bill to articulate this within a human rights context. No reference to HIV testing of children in the National Health Act.	The financial implications still have to be established and will form part of the costing of the Bill.	The Children’s Bill needs to provide a legal framework in a human rights context on all issues relating to HIV testing and consent in children as these are not addressed in any Department of Health document.
Counselling before and after HIV testing	Children’s Bill Clause 132: Counselling before and after HIV testing	Health It is practice that no person may have testing without adequate counselling. Health care facilities have specially trained counsellors for this purpose.	This service is already being performed. No additional cost implications are foreseen.
Access to contraceptives	Children’s Bill Clause 134: Access to contraceptives Other legislation/policies Youth and Adolescent policy	Health Contraceptives are usually distributed through the clinics as part of the primary health care system.	The financial implications still have to be established and will form part of the costing of the Bill.	The Department of Health is of the opinion that the Children’s Bill should provide an overarching framework for the implementation of this policy. The National Health Act does not specifically refer to access to contraceptives.
HIV/AIDS treatment	Other legislation/policies Strategic Plan for HIV/AIDS for 2000-2005	Health The Department of Health has the responsibility to determine who gets treatment; therefore this section should be worded very carefully.	The Department of Health is responsible for HIV/AIDS treatment. The funding of HIV/AIDS treatment is addressed in the expenditure framework of that department.	The Department of Health has clear guidelines on treating children infected with HIV. The Department of Health is of the opinion that the Children’s Bill needs to state the principle that children with HIV and AIDS need access to the highest attainable standard of health care, in accordance with national guidelines and medical and social criteria of antiretroviral treatment.
Partial care	Children’s Bill Chapter 8: Partial care Clause 88 chapter 6: Assignment of functions to municipalities Other legislation/policies Clause 44 read with Schedule 4 of the Constitution: Functional areas of concurrent national and provincial legislative competence – Welfare services Municipal Systems Act, No 32 of 2000 Municipal Structures Act, No 117 of 1998	Provincial & Local authorities A municipality has executive authority in respect of , and has the right to administer child care facilities and any other matter assigned to it by national or provincial government	The authority assigning functions to a specific municipality must take appropriate steps to ensure sufficient funding for the performance of that function.	Municipalities have to include strategies for the provision of child care facilities in their local integrated development plan
Early childhood development	Children’s Bill Chapter 7: Early childhood development Clause 102 chapter 7: Assignment of functions to municipalities Other legislation/policies Clause 44 read with Schedule 4 of the Constitution: Welfare services and Schedule 5 of the Constitution: Sports and Recreation facilities	Provincial & Local authorities Provinces and municipalities are responsible for parks, sport and recreation facilities.	The authority assigning functions to a specific municipality must take appropriate steps to ensure sufficient funding for the performance of that function.
Prevention and early intervention services	Children’s Bill Chapter 9: Prevention and early interventions services Clause 147 of chapter 9: Assignment of functions to municipalities. Other legislation/policies Clause 44 read with Schedule 4 of the Constitution: Welfare services	Provincial & Local authorities Norms and standards for the provision of child and youth services by municipalities need to be developed.	The financial implications are uncertain
Child in need of care and protection	Children’s Bill Chapter 10: Child in need of care and protection Other legislation/policies Clause 44 read with Schedule 4 of the Constitution: Welfare services Municipal Systems Act, No 32 of 2000 Municipal Property Rates Act, No 6 of 2004	Provincial & Local authorities It is necessary for a municipality to make provision, in its indigent policy, for child-headed households with regard to payment of rates and services	The financial implications are uncertain