BRIEFING TO SELECT COMMITTEE ON SOCIAL SERVICES ON THE CHILDREN’S BILL – 2 AUGUST 2005

  1. INTRODUCTION

    2. The lives of children are affected by various pieces of legislation and international conventions. Apart from section 28 of the Constitution, which deals with the rights of children specifically, some of the statutes pertaining to children currently on the statute book are the following:

    Over the past few years, it has become clear that existing legislation is not in keeping with the realities of current social problems and no longer protects children adequately. In addition thereto, the Republic of South Africa has acceded to various international conventions, such as the UN Protocol on the Rights of the Child and the African Charter on Children’s Rights, the principles of which have to be incorporated into local legislation.

    During 1997 the then Minister of Welfare, Ms G Fraser-Moleketi, requested the South African Law Reform Commission to investigate the Child Care Act, 1983 and to make recommendations to the Minister for the reform of this particular branch of the law. After an extensive process of research and consultation, the Law Reform Commission finalised its report and proposed a draft Children’s Bill in January 2003.

    The Department of Social Development then took the process further through close liaison with the national Departments of Justice and Constitutional Development, Education, Health, Labour, the South African Police Service, the provinces, national non-governmental organisations and service providers as well as the Office on the Rights of the Child in the Presidency. Consultative workshops were also held with the Portfolio Committee on Social Development.

    After these processes a further draft was prepared and submitted to Cabinet. At a meeting of Cabinet the Ministers of Social Development, Justice, Finance and Education discussed the draft Bill and proposed amendments to it. On 23 July 2003, after satisfactory consultations were conducted between the relevant Ministers, Cabinet approved that the Children’s Bill be submitted to Parliament for consideration during the 2003 session of Parliament. Cabinet also noted that the agreed upon amendments should be effected by the Department before the submission of the Bill to Parliament.

    After the necessary changes were made, the draft Bill was referred to the Office of the Chief State Law Adviser on 4 August 2003 for review and certification. The explanatory memorandum of the Bill was published in the Gazette of 13 August 2003 and arrangements were made for the translation of the Bill into Zulu. During October 2003 the State Law Adviser certified the Bill and submitted the Bill to Parliament.

    The Portfolio Committee was first briefed on the Bill in November 2003 but decided at the time to deal with the Bill only after the General Election of April 2004. The new Portfolio Committee was briefed on 4, 5 and 6 August 2004 and public hearings were held from 11 to 13 August 2004.

    From August 2004 up to June 2005 the Portfolio Committee held briefings with various relevant Departments to discuss their roles and responsibilities with regard to the implementation of the Children’s Bill.

    The Children’s Bill was approved by the National Assembly on 22 June 2005.

    1. LEGAL-TECHNICAL BACKGROUND OF THE BILL

      2. The current Bill contains part of the envisaged Children’s Act. The Bill which was initially submitted to Parliament ("the consolidated Bill") dealt with the full spectrum of protection of children in both national and provincial spheres and was to be dealt with in terms of section 76 of the Constitution (functional area of concurrent national and provincial legislative competence). It was later found to be a "mixed" Bill, including elements to be handled in terms of both section 75 (functional area of national legislative competence) and section 76 of the Constitution. Due to its mixed character, the Deputy Speaker of the National Assembly requested the Executive to split the consolidated Bill, which has now been done. The provisions of the consolidated Bill which will apply to the provincial government have been removed and, consequently, the current Bill only contains matters which have to be dealt with in terms of section 75 of the Constitution. The numbering of the consolidated Bill has, however, been retained, hence the gaps in the current Bill, indicated by "*****". As soon as the current Bill is enacted, an amendment Bill containing the matters which apply to the provincial government only ("the amendment Bill") will be introduced. The amendment Bill will have to be dealt with in terms of section 76 of the Constitution. The amendment Bill will complete the current Bill by inserting the provisions which deal with welfare services.

      The splitting of the Bill came as a surprise to us because in our view all the Welfare Bills in the past have been mixed. Even the Older Persons Bill which was approved by you earlier this year and which clearly contains section 75 and 76 provisions is not regarded as a mixed Bill.

      The splitting of the Bill has also caused confusion amongst lawyers, civil society and members of Parliament and has certainly delayed the finalisation of the Bill at times.

       

    2. AIM, PURPOSE AND OBJECTS OF BILL

      3. The aim and purpose of the Bill is to replace the Child Care Act, 1983 (Act No. 74 of 1983) and to deal with matters pertaining to children.

      The main objects of the proposed Children’s Bill (the current Bill) are:

        1. to make provision for the structure, the services and the means for promoting and monitoring the sound physical, intellectual, emotional and social development of children;

        2. to strengthen and develop community structures which can assist in providing care and protection for children;

        3. to protect children from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical , emotional or moral harm or hazards;

        4. to provide care and protection for children who are in need thereof;

        5. to give effect to the Republic’s obligations concerning the well-being of children in terms of the international instruments binding on the Republic; and

        6. in general, to promote the protection, development and well-being of children.

        Significant new proposals to address gaps in the present situation include specific provision for the participation of children in matters affecting them, an extension of the rights of unmarried fathers, provision for a High Court procedure to allow persons other than parents to gain rights with regard to children and the protection of children. The Bill proposes to lower the age of majority and provides for parental responsibilities and rights agreements. Provision is made for parenting plans in certain instances. A chapter to formally regulate surrogate motherhood is also introduced to give effect to an earlier parliamentary investigation into this issue.

        The current Bill has 15 chapters, which can be summarized as follows:

      1. Chapter 1 deals with the interpretation, objects, application and implementation of the Bill, while the general principles underlying the Bill and the best interest of the child standard is set out in Chapter 2. This Chapter also provides for children’s rights and deals with issues such as the paramountcy of the best interest of the child, child participation, social, cultural and religious practices, access to children’s court and the age of majority.

      2. Chapter 3 deals with all matters pertaining to parental responsibilities and rights, parental responsibilities and rights agreements and the assignment of parental responsibilities and rights by order of court. This chapter also provides for the rights of fathers, presumption of paternity, parenting plans and the rights of children conceived by artificial fertilization.

      3. The functioning, powers and jurisdiction of children’s courts, the conduct of proceedings before the children’s court and presiding officers and other court officials form the subject matter of Chapter 4 of the Bill.

      4. Chapters 5, 6, 7, 8, 11, 12, 13 and 14, respectively, will be in the Amendment Bill

      5. Chapters 7, 9 and 10, respectively, deal with the protection of children – more specifically the National Child Protection Register, the identification of children in need of care and protection and contribution orders.

      6. Chapters 15 and 16, respectively, provide for adoption and inter-country adoption and give effect to the Hague Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption.

      7. Chapter 17 gives effect to the Hague Convention on the Civil Aspects of International Child Abduction, while Chapter 18 similarly gives effect to the UN Protocol to Prevent Trafficking in Persons.

      8. Chapter 19 introduces new legislation into the South African legal system by formally providing for surrogate motherhood.

      9. Chapter 20 provides for the enforcement of the Bill through powers of inspection and the creation of offences.

      10. Chapters 21 and 22 of the Bill deal with general administrative issues and other miscellaneous matters such as regulations, delegations and assignments, outsourcing of services and transitional measures.

      11. AMENDMENT BILL

        12. The amendment Bill referred to in paragraph 2 will add to welfare service delivery and further protection of families and children. The amendment Bill will insert the following in the envisaged Act:

        • Chapters 5, 6, 7, 8, 11, 12, 13 and 14, respectively, deal with partial care, the definition of early childhood development and early childhood development services, the protection of children, prevention and early intervention services, children in alternative care, child and youth care centers, foster care and care by family members and shelters and drop-in centers.

        1. FINANCIAL IMPLICATIONS FOR STATE

        In terms of section 35 of the Public Finance Management Act 1 of 1999, all draft national legislation that assigns an additional function or power to, or imposes any other obligation on, a provincial government, must, in a memorandum that must be introduced in Parliament with that legislation, give a projection of the financial implications of that function, power or obligation to the province.

        It was therefore imperative that this draft Bill and the envisaged regulations be costed. Stakeholder expectations were raised while the reality is that Government cannot implement because of the large costs and resource requirements. This Bill will have a great impact on the budgets of other national departments and provincial departments. It would be prudent to have the costs detailed so that these organs of state could frame their discussions on the Bill within the constraints of their own budgets and their ability to implement.

        The Department has appointed a service provider to cost the Bill and it is envisaged that the costing will be finalised by April 2006.

        However, the Department has done an initial scoping exercise of the envisaged Act and identified the costing elements which may have inter-governmental fiscal and budgetary implications, which may include, amongst others:

          1. fiscal risks: provisions that create implicit or explicit obligations on government;

          2. administrative costs: additional processes, personnel, management practices and procedures, information and reporting etc;

          3. institutional arrangements: new committees, units, associations etc;

          4. transfer of functions currently performed by provinces to the national government; and

          5. delegation or assignment of functions to provinces and municipalities.

        1. CONSULTATION

          2. Apart from the broad consultation process followed by the South Africa Law Reform Commission during its review of the Child Care Act, 1983, the Department of Social Development also distributed the draft Children’s Bill to the provinces, national departments, non-governmental organizations and other service providers for comment. The explanatory summary of the Bill was also published for general comment in the Gazette of 13 August 2003.

          Public Hearings took place in August 2004 and Workshops with Stakeholders and other Government departments were held in December 2004 and March 2005.

        2. INTERSECTORAL STEERING COMMITTEE

          3. Due to the intersectoral nature of the Bill, a Steering Committee consisting of officials from the Departments of Social Development, Health, Justice, Education, Local Government, Safety and Security, Labour, Finance, Home Affairs and Correctional Services, the Office on the Rights of the Child in the Presidency and the South African Law Reform Commission was established during 2003 to –

              1. oversee all the processes in the finalisation of the Bill;

              2. manage the intersectoral costing of the Bill; and

              3. oversee the development of the regulations to be made. In this regard each department accepted the responsibility to develop regulations pertaining to the sections regarding its own line function.

        The Steering Committee meets regularly, especially with regard to the costing and future implementation of the Bill.

         

         

         

         

        c:Pierre.briefing to portfolio committee 2 august 2005