"child" means any person under the age of 18 irrespective of nationality.

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• For children to participate, in a child friendly manner, in all government initiatives and law making processes where child rights and protection is concerned.

• To strengthen and develop child and youth organizations which can assist in providing support and strategies for prevention.

6.(6) A child who is a refugee or seeking refugee status and a child who is an illegal foreign child, whether accompanied by an adult or not, has access to the services provided for in this Act.

Every child capable of participating meaningfully in any matter concerning that child has the right to participate in those proceedings in an appropriate way and views expressed by the child must be given due consideration, without dictation of discrimination.

No penalties are stipulated for non compliance with hygienic virginity testing;

No procedure is stipulated in respect of virginity testing;

Virginity Testing is an invasion of the Constitutional right to Privacy & Bodily integrity;

The Bill does not provide for confidentiality in respect of the results of the virginity testing;

We support Clause 12(3), which outlaws female genital mutilation, and female circumcision as a cultural practice. We feel that this is important and support the inclusion of this Clause in the Bill, especially since there has not been any medical support for this practice to date.

12(3)

Opposed to a clause which prohibit virginity testing/inspection/observation

Circumcision is not defined.

In this case female circumcision.

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

No procedure is stipulated in respect of virginity testing.

Does not provide for confidentiality in respect of the results of the virginity testing.

The practice of virginity testing without consent of the child, as a pre-requirement is an infringement of the rights of the child. Disclosing the results of the virginity testing, to someone else, is a more significant invasion.

It needs to be considered how powerful the justification for the infringement will be.

The justification is to the benefit of the culture, or an attempt to address the HIV/AIDS pandemic. Currently, the claim of virginity testing as a culture is still a contested issue.

The accuracy of the results is unreliable, as the hymen can be severed for reasons other than sexual penetration. The CGE is of the opinion that there are other less restrictive means to address the HIV/AIDS pandemic, such as educating, empowering children to make informed choices with regard to their sexuality.

In the new constitutional dispensation we need to strive to seek to give recognition to cultural practices within the constitutional parameters.

The promotion of good morals and a healthy approach to sexuality is in itself a good social value and one, which should be promoted.

The challenge is to promote these values in cultural ways, which are in line with our constitutional values.

The importance and the purpose of virginity testing is not always expressly stated. If the underlying purpose of the practice is to combat HIV/AIDS, promote good sexual morals and prevent teenage pregnancy it is questionable whether the practice achieves its purpose.

The Commission recognizes that proponents of the practice may be seeking to achieve positive social values through cultural practices. The social values include, responsible approaches to sexuality, combating HIV/AIDS, decreasing teenage pregnancies and educating teenagers about their bodies and their sexuality. These important social values cannot be ignored. The challenge to those who support virginity testing is to develop the cultural practice within the confines of the constitution.

What is at issue is the methodology that has been adopted to achieve these social ends.

We need to question what are we testing.

Are we testing for virginity or social values and norms?

What are the social values and norms that we wish to promote through virginity testing?

There is a need for adequate awareness on issues and meaningful studies and discussions that will ensure that indigenous cultural practices occupy a space within society.

Virginity testing degrades and dehumanize women and the girl child.

It is a discriminatory practice.

Undignified and the girls are humiliated in the process.

Strongly in favour of virginity testing.

A girl should have the right to abort the baby if she likes.

Legislation should protect children from being forced to go for virginity testing.

Government should not criticize virginity testing.

The following paragraph should be added to clause 12(6) to criminalize forced marriages: (c) A person who gives out a child in marriage or engagement against his or her will or a person who is obliged to protect a child against maltreatment, abuse or degradation and who allows that child to be given out in marriage or engagement against his or her will is guilty of an offence.

Offences

305.(1) A person is guilty of an offence if that person –

Children’s Bill should stop forced marriages of young girls, in particular.

• To end forced marriages that disrespect girls and violate their rights as human beings.

• To 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".

• To establish education programmes to raise awareness to inform girl children of their rights and parents responsibilities to protect them under the law.

Forced marriages are common in many remote rural areas, Girls forced into marriage often suffer and die a silent death, degrading their being and dampen their confidence. Their lives end when they get married, they are forced to have sex without their consent, they cannot go to school as they have to take care of everyone in the household and extended family. It is a disgrace for a virgin girl who has been taken as a wife, to go back home if she doesn’t want to be married. This to them, means they have no place as girls in their own Village if they come back because they have been forced to have sex while in the process of being made wives. Their own families refuse to take them back, often beating them up before returning them to the husband’s family.

The section should be amended to remove the gender bias and completely protect all children from any form of genital tampering. We recommend amending Point (3) and incorporating the following text in its place.

3. Genital mutilation or circumcision of children is prohibited and thereafter removing Point (5).

They are strongly apposed to circumcision or genital mutilation.

Male children and infants are seldom in a position to exercise their right to refuse a circumcision. The State thus has the responsibility to protect them from genital mutilation in the same way that female children are protected. Male genitalia deserve equal legal and constitutional status as female genitalia.

Male Circumcision should not be isolated from Female Circumcision or Intersex Genital Modifications. The right to bodily integrity is denied by removing healthy human tissue. Only a consenting adult over 18 years should have the right to surgically alter his/her body without medical justification.

Not withstanding the above, NOCIRC-SA strongly supports Point 6(a) and 6(b) affording children who have been circumcised against their will, the right to legal recourse against their circumcisors. We recommend that appropriate legislation be created to enable children the ability to exercise this right. We suggest that legal support be made available when presenting their case to the court at the time of assault, or three years after reaching age of majority, or within one year of discovery of harm or loss.

Should the Child’s Bill [B70B-2003] be enacted as currently drafted we recommend that firm national guidelines be formulated regarding continuing circumcision practices:

1. Traditional Circumcisions only be allowed after the age of 18 on a national basis with the informed, signed consent of the individual in question. In fact, the Eastern Cape Province Application of Health Standards in Traditional Circumcision Act (2001) already requires a minimum age of 18 for circumcision so there is ample precedent to require that the male have reached the age of majority. This law sets further standards for the safe practice of Traditional circumcision, which should be updated and applied nationally.
2. Circumcisions within Medical Institutions be regulated and stringent polices and updated education be introduced. Medical practitioners are afforded the right to refuse to perform non-medical procedures such as Religious circumcisions.
3. Further recommendations are instituted regarding the qualification of circumcisors and standards of health and hygiene.
4. A national register is created to record all circumcisions and the details of the person who performs the circumcision to afford the individual the opportunity of pursuing legal recourse should they, for whatever reason, chose to do so.

Right to discipline their children, but should not physically abuse them.

The responsibility to put the needs and emotional well-being, of the child first, in divorce or any other form of separation proceedings.

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Section 53: Who may approach the court.

Subsection (2)(a)

• A child who is regardless of age, gender, status, racial or religious background, and that child’s place in society, affected by the matter that is to be adjudicated.

Section 54: Legal Representation

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.

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.

Clause 55 has the effect that where a children’s court is of the opinion a child is in need of legal representation at state expense and that this is in the child’s best interests, the court cannot order legal representation for the child and can merely refer the matter to the Legal Aid Board which will make a decision as to whether the child is entitled to legal aid based on section 3B of the Legal Aid Act 22 of 1969.

Clause 55 is therefore a step back in the provision of legal representation for children in the children’s courts. In addition, it leaves the decision as to whether a child receives legal representation at state expense to the Legal Aid Board, which has no insight into whether it is in the best interest of the child in the particular case to receive legal aid, despite the contents of the Legal Aid Guide.

In addition, section 3B of the Legal Aid Act refers to criminal proceedings and although clause 55 states "read with the changes required by the context", it is submitted that the absence of proper and clear guidelines for presiding officers will hinder referrals of children where they need legal representation on account of the fact that section 3B(1)(a)(ii), which state "the nature and gravity of the charge on which the person is to be tried or of which he or she has been convicted, as the case may be" is not synonymous to proceedings in a children’s court type of matter and there are NO guidelines provided by B70 of 2003 as to when such a referral should be made as the Legal Aid Act is not one of the pieces of legislation repealed or amended by Schedule 4 of B70 of 2003.

It is submitted that even if it is decided to retain the referral to the Legal Aid Board instead of the court ordering legal representation, which is not preferable, guidelines still need to be provided for presiding officers as the guide given by the Legal Aid Act is not sufficient, and the best interests principle, even though given substance in section 7 of the Children’s Bill, does not cover all situations in relation to legal representation.

Section 57: Compulsory attendance of persons involved in proceedings.

• The parents, guardians or caregiver of that child and with whoever that child feels comfortable to testify.

Section 126(1)(c ) and 126 (2)( c) of the Children’s Bill provides that persons whose names are on the register may not work in the Child Protection Unit of the South African Police Service. However it is essential to note that many cases of child abuse and neglect are managed at Police Service Station level. No police service personnel whose names are on the register should be allowed to investigate or manage reported cases of child abuse.

Section 128(4) provides that the name and particulars of a person convicted of an offence with regards to any child more than once may not be removed from the register. It is suggested that this should be extended to read "convicted of an offence with regards to any child more than once and/or more than one child"

Neither set of provisions relating to the register are adequate. However the register of persons unfit to work with children provided for in the Children’s Bill has broader application and therefore should be expanded to include some of the provisions of the Sex Offender Register in order to provide the best overall protection for children rather than the Sexual Offences Bill establishing yet another separate offender register.

Duplication should be avoided.

It is essential to recognize that it is not only sexual offenders who may be unfit to work with children – physical and emotional assaults on children may be as damaging as sexual assaults and it therefore is necessary that persons other than sexual offenders who commit offences and various forms of abuse on children be included on a register. The Register of Persons Unfit to Work with Children in the Children’s Bill is therefore a far more appropriate provision than the register proposed in the Criminal Law (Sexual Offences) Amendment Bill.

Furthermore it is important to bear in mind that the SAPS already maintains a register of all convicted persons for all crimes and that rather than establishing another register – which is costly and therefore wasteful of resources, legislators should explore the possibility of expanding the purpose and function of this register in order to fulfill the purposed envisaged in the Criminal Law (Sexual Offences) Amendment Bill, but not be broader purpose envisaged in the Children’s Bill.

In both sets of provisions there is a problem in that whilst a person is awaiting the outcome of an appeal or review their name does not appear on the register. There should be a process for temporary registration pending the outcome of an appeal/review.

The above sets of provisions do not take into account offenders – usually child offenders but sometimes adults who accept a diversion agreement/contract as an alternative to a trial process. It is essential that these offenders are also included on a register. The Children’s Bill register could be more easily accommodated to allow for this.

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.

There is no requirement for employees of the Department of Social Development to be screened against the register. This is a grave and unacceptable omission when one considers this department’s direct and indirect role in relation to service provisions to children and families.

Age of 12 is to low.

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All unaccompanied foreign children found in need of care should be dealt with in accordance with the provisions of the Child Care Act. This includes asylum seeker and refugee children and children illegally in South Africa and means that these children must be brought before a Children’s Court for an inquiry into their personal circumstances to be conducted when they are found in need of care.

If it appears at a Children’s Court inquiry that a child has a refugee claim, that child should be assisted to submit an asylum claim in terms of section 32 of the Refugees Act.

The government of South Africa is directly responsible to provide the socio-economic and education needs of unaccompanied foreign children presently in South Africa. This includes the needs of asylum seeker and refugee children.

Unaccompanied foreign children must be provided with legal representation at State expense.

There is a legal duty on the various Government departments to together formulate a detailed policy providing for the way in which unaccompanied foreign children should be dealt with in South Africa.

Keeping in mind the best interests of an unaccompanied foreign child, it would seem that before any further action is taken by the children’s court, it would be necessary for the Department to attempt reunification of the child with the parent or guardian, before making the child available for adoption, as outlined in section 57(1)(b)(iv) above. In fact, UNHCR’s policy on unaccompanied minors states that family reunification should be pursued as much as possible, as long as it is in the best interests of the child.

To implement this clause more human and financial resources are needed, as well as capacity of Children’s Courts.

Consent to adoption

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

1. 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 [Provided that, if the parent is a minor, that parent is assisted by his or her guardian];

Most typically, this change would impact on mothers aged less than eighteen years who are considering whether or not to release their infants for adoption. 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 of course good social work practice to arrange that, where this is mutually agreed, the guardian(s) of a young parent(s) are actively involved, to offer emotional and practical support and to ensure that the necessary help is forthcoming later on, after decisions have been reached and consent to adoption has been either supplied or withheld. In family environments, which are generally healthy and positive, it is clearly advantageous for the guardians to be drawn in when adoption is under consideration. But to make their involvement mandatory, as would be the case in terms of the present formulation, 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. In such a case, a destitute young women seeking to give up her child for adoption would be unable to proceed, with serious consequences for herself and her child.

• Where the mother has left home, and is fending for herself. This scenario may have arisen inter alia because of physical or sexual abuse. The express desire of such a mother may be that her parents not even be informed of her pregnancy, let alone be involved in decisions about how it is to be dealt with. A social worker approached by a mother in such a situation will be expected to maintain confidentiality in this regard.

• Where a guardian is exercising undue duress – either by resisting adoption where this is the mother’s choice, or by insisting on adoption where this is not her wish.

A further consideration is the delay in placement decisions that would inevitably arise from this clause in its present form. Some of the babies in question would have to spend prolonged amounts of time in institutional care and temporary foster homes while the issue of consent is resolved, potentially incurring emotional harm as a result of a lack of early bonding opportunities and consistent care. Increased costs to the state and the community would also result.

To give effect to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the African Child.

Subsection (c )

• To put an end to child trafficking in the Republic whether this is internal or cross-border in nature.

Section 282: Assistance to Children who are victims of Trafficking.

To include:

• Provide emotional, physical and mental support and services to victims of Trafficking.
• Arrest the perpetrator, if certain, immediately.
• Set-up comfortable courts for victims of Trafficking.

Strongly opposing surrogate motherhood.

Caution against human trafficking, selling of babies.

A register must be kept of all surrogate motherhood agreements by the Department of Justice. Approvals Committee to be established to monitor agreements.

A social worker must be present when baby is handed over to parents.

Sex selection to be prohibited.

Surrogacy only allowed for SA citizens.

Adoption Register must provide for surrogate adoptions.

Counselling for surrogate mother before and after birth.