The following organisations, and individuals, made submissions:

National House of Traditional Leaders

Commission on Gender Equality

SA Human Rights Commission

Thembisile Toyiya

Cllr Mngoma: OR Tambo District Municipality

Girl’s Net Alfred Nzo Club

Molo Songololo

Johannesburg Child Welfare Society

UWC Community Law Centre

National Organisation Of Circumcision Information Resource Centres

Child Welfare SA

Centre for the Study of Violence and Reconciliation

Vivienne Spiro

Bryant Greenbaum

UCT Law clinic

Submitted by UCT Law Clinic

Foreign children are regularly denied access to children’s courts and the protection system in South Africa. There is a need for the Children’s Bill to recognise and state expressly that foreign children in South Africa are entitled to equal protection and care within the child protection system. There is also a need for the Bill to give the definition of an ‘unaccompanied foreign child’.

The Bill defines a child as "a child under the age of 18 years". To ensure that the Bill is interpreted to include foreign children within its scope, UCT Law Clinic recommends that the definition be changed as follows:

"Child" means "any child under the age of 18 years, regardless of nationality".

In addition, they recommend that the following definition should be inserted:

UCT Law Clinic recommends that an additional sub-clause is added to the General Principles:

Arguments in support of clause 12 subsection 3 prohibiting female genital mutilation, and subsection 4 prohibiting virginity testing of children.

• Virginity testing without the informed consent of the child infringes the right to bodily integrity which is protected in section 12 of the Constitution and the right to privacy outlined in section 14 of the Constitution.
• Disclosing the virginity status of the girl child without her informed consent is an infringement of her right to privacy.
• The claim that virginity testing is part of a culture is still a contested issue.
• The results of the test are inconclusive and unreliable as the hymen can break through means other than penetration.
• The practice of virginity testing is seen in some societies as a method to reduce the spread of HIV/AIDS. The CGE is of the opinion that there are other less restrictive means to address the HIV/AIDS pandemic, such as educating, and empowering children to make informed choices with regard to their sexuality.
• The practice infringes the dignity of the girl child and gender discrimination is rife in this practice given that it predominantly applies to girls only. The right to dignity and the right to equality are protected by section 10 and section 9 of the Constitution respectively.
• The practice has inherent dangers as it exposes girls to rape and other forms of abuse. Virgins have also become a commodity in child-trafficking.
• The practice increased the vulnerability of the girl-child and further victimizes the girl-child victim of sexual offences. Virginity testing exposes victims of sexual crimes, and on the other hand, the marking of virgins does not afford protection to girl children against sexual crimes. Victims of sexual offences are known to suffer abandonment, rejection and violence, on disclosing their identity. The practice of virginity testing will in all likelihood further victimise the girl child victims of sexual offences, who are themselves already suffering from the consequences and trauma of offence.
• The Commission supports the Bill outlawing female genital mutilation as a cultural practice, since there is no medical support for this practice.
• The CGE recognise the importance of the rights of individuals to practise their culture, but emphasise that this should be in accordance with the Constitution.

The Commission had some concerns with the current form of the Bill including the fact that the Bill did not provide for confidentiality as far as the results of the test is concerns. This relates to the fact that the girls are marked to signal whether they have passed or failed the test. Furthermore, the Commission recognizes the importance of protecting the cultural rights of individuals but stresses that such practices should be done in accordance with the Constitution.

Submitted by South African Human Rights Commission

General: support for clause 12 and prohibiting virginity testing of children

Virginity testing compromises and potentially violates the girl-child’s right to equality, dignity, privacy and freedom and security. The Commission is of the view that the prohibition of virginity testing in the Children’s Bill constitutes a justifiable limitation of the cultural rights of the adherents of this practice. Such limitation is, according to the Commission, reasonable and justifiable in the context of our Constitutional values and provisions and South Africa’s international human rights law obligations. The physical examination of girl-children that constitutes virginity testing can not hold up to constitutional scrutiny.

There is much that is common cause between those who support and those who oppose the practice of virginity testing. What is at issue is the methodology that has been adopted to achieve these social ends. If we can agree on what these social values are we can begin to achieve in different ways that which is common. It is of concern to the Commission that the battle lines on this cultural issue have been drawn so starkly between those who favour and those who oppose virginity testing. Yet there is much in common between the opposing sides. The challenge is how we bridge this divide. This is a far broader challenge. We live in a diverse society. There are many instances in which cultural practices are contested. Virginity testing cannot be dealt with in a vacuum. We need to approach this cultural practice and resolve the issue in a manner that will set precedents for the future as to how we resolve our cultural differences in constructive manners that give regard to our constitutional values.

• The practice highlights the sexuality of girl children in the form of their virginity and is silent on the sexuality of boy-children.
• Communities have to promote social values through cultures which are in line with the Constitution.
• Extending the practice to boys will not address the deep-seated sexism against women and girl-children by men.
• Virginity testing violates the right to equality because only girls are tested, it violates the right to dignity because of the process of the examination and its invasive nature, it violates the right to freedom and security of the person because it invades the private body of the girl child and cannot be said to be voluntary given the subtle coercion many of the girls are subjected to by their families and communities and since the results are made public HIV positive rapists who think they can be cured by having sex with virgins may target these girls. Virginity testing violates the right to privacy because those who do not wish to participate may feel ostracized or may be stigmatized by their community as not being virgins and this violates the girl child’s right to sexual privacy concerning their bodies. Virginity testing may constitute maltreatment or abuse, it is degrading and not in the best interest of the child.
• The state has an international obligation in terms of treaties which it has ratified to eradicate unconstitutional social and cultural practices.

The Commission states that virginity testing should not be dealt with in a vacuum and should be approached in a manner that sets a precedent on how to deal with and resolve cultural differences in a manner that gives regard to constitutional values.

The Commission made the following recommendations

• Promote the positive objectives of the virginity testing practice, through other means
• Government together with society must do more to support children developing positive approaches to sexuality
• Since the rights involved in determining the constitutionality of virginity testing are not limited to children, virginity testing on adults must also be evaluated.

• He respects cultural practices and has himself exercised his culture in various stages of his life.
• The practice of virginity testing is degrading and dehumanizes women and the girl child.
• Virginity testing violates the right to freedom and security of the person as well as the right to privacy and is discriminatory.
• Girls below the age of 16 should not participate in virginity testing ceremonies because they are too young to give their informed consent to participate.
• Virginity testing exposes the girl-child to dangers.
• Harmful cultural practices must be changed as culture is not static and evolves in time.
• Government has to make decisions which will contribute to human dignity, development; nation building and good health even if the majority is against it. (e.g. outlawing the death penalty.)
• There is no less infringing way to carry out virginity testing and therefore it should be banned.
• Virginity testing does more harm than good
• Stakeholders must be consulted on the reasons for banning virginity testing and not whether it should be banned at all.

Submitted by Cllr Mngoma: OR Tambo District Municipality

Presentation by child, 17 years of age, submitted that many young girls are rushing into sexual activity causing an increase in the incidence of teenage pregnancy, and HIV infections. She strongly emphasised the need to return to culture, to protect young girls such as herself. Spoke with great pride about her cultural dress.

Many girls are lied to for sex and offered inducements such as clothing. Children are being educated that sleeping with a virgin will not cure AIDS. The speaker noted that many girls want to use virginity testing, the group of girls involved numbers about 11000.

She believes that many girls are falling pregnant because of the child support grant and that we need to return to the process of moral regeneration. She noted that many children are already infected with HIV/AIDS, and argued that virginity testing and cultural practices stop girls having sex.

Submitted by Molo Songololo

We respect the cultural practices of virginity testing although we are concerned that this cultural practice condones the violation of a child’s constitutional right to privacy, as well as puts young women in danger due to the sometimes unhygienic conditions of the practice. We feel that virginity testing is a practice that is most beneficial to parents and exposes the child to exploitation and discrimination, and in this way disempowers young women.

Virginity testing without consent must be made illegal. It is very important that virginity testing be made a choice because a young women’s body belongs only to her and it is her decision as to what happens to it. As it stands, mandatory virginity testing is a severe violation of a child’s right to privacy. Virginity testing must be done in a private setting and the results should be revealed only to the girl. The stigma attached to young women who have premarital sex is something that could result in social harassment and prejudice. Not to mention, that it is unfair to have girls face social implications and discriminations for not being a virgin while boys are completely free from this ridicule and prejudice. The physical health of these children is also a major concern for us. Virginity testing should be conducted under nothing less than sterile medical conditions in a clean environment by a trained professional in order to ensure the health and safety of the young women who participate. Finally, penalties must be created to enforce these rights by punishing violators of these aforementioned standards. This is so that these rules will be taken seriously and the women can slowly gain respect.

Ritualistic Circumcision should be prohibited for children. At the age of 18 in accordance with many other laws we believe that boys will be of sound mind to make an informed decision as to whether or not they want to participate in the ceremony. Keeping in mind that these ceremonies should be performed by sufficiently experienced and competently trained individuals. Medical circumcisions that are performed in hospitals are acceptable for children under the age of 18.

Submitted by National Organisation Of Circumcision Information

NOCIRC aims to protect all children from forced genital mutilation and circumcision. Male and intersex children should be afforded the same protection as female children. When male children are circumcised at birth, or genital modifications are performed on intersex children without their informed consent, their human rights are violated. There is no medical justification for routine circumcision.

To remove gender bias and protect all children from any form of genital tampering, the word female should be deleted from sub section 3:

(3) Genital mutilation or circumcision of [female] children is prohibited

and subsection 5 should be removed completely.

NOCIRC strongly supports section 6(a) and should circumcision of male children be permitted, NOCIRC strongly supports section 6(b).

There should be greater education on the issue of circumcision, firm national guidelines, after consultation with the Department of Health. There should be a national circumcision register –to assist in the charting of the practice, and allowing for legal recourse to have some factual base if a child wishes to contest his circumcision.

Submitted by Girl’s Net Alfred NZO Club

The Girl’s Net Alfred NZO Club wants to stop forced marriages of young girls, a practice which exposes them to sexual and physical abuse, and prevents them from completing their education. In particular they believe that the Children's Bill should:

• End forced marriages that disrespect girls and violate their rights as human beings.
• Criminalize people, who force children into marriage or engagement without their consent, especially when this is for financial gain with the exchange of money in a form of "LOBOLA".
• Establish education programmes to raise awareness to inform girl children of their rights and parents’ responsibilities to protect them under the law.

The following paragraph should be added to clause 12(6) to criminalize forced marriages:

See also recommended change to Clause 305.

Submitted by UCT Law Clinic

Children’s Court must play a role in ensuring access to justice for foreign children, which includes:

- Determining the child’s legal status

Submitted by Community Law Centre – Children’s Rights Project

The children’s court will not be able to order legal representation for the child, as per the present Child Care Act, clause 55 is therefore a step back in the provision of legal representation. Section 3B of the Legal Aid Act refers to criminal proceedings, children’s court proceedings are not the same and therefore the guidelines in the Legal Aid Act cannot be applied. Furthermore, the Legal Aid Board has no insight into whether it is in the best interest of the child in any given case to receive legal aid. Children who appear in children’s courts are extremely vulnerable, they have been placed at risk by their parent or caregiver and therefore should receive legal representation at state expense if substantial injustice would result, irrespective of the requirements set out by the Legal Aid Guide. Legal Aid is only provided to those applicants that are indigent and comply with the requirements of the means test (in addition to other requirements). Section 28(1)(h) of the Constitution did not envisage that a child be excluded from obtaining legal representation at state expense because the child’s parents were able to afford legal representation.

The need for defining substantial injustice was the direct cause of the 1996 amendments to the Child Care Act and Regulations that provided for legal representation in the children’s courts. Removal of these guidelines will lead to inconsistent application of the law and a less credible welfare court system for children.

1. Children’s Courts be given the power to order legal representation at state expense for children and not have to refer the matter to the Legal Aid Board for a decision.
2. Section 55 be re-examined and re-drafted to its previous form as contained in the SALRC version or the 19 June 2003 version of the Children’s Bill, which provides guidance on what could potentially constitute a substantial injustice.

Submitted by CSVR and Childline SA

1. The National Child Protection Register should be expanded to include some of the provisions of the Sex Offender Register rather than creating a separate offender register.
2. Persons other than sexual offenders who commit offences and various forms of abuse, including physical and emotional assaults, on children should be included on the register.
3. SAPS already maintains a register of all convicted persons for all crimes legislators should explore the possibility of expanding the purpose and function of this register.
4. Only registering sexual offenders is very limiting - some sexual offenders may, for example, be offered the opportunity to plead guilty to a charge that may not reflect on an exclusively sexual offenders’ register in order to protect a vulnerable child from giving evidence in court and yet bring the offender into the Correctional Services System.
5. There should be a process for temporary registration pending the outcome of an appeal/review.
6. The register should include offenders who accept a diversion agreement/contract as an alternative to a trial process.
7. It is also essential to have some provisions/regulations that deal with children who have committed offences against other children, with a process for ensuring that names are removed once the child has been assessed and if necessary, successfully completed a period of rehabilitation and offence-free behaviour.
8. Section 123 does not include persons who through their auxiliary work with children have access to information about children through computer records etc. Prohibiting direct access to children is not sufficient. One has to also protect children where an offender has indirect access to information about children.
9. With regard to the removal of a persons name from the register:

• The process should include consulting with a professional e.g. a judge in chambers;
• A Judge or Magistrate should be able to request a report, or consult with experts such as social workers and other professionals e.g. probation officers who have expertise in this area.
• It is essential that the provision states clearly that any expert consulted has the necessary training and experience in the assessment and management of sexual offenders.
• It is also recommended that if the Offender has participated in a rehabilitation programme, the professionals involved in the implementation of this programme be consulted, as well as an external assessor.
• Section 128 (4) should be extended to read "convicted of an offence with regards to any child more than once and/or more than one child ……may not be removed from the register."

1. It is recommended that known aliases used by the offender be added to the contents of the information on the Part B.
2. The court must explain the contents and implications of being on the register to the offender.
3. No police service personnel whose names are on the register should be allowed to investigate or manage reported cases of child abuse.

Submitted by National House of Traditional Leaders

The stipulation of the minimum age at which children have a right to take medical decisions including decisions on contraception and abortion is problematic.

Submitted by Molo Songololo

Support the children’s bill proposal that 12 years of age is adequate for a termination of pregnancy without parental consent; however, a child who is pregnant at the age of 12 would mostly likely have been exposed to sexual abuse or neglect. We believe that a child of such a young age who is in need of a termination of pregnancy requires more specialized care in order to handle their decision as well as help to sort out any other problems they may be facing, in particular the cause of the pregnancy.

After the termination of pregnancy counsellor has established the cause of pregnancy that the child must be assigned a social worker to address any issues faced by the child.

Submitted by Child Welfare South Africa

Child Welfare is concerned with the implications the newly amended clause150.(2) will have on the human and financial resources of the child protection services. The provision will lead to heavier caseloads, diluting the quality of care provided by social workers, and in delays in the Children’s Court. Although, this section will draw children into the child protection system who were not previously afforded this care, it requires a potentially counterproductive amount of paper work.

Section 150 (1), the definition of a child in need of care and protection be extended to include circumstances highlighted in Section 150. (2), such as those in child-headed households who may not be orphaned or without visible means of support, but may be caring for a dying parent.

Child Welfare recommends that for this section to be effectively realised, more human and financial resources must be deployed.

Section 150 (2) needs to be seriously reviewed in light of the present capacity of our social service delivery system. This does not mean that these special categories of children, especially child headed households should be ignored but that resources, procedures and processes should be put in place to support them without the need for court intervention.

Submitted by UCT Law Clinic

UCT Law Clinic submits that unaccompanied foreign children should be classified as children in need of care and protection. During redrafting of the Children’s Bill these children were classified as children who may be in need of care and protection under section 150(2), prompting an investigation by a designated social worker before these children are brought before the Court. This investigation may take up to 90 days, which is in conflict with the provisions of the Refugees Act of 1998 that directs authorities to bring children with a potential claim to refugee status before the court forthwith. They contend that the Courts are best placed to serve as the initial point of entry to the child protection system, as social workers are unable to resolve queries about their residential status.

That the following subsection be added to section 150 of the Bill:

(1) A child is in need of care and protection if, the child –

(j) is an unaccompanied foreign child

Any child who appears to qualify for refugee status must forthwith be brought before the Children’s Court for the district in which he or she was found.

Concerning the removal of unaccompanied foreign children, UCT Law Clinic recommends clarification of what is meant by ‘readily traceable’ in section 152. (2)(a) and 152. (3)(a).

Submitted by Child Welfare South Africa

Section 155. (4)(a). At present, a social worker after completing an investigation who does not find that the child needs to be brought before the Children’s Court must complete a report indicating the reasons for the finding and submit the report to the Children’s Court for review. Child Welfare points out that the Children’s Court is not a monitoring body.

These reports should be submitted to the Provincial Department of Social Development. These departments are monitoring bodies and would alleviate the strain on the Children’s court, as well as be able to compile databases to ensure monitoring and tracking of children within the system.

Submitted by UCT Law Clinic

If reunification with the parents or family is not possible or not in the best interests of the child the children’s court inquiry can establish whether there is an appropriate child care or other facility in the child’s country of origin to where he or she should be returned to. It should thus oversee the repatriation process to ensure that it is sensitive towards the rights and needs of the returnee child.

Should the child have no family members in South Africa or in his country of origin and if there is no appropriate child care or other facility in the child’s country of origin the child should remain in social development’s care at all times. The court should be able to refer the case to the Department of Home Affairs for an exemption application in terms of the Immigration Act, especially in cases where the child’s application for refugee status has been finally rejected.

UCT Law Clinic recommends that the Children’s Bill set out basic criteria in order to guide the Court in determining whether it is in the best interest of the child to be returned to their country of origin.

Such a determination should inter alia take into account the:

- Safety, security and conditions, including socio-economic conditions awaiting the child upon return;

- Availability of care arrangements;

- Views of the child expressed in exercise of his or her right to participation and of caretakers; and

- Child’s level of integration in the host country and the duration of absence from the home country.

Submitted by Bryant Greenbaum

Child victims of violent crime, neglect or abuse require monetary compensation to assist with their rehabilitation. The contribution provisions in Chapter 10, sections 161 and 166, are of paramount importance as they can provide financial assistance to children who are abused or neglected, without the need for recourse to criminal proceedings or criminal investigations.

A clause should be added to section 161, namely:

The Committee should also consider:

Requiring continuing education for magistrates and public prosecutors on the use of contribution orders and their suitability in conjunction with the "emergency monetary relief" provisions of the Domestic Violence Act.

Requiring that all funds in the Criminal Asset Recovery Account (Chapter 7 of the Prevention of Organized Crime Act) that derive from or were purchased with proceeds of criminal activities, that result in or contribute to the sexual exploitation or abuse of a child, should be available to compensate individual child victims of abuse and neglect for their special and general damages.

Requiring that guardians and child complainants be notified, in writing, that they can make submissions for contribution orders to the Children's Courts, and submissions for monies from the Criminal Asset Recovery Account to the National Prosecuting Authority.

Submitted by Johannesburg Child Welfare Society

The new formulation, introduced as an amendment by the Portfolio Committee on Social Development, provides that a parent who is a minor must be assisted by his or her guardian in giving consent to adoption. This is a very substantial departure from the present situation. It is inconsistent with the right afforded to the mother by the current Child Care Act, and by other legislation to make key decisions involving her life, health and integrity on her own. It would also have negative impacts in the forms of increased service costs and placement delays, leading to extended periods in institutional care, which can be very damaging to infants.

At present it is accepted that even if such a mother is below the age of majority, this is such a crucial, life-changing matter for her child and herself that the decision must be solely her prerogative. Where a father who is a minor is in a position where his consent would also be at issue, the same consideration would apply, although in practice this is not at present a common situation.

It is clearly advantageous for the guardians to be drawn in when adoption is under consideration; but to make their involvement mandatory would cause grave problems for young parents who do not have the benefit of healthy relationships with parents or guardians. Examples would be:

• Where the guardian is deceased or missing.
• Where the mother has left home, and is fending for herself.
• Where a guardian is exercising undue duress
• Where the mother has left home, possibly due to abuse, she may specifically request that her family not be informed of the pregnancy.

It is recommended that the mandatory requirement for the assistance of the parent or guardian be removed so that the provision reads:

233. (1) A child may be adopted only if consent for the adoption has been given by—

(a) each parent of the child, regardless of whether or not he or she is a minor or a married person, and whether or not he or she is assisted by his or her parent, guardian or spouse.

Submitted by Vivienne Spiro

At present there are 15 surrogacy clinics in South Africa. There is no special tracking of these children and there are no statistics available on these children. It is recommended that surrogate motherhood and the children from these arrangements be tracked to avoid the abuse and neglect of these children and their mothers – or even of the surrogate parents.

There could be links to trafficking of human beings generally. The request to Parliament is to make provision in the Children’s Bill in order to deal with these issues. It is also recommended that a subcommittee be appointed to monitor these clinics.

Submitted by Girl’s Net Alfred NZO Club

The Girl’s Net Alfred NZO Club recommends criminalizing forced marriages and forced engagements.

In combination with their recommendation concerning an amendment to Section 12 (6) to criminalise forced marriages, they recommend that clause 305. (1) dealing with offences be amended to read:

(1) A person is guilty of an offence if that person—

(a) commits an act in contravention of the prohibition set out in section 12 (2), (3), (4) or (6);

(6) Subject to subsection (8), a person convicted of an offence in terms of subsection (1), (2), (3), (4) or (5) is liable to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment.

(Supported by the Gender Advocacy Programme)

University of Cape Town