_______________________________________________________________
SUBMISSION
TO THE NATIONAL ASSEMBLY ON THE CHILDREN’S AMENDMENT BILL [B19B-2006]
Children’s
Institute,
July
2007
Paula Proudlock, Lucy
Jamieson and Debbie Budlender
_______________________________________________________________
For more information, please contact Paula Proudlock
1.
The provisioning clauses (s 78, 93, 105, 146, 193 and 215)
A range of policies, laws, strategic plans and programmes are needed in
order to realise children’s social welfare rights. These measures together make
up the state’s overall plan for the realisation of the rights. Within this
overall plan, a law has a distinctive role to play with regards to guiding
decisions on budget allocations. This role includes:
The Children's Amendment Bill specifies that the following social
services should be provided to children and their families:
Provinces receive their funding from national treasury via the equitable
share. The decision making with regards to how much each province gets vests
mainly with National Treasury. National Treasury is bound by s214(2) to
consider a range of factors when making these decisions. One of the factors is
the obligations imposed on provinces by national legislation [see s 214(2) (h)].
Despite the fact that the Child Care Act currently imposes a number of
obligations on the provinces to provide social welfare services to children, these
obligations are not explicitly factored into the equitable share. However the
obligations borne by the provinces as a result of the National Health Act and
the South African Schools Act are explicitly costed into the equitable share. One of these consequences of this is that when
provinces receive the lump sum of money from National Treasury for division
between the various provincial departments, the provincial departments of
social development have a distinct bargaining disadvantage.
The Financial and Fiscal Commission (FCC), a constitutional body
mandated to safeguard the factors listed in s 214(2) of the Constitution, has
recommended that social welfare services should be included in the equitable
share formula. National Treasury agrees that this is a good idea, but has not
yet followed up on the advice.
In 2006/07, provinces allocated a total of R60 647m for their Health
departments, and R91 995m for their Education Departments, but only R5,289m for
Social Development Departments. The Health allocation was thus more than 11
times as large as the Social Development one, while Education was more than 17
times as large. Of the total Social Development amount, only R2 244m was
allocated for social welfare services. Within this, only R1 103m was allocated
for Child Care and Protection Services.
The Children’s Act and Children’s Amendment Bill repeat the Child Care
Act obligations and impose a number of new obligations on the provinces which
will need to be funded via the equitable share. Some of these obligations are
phrased in compulsory language (protection services and child and youth care
centres) while others are phrased in discretionary language (partial care, ecd,
prevention and early intervention, and drop in centres).
The use of discretionary language could result in these services not
being provided and funded at all or being provided and funded inadequately.
Strong and clear provisioning clauses in the Children’s Amendment Bill, coupled
with the necessary changes to the equitable share formula in line with s214 (2)
( h) of the Constitution, could help ensure that these services are explicitly
costed into the equitable share formula. This should result in more budget
being allocated to the provinces.
At the provincial budget decision making level, clear legislative
mandates could help the MEC’s for Social Development to negotiate a bigger
slice of the provincial budget. At a meeting of the Portfolio Committee on
Social Development on 20 June 2007, Musa Mbere (Director for Children, national
Department of Social Development) reported that the national had allocated
R2,4bn for ECD to provinces, but the provinces used some of these funds for
other purposes. If the provinces have clear legislative mandates obliging them
to provide ECD services, this kind of problem is less likely to occur.
The Children’s Act provides explicit guidance to national treasury and
to the provinces with regards to making decisions about how much budget should
be allocated for social welfare services for children. Section 4(2) of the Act
requires national, provincial and, where relevant, local spheres of government,
to take reasonable measures to the maximum extent of their available resources
to achieve the realisation of the objects of the Act. This
means that national treasury and the provinces need to prioritise the
implementation of the Children’s Act when they are making decisions about
budgets and the allocation of resources.
Recommendation: Remove the word “may” from sections
78, 93, 146 and 215 and replace with the word “must”.
Extending the
Statistics
§
more than two-fifths of
§
two-thirds of all children live in poverty; and
§
over half of all children live in households with a
monthly income of R800 or less.
In short,
The Children’s
Bill is a remarkable step forward in the protection of children. It will
provide many social services to children, ranging from community-based
prevention services for all children, to alternative care in residential
facilities for children who have suffered abuse or neglect at home or are on
the streets. However, the Children's Bill needs to be supported with changes to
the social security system in order to be effective.
The loss of one
or more parents makes a child vulnerable, but does not mean that they need
statutory protection services. Most poor children who have been orphaned by AIDS
are cared for by relatives. Many of these relatives go through a long court
process to claim the FCG, not because the child needs protection services, but
because the family is living in poverty and needs a social grant to support the
child. As a result, the formal child protection system is being used as a
poverty alleviation mechanism, leaving fewer resources to provide support and
protection to children who have been seriously abused or neglected.
In May 2000
there were less than 50 000 children in court-ordered foster care. By May 2007 the number had reached 418 608.
This means an increase of more than 700% in seven years, and long waiting lists
for social work services and court dates. This situation has created a major
crisis in the country’s child protection services.
To address the
crisis, we need to lift the age ceiling of 14 years on the
The call for the
extension of the
Recommendation: It
is interesting to note that while the age limits for all the other social
grants have been set by Parliament in the Social Assistance Act of 2004, the
age limit for the Child Support Grant lies within the Minister’s discretion via
regulations. A question should be raised as to why the age limit for this grant
is not being set by Parliament. Parliament can however play a role in
influencing the Minister’s decision by getting involved in the drafting of the
regulations. The Department of Social Development will soon gazette the final
regulations to the 2004 Social Assistance Act. These regulations set the age
limit for the
HIV/AIDS is one of the big ‘drivers’ of the need for services for
children. For example, HIV/AIDS hugely increases the need for foster care
orders as well as the need for places in children’s homes. Overall, about
two-thirds of the cost of the FC high scenario reflects services to children
orphaned by HIV/AIDS. These costs can be reduced if the government vigorously
implements its HIV/AIDS prevention and treatment strategy. For example, if more
adults can access anti-retrovirals, there will be fewer children with ill caregivers
who cannot earn enough to provide for them adequately, and fewer orphans
needing placement in care.
Improving access
to anti-retrovirals and care and support for HIV-positive parents will reduce
the cost of the Children’s Bill over time.
Recommendation: Many NGOs provide programmes aimed at assisting adults
and children to access HIV prevention and treatment services. These programmes
would largely fall within the ambit of Chapter 8 (Prevention and Early
Intervention) and NGOs would access their funding via the provincial
departments of Social Development or Health. Strengthening the provisioning
clause, s146, in Chapter 8, by replacing the word “may” with “must” would help
ensure that there is more funding to allocating to the many NGOs running these
programmes.
The costing team used a ‘good practice’ approach to work out the cost of
prevention and early intervention services covered in Chapter 8 of the
Children’s Bill instead of sticking strictly to what the Bill says. As a result,
the costing allocated much more money to these services than is currently spent
on them. For example, the costing says that R644m should be spent on prevention
services in 2005/06 under the FC high scenario, and R4 800m (R4, 8 billion) on
early intervention services. By 2010/11, these amounts increase to R1 178m
(R1, 2 billion) for prevention services and R8 667m (R8, 7 billion) for
early intervention services. Emphasising these services may seem to add more
money to the total cost than is necessary. But
the relatively small amounts of extra money will soon lead to much
bigger savings in costs of other services by reducing the number of children in
need, and thus the ‘demand’. Changing the Bill by strengthening the chapter
dealing with prevention and early intervention services will therefore add
small-ish costs in the short run that will soon result in savings – and a
better situation for children.
Recommendation:
The Bill needs to be changed to place more emphasis on prevention and
early intervention services.
We recommend that s144 (2) is amended as follows:
(2) Prevention and early intervention services or programmes
may include -
(a) assisting families to
obtain the basic necessities of life and to access government services and
grants;
(b) empowering families to
obtain such necessities and access government services and grants for
themselves; and
(c) providing families
in desperate need with the basic necessities of life including food, clothing,
and shelter.
At present there are many non-governmental organisations (NGOs),
faith-based organisations (FBOs) and community-based organisations (CBOs) that
are providing services for children. In fact, civil society provides the
majority of the services for vulnerable children. If these organisations were
not there to help, the government would need to provide all the services on its
own. Some of the services – such as foster care placements – are services that the
government is obliged to provide by law. Other services – such as prevention
and early intervention – are not yet required by a specific law, but are
required by the Bill of Rights and are necessary for the well-being of the
children of the country. The government’s obligation to ensure these services
are provided will increase when the Children’s Bill becomes law.
In some cases the government gives a subsidy to the organisations that
provide services on its behalf. In many cases it does not give a subsidy. Even
where the government provides funding to the organisations, at present it only
covers a portion of the cost. Organisations are forced to spend time and energy
looking for funding elsewhere. They are also often forced to pay their workers
much lower salaries than people doing similar jobs in government. They often
struggle to retain their workers because the funding from the government is not
guaranteed and predictable. When organisations fail to retain staff, the
quality of the service to children deteriorates, for instance when a child’s
case is passed on from one staff member to the next.
Cornerstone calculated the costs of services that can be provided by
either government or other organisations using the full cost of the services if
government delivers the service itself. It did the calculations in this way
because government cannot expect civil society organisations to deliver the
services with less funding then government itself needs to provide the same
service. If the government continues to provide only partial subsidies to NGOs,
FBOs and CBOs, it will be weakening the services and support systems that can
help to address the service delivery backlogs and provide for children’s needs.
In the end it will be the children who suffer because the services will either not
be provided at all or will be of a poor quality, including long waiting periods.
Recommendation: Government should cover the cost of delivering services
provided for in the Bill. The Bill should say that where these services are
delivered by NGOs, government should provide the NGOs with full cost funding.
Organisations must also have certainty about funding for beyond the period of a
single year.
The Children’s Bill that was tabled before the NCOP referred mostly to “social
workers”. It did not acknowledge that there are different types of indigenous
(home-grown) social service professionals and para-professionals who can (and
already do) provide protection, prevention and early intervention services for
many vulnerable children in a cost-effective manner.
Placing too much emphasis on social workers is not sensible. Firstly, we
simply don’t have enough social workers in the country. Social workers should
therefore be reserved for the tasks for which they are really needed and for
which their skills are appropriate. The other social service professionals and
para-professionals can do many of the other tasks just as effectively – and
sometimes more appropriately – than social workers because the tasks match their
training and experience.
In particular, we already have 6 000 child and youth care workers
who are providing prevention, protection and alternative care services to
children. Many of these workers come from the communities they work in. This
helps them provide a good service that is responsive to the local community.
Auxiliary child and youth care workers are much less expensive than social
workers, take a much shorter time to train and can be trained on the job. They
are much less likely to emigrate than social workers as their skills are most
appropriate for
The Department of Social Development and the NCOP have amended the Bill
and, where possible, replaced references to social workers with the term “social
service professionals”. The Children’s Act defines a social service
professional to include a probation officer, development worker, child and
youth care worker, youth worker, social auxiliary worker and social security
worker who are registered in terms of the Social Service Professions Act of
1978.
The amendments in sections 81, 82, 97, 110, 141, 186 and 220 may reduce
the total cost of implementing the Bill as these other categories of workers
are less expensive than social workers.
Recommendation: We support these amendments by the NCOP as they will
help reduce costs and also ensure that a range of social service professionals
can be used to deliver appropriate and community-based services to vulnerable
children.
The Children’s Bill tabled in the NCOP specified that the children’s
courts must review all foster care placements every two years. The costing team
calculated that the cost to the Department of Justice of reviewing these orders
is R531m in 2005/06 under the FC high scenario. This equals 24% of the total
cost of the Bill for the Department of Justice in 2005/06. And the cost almost
doubles over the period 2005/06 to 2010/11.
As discussed above, this cost in time and money is unnecessary where
there is no sign of danger to the child. Court review is, for example, not
appropriate for many children placed in the long-term care of relatives,
including many placed with relatives as a result of being orphaned. Where child
protection services are not needed, these children can be supported and
monitored through expanded prevention and early intervention services.
Taking these arguments into account, the NCOP amended s186(2) to say
that a court may under specified circumstances make a permanent order that a
child remains in the care of a relative until the age of 18. This order can be
made at the first court hearing, and will eliminate the need for a two-yearly
review. Where a child is placed in the care of a non-related foster parent, the
court may extend the placement until the child is 18 after the first two-yearly
review. These long-term foster placements will be evaluated by a social service
professional.
Recommendation: We support these amendments by the NCOP because they reduce
costs, free up social workers’ time to deal with child abuse cases and increase
stability for children.
4.
Conclusion
Thank-you for considering our submission and
we wish you well in your deliberations on the Bill. Please contact us for any
further information needed to assist you in your deliberations.
Kind regards
Paula Proudlock
Child Rights Programme Manager
Children’s Institute