SUBMISSION FROM DEPARTMENT OF SOCIAL DEVELOPMENT ON THE CORRECTIONAL SERVICES AMENDMENT BILL [B32-2007] TO THE PORTFOLIO COMMITTEE ON CORRECTIONAL SERVICES

04 SEPTEMBER 2007

 

 

1. INTRODUCTION

The Department of Social Development agrees with the proposal that the age for a child to remain with their mother in correctional services facility is reduced from five years to two years, in terms of the Correctional Services Amendment Bill [B32-2007].

 

2. LEGAL IMPLICATIONS

United Nations Convention on the Rights of the Child of 1989: Articles 9&20

It highlights that the child has a right to live with his parent/s unless it is deemed to be incompatible with the child’s best interest. The state is obliged to provide special protection for a child deprived of a family environment and to ensure that appropriate alternative family or institutional placement is available.

 

African Charter of 1990: Article 5, 8 & 25(2)

The highlight is that in all actions concerning the child undertaken by any person or authority, the best interests of the child shall be the primary consideration. Any child who is temporarily or permanently deprived of his family environment for any reason shall be entitled to protection and assistance.

 

Constitution of the Republic of South Africa: Section 28(1) (b)

Every child has a right to family care or parental care or to appropriate alternative care when removed from the family environment.

 

Child Care Act 74 of 1983 Section 14, the Children’s Act 38 of 2005 and the Children’s Amendment Bill

A child is in need of care and protection if the child lives in or is exposed to circumstances which may seriously harm that child’s physical, mental or social well being.

 

Social Assistance Act of 2004

A person is entitled to appropriate social assistance according to need for example, a foster parent is eligible for a foster child grant for a child as long as that child needs such care.

 

3. THE CURRENT SITUATION WITH REGARD TO PLACING CHILDREN IN ALTERNATIVE CARE

 

3.1 CHILDREN WHO QUALIFY FOR ALTERNATIVE CARE

Currently, the child is found to be in need of care in terms of the Child Care Act 74 of 1983  and Section 150 of the Children’s Act 38 of 2005, and brought before the court for determination in that:

  • The child has no parents or guardian;
  • The child has a parent or guardian who cannot be traced;
  • The child has been abandoned or is without visible means of support;
  • The child displays behaviour that cannot be controlled by his/her parent(s) or person in whose custody he/she is;
  • The child lives in circumstances likely to cause or conduce to his/her seduction, abduction, or sexual exploitation;
  • The child lives in or is exposed to circumstances which may seriously harm the physical, mental, or social well-being of the child;
  • The child is in a state of mental or physical neglect;
  • The child has been physically, emotionally, or sexually abused or ill-treated.

 

A child living in prison with their mother is a child in need of care in terms of section 14(4) (a)(B) (iv) of the Child Care Act in that the child lives in or is exposed to circumstances which may seriously harm the physical, mental, or social well-being of the child.

 

3.2 CLARIFICATION OF TERMINOLOGY

 

In terms of the Child Care Act 74 0f 1983: A child is in alternative care when the child is placed in foster care or residential care. A child is in foster care if the child has been placed in the care of a person who is not the parent or guardian of the child as a result of an order of a children’s court, or a transfer from one alternative care to another. A child found to be in need of care can be placed in a children’s home if deemed appropriate by way of a court order.

 

3.3 PROCESS

 

A social worker must adhere to the following procedure when placing a child in alternative care:

·         Removal of a child from difficult circumstances,

·         In  case of an emergency the social worker will issue a Form 4 and place a child in a place of safety, for instance in a private one, with relatives or in a government place of safety;

·         Open a children’s court inquiry;

·         Investigate the child’s family circumstances;

·         Screen prospective foster parent;

·         Finalize the placement of the child in alternative care;

·         Ensure issuing of a court order by the Children’s Court;

·         Placement supervised by a registered social worker;

·         Depending on the sentence of the mother social workers involved to work on the re-unification services.

 

3.4 TIMEFRAME

 

The timeframe to finalize the placement of a child in need of care takes approximately three months depending on the child’s specific needs and circumstances. Currently, there are many children awaiting placement due to the shortage of social workers versus the demand of the service. There are about 84 000 known cases nationally of children awaiting alternative placement. However, this is mitigated by the Department of Social Development’s new recruitment and retention strategy which involves the training of social workers and auxiliary social workers to assist with the processing of these cases which will cut down on the turn around time and therefore, reduce the backlog.

 

3.5 SUFFICIENCY AND CONDITIONS OF FACILITIES

 

There are currently 241 registered children’s homes in South Africa, with a bed capacity of 13 984. These children’s homes are not fully occupied. Children’s homes must register in terms of the Child Care Act., therefore the children’s homes will not be registered if they are not in line with the Department of Local Government and the required minimum standards of the Department of Social Development. Social workers are monitoring the children’s homes to ensure that they comply with the required norms and standards.

 

 

 

 

4. THE DSD OPINION WITH REGARD TO THE AGE IN WHICH CHILDREN NEED TO BE REMOVED FROM THEIR MOTHERS AND BE PLACED IN ALTERNATIVE CARE

eld.

The preservation of the family, with the parents as the caregivers of their child, has always been and continues to be of primary importance. It is ideal for children to grow up within their family environment. Hence, it is essential that programs or activities are developed to strengthen family units. In cases where a child has to live apart from their parent/s or family, and it is in the child’s best interest, alternative care is mandatory. Foster care is the preferred option as compared to residential care as it provides the child with a family environment to grow up optimally. There are currently more than 438 000 children in foster care as compared to 13 984 children in residential care. In order to bring permanency in the child’s life, adoption is the best option, in cases where mothers are serving a life sentence. An open adoption can be proposed to the mother where she will be able to maintain contact with the child.

 

The removal of any child from a familiar environment can have emotional implications on the child’s development. According to research at about seven months of age, the child becomes more discriminant in their interactions and it is during this period that real and specific attachment becomes progressively intense and stable. After this specific attachment to the parent has been formed, most children begin to show anxiety, fear, and even flight reactions at the approach of a stranger..

 If a child is not firmly attached to a parental figure and has been neglected early in life, the ability to form attachments increasingly narrows and then disappears as they grow older. This presents problems with establishing loving relationships and attaching to someone in later life.

It is therefore, important for the child to be put in foster care as early as possible even before they turn 2, to ensure that the child is able to form attachment to parental figure as it becomes more difficult for children to form new bonds with adults when they are older..

Removing children at the age of 2 years from their mothers will also depend upon a suitable alternative care environment, if the for example the foster home provides the child with love, care and a sense of security, the child will adjust quickly and will not be affected by the separation. However if the conditions are not conducive to the child’s developmental and emotional needs this will affect the child negatively.

It is therefore important to ensure the selection of an alternative care option takes into consideration the specific needs of a child.

It is recommended that legal procedures should be followed for any alternative care arrangement that is found suitable for the child. In the case of foster care, an application for a foster child grant is recommended especially in situations were families need extra income to maintain the child   

5. RESEARCH CONDUCTED BY DSD ON EMOTIONAL IMPLICATIONS

The department has not done any research in this regard as yet. The department makes use of research that has been conducted by other institutions including NICRO and other international research findings.