The Portfolio Committee on Social Development held a two-day workshop on 12 and 13 April 2005 in order to seek clarity on certain policy issues related to the Children’s Bill [B70 – 2003 (Reintroduced)]. The workshop was held at the Cape Town International Convention Centre, and was attended by Members of Parliament, representatives of civil society organisations, child protection practitioners, academics, legal advisors and officials from the Department of Social Development.

The presentation noted that it was important to ensure that the Bill provides the necessary legal framework for the realisation of South Africa’s obligations to children. It noted that not all of the children’s rights in the Constitution are relevant to the Children’s Bill, and argued that it would be important to list the right that the Bill is trying to give effect to. This could be captured in the objects clause, which will ensure that the substantive provisions in the Bill flow from the statement of rights. It could also help identifying roles and responsibilities on the side of the state and other service providers, as well as clarify whether a service should be compulsory or discretionary (the Minister must/the Minister may).

The presentation listed the rights that the Children’s Working Group believes are directly relevant in the Bill. They include the right to:

• family or parental care, or appropriate alternative care
• social services
• protection against maltreatment, neglect, abuse or degradation
• freedom from all forms of violence
• protection against exploitative labour practices
• have a legal representative appointed at state expense in civil proceedings where appropriate
• basic education (insofar as this right relates to early childhood development programmes)

In addition, the Bill should also address the constitutional imperative that the best interests of the child are paramount in every matter concerning the child. It was also argued that the Bill could indicate that it was aimed at partially realising a right, as there are a number of other vehicles for realising children’s rights, such as policy documents, programmes and administrative action. The Children’s Bill Working Group argued that the enumeration of rights should be followed by a clarification of what the child is entitled to, who must take responsibility for fulfilling the right, and what the nature and extent of the obligation on the State is in this regard. It should further follow that the substantive provisions that follow in the Bill are based on the constitutional rights listed earlier.

In conclusion, the presentation noted that Parliament was bound by the Constitution recognising children’s rights in legislation, and to hold the Executive accountable for the implementation of the law. The Children’s Bill should create the obligation on the Executive to recognise children’s rights and to implement programmes and services that will realise these rights, even if the law can only be implemented in phases because of a lack of resources.

Members noted that certain aspects of the chapter dealing with children’s rights had not been covered in the presentation, and asked how clauses 3 and 4, for example, should be dealt with. It was also pointed out that the Committee wanted to establish a framework for the interpretation of the rights mentioned. In response, the presenter argued that the rights listed in the South African Law Reform Commission (SALRC) version of the Bill included rights that do not really fall within the ambit of the Children’s Bill. While it would be best to retain a children’s rights chapter in some form, the inclusion of the relevant rights in the long title and the preamble of the Bill would go a long way to resolving the issue.

The presentation noted that an understanding of the need for a children’s rights chapter could start "from the bottom up", which would clarify the need for the Bill to include a mechanism for intersectoral cooperation.

Members noted that the question of how Government envisaged interaction across the three levels of government and between departments, was being addressed by the Intergovernmental Relations Bill, and that this Bill could possibly have a bearing on how the Children’s Bill would be implemented. Chapters 1 to 3 of the Bill should provide the tools with which to drive its implementation, and are structured in accordance with how the SALRC conceptualised it. However, it would be better to follow the route suggested by the CBWG in that the Bill focuses on realising particular children’s rights, and to state these rights in the "objectives" clause. This would mean that the largest part of chapter 3 could be omitted.

In relation to whether the Bill should provide for an intersectoral committee, it was argued that Cabinet had clearly rejected this concept for the Children’s Bill. The Office on the Rights of the Child had not responded satisfactorily on the question of what responsibility they could take to ensure intersectoral collaboration. Members expressed their doubt about whether an intersectoral committee provided for in the Bill would be the appropriate vehicle for the purpose of implementing the legislation. A participant noted that the draft intergovernmental relations Bill would speak to the relationship between the three teirs of government, and not to the relationships between government departments. It was further argued that Cabinet had not necessarily rejected the concept of an intersectoral committee being provided for in legislation, as the Child Justice Bill provides for such a mechanism. Finally, it was proposed that this mechanism be considered for inclusion in the Regulations to the Children’s Bill, and that the Committee be empowered to create the policy framework that had been envisaged with the National Policy Framework in the draft SALRC Bill. However, the question was raised whether policymaking was not the exclusive prerogative of the Executive.

The presentation set out the functions of the Master of the High Court in relation to children, noting that it generally involved protecting the rights and interests of minor children that are the heirs or creditors in deceased estates. This includes appointing tutors or curators to handle the minor’s affairs, holding funds on behalf of a minor or handling claims for maintenance against a deceased estate. It was further noted that the Master’s handling of matters where the interests of a minor are concerned with great diligence and in strict adherence to regulations.

In relation to the phenomenon of "property grabbing", it was noted that this happens generally not because children’s property is not protected by law, but because people generally, and children in particular, are not aware of their rights. The Master’s Branch is currently consulting with the Department of Education on the possibility of including the relevant information in the life skills curriculum.

The presentation further pointed out that the Master’s Office would under no circumstances, appoint a child to administer a deceased estate, as the requirement in this regard is that the person appointed must be 21 and have legal capacity. It is only in the case of a minor that has been emancipated, or when the age of majority is lowered to 18, that this will change. However, the growing number of orphans in South Africa results in the Master’s Office regularly receiving requests for the appointment of a guardian over minors, not so much in order to administer children’s estates, but to act in the various other capacities for which the consent of a parent or guardian is normally required. The appointment of a tutor is not always the appropriate response, as it might not serve the purpose for which the request was lodged, and High Court applications for the awarding of guardianship is a lengthy and cumbersome process.

In discussions between the Master’s Office, Social Services, Family Advocates and the Registrar of the High Court, it emerged that the most feasible solution would be for caregivers to apply to be appointed as foster parents. This could also entitle the family to State support in the form of the foster care grant.

During the discussion, Members asked what the opinion of the Master’s Office would be with regard to the proposal to award child-headed households full legal capacity. In addition, the question of the role of the Master’s office in cases where minor children inherit property was raised. Members also wanted to know whether, in light of the fact that services from the Master’s office are being made available at certain magistrates’ courts, the Master would also deal with questions of guardianship.

In response, the presenter said that where there are no parents, the Master’s office must identify persons to take charge of the property, for example, at a meeting of family members. In such cases, a tutor could be appointed, but the options are limited by the relevant legislation. Where a minor has been left with property, the Master must appoint someone to act as tutor or caretaker. Tutors have limited responsibilities, although there have been instances where tutors have been allowed wider functions. When the sale or transfer of the fixed property is at stake, any proceeds from such a transaction will be transferred to the Master’s Trust. The person in whose care the child is placed by the Department of Social Development is often the person to whom money will eventually be transferred. However, there are no clear guarantees that the money will be used for the benefit of the child.

In relation to customary law, the presenter noted that there are some issues around adoption that are proving to be a challenge. In terms of current law and the Children’s Bill, only court-approved adoptions are valid; however, the Bill does not address the de facto situation with regard to customary adoptions.

Members raised the issue of whether magistrates’ courts would be able to deal with issues of deceased estates, given the fact that until the Moseneke case, the estates of black persons were as a matter of law dealt with by magistrates. In response, the presenter said that there are serious capacity limitations with regard to magistrates, and only estates with a value of less than R50 000 are currently devolved to staff at magistrates court level. It was also pointed out that the "service points" referred to are currently in a pilot phase, and it is not thought to be feasible at this point to devolve the responsibility of appointing tutors and taking charge of children’s property rights to this level of office.

Further discussion on the matter made it clear that the difference between parental rights and responsibilities and guardianship must be explored further. These questions must also be raised within the context of possible conflicts between, for example, communal land ownership and the statutes that guarantee property rights in an individual capacity, the role of tribal authorities in implementing laws regarding children, and the question whether the children are protected. A further question of whether the law should allow for automatic rights and responsibilities on the basis of blood, and whether these rights and responsibilities should be awarded on the basis of merit, irrespective of blood relationships. Once more, the questions relate to how the new law will affect the customary practice where people take care of children without undergoing formal processes in the courts, and to the measures available to protect children should disputes arise between different family members. Informal kinship arrangements are being made every day, and the question is whether these must all be formalised, given the difficulties people in rural areas have in accessing courts.

Members noted that the issues around parental rights and responsibilities introduce new dynamics into the common law as it relates, for example, to custody. Clause 45(1) provides that the magistrates’ court could deal with issues of custody, which raises the question whether the Bill aims to amend the common law definition of custody. It was also pointed out that the Recognition of Customary Marriages Act provides for a magistrates court to issue a certificate stating that a couple have been married. It could, therefore, be useful to explore whether such a mechanism could not be introduced for the purpose of facilitating customary adoptions or care situations.

The discussions on the manner in which guardianship is conceptualised suggested that the relationship between guardianship, parental rights and responsibilities and custody, and in what manner they should be dealt with, needed to be revisited. However, some members expressed a preference for awarding magistrates the authority to deal with guardianship. The Bill needed to clarify the different concepts, and ensure that there is harmony between the different practices and legal frameworks that relate to children.

The submission, focusing on the interests and rights of the girl child, noted that children’s rights are constitutionally guaranteed, including the child’s right to bodily integrity. It also noted that Section 28 of the Constitution provides that children should be free from violence, coercion, discrimination, intimidation and abuse. The submission further pointed out that Section 12 of the Constitution guarantees freedom and security of the person, which again includes the right to physical integrity, while Section 14 states that everyone has the right to privacy. Against this background, it was argued that virginity testing constitutes an infringement on the child’s constitutional rights. Virginity testing, whether with the child’s consent or not, is an invasion of privacy, while disclosing a child’s virginity status is a further invasion of privacy. In this respect, the submission argued that the Bill does not protect children adequately, as it does not provide for non-disclosure of the girl child’s virginity status to someone other than the child. The submission also questioned whether children ever participate in the practice freely and through informed consent, as it could be argued that parental coercion and social pressure under the guise of culture could play an important role in the process.

The next section of the submission explored the question of whether the limitations clause in the Constitution (Section 36) could be invoked to allow for the above-mentioned infringement on the child’s rights in a context where social demands could override the child’s right to privacy and bodily integrity. The submission argued that the justification of practising virginity testing in the name of "culture" is a contested issue, and that the results of the test can be unreliable, as the hymen can be ruptured without sexual penetration. In addition, with regards to using the practice as part of the fight against HIV and AIDS, it was argued that there should be less invasive means of addressing the pandemic, such as educating and empowering children to make informed choices with regard to their sexuality.

The Children’s Bill does not prohibit virginity testing, but provides that the child has the right to refuse testing. It was the view of the submission that the Bill does not adequately protect children.

With regard to gender equality, the submission held that Section 8 of The Promotion of Equality and Prevention of Unfair Discrimination Act (Act No. 4 of 2000) prohibits any practice, including traditional, customary or religious practice, which impairs the dignity of women, and undermines equality between women and men". These provisions must be seen in the context of practices that place a higher value on women who are virgins, while the woman who is not a virgin upon marriage, is vulnerable to abuse from her husband because of the lower esteem in which she is held. On this basis, it was argued that virginity testing impairs the dignity of the girl child, and exposes her to stigmatisation and abuse. It was also noted that while in some instances, boys are also subjected to virginity testing, the practice is far more prevalent in relation to girls, and therefore discriminates against the girl child on the basis of gender.

The CGE raised concern about a number of specific issues in clause 12 of the Children’s Bill:

• While the clause provides that a child may refuse to undergo a virginity test, the Bill does not require the child’s consent to be tested.

• No penalties are stipulated for non-compliance with unhygienic virginity testing.

• No procedure is prescribed in respect of the test.

• The Bill does not provide for confidentiality in respect of the results of a virginity test.

In conclusion, the submission noted that the CGE does not support virginity testing, and while every person has the right to practise their culture, this must be done in accordance with the Constitution.

The presenter was asked whether children would have the option of not being tested for virginity. In response, the presenter said that this would be the case, but that it would have to be accompanied with the appropriate information on the reason for doing a virginity test.

In the ensuing discussion, Members raised a number of questions relating to the manner in which the clause had been phrased. The first focused on whether there was a shared definition of what "harmful cultural practices" means, and whether the issue is that the Bill should protect children against practices that are harmful in a medical sense, in which case the formulation of the clause was perhaps inappropriate. In addition, consideration should be given to whether the practices must be prohibited below a certain age in order to allow children to participate meaningfully in decisions around virginity testing and circumcision. It was pointed out that the practice of virginity testing was not necessarily an effective deterrent against sexual activity among young girls, and that the labelling that was associated with the practice could stigmatise a girl in a community. At the same time, there has been evidence that being identified as a virgin could make a young girl vulnerable to being raped by men who believe that having sex with a virgin could cure them from HIV. The Committee should therefore also consider whether the Bill should address possible discrimination should a girl refuse to be tested, or should the test reveal that she was no longer a virgin.

One of the participants noted that the original wording proposed by the SALRC had been "potentially harmful practices" in order to make it clear that there was divergence of opinion on the matter. The earlier proposal also called for education programmes aimed at informing communities about the different debates on these cultural practices. In addition, the possibility was mentioned of removing the common law defence with regard to virginity testing, and that someone could be charged with indecent assault, should a girl be tested against her will.

Members of the Committee proposed that the entire clause be redrafted to remove the negative associations of "harmful cultural practices", and to ensure that there is clarity about what the Bill intends protecting children from.

The submission by SANCO noted that corporal punishment is rooted in the history of power-centred societies where some individuals retain power and control over others through coercion and force. Although a substantial amount of work has been done to develop methods that provide an alternative to "smacks and spanks", these have not been translated into training programmes aimed at instilling a different style of parenting. Child psychologists have also clearly shown the emotional damage that corporal punishment causes young people, and the paper argued that corporal punishment could be viewed as a precursor to intolerance and violence in society. Some of the after-effects of corporal punishment highlighted in the paper include repeating domestic and family violence, road rage and unstable emotional relationships as adults. The paper also warned that the immediate removal of corporal punishment could cause serious problems, as the family is already under tremendous pressure to cope with the changes in a society in transition. Unless parents are assisted adequately to apply alternative methods of disciplining children, they might feel that they are losing control of their families completely, and this may lead to complete disintegration of families.

Despite the caution mentioned, the presentation argued that there should be no corporal punishment of any kind, and that South Africans must find other, more effective ways of enforcing discipline. These new methods should be phased in through the promotion of a different lifestyle, rather than through a "dry legislative approach". In addition, the criminalisation of parents must be delayed until new methods have adequately been absorbed and internalised by society.

The presenter noted that, although corporal punishment has already been banned in the public sphere, there are many people who believe that it cannot be banned in the private sphere. RAPCAN argued that there are many clear links between corporal punishment and difficulties later in life. Given the fact that South Africans are trying to come to terms with the remnants of a violent past, and given the high levels of violence still prevalent in the country, children should be taught that violence is not an appropriate response to a difficult situation.

In relation to the argument that corporal punishment is sanctioned in the Bible, the presenter pointed out that many of the forms of chastisement proposed in the Bible have already been outlawed, such as cutting off the hand of someone who steals, or stoning to death someone who commits adultery. It was more important, according to the presenter, to explore what it is that corporal punishment teaches the child. It does not teach the child discipline, but rather that violence is an acceptable form of behaviour. Discipline should be a process and not an event. Therefore, corporal punishment should be banned with the clear realisation that discipline in the home is a difficult area, and that a radical change of attitude is required from all parents. Parents must be taught how to address discipline, and be provided with alternatives to beating their child.

Members said that there was not much disagreement on the principle that corporal punishment must be replaced with alternative forms of discipline, but noted that there would be questions around implementing education and parenting programmes to deal with issues of discipline. The presenter responded by saying that it is already a crime to assault one’s child, but that parents still have recourse to the common law defence of reasonable chastisement. Organisations are not calling for a flood of criminal charges against parents, but for the start of a process of changing attitudes. The starting point would be to recognise that violence against the child is not acceptable, and that it is an infringement on the child’s right not to be degraded.

The presenter argued that there is a difference between abuse and physical punishment that is appropriate. He called for legislators to refrain from being prescriptive to the point where parents are not able to decide for themselves how to raise their children. In the discussion that followed his remarks, participants noted that when one says it is in order to apply corporal punishment, one has to consider what is appropriate and when it becomes abusive.

The presentation focused on the difficulties experienced by medical personnel when dealing with children who have to make decisions concerning medical treatment such as termination of pregnancies or access to contraceptives. The presenter noted that children below 16 are not equipped to make informed decisions on their own. When asked about whether they are sexually active, children often reply in the negative, and indicate that they are not interested in contraceptives. However, the very same children often present at health facilities when they are pregnant or when they have contracted sexually transmitted infections. It was therefore argued that the provisions in the Bill regarding children’s right to make decisions about medical treatment and reproductive rights are inappropriate, and that children should always make such decisions under the guidance of their parents or guardians.

The presenter noted that the law had not kept pace with the HIV pandemic, and that a number of ethical dilemmas have already arisen with regard to rapid testing for HIV. The greater availability of HIV treatment has impacted on people’s willingness to come forward and seek treatment. Treatment has also reduced the stigma attached to HIV and AIDS, and the entire conceptualisation of the condition appears to be changing.

Dr Giddy argued that the scope of who may consent to HIV testing of children must be widened, and expressed support for the age limit of 12 as proposed in the Bill. However, one must also consider allowing informal caregivers to assist children in making the decision, and to give consent where the child is unable to do so himself/herself. However, the question that arose was what rights the child would have to refuse testing if he or she did not want to be tested.

The definition of "foster care" has important implications for social security, for example, the foster care grant. There is a need to make some state aid available to informal caregivers to alleviate the pressures from the foster care grant, as well as on children’s courts and social workers. In addition, there is no sign of any growth in child and family welfare service infrastructure to accommodate the huge increase in foster care placements, and there are regular complaints that services are being closed or curtailed because of lack of funding.

It has been noted that the country’s foster care system has become an "income maintenance system" for families offering kinship care who lack access to other forms of state aid. By allowing our foster care services to become predominantly a means of accessing income support, we are not only short-changing the poor families whom the system cannot absorb in the vast numbers who are presenting themselves, but are instead destroying all hope of ever responding properly to the children who are being referred due to rape, assault and every other form of active maltreatment.

There is a need to resolve whether the definition of "foster care" should maintain the existing status of a "foster parent" or whether it should include some aspects of guardianship. Limitations on the right of foster parents, especially where guardianship issues are concerned, often hamper their ability to carry out their parenting functions. Furthermore, there is a need to redefine custody, to expand it in order to insure that some aspects of guardianship fall within custody, for example, some responsibilities such as school placement can be dealt with by the custodian. Recognition should also be given to new forms of foster care, to allow for greater mutual support and increased flexibility of care arrangements

There is a need to re-conceptualise what kind of competencies to be given to non-governmental organisations (NGOs), social workers and how much power should be given to neighbours and other adults to support child-headed households. It was argued that foster care should not be used as a means to address the issue of child-headed households, but instead consider a whole range of programmes. A flexible approach is advocated, recognising that while some children in child-headed households will end up in foster care or residential care, other should remain in their homes. In order to give affect to the Bill, issues around financing of NGOs must also be sorted out, since statutory child protection services cannot be at the mercy of discretionary rules. In addition, the whole system of remuneration for social workers (also in the NGO sector) must be looked at seriously.

The presentation argued that there was a need to modernise large tracts of the law relating to children, i.e. reflecting the shift away from outdated concepts of parental power and absolute control over children to a legal framework that reflects their rights and responsibilities, as mandated by both the Convention of the Right of the Child and Section 28(1)(b) of the Constitution. In addition, there is a need to accommodate the diversity of family forms that are found in South Africa, ensuring that the traditional bias of the family is limited. The approach in chapter 4 is to focus on pathological problems, instead of the recognition that most biological parents want to do what is best for their children.

The principled position should be maintained that a child’s status connections (biological and legal) where parents are married to each other, both would have rights and responsibilities in respect of their biological children. There is a need to recognise the reality of social parenting and the functional connections that children may have with a variety of care-givers over the course of their childhood.

Allocating different aspects of parental responsibility to adults who are exercising different roles and functions towards individual children creates a future that is characterised by enhanced flexibility. The Bill does not provide equal rights for unmarried parents of children, and there is a need to re-examine the position of unmarried fathers. While clause 21 indicates that if the father takes care of the child for 12 months, he qualifies automatically for full parental responsibilities and rights, the Bill is not clear on how such an automatic process would work.

Members proposed that the word ‘custody’ should be replaced by ‘care of child’ and a list of what constitutes care should be provided. In addition, the word ‘access’, which suggests the rights of the parent, should be replaced by ‘contact’, which should allow children to have the right to decide on who they want to see, especially from puberty onwards. There was considerable debate about the need to unpack what rights and responsibilities to confer on children heading child-headed households, and this debate raised issues of the age of the child heading such a household. An argument was raised that the Bill may have to consider a cut-off age for children heading households, since recognition has to be given to the fact that below a certain level of maturity, children cannot cope with such complex issues. However, clause 32 already provides recognition of the de facto child-carers, including child-headed households. The Committee is faced with the challenge of what the legal response should be to the fact that children are already providing care of their younger siblings. It was suggested that a way to deal with the issue is certainly not to bring child-headed households into the children’s court, as this will add to the pressure already on courts. Instead, it was recommended that a flexible approach is needed to deal with child-headed households. Such initiatives may include a mentoring programme to protect children from financial exploitation, and provision may have to be made for more than one guardian to deal with different issues affecting child-headed households. It was further suggested that the Bill should make provision for a category of child in a child-headed household that requires special care.

There was some debate on the need for a partial foster-parent or different types of foster parents to allow access for child headed households to the foster grant. While the role of such a foster parent could be explored further in the section-76 part of the Bill, it was suggested that such a foster parent should act in consultation with the child heading a household. In response, a counter-argument stated that to give recognition to a person living outside the child-headed household as a foster parent would essentially undermine the concept of giving recognition to child-headed households. Instead, the Bill should contain provisions that empower child-headed households, while community services should be strengthened to support such households.

It was argued that the issue of unmarried fathers’ rights should be revisited, and it was suggested that if a father lived with the child for a period of 12 months after birth, the father should qualify for automatic responsibility. However, a counter-argument raised suggests that this issue of non-automatic rights of fathers has been tested in court, and it was found that the current practice is based on fair discrimination. One should also take into account the historical disadvantage of women, and the dominant view is that granting such automatic responsibility will further disadvantage women. The 12-month period provided for in the Bill raises questions of how will be implemented. Issues to consider include who will police this provision and whether it would be implemented on the basis of an affidavit. There is a need to look at the process for the screening of ‘supervisors’, as contemplated in clause 136.

The submission argued that the Bill was silent with regard to providing unequivocal protection against criminal and civil charges for anyone, whether or not included in the list of mandatory reporters, who reports an incident of child abuse in good faith. It is suggested that such informants be guaranteed confidentiality, irrespective of the provisions of the Promotion of Access to Information Act.

The vulnerability of a child to abuse will be influenced by factors including age, sex, rape and disability status, and a provision should be included in the Bill for such information to be recorded in part A of the Register.

Clause 105(c)(ii) of the Bill makes it mandatory that where a report of abuse is substantiated, children’s court proceedings must automatically be initiated, and this being the automatic duty of the relevant social worker in the employ of the Department of Social Development or the designated child protection organisation or clerk of the children’s court who receives the report. While it is recognised that the clerk of the court is relevant in this case, with regard to other potential recipients of the report it is considered undesirable. The opening of a court of enquiry would be counterproductive in the following cases:

• Cases of sexual abuse that occur outside the home environment and in which there is no need to place the child in any form of statutory care.
• Cases of abuse where a parent takes appropriate action to protect the child.
• Cases where early intervention can work without the children’s court being brought into the picture.

• Instead, it is suggested that the onus should be on the social worker or other responsible person to confirm that some form of action has been taken which can reasonably be expected to ensure the safety of the child. This may not involve court action, and defies the belief that a child is being done a favour by bringing him or her to court.

Clause 122(2) provides that an offender may not be entered on Section B of the Register until the time for noting an appeal or review has expired, or while he/she has an appeal pending. Given the low rate of conviction for such cases in this country, and the fact that it may take years for an appeal to be finalised, it is unacceptable that even someone found guilty beyond reasonable doubt by a court of law to have abused a child should be able to stay off this register and hence gain fresh employment in a child care setting, by virtue of having lodged an appeal, or simply being entitled to do so. Entry on the Register would in any case not be limited to cases in which guilt has been proven beyond reasonable doubt and since the Register will be highly confidential only children’s organisations will have access and it will be limited to screening of staff and volunteers. Therefore, clause 122(2) is entirely uncalled for, and would reduce the effectiveness of the Register. Instead, it is suggested that provision be made for ‘interim registration’ in which the pending appeal is noted, and which can be cancelled if this is subsequently indicated.

While clauses 123, 124 and 126 aim to ensure that prospective employees and volunteers in children’s services are excluded if their names appear on the Register, these clauses fail to include those employed in social worker services by the Department of Social Development. Clause 128(3) makes provision for a person to be considered ‘rehabilitated’ and his/her name removed after five years. However, on the basis of current knowledge, cases involving sexual abuse and severe assault should be excluded from this provision. Rehabilitation of sexual offenders against children has, as an essential component, a commitment by the offender to permanently remain away from situations in which opportunities for re-offending may arise.

The discussion suggested that there was a flaw in the Bill in the sense that Part-B of the Child Protection Register does not clarify in what instances and for what reasons a persons is to be included in the register, but instead puts the obligation on the courts. The question was raised whether the children’s court, as contemplated in clause 120, is the most appropriate route to take. It has to be taken into account that these courts are already overburdened. There is a need to ensure that there are legal forums within the Department of Education to make an assessment that a teacher should be included on the register, even when found guilty by an informal, non-legislative disciplinary forum at school level. An issue was raised about the convergence between the Register in the Sexual Offences Bill and the Register Part B of the Children’s Bill.

The presentation proposed that clause 11 be placed in the ‘principles’ chapter, thereby providing the foundation upon which all other chapters are based. In addition, the following amendment should be made to clause 11(1)(b) providing the child with special care and necessary support services.

In the context of harmful social and cultural practices to which certain children with disability are subjected, purportedly to exact a cure, it was proposed that the following be added:

• Clause 12 (6) Every child with a disability has the right not to be subjected to harmful social and cultural practices that attempt to "cure" them, but which are detrimental to their well-being, health or dignity. Such children must be allowed to receive adequate medical diagnosis and treatment.

Clause 13 does not specify information relating to a child’s disability. It was argued that a child should also have the right to access information regarding his/her health condition, which has resulted in disability. In addition, the issue was raised whether this information is available in a medium accessible to persons with a disability, such as, for example Braille for the visually impaired.

While clause 42(7) and clause 14 refer to access to courts for children, the submission expressed concern about the many barriers that there are for children with disability in getting access to courts. These would include aspects of communication (for children with hearing or speech impairments), information and the physical environment. It was, therefore, recommended that a clause be added to ensure that children with disability have the same opportunities as those accorded to other children, and that they are treated in a way that assures them respect and dignity. This should include the appropriate awareness and training programmes for court personnel.

It was recommended that the, now omitted, clause 70 of the draft Bill of the South African Law Reform Commission (SALRC) be re-introduced. It should also be mentioned that magistrates should have the ability to communicate effectively with children with disabilities.

It was recommended that the interpretation of specific rights and responsibilities of parents as contained in chapter 1 be amended as follow:

"parental responsibilities and rights" in relation to a child, means the responsibility and right-

1. to care for the child
2. to have and maintain contact with the child, including learning of specific means of communication where necessary (such as Sign Language or Braille to communicate with a child with hearing or visual impairment)
3. to act as guardian for the child.

It was argued that children with disability remain among the most vulnerable groups of children on account of their physical dependency on carers and/ or barriers to communication that they experience. They are, therefore, more at risk of abuse and neglect. Research indicates that unless information is disaggregated, it is not possible to track either positive or negative trends. It was, therefore, recommended that that the following amendment is made:

The presenter argued that the assumption that programmes developed for the general population of children will automatically benefit children with disability is false, since disabled children do not have equal access to resources and opportunities, and special measures are necessary to ensure their full inclusion and participation. In addition, children with disability or chronic illness are among the categories of children in especially difficult circumstances and the Bill needs to contain specific strategies aimed at:

• Assisting children with disability to have access to social services (including ECD, education and health care);
• Empowering them to develop their self-reliance and potential;
• Empowering parents or care-givers of children with disability to support and nurture their children in the home environment and educating parents of care-givers of such children on matters affecting their children.

It was recommended that chapter 16 (children in Especially Difficult Circumstances) of the SALRC draft of the Children’s Bill be re-inserted.

A coordinating mechanism for ensuring intersectoral collaboration and implementation of the Children’s Bill should be explicitly provided for in the Bill. With regard to children with disability, it is essential that this mechanism:

• Is created in legislation to ensure that it has a clear mandate to co-ordinate services across departments, that it has representation from all relevant government departments, and that representatives are in decision- making positions;
• Includes parents of children with disability, and young people with disability, as well as NGOs and CBOs that are providing services for children with disability;
• Ensures sufficient provision by government for purchase of services by NGOs for children with disability;
• Ensures that service provision is coordinated and comprehensive, with each department or organisation recognised as part of a package of support services (including education, transport, housing, assistive device);
• Provides information and a resource list on services, which is easily available and accessible to children and their families;
• Ensures that local and traditional authorities assess, monitor and address the needs of children with disability;
• Establishes systems to monitor the extent to which children with disability are able to participate in activities and benefit from services.

Concern was raised about how the Bill defines ‘disability’. The challenge is to draft a definition that is broad enough to encompass all disabled children. It was recommended that the Bill should explicitly provide for a coordinating mechanism. Concern was raised about the inaccessibility of courts for disabled persons, for example, the lack of facilities or knowledge of who to contact to translate in Sign Language at courts. It was submitted that in child-headed households where the disabled child is the eldest child, it would be a challenge to determine what rights and responsibilities to confer on such a child.

It was agreed that while there are a number of gaps in legislation in the sense that it does not adequately address the needs of disabled people, such as the Education Act, the Children’s Bill cannot, necessarily, amend all shortcomings in other laws. However, it was suggested that the Bill should include a provision that expressly provides for the synergic implementation of different laws that affect disabled children. It was suggested that in the area of the principles and objects of the Bill, attention could be given to the needs of particular vulnerabilities.

It was proposed that reference to the constitution be placed in the Preamble, Long title and the Objectives / Rights chapter in the Bill (chapters 2 & 3). Support was also expressed for the idea that the Preamble makes reference to the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. The submission further supported a longer preamble that is firmly based within our constitutional dispensation and obligations.

Concern was raised about the language that is used in this section. The phrase ‘reasonable measures within available resources’ refers to the concept of progressive realisation of economic and social rights. The rights pertaining to children should not be subject to progressive realisation. In fact, certain subsections of section 28 are non-derogable in terms of the constitution (Sections 28(1)(d) and (e), 28(1)(g)(i) and (ii), 28(1)(i) and are thereby specifically excluded from progressive realisation. The effect of the current use of the phrase ‘reasonable measures within available resources’ in clause 4(2) may introduce into the Bill a limitation on Section 28 that is not in the Constitution. Therefore, such a limitation would be open to a constitutional challenge.

There are some inconsistencies in the Bill that need to be attended to:

• Clause 10 refers to children meaningfully participating in decisions that affect them. Further on in the Bill, clause 31(1)(a) has a good formulation in order to determine the appropriate instances in which children should participate in matters. These two sections should be revisited and brought into synergy and conformity with each other.
• Clause 10 states that children can participate in any matter affecting them and goes on further to refer to proceedings. This language is on the one hand wide in reference to any matter yet on the other hand is qualified by reference to proceedings. This results in an inconsistency as proceedings limits the matters concerning a child where they ought to participate. Children’s participation in matters affecting them should not be limited to proceedings.
• Clause 12 provides protection to children from harmful cultural and social practices. The SAHRC would prefer a more positive language construction in this section. Such a construction ought to affirm a child’s positive right to participate in the social and cultural lives of their communities. Thereafter the protection feature from harmful and cultural practices should be included.
• The language in clause 14 is too wide. The word "any" should be qualified in relation to the child, the interests of the child and / or the welfare of the child.
• Clause 16 refers to the duties of children in general language. It is proposed that the drafters should look at section 31 of the African Charter, which gives content to the nature of the duties. The SAHRC is not in principle opposed to duties being placed in the Bill. However, these must not be couched in language in which the impression is created that they are a trade off against rights.

The presenter argued that the Children’s Bill should deal with the issue of disability. The submission supported the inclusion in the Bill of a positive affirmation of the principle of non-discrimination. This could be placed in the Preamble, Long Title and objectives/rights chapter of the Bill. There is no reason to not mention disability specifically in the Bill as one of the grounds of discrimination. It was proposed that the section that deals with the ‘best interests standard’ should include reference to non-discrimination on the grounds of disability. Clause 42(7), which deals with courts, could also make specific reference to making courts disability friendly. Clause 11 could also make reference to disability.

The Committee resolve to give attention to the technical aspects of the Bill, such as the inconsistencies in the use of language. It was agreed that the issue of children of non-nationals needed further unpacking, and that there is a need to determine which Department is ultimately responsible for these children. For example, the challenge remains on how to place unaccompanied minor children in foster care since the Department of Home Affairs will not provide a 13-digit identity document to such children. There was some concern about how the Bill defines ‘disability’, and it is suggested that the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 may assist in how the Bill defines disability.

An argument was raised in favour of strong affirmative action for disabled children and foreign minors, since they are from the most disadvantaged groups. It was recommended that the Bill should expressly provided for disabled children and unaccompanied foreign children. It was also noted that there is a need re-instate provisions dealing with foreign children, and such children should fall within the ambit of the children’s court. While recognising that foreign children should be dealt with by the children’s court, it does not necessarily imply special services to these children. A question was raised why clause 4, which deals with implementation of the proposed Act, makes to reference to non-state actors in implementing the Act. The principles on non-discrimination should form part of clause 5, and it should also be referred to in clauses 6 and 9. In this way the ‘best interest’ clause includes attention to the special needs of disabled children.

The submission raised concern that children’s court commissioners were not generally consulted during the drafting of the Bill. Support was expressed for clauses 47, 68 and 152, which place no obligation on the social worker to refer a matter to court, since it allows the social worker to use discretion. It was submitted that the section 75 part of the Bill would not be implementable without the re-inclusion of chapter 10 and 11.

The 24 hours provided for in clause 152(2)(b) to notify the provincial department of social development or designated child protection organisation, was regarded as being too short to be practically implementable. The presenter further argued that it was not necessary to report the matters identified in clause 105(1) to the clerk of the children’s court, and therefore referral to no need for reference to the clerk of the children’s court in clauses 105(1), 105(2), 105(3), 105 (5) and 105 (7). Finally, it was noted that there is a need to determine if there is sufficient clarity of instances where a child may be brought to the children’ court.

It was agreed that Ms Leppan would provide a more comprehensive submission on the Children’s Bill to the Committee.

Social workers are one of the key categories of personnel who will be required to implement the future Children’s Act, but should, however, not be regarded as the dominant category. While social workers have a critical role to play, they do share this role with arrange of other workers, but it does not imply that they should necessarily supervise other categories of workers. However, within formal child protection, social workers are key, and they tend to work closely with child auxiliary and youth workers. A core of skilled social workers is needed order to ensure the implementation of the Children’s Act.

Child and youth care workers are regarded as critical practitioners to fulfil the developmental needs of children and youth. These workers are in daily contact with children, and their work can be regarded as youth-focussed, relational, holistic, and contextual. While child and youth care workers have traditionally been seen within the context of residential care, their work are also expanding into community programmes.

At the end of the proceedings, it was felt that the Committee could not spend much more time debating policy issues, and that the next step would be for the Department’s legal drafters to provide the Committee with alternative drafts of those clauses that had been identified for further refinement. These drafts would be considered when the Committee next met after the recess.