SELECT COMMITTEE ON SOCIAL SERVICE PUBLIC HEARINGS ON THE CHILDREN’S BILL [B70B 2003]

11 OCTOBER 2005-10-13

INTRODUCTION

The Select Committee on Social Services held public hearings on the Children’s Bill [B70 B – 2003] on 11 October 2005. This report reflects those written and oral submission made on the section 75 version of the Children’s Bill.

The following organisations, and individuals, made submissions:

Commission on Gender Equality

Johannesburg Child Welfare Society

South African Human Rights Commission

UCT Law Clinic

Bryant Greenbaum

Thembisile Toyiya

Girls Net Alfred Nzo Club

Child Welfare South Africa

Centre for the Study of Violence and Reconciliation and Childline SA

Vivienne Spiro

Women doing virginity testing in the OR Tambo Region

Molo Songololo

Children’s Rights Project at the Community Law Centre, UWC

National House of Traditional Leaders

National Organisation of Circumcision Information Resource Centres – SA

Gender Advocacy Programme

 

A. Submitted by the Commission on Gender Equality (CGE)

CGE promotes and protects gender equality; the CGE has robustly campaigned for the criminalisation of harmful social, cultural and religious practices, which includes virginity testing.

In their presentation the CGE mentioned various legislation, which includes:

Section 28 of the Bill of Rights: which clearly states that the best interests of every child should be of paramount importance in every matter concerning the child.

They stated that virginity testing clearly discriminates on the grounds of gender and impairs on the dignity and well being of the girl child.

The following provisions w.r.t. Virginity testing is of great concern to the CGE:

CGE supports Clause 12(3) of the Bill, which outlaws female genital mutilation, and female circumcision as a cultural practice.

CGE believe that this Bill will assist in defining the rights and responsibilities of children, as well as to consolidate the laws relating to the welfare and protection of children. It is not possible to lay down an absolute standard or test for justification of an infringement of rights. One has to apply these principles, and weigh all these factors together. In doing so, leads to the conclusion that virginity testing, will fail to meet the requirements of Section 36 of the Constitution. Virginity testing, even as a cultural practice violates a number of the rights guaranteed in our Bill of Rights, as well as international instruments ratified by South Africa.

In conclusion, the CGE does not support the practice of virginity testing. At the same time, they do recognise the importance of the rights of individuals to practise their culture, but emphasise that this should be in accordance with the Constitution. The Children’s Bill does not outlaw virginity testing as a practice, but merely seeks to protect children from this practice, by prohibiting virginity testing in respect of children only.

B. Submitted by the Johannesburg Child Welfare Society

The Johannesburg Child welfare Society has noted a provision in Chapter 15 on adoption in the Children’s Bill which would substantially disadvantage many teenage parents in difficult circumstances, especially girls, w.r.t. the making of critical decisions concerning their own and their children’s future. The reformulated s233 (1) (a) of the Children’s bill 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, and one, which they believe, would have extremely serious consequences for many young parents and for their children.

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

Chapter 15: adoption

Consent to adoption

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, guarding or spouse [Provided that, if the parent is a minor, that parent is assisted by his or her guardian]

 

C. Submitted by the SA Human Rights Commission

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 cannot hold up to constitutional scrutiny.

The Commission recognizes that proponents of the practice may be seeking to achieve positive social values through cultural practices. These 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.

 

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 do 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.

Recommendations

1. Bring virginity testing within constitutional parameters

Cultural practices and activities intended to foster social behaviour that will promote and protect child rights, promote a healthy and responsible approach to sexuality, and contribute positively to the fight against the spread of HIV/AIDS should be supported. Culture is not static. What we need to question is what are we testing? Are we testing for virginity? What are the social values and norms that we wish to promote through virginity testing? Do we wish to promote virginity or a healthy and open approach to sexuality in which teenagers take responsibility for themselves of their bodies and their sexuality? What are the most supportive manner in which our cultures can support teenagers in this fast changing and challenging world in which we live to give effect to their sexuality in a responsible and safe manner? These objectives appear to be a common thread amongst those who support virginity testing.

Those who support and practice virginity testing are taking proactive steps to address the sexuality of our young people in this country. The challenge is to bring these steps within constitutional parameters.

2. Promote the positive underlying reasons for the practice

The further challenge is for those who condemn the practice to question their own cultural practices and beliefs and to evaluate what it is that we should be doing as a diverse society to promote good morals and a healthy and responsible approach to sexuality.

The efforts and support of virginity testing activities should be channelled into more appropriate cultural activities that could promote awareness on issues such as HIV/AIDS and child abuse and the prevention of teenage pregnancies.

3. Government and society must do more to support children developing positive approaches to sexuality.

It should be acknowledged that the failure of government and society (particularly parents and care-givers) to raise adequate awareness on issues such as teenage pregnancy, child abuse and the increasing spread of HIV/AIDS amongst the youth has lead to activities like virginity testing becoming popular in certain communities. Virginity testing is a response to a dire situation, which threatens the fabric of our society. The popularity of this activity, if newspaper reports are anything to go by, cannot be ignored. Everyone must commit to engaging more with these issues.

4. Leadership must spearhead the initiative to bring the practice within constitutional parameters

There is a need for a concerted effort by all stakeholders, especially the institution of traditional leadership, the National and Provincial Houses of Traditional Leaders and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities to spearhead meaningful studies and discussions that will ensure that indigenous cultural practices occupy a space within our society.

 

The Children’s Bill only prohibits virginity testing being conducted on children. The practice can be conducted on persons over the age of 18 years. However, the Commission, even then, has serious concerns about the rights of those who engage voluntarily or involuntarily in the practice. The rights that are involved in determining the constitutionality of the practice are not limited to children only. These rights extend to everyone. It needs to be seriously questioned whether our constitutional values support a practice that on the face of it violates a number of constitutionally entrenched rights.

D. Submitted by the UCT Law Clinic

The submission aims to make recommendations to improve the protection and care given to foreign children in SA. It is important to recognize that migrant children are vulnerable, both as children and as migrants. The Children’s Bill must recognize specific vulnerabilities of certain categories of foreign children in need of care and assistance, such as unaccompanied foreign minors and separated refugee children.

The Law clinic stated that SA has ratified the United Nations Convention on the Rights of the Child (UNCRC) and article Two of the UNCRC prohibits a state form allowing discrimination against a child on the basis of that child’s nationality or ethnic or social origins.

Recommendation

To ensure that this new legislation will be interpreted by all concerned to apply to foreign children, it is imperative that:

The definition of child in the Bill should be amended to read:

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

the following definition should be inserted:

"Unaccompanied foreign child" means a child where no person can be found who by law or custom has primary responsibility for that child. (A child who is separated from both parents and is not being cared for by an adult who, by law or custom, is responsible to do so)

an additional sub-clause is added to the General principles

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

The Law Clinic stated that in Centre for Child Law and another v Minister of Home Affairs and 8 others (Case No. 22866 TDP). The Pretoria High Court ordered that foreign unaccompanied children must be dealt with in terms of the Child Care Act.

In summary the judgement provides for the following:

As the leading judgement on the rights of foreign children in SA it is recommended that the legal principles elucidated by this judgement should be incorporated into the Children’s Bill

Section 150

It is crucial that unaccompanied refugee and foreign children be recognized as children in need of care and protection, who are entitled to be dealt with in terms of Children’s court proceedings

To ensure that this happens at all relevant times, we recommend that the following subsection be added to section 150 (1) of the Bill, which is the section that defines who are children in need of care and protection.

"(j) Is an unaccompanied foreign child"

Matters arising with the removal of unaccompanied foreign children

Section 152(2) (a) and section 152(3) (a) indicate that the social worker or police official inform the parent, guardian or care giver of the child of the removal of the child, if the person can be readily be traced (our emphasis). It would be useful for the Bill or its regulations to clarify what is meant by readily traceable, keeping in mind the purpose of the removal, which is to ensure the safety of the child.

It is imperative that the Children’s Bill set out basic criteria in order to guide the Court when it determines whether it is in the best interests of a child to be returned to their country of origin.

Given the silence of the existing legislation (Immigration Act, Immigration Amendment Act and its regulations), we recommend that the Bill should not only address but also incorporate these critical issues.

The Children’s Court should also 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 SA 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 developments 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.

 

 

E. Submitted by Bryant Greenbaum

The contribution provisions in the Children’s bill [B70 B – 2003], namely 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.

Section 1 of the Bill defines "respondent" as "any person legally liable to maintain or to contribute towards the maintenance of a child for whose maintenance, treatment or special needs a contribution order is sought or has been made in terms of Chapter 10. Section 164 of the Bill provides that "a contribution order must instruct the respondent to pay the sum stated there in to the clerk of the children’s court or to such other person as the court may determine

Taking the above in consideration, the Committee should consider:

The Committee should enquire that all funds in the Criminal Asset Recovery Account (Chapter 7 of the Prevention of organised Crime Act) that derive from or were purchased with proceeds of criminal activities, that result in or contribute to 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. The criminal activities in question relate to the organized crime activities of child prostitution, trafficking, pornography or exploitive labour practices.

Guardians and child complainants should 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. Written notice is essential as children and their and their guardians may not be aware of these provisions.

 

F. Submitted by Thembisile Toyiya

Mr Toyiya made a submission against virginity testing. His submission stated that virginity testing dehumanises women and the girl-child. He further noted that that a child of a young age is too young to be able to give consent for the virginity testing, and that girls below the age of 16 should not be subjected to the test, as they do not have the capacity to choose. He stated that men will abuse those girls who are found to be virgins because they do not have HIV and AIDS (reports on the news and newspapers on the connection between virginity and rape for example.

Culture or traditions must be changed when they are harmful to those who practice them and that culture is not static and it evolves with times e.g. stick fighting, women genital mutilation and many more. Also there is no better way or methods to do virginity testing, therefore it must be banned. Comparing the advantages and disadvantages of virginity testing, the disadvantages are more. Stakeholders must be consulted on the reasons why it must be banned not whether it should be banned or not.

 

G. Submitted by the Girl’s Net Alfred Nzo Club

Their submission on the Children’s Bill is about stopping forced marriages of young girls, in particular.

Recommended changes to Clause 12

The following clause 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.

Recommended change to Clause 305

Offences

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

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.

Child Welfare SA

Recommendation

Section 150 (1)

This section highlights under what circumstances a child can be found to be in need of care and protection. It is felt that this section could be expanded to include experiences or living circumstances specific to children identified in Section 150 (2). For example, a child living in a child headed household, may not be orphaned, or without visible means of support, but rather be caring for a dying parent. This section should account for children in these circumstances and allow for statutory interventions when necessary.

It is felt that 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.

H. Submitted by Child Welfare

Although Section 150 (2) was formulated to protect certain categories of children i.e.

the consequences of implementation should be determined as it could have far reaching effects on our child protection systems.

Recommendations

Human and Financial Resources

For this section to be effectively realised, more human and financial resources must be deployed. Government will have to commit these resources to the NGO sector or take responsibility for the implementation of this section. If this is not done then the current crisis situation will worsen. Social workers are leaving the profession due to inadequate salaries, too high caseloads, overwhelming stress, and this can only be adversely affected if they are to be held accountable to the Children’s Court to report on every street child, child-headed household etc. that they come into contact with and try to assist.

Provincially supported programmes

In Section 76 of the Bill, Chapter 8 deals with Child Protection. Where reference was previously made in Section 104 to the national policy framework, in which strategies for these vulnerable groups would have been included, it should rather be emphasized that there is a need to develop and financially support programmes and strategies at a Provincial level to aid these vulnerable children. This will ensure that these children’s special needs are still further recognized and highlighted.

Submission of Reports to Department of Social Development

If social workers are to submit reports as proposed by the section then we should ensure that the sector is resourced appropriately and that this report on the lives of vulnerable children. In doing this changes to Section 155 (4) (a) are proposed. 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.

Concerns about the capacity of the court to review these reports and the concern that these reports will just become a paper work process are prevalent. The Children’s Court is not a monitoring body.

It is therefore suggested that if social workers are to compile such reports these should be submitted to the Provincial Department of Social Development and not the court. The Provincial Departments of social development are monitoring bodies and should take responsibility for the care and protection of children. Government to aid in this role could mandate national NGOs. The Provincial Department could then review the reports and develop databases to ensure monitoring and tracking of children within the system. This will prove more useful as a monitoring mechanism. It will also aid social workers in that they can access the register to determine if a report or care plan has previously been submitted for a particular child, resulting in less duplication and more partnerships and collaboration.

Section 150 (1)

This section highlights under what circumstances a child can be found to be in need of care and protection. It is felt that this section could be expanded to include experiences or living circumstances specific to children identified in Section 150 (2). For example, a child living in a child headed household, may not be orphaned, or without visible means of support, but rather be caring for a dying parent. This section should account for children in these circumstances and allow for statutory interventions when necessary.

Conclusion

It is felt that 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.

 

I. Submitted by the Centre for the Study of Violence and Reconciliation and Childline SA

Both the Children’s bill and the Criminal Law (Sexual offences) Amendment Bill have undergone considerable redrafting processes. Presently the Children’s Bill (Sections 118 to 128) and the Criminal law (Sexual Offences) amendment Bill (Sections 25 – 33) provide for some form of register that captures the names and details of persons who have committed offences against children.

The register in the Children’s bill is one specifically designed to limit access to children by offenders in care and workplace situations.

The following comments and suggestions relate to the proposed Provisions in the Children’s Bill with some reference to the proposals in the Criminal Law (Sexual Offences) Amendment Bill:

  1. Neither set of provisions relating to the register is 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.
  2. It is essential to recognise 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.
  3. 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 fulfil the purposed envisaged in the Criminal Law (Sexual Offences) Amendment Bill, but not the broader purpose envisaged in the Children’s Bill. Only registering sexual offenders is very limiting especially in a climate in which plea bargaining is being encouraged – sometimes quite appropriately so, even in the instance of a sexual offence. This means that some sexual offenders may, for example, in the instance of a child being too traumatised/unable to testify for any other reason in court, 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.
  4. 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. These processes take a long period of time during which offenders may have considerable access to children. It is absolutely unacceptable that a person who has been convicted of a criminal offence against a child, which happens in such a tiny percentage of cases, gets to stay off the register, perhaps for years, while an appeal process goes on and possibly results in his/her getting off on some outrageous technicality. This makes absolutely no sense if we bear in mind that a finding "beyond reasonable doubt" is not required for inclusion in this register - the "balance of probabilities" applies - and the convicted person has already been subjected to the stronger test. Also, the only disadvantage suffered by this person is that of having to refrain from applying for jobs/ voluntary service involving access to children, and no one is allowed to divulge the fact of his/her inclusion in the register for any other purpose. This is a clear case of the principle of the best interests of the child having fallen off the radar. There should at very least be a category of provisional registration for people awaiting appeal - the benefit of the doubt must in the meanwhile go in favour of children who stand to be harmed.
  5. 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.
  6. 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. One would not like to see children labelled in mid-latency or early adolescence as offenders but one does need to ensure that the special needs of children who develop aggressive behaviours are dealt with and tracked in a child-centred way.
  7. With regard to Section 123 of the Children’s Bill and Section 30 of the Criminal Law (Sexual Offences) Amendment Bill, neither proposed register includes 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. An example might be of a computer hard or software technician who sets up or services in any way the computer hard and software of an organisation working with children. This gives an enormous amount of information on children receiving services to such a person. For example Childline has confidential reports on children for court and other processes on its computers. These reports contain identifying information of children, detailed accounts of their history and of their abuse. Some potential offenders might actively seek this information out, as sometimes-vulnerable children with a history of abuse and neglect are more susceptible to being sexually exploited.
  8. Of particular concern are the processes in both sets of proposed legislation with regard to the removal of a persons name from the register:

9. It is recommended that known aliases used by the offender be added to the contents of the information on the Part B register – this is especially important for children who rarely know the full and correct name of the offender where the offender is someone outside of the family group.

    1. S 28 (c) of the Criminal Law (Sexual Offences) Amendment Bill provides for the court to explain the contents and implications of being on the register to the offender. There is no provision for notification and explanation in the Children’s Bill – the implication is that a person’s name could appear on this register without their knowledge. A similar clause should be inserted into the Children’s Bill.
    2. 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 Services. 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.
    3. 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.

 

J. Submitted by Vivienne Spiro (Member of the public)

Ms Spiro informed the Committee that many irregularities have occurred with regard to surrogacy, even in her own family. She further noted that it has been exploited in SA by illegal syndicates and human trafficking is part of the abuse of woman taking place where our laws are not adequate and our health facilities/ private hospitals are being used without supervision for foreign patients.

She stated that there are currently 15 fertility clinks in SA.

K. Submitted by the OR TAMBO DISTRICT MUNICIPALITY

The Women who are doing virginity testing in the OR Tambo region respond to the proposed children’s Bill against virginity testing.

They wish to condemn this Bill under the following:

Recommendations

L. Submitted by Molo Songololo

Their submission presents the following focal areas:

Recommendations

Chapter 1: Interpretation, objects, application and administration of the Act – Section 2: Objectives of the Bill

We, the children feel that there is a need to interpret the Bill in a manner that all citizens, especially children, can understand. We, however, feel that the bill does not make provision for effective child participation, in the section as mentioned, in the current bill. To address this need, we submit that the following should be inserted:

Chapter 3: Children’s Rights

Here we feel that section 10 and 11 needs specific attention and are concern that the Bill does not make provision for all of the child’s rights to be considered.

Section 10: Child Participation

We wish to submit the following on this section:

Section 11: Rights of Children

Only eight rights have been mentioned in the Bill. We the children feel that it is vitally important for all our rights to be mentioned in the Bill so that people can understand our needs as children. We submit that the following be inserted into this section:

Subsection 1(g)

Subsection 1(g) ii

 

Chapter 4: Parental Responsibilities and Rights

Section 22: Parental Responsibilities and Rights agreements

We wish to submit that the following be inserted:

 

Chapter 5: Children’s Courts

Part 2 Court Proceedings

Section 53: Who may approach the court

Subsection (2)(a)

Section 54: Legal Representation

A person who is a party in a matter before a children’s court is entitled to appoint a legal practitioner, that the child feels comfortable with and if the child wants, a representative that is of the same gender, racial, religious and social background as that child and at his or her own expense and this legal representative needs to represent the child’s needs and rights in the court and not take decisions for that child.

Section 57: Compulsory attendance of persons involved in proceedings

Chapter 7: Protection of Children

Section 105 Reporting of children in need of care and protection

We welcome the idea of a legal obligation to report children who are abused or neglected as stated in subsection (1). yet, we consider that every person has a moral obligation to report children in need of care and protection. Thus we recommend a stronger wording for subsection (2). "Any person who believes that a child is in need of care and protection because of abuse, sexual abuse or deliberate neglect, may report that belief to the provincial department of social development, a designated child protection organisation, police official or clerk of the children’s court" should be rephrased by replacing:

    1. may with either should or must depending on the situation of the person/s holding the knowledge. Generally we feel that it has to be a legal obligation to report (must). But we agree that in cases of possible danger for this person as a consequence of it’s reporting it would be disproportionate to hold him/her legally responsible. In this case a moral obligation (should) is to be used.
    2. believe with reasonable suspicion. A believe differs from culture to culture and might be misjudged as it is be based on uncertain personal impressions. In the case of reasonable suspicion ones level of certainty is considerably higher and the information given to the provincial department of social development child protection organisations, police officers or clerks of children’s court will be more accurate.

These two amendments are complementary to the process of reporting as the higher degree of certainty provided by reasonable suspicion should lead to a stronger obligation to report (must).

Our recommendation for subsection (2) reads as follows:

(2)(a) Any person who has reasonable suspicion that a child is in need of care and protection because of abuse, sexual abuse or deliberate neglect, must report that suspicion to the provincial department of social development, a designated child protection organisation, police official or clerk of the children’s court.

(b) In cases where the person holding the information could be at risk as a consequence of the reporting subsection (2)(a) is not applicable.

 

Section 106 Provision of designated child protection services

The national norms and standards for the designation of child protection services should be stated in the Children’s Bill. They should appear in subsection (2) of this section in order to give clarity and security to the service providers.

 

Section 107 Designation of child protection organisations

The prescribed criteria for the designation of a child protection organisation should be stated as subsection (2) of this section in order to clarify the conditions with which such an organisation has to comply.

As the final decision on the authorization to perform specific designated child protection services depends on the Director-General or provincial head of social development a rejecting verdict should be motivated, as to why an application, fulfilling all the stated criteria, was unsuccessful.

 

Section 110 Withdrawal of designation

We feel that to protect the best interest of the child a withdrawal of a designation of a child protection organisation has to be preceded by a warning procedure in order to give the organisation the possibility to rectify the issue. The Director-General or provincial head of social development should also have the option to suspend a designation instead of withdrawing it completely. Nevertheless, in a case of unsuccessful suspension or remediation the Director-General or provincial head of social development shall be bound to a definite withdrawal.

A separate clause shall state, that if it is in the best interest of the child an immediate withdrawal without warning or suspension notice must be done.

Our recommendation for Section 110 reads as follows:

(1) The Director-General or provincial head for social development may withdraw or suspend the designation of a child protection organisation to perform any, or any specific, designated child protection service –

(a) If the organisation –

(i) Breaches or fails to comply with any conditions subject to which the designation was made;

(ii) Contravenes or fails to comply with a provision of this Act; or

(b) If it is in the best interest of the protection of children.

(2) The withdrawal or suspension must be preceded by an adequate warning procedure and possible assistance if needed.

(3) If it is in the best interest of the child the Director-General or provincial head for social development must immediately withdraw the designation.

Section 135 Application to terminate or suspend parental responsibilities and rights

We are not able to understand how parents should consent to their Rights being taken away from them as it is stated in subsection (2). The Director-General, a provincial head of social development or a designated child protection organisation shall be authorized to apply for the suspension or termination of parental responsibilities and Rights even without the parental consent if they conclude upon personal observation that such a person is not fit to care for the child.

Our recommendation reads as follows:

(2) An application in terms of subsection (1) may be brought without the consent of a parent or caregiver of the child if the applicant concludes on personal observation that such an intervention is needed.

Section 136 Child-headed households

A general concern arouse around the cut-off age of 18 years for the provision of guidance. We felt that guidance should be available up until the age of 21 upon request.

Moreover we do not consider that all the conditions to cause a child to be head of its household are mentioned in subsection (1)(a). Parents might not be dead or terminally ill and their children still heading their household. In cases such as abandonment or forced removal children might be left without their parents even though these are still alive. The provisions of subsection (1)(a) should therefore also provide for situation where the parents would be able to care for their children but simply don’t do so.

Our recommendation reads as follows:

(1) A provincial head of social development may recognise a household as a child-headed household if –

(a) the parent or primary care-giver of the household is terminally ill, has died, has been forcefully removed or has abandoned the children he is responsible for -

Section 139 Corporal punishment

We welcome the general ban of violence whether from public or private sources as stated in section 12 of the Constitution of the Republic of South Africa and confirmed by this section of the Children’s Bill. We still, feel that the provisions made in subsection (1)(a) of this section are not sufficient as there is no clear definition of what "respect to the fullest extent possible the child’s rights to physical integrity" means. We sense discomfort by the vagueness of this paragraph and would commend an unambiguous definition of the limits to corporal discipline.

Section 141 Worst forms of child labour prohibited

We commend the endorsement of the statements invigorating the ILO conventions on worst forms of child labour (No. 182). Nonetheless we question the cut-off age of 15 for all forms of employment. Furthermore we ask ourselves what the difference is between a child, which is employed for its work, and one who works without being employed. Further investigation have to be lead on this issue.

Chapter 10: Children in need of Care and Protection

We the children insist that this chapter address the following issues and concerns:

Chapter 12: Children in Alternative Care

This chapter needs to address the following:

Chapter 19: Trafficking in Children

Section 280: Purpose of this chapter

This section needs to include…

Subsection (c)

Section 282: Assistance to Children who are victims of Trafficking

To include…

 

Conclusion

This paper reflects our opinion on the very important law for children that the children’s bill shall become. We believe that this new legislation can change the future of the children of South Africa and thereby of the nation in its entirety. For this reason we want to contribute with our best ideas and following our best knowledge to the elaboration of this fundamental document.

Thank you for giving our dreams and efforts their due place in your heart

M. Submitted by the Community Law Centre – UWC

The Children’s Rights Project submits as follows:

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.

This does not conform with the present section 8A of the Child Care Act 74 of 1983, regulation 4A of the Child Care Act nor any of the proposals regarding legal representation contained in earlier versions of the Bill (albeit the fact that these versions were not optimal, they none the less allowed the children’s court to order legal representation for a child in defined circumstances).

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 states "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. Previous versions of the Children’s Bill (SALRC version, the 19 June 2003 version of the Bill as well as the Child Care Act and Regulations provided such guides).

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, e.g., where any other party is legally represented or where there is more than one party contesting custody of the child. These guidelines are meant to give substance to the Constitutional provision embodied in section 28(1)(h) which guarantees legal representation at state expense for children in civil proceedings if a substantial injustice would otherwise result. 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. To now remove these guidelines makes absolutely no sense and will lead to inconsistent application of the law and a less credible welfare court system for children.

In addition, the final decision of whether a child receives legal representation at state expense rests with a Legal Aid Board official. While, for cost reasons this may be necessary for adults, it is argued that children who appear in children’s courts are in extremely vulnerable positions because they find themselves in a situation where they have been placed at risk by their very own parent or caregiver and therefore should receive legal representation at state expense if necessary, irrespective of the requirements set out by the Legal Aid Guide. In fact the Legal Aid Guide, in Chapter 3, while setting out that it prioritises the positive rights to legal aid enshrined in Section 28(1)(h) of the Constitution and vulnerable groups including children, it does not set out ANY CLEAR guide as to when legal aid should be granted for a particular case, despite its proviso that Justice Centres within a particular area may not, within available resources, be able to satisfy all the demands for legal aid within their areas.

The effect of Section 55 is therefore that not only do magistrates have no clear guide as to when to refer a matter to the Legal Aid Board, but Legal Aid Board officials have no guidance as to when to appoint a legal representative or not. This is contrary to previous attempts to provide for legal representation of children in the Children’s Courts as these attempts recognised that not every matter requires legal representation, but at the very minimum they provided guidance on what matters involving children should receive legal representation for the children to avoid substantial injustice from occurring.

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). It is argued that section 28(1)(h) did not envisage that a child be excluded from obtaining legal representation at state expense if substantial injustice would result MERELY because the child’s parents were able to afford legal representation. There might be the situation that a child is the subject of a children’s court inquiry and his or her parents are able to afford an attorney for the child, however this would not be appropriate as the attorney is receiving financial instructions from a party who may be contesting what the child wants or a parent who may be an abuser of the child. This could again lead to substantial injustice in that the attorney may not adequately represent the voice of the child. It appears the Guide is either silent on this situation or, at worst, will exclude a child whose parents do not meet the means test.

In addition, the Guide is silent on the situation where a child and parents are both applying for legal aid in a children’s court matter.

THEREFORE IT IS SUBMITTED:

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.

 

 

N. Submitted by the National House of Traditional Leaders (NHTL)

CHAPTER 1

(1) Definitions

The NHTL appreciate that the Bill has some recognition of the institution of traditional leadership in it. However, the NHTL of the view that such recognition pertains to only recognition of traditional leaders with no power of Traditional institutions pertaining to children issues.

The NHTL maintain that in our indigenous legal system there are entrenched norms and values pertaining to the protection and care of children living in our communities.

(2) Objects of the Bill

The objects of the Bill are supported. However, the norms and values entrenched in indigenous law must be recognised and provisions should be made for a deadlocking mechanism in case of conflict between Westernised norms and values contained in the Constitution and our indigenous legal system.

(3) SOCIAL, CULTURAL AND RELIGIOUS PRACTICE – SECTION 12

The NHTL are vehemently opposed to a clause, which prohibits virginity testing. Should Parliament pass this outrageous legislation with such offensive clause it runs a risk of not being respected by our communities and they are determined to defy it.

The Bill of Rights recognises the rights of persons to participate in cultural practices of their own choice. Surely any clause in the Bill, which denies our communities to exercise their cultural rights, is not consistent with the Constitution.

The word "circumcision" is not defined in the Bill. There are various forms of female circumcision and in our view many, if not all, are good customary practices that must be promoted rather than prohibited.

(4) SPECIFIC PROBLEMS AND CONTRADICTIONS – SECTION 124

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

Government may consider not setting such a age at all because this dictates over cultural notions of who is a child and interferes with people’s cultural doctrines on good or bad social behaviour in accordance with age. Even a maximum age of a child’s dependence on his/her family is culturally specific, resulting in some cases on children exploiting the cultural leeway towards having their parents take care of their children (grandchildren). If government is not setting a maximum age of child-parental dependence for enforcement, government should be hesitant to set for enforcement a minimum age of child independent decision making.

12 years as the age to do serious decision-making is simply too low – children are nurtured to maturity over time; they are different and have specific needs. 12 as ‘the’ age for making decisions does not take into account differences amongst children and the need for guidance towards being a better person rather than simply being acutely attuned to claim rights. Rights must be taught to children in a manner that takes into account their impressionable stage and balances ‘the claiming’ approach with ‘ubuntu’ – being able to co-exist responsibly with other human beings. Otherwise ‘egoistic claimers of rights’ will result from our socialization.

Why set the age of 12 as the decision making age that includes decisions on contraception on the one hand when it is unlawful for anyone to engage a minor (below age 16) in sex? This is clearly a contradiction, which one cannot afford to communicate to children, and especially to a society generally. The social implications of such a contradiction will be more serious than what ends up coming to the notice of service providers such as the social workers and the courts.

Once again the right of the parent is taken away and given to a twelve-year-old child. It is a known fact that traditional communities with their traditional leaders cannot accede to such a clause in the Bill because this clause by implication gives such a child rights attached to the status of an adult.

There is also a well-established custom of "arranged marriage". In practice the girl invariably respects the will of the families when she comes of age to marry and after traditional rituals have been performed.

We are concerned to note throughout the Bill that what is uppermost to the drafters of the Bill is to protect the interests of Westernised communities and suppress African communities!

In our indigenous legal system the rights of individuals are recognised within the family.

We also have our own traditional courts that determine disputes in our communities. They apply indigenous legal system.

CONCLUSION

The NHTL is strongly opposed to the clauses of the bill highlighted above as indicated. It is our view that such clauses should be totally removed from the set proposed legislation as their anti-cultural in their quest for children’s rights.

 

 

 

O. Submitted by the National Organisation of Circumcision information Resource Centres – SA

Clause 12 of the Children’s Bill [B70B-2003] illustrates the gender discrimination in respect to circumcision.

Recommendation

The above-mentioned 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).

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 circumcisers. 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 Children's Bill [B70B-2003] be enacted as currently drafted we recommend that firm national guidelines be formulated regarding continuing circumcision practices:

For example:

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 no medical procedures such as Religious circumcisions.

3. Further recommendations are instituted regarding the qualification of circumcisers 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.

The South African Medical Association’s (SAMA) position statement on non-medical

Circumcision of children stated that, "from a medical point of view, there was no medical justification for routine circumcision in neonates and children." These recommendations are being disregarded within our medical institutions daily. Currently a healthy male child can be circumcised without medical need and the legislation is needed to discourage this practice. Parents have the responsibility and authority to make medical decisions on behalf of their children. However, the best interests of the child should guide this decision. Decisions that are clearly not in a child’s best interest can and should be challenged especially if the parents’ decisions are 'potentially dangerous to the child’s health, imprudent, neglectful, or abusive.' No other medical situations exist whereby parents can elect to surgically modify part of their child’s healthy anatomy. Informed consent is meaningless when the individual is given no right to refuse the surgery, or is unable to refuse it.

P. Submitted by the Gender Advocacy Programme (only written submission)

GAP support the and endorse the submission of the Commission on Gender equality on the following aspects:

Constitutional Perspective

Equality perspective

Virginity testing

Female genital mutilation