August 2007
The Legal Resources Centre [LRC] of
Social development programmes include the payment of
social grants to advance the rights of vulnerable children in
Working in conjunction with social welfare organizations, children’s
homes, crèches (or Early Childhood Development centres), and individual
caregivers; our office has had much success in motivating the provincial
department responsible for administering social welfare services (the
Department of Social Development or “DOSD”) to improve its administration and
delivery of services and programmes relating to children. Here are examples of some of the gains our
office has made that has had direct impact on children and their caretakers:
When a child is removed from their home and ordered
to ‘place of safety’, which can either be a private citizen’s home or a
registered children’s home, the DOSD can be obligated by order of a
Commissioner of Child Welfare to provide the appointed caregiver with a ‘place
of safety’ grant (more commonly known as ‘place of safety’ fee). At present, the fee is set at R12 per day per
child, and is supposed to be issued on a monthly basis.
In February 2006, the Commissioner for Child Welfare in Grahamstown
advised our office that none of the families/children’s homes in whose care
children were placed by her orders were receiving their safety grants. After
her own enquiries she determined that this was due to administrative failure by
the DOSD. We began researching this
matter by first contacting and interview local families with whom the
Commissioner put us in contact. We found
that all of the families were experiencing difficulty in collecting fees, and
confirmed the information provided to us by the Commissioner. We then decided to determine to what extent
this problem was occurring in the
After
making a number of attempts to address this issue through negotiation with DOSD
with no success, we filed a legal application against the Department for its
failure to issue safety grants in October 2006.
And, in May 2007, the matter was settled by consent order and the
Department was required to: pay out grants to families and children’s homes
that were applicants in the matter, develop a concise policy for the submission
of claims for safety grants, and provide our office with a list of individuals
in the province that should be receiving grants. In July 2007, the DOSD finally paid out
grants to families and children’s homes throughout the province to a total of
over half a million rands.
Mrs Dianne Lang, the Director of Dianne Lang
Foundation, operates a children’s home in rural town in the
Quite recently we secured a favorable consent order
in resolution of a myriad of administrative problems the home was encountering
in its interactions with the DOSD. The
most significant of these problems was the delay in the Department issuing safety
grants. As a result of our intervention,
the home received a lump sum payment of outstanding grants in the amount of
approximately R75,000 and an ad hoc grant in the amount of R120,000 to assist
in the maintenance of the home until the Department could take a decision on
providing the home with medium-to-long term funding
In
In another instance through advocacy on behalf of a
children’s home in Uitenhage that had been struggling for funding from the
Department since 1998, despite submitting several applications in the form of
business plans to the Department for funding.
We began petitioning the Department on behalf of
this home in February of this year and by June the home was advised that they
would be receiving funding in the amount of R600,000, and further consideration
for long-term funding.
Our submissions below
are based on the practical experiences of our clients and our attempts at
ensuring that the Government of the
|
Section |
Recommended amendment |
Motivation |
|
Section 93
(1) |
Delete
the word may and replace it with MUST |
Section
92 puts an obligation on the Minister and the MEC to have a strategy to
provide and establish ECD’s in the province but section 93(1) gives the MEC a
discretion: The MEC for social
development of a province may, from money appropriated by the relevant
provincial legislature, provide and fund early childhood development
programmes for that province. This should be an obligation not a discretion. |
|
Section 96 |
Put in
time frames for the Provincial Head of social development to register a
facility or respond to an application. 30 days would be appropriate. |
Section 95 sets out the requirement that a
person running a partial care facility
or a child and youth care centre where an early childhood development
programme must register it and comply with norms and standards. Section 96
sets out the procedure for registration but there MUST be a time frame within
which the Provincial head of social services must respond to this application
either by registering it, or making suggested amendments prior to
registration or by refusing to register with reasons. In the |
|
Section 97 |
97 (2)(c)Delete
the word “funds” |
Without
subsidies from the State many facilities or youth care centres do not have
the necessary funds or resources to operate. The requirement that they have
funds prior to registration is an unfair one and places them in a catch 22
situation. They need to get registered to receive the funds. To deny them
registration in the basis that they do not have funds makes a mockery of the
provision that they must receive subsidies. |
|
97 (4) 97 (5)
delete the word may and replace with must. |
This section says that the
provincial head of social development must consider a report of a social
service professional before deciding an application for registration, conditional
registration or renewal of registration. Most importantly this section should
say who the social service professional must be . Is this someone employed by
the District office or a can it be a private social service professional in
the employ of an NGO. It should also place time frames on the delivery of the
report. In the In our
experience in the |
|
|
Section
101 |
By the addition of the words: An
applicant aggrieved by a decision of a Provincial Head of social Development
or an official in the employ of The Department of Social Development with regard to an application for
registration or renewal of registration in terms of section
96, the conditions on which registration was granted in terms of section 97,
conditional registration in terms of section 98 or a registration holder
aggrieved by a decision to cancel the registration of a partial care facility in
terms of section 99 may lodge an appeal with the Minister against that decision. (7)An applicant that is not
satisfied with the outcome of an appeal lodged as contemplated in subsection (6),
may apply to the competent division of the High
Court to review that decision. |
Appeals
against decisions of the municipal manger are provided for in section 102 but
this same appeal procedure against decisions of the provincial head are not
provided. |
|
Section
102 |
102
(8)(c) by the deletion of the word may and replacement of the word MUST |
The
assignment of these functions to the municipalities is welcomed but there is
no indication of what would happen to the existing district office employees
of the Department of Social Development. If, after the functions contemplated in subsection (1) had
been assigned to a municipality, it
appears that a particular municipality no longer has the capacity to perform
some or all of the functions assigned to it, the provincial head of social
development MUST and not MAY take steps to withdraw this assignment. |
|
Section |
Recommended amendment |
Motivation |
|
Clause
110 Reporting a child in need of care and protection |
(1) […who on
reasonable grounds concludes…] … who on reasonable grounds suspects… |
It may
not be possible for someone to conclusively state that abuse is
happening. However, if they suspect
that this is so, they are responsible for reporting it. Only an official investigation can lead to
a conclusion. |
|
(3) (a)
must substantiate that suspicion to the provincial department… |
(3) (a)
The term “must substantiate that conclusion or belief” is problematic. |
|
|
(4) A
police official to whom a report has been made in terms of subsection (2)
must- (c) be
appropriately trained to respond to the report |
The
appropriate training is necessary to enable police officials to effectively
communicate with children, including those children with communication and
intellectual disabilities, and to ensure that these children are treated with
respect and dignity.
|
|
|
|
It is critical that (mandatory)
reporting of a child being abused or neglected be accompanied by the
provision of services which are required in response.
|
Section 146
|
Delete word may and
replace with MUST
|
It is critical that all
provinces fund early intervention programmes and do not have the discretion
to fund them.
|
Section 147(3)
|
|
if the court orders a
child to be placed in an early intervention programme then there should be
automatic qualification for funding
|
|
|
Insert
the following clause: The MEC of Education
in each province must establish and maintain for all schools in the province
a mechanism for the identification, referral and support of children[1].
|
This would facilitate
the early identification of children experiencing difficulties, both at home
and at school. This clause needs to be
read in conjunction with Education White Paper 6 (Inclusive Education), which
provides for screening, identification, assessment and support for learners. In addition, the White Paper envisages the
setting up of District Support Teams, which could be a mechanism to ensure
intersectoral collaboration in addressing specific issues e.g. substance
abuse.
|
|
|
Insert
the following clause: The
MEC of Education in each province must establish and maintain for all schools
in the province a mechanism for the identification, referral and support of
children[2]. |
This
would facilitate the early identification of children experiencing
difficulties, both at home and at school.
This clause needs to be read in conjunction with Education White Paper
6 (Inclusive Education), which provides for screening, identification,
assessment and support for learners.
In addition, the White Paper envisages the setting up of District
Support Teams, which could be a mechanism to ensure intersectoral
collaboration in addressing specific issues e.g. substance abuse. |
|
|
Insert
the following clauses 1)
Every local authority must take children’s needs into account when developing
its Integrated Development Plan 2)
Every local authority must develop, in co-operation with all relevant local
role-players, including parents of disabled children, an intersectoral plan
for supportive services to children with disability or chronic illness[3] |
It is
essential that the needs of all children are considered in the development of
the IDPs. This would ensure that the
appropriate resources are allocated and would promote the progressive
realization of the goal of inclusion of all children. |
Section 148(6)
|
|
148(6) When a case resumes after
the expiry of the specified period, a designated social worker’s report
setting out progress with early intervention programmes provided to the child
and the family, parent or care-giver of the child, must be submitted to the
court This is
necessary of course but in practice because of the shortage of social workers
reports are not finalized in the given time period and orders are simply
reissued for the care of the children. In the |
|
Section
173 (1) |
Replace
the word Provincial head with the word the Court |
The Court
and not the provincial head should order the removal of a child from a
facility after an enquiry |
|
Section |
Recommended amendment |
Motivation |
|
Section
199 (1) |
By the
addition of the word existing shelter |
As with
childrens homes existing shelters should also be deemed to be registered and
not have to take steps to reregister. Drop in centres are also deemed to be registered
(s217) and so must shelters. |
|
Section
200 |
|
This
process bypasses district offices completely, is this desirable? |
|
Section
215 |
Delete
the word MAY and replace with MUST |
Section 214 obliges the Minister
to ensure an appropriate spread of
drop-in centres throughout the Republic, yet gives the MEC the discretion in
section 215 to fund these Centres. There should be no discretion. |