Social Development Portfolio Committee Secretary
South African Parliament
8000
PORTFOLIO COMMITTEE
ON SOCIAL DEVELOPMENT
NATIONAL ASSEMBLY
INTRODUCTION
Child Welfare South Africa
(CWSA) is the national coordinating body of 169 affiliate and branch members
and 54 developing child welfare organisations working in urban, peri-urban and
rural areas. CWSA member organisations render social services to thousands
of children within the context of their families and communities, with the core
purpose of protecting children against abuse, neglect and maltreatment.
In doing this our members provide statutory interventions, alternative care
that includes foster care, adoption, residential care, early childhood
development, early intervention and prevention services as well as programmes
for the care of children affected by HIV/AIDS. During 2005, members
rendered services to 1.5 million children.
On a monthly basis more than 108 000 children received social work
intervention, of which 69 214 required statutory intervention in terms of the
Child Care Act. These figures illustrate CWSA’s strong position in rendering
comments on the present Children’s Bill.
COMMENTS, CONCERNS AND
RECOMMENDATIONS OF SPECIFIC CLAUSES
Provisioning
Sections
Clause 106
(1)
Discussion
The Government of South
Africa through our Constitution has made strides to ensure that the rights of
all are protected. Society today faces a complexity of challenges that
call for multi-pronged solutions that must be underpinned by the involvement of
civil society. To this end it must be ensured that in determining
legislation, that impacts on the most vulnerable in our society namely
children, that civil society has full and active participation. This
rights needs to be solidified in the Children’s Bill. The development of
norms and standards covering services to children need to include civil society
partners who carry the majority of responsibility in implementing services
Clause 106 (1) reads:
The Minister must determine national norms and standards by regulations
after consultation with interested persons.
The term
“interested persons” is broad and could be perceived as interested persons
within a specific sector only e.g. government.
It is essential that the importance of inputs by civil society is openly
acknowledged in the Bill, so to remain in line with the strides already made by
the SA Government.
Recommendation
It is recommended
that the clause read:
The Minister must determine national norms and standards by regulations
after consultation within the government sector and civil society.
It is strongly
felt that civil society must be included and mentioned specifically in the
clause. The assumption that civil
society would be involved in such processes should not be made.
Clause 106
(2)
Discussion
Norms and
standards must be developed to include the full spectrum of child protection
services. This would include prevention
and early intervention, through statutory services including alternate care to
rehabilitation and community based programmes.
The service areas identified however in this clause do note include
placement/statutory procedures.
Recommendation
It is recommended
that an addition point be added to the present list – statutory procedures
Clause 106 (3)
Discussion
In order to provide
protection to the children of our country it is imperative that the child
protection net be broadened especially within rural communities. At
present the Department of Social Development in conjunction with NPOs such as
CWSA member organisations are providing statutory (court) services aimed at the
protection of children. The registration of additional child protection
services is welcomed however cognizance needs to be taken regarding the
standard of care provided by such services. We would not like to see a
repeat of the open legislation of the Non Profit Organisations Act, which has
resulted in many organisations being registered who are unable to offer the
necessary care and protection to our children due to lack of experience and
knowledge within the field as well as many which have developed due to personal
incentives contradictory to the best interest of children. This section
of the Children’s Bill needs to ensure that the principle of the best interest
of children is upheld by all organisations seeking designation as a child
protection service.
This clause refers to the
funding of designated child protection organisations and states:
Child
protection services only qualifies for funding for money appropriated by a
provincial legislature if it complies with the prescribed norms and standards
contemplated in sub seas determined by the Minister in regulations.
It is agreed that in order
to receive funding an organisation should be providing a service of a suitable
standard. However it needs to be considered that in order to provide a high
standard of service delivery adequate, effective and efficient financial and
human resources are needed, hence the need for more funding.
Recommendation
The Constitution of South
Africa Section 28 (1) (b) obligates the state not only to preserve families but
to provide alternate care for children who do not live in a family environment;
while Section 28 (1) (d) emphasizes the state’s obligation to protect children
from maltreatment, neglect, abuse or degradation. It is therefore evident
that the overarching responsibility to protect children lies with the
state. However, the NPO sector has plays a pivotal role in providing
child protection services and therefore should be subsidized at a 100% rate for
the rendering of statutory services.
Reporting of
Child in Need of Care and Protection
Clause 110 (1)
Discussion
Clause 110 (1) of the Bill
focuses on the reporting of suspected child abuse as well as procedures to be
followed when reports are received. The section states that only specific
categories of people are mandated to report child abuse. Within the
context of
Clause 110 (1) of the Bill identifies these specific categories of
people mandated to report child abuse. The section provides an extensive
list of people most likely to come into regular contact with children and
states:
Any
teacher, medical practitioner, psychologist, dentist, registered nurse,
physiotherapist, speech therapist, occupational therapist, traditional health
practitioner, legal practitioner, social worker, social service professional,
minister of religion, religious leader, member of staff at a partial care
facility, shelter, drop-in centre or child and youth care centre, labour
inspector or police official who on reasonable grounds concludes that
a child has been abused in a manner causing physical injury, sexual abused or
deliberately neglected, if it is in the best interest of the child concerned,
must report that conclusion to a designated child protection organisation or
the department of social development.
Concerns arise regarding the
term ‘reasonable grounds concludes’. This term implies that before
reporting child abuse the above category of people would have conducted their
own investigation into a child’s situation and drawn a particular
conclusion. The majority of the people identified in this clause do not
have the necessary knowledge or experience to conduct such investigations, but
should rather be encouraged to report suspected child abuse to those
professionals working within this specialised field. It is therefore
proposed that terms such as on “reasonable grounds suspects” be used.
We
would therefore propose that this statement be reworded and that all suspicions
of abuse should be reported to a professional with the necessary skills and
experience to make a conclusion as to the best interest of the child.
Clause 110 (1) should
therefore read:
Any
teacher, medical practitioner, …………………. labour inspector or police official who
on reasonable grounds suspects that a child has been abused in a
manner causing physical injury, sexual abused or deliberately neglected, must
report that conclusion to a designated child protection organisation or the
department of social development.
Clause 110 (5) (d)
Discussion
Clause 110 (5) of the Bill
focuses on the procedure to be followed on receiving a report of suspected
child abuse, neglect or exploitation.
Concern however is present with regards to (5) (d) which identifies the
role of the social workers once it has been established that a child is in need
of protection. The clause reads:
(d)
if the report is substantiated by such investigation, without delay initiate
proceedings in terms of the Act for the protection of the child.
It is important, that in
holding up the best interest of the child standard a Social Worker investigating
a report of abuse need to have the scope to decide if statutory proceedings are
necessary. A Social Worker must
investigate and asses all reports of suspected abuse and together with the
child and family concerned develop plans and interventions that would best
provide for the long term care and protection.
Not all cases of child abuse should be taken through the court. For example a social worker may receive a
report of physical abuse. Upon
investigation it becomes evident that the child has been inappropriately
beaten. The investigation further
reveals that the child lives alone with his mother and appears to have
attention deficit disorder, resulting in unmanageable behaviours. Further, the mother who appears highly
stressed and to be misusing alcohol as a means to deal with high stress
levels. As the clause stands this mother
should be taken through the court system.
This is a punitive approach and would serve to alienate the mother,
possibly resulting in a child being placed in alternate care. Alternatively, the Social Worker could
counsel the family and using possible statutory intervention as leverage aid
the mother in seeking treatment. She
could further assist the mother in having the child assessed and if necessary
the child could receive medication.
These interventions would reduce the stress within the home and empower
the mother to care appropriately for her child.
The family unit would be maintained and the best interest of the child
standard upheld.
In summary, Social Workers
must be given the allowance to use creative methods to assist children and
families and not be restricted to the statutory system.
Additional Clause
Discussion
In the previous draft of
the Children’s Amendment Bill a clause was inserted concerning the reporting of
sexual abuse by professionals conducting termination of pregnancy on a
child. This section stated:
A
medical practitioner or a registered midwife performing a termination of
pregnancy on a child must, despite any provisions of the Choice on Termination
of Pregnancy Act, 1996 requiring confidentiality, comply with subsection (1) if
the pregnancy was due to sexual abuse of the child.
As the clause stands it
raises the question regarding the reporting of statutory rape. Remaining
in line with present law any child under the age of 16 years who undergoes a
termination of pregnancy regardless of whether or not the pregnancy is a result
of sexual abuse needs to be reported. Poverty and the effects of the HIV/AIDS
pandemic have exposed children in
It should further be
reported if a pregnancy is suspected to be the result of sexual
abuse. All suspicions need to be reported for further investigation as
often children who have been sexually abused are coerced by their abusers to
deny abuse.
Recommendation
It is recommended that the
clause be reinserted into the Bill. The
presence of such a clause alerts medical professionals to the need to look more
deeply into a child’s situation if they approach them for a termination. This would provide added protection to child
victims of abuse and exploitation. It is
however recommended that the clause be rephrased as such:
A
medical practitioner or a registered midwife performing a termination of
pregnancy on a child must, despite any provisions of the Choice on Termination
of Pregnancy Act, 1996 requiring confidentiality, comply with subsection (1) if
the pregnancy is suspected to be due to sexual abuse of the child or
statutory rape.
Applications
to Terminate or Suspend Parental Responsibilities and Rights
Clause 135
Introduction
The emotional and
psychological well being of a child is rooted within a stable, safe and secure
home environment. Key to any child protection legislation is establishing
permanency for children. Clause 135 places this need ahead of parental
rights and confirms the rights of the child as paramount.
Discussion
Recommendation
Clause 135 (1) (2) (3) and
(4) remain unaltered.
Child Headed
Households
Child headed households are
not a new phenomenon in
Discussion
Clause 136 (1) (c)
This clause seeks to define
a household, which may be recognized as child headed and reads:
A
child over the age of 15 years has assumed the role of caregiver in respect of
the children in the household.
Considering the negative
impact of the parentification process previously discussed it would be a great
injustice to burden a minor child with this responsibility and
counter-productive to the aims of this Bill as well as the standard of the best
interest of the child. The most noticeable violation of this standard is
the ability of a child to provide for the emotional and intellectual needs of
their siblings. Regardless of a child’s
economic or cultural background, adolescence is a time complicated with
physiological as well as emotional changes.
This time of transition is further compounded when a child is placed in
the role of a care-giver. It appears
that by placing a child at the head of a household, regardless of age or
maturity, the result is the sacrificing of that child’s rights and needs ahead
of the other children in the household. The question to ask then, is can a
child who themselves is going through many changes accommodate the needs of
their siblings. This is further
compounded when we consider that in 2004 the General Household Survey indicated
that 70% of orphans are 9 years and older.
This indicates that these children are pre-teen and as time proceeds
will need support and guidance to successfully navigate this delicate stage of
development. For these purposes CWSA strongly supports the age limitation of 15
years for a child who may head a household.
Additional concerns are
present regarding the pressure placed on a child heading a household in
relation to financial sustainability.
Although the Bill will assist these children in accessing Child Support
Grants through the designation of an adult to assist the child, this grant is
often inadequate to meet the needs of a household. This leads to children dropping out of school
and seeking alternate sources of income.
A study conducted by ECPAT International, 2006 reflected that there is a
close link between HIV/AIDS and commercial sexual exploitation. Children at the head of a household are often
drawn into prostitution as a means to provide for the family. We should be weary of viewing child headed
households as a norm and rather see them as an exception, a situation that
should ideally be avoided. All children
have the right to the protection, care and love that can be provided within a
family unit.
Recommendation
It is recommended that the
age limit of 15 years as presently stated in this clause be maintained if we
are to uphold the rights of children as stipulated in the Constitution.
Clause 136 (7)
Clause 136 (7) states that:
The child heading the
household may take all day-to-day decisions relating to the household and the
children in the household as if that child was an adult care-giver.
At
no time should we be viewing a child at the head of a household in the same
light as an adult care-giver. The
Children’s Act No.38 of 2005 has clear objects that focus on the end goal of
child protection. The key objects of
this act (Section 2) are to
(d) make provision for structures, services and
means for promoting and monitoring the sound physical, psychological,
intellectual, emotional and social development of children, and/to
(f) strengthen and develop community structures
which assist in providing care and protection for children and/to
(i) promote the protection, development and well-being
of children.
The
implementation of these objectives is the responsibility of government as
stated in Section 4 (1) of the aforementioned Act. The above, points to the responsibility of
our country through the government, with the assistance of civil society role
players to make provision for the protection and care of children, not for
children to take responsibility for caring for children.
Recommendation
It is recommended that the clause read:
The child heading the household may take all
day-to-day decisions relating to the household and the children in the
household.
CHAPTER 8: PREVENTION AND EARLY
INTERVENTION SERVICES
Purpose of prevention and
early intervention services or programmes
Introduction
Early intervention and
prevention services are central to providing for the protection of
children. Section 28(2) of the South African Constitution highlights that
a child’s best interests are of paramount importance in every matter concerning
the child. To ensure that this obligation is met a comprehensive care
package needs to be established in the Children’s Bill. This does not
only refer to statutory interventions to protect children but programmes and
services that can prevent children at risk from moving further into the child
protection system.
Clause 144 (1)
Discussion
This clause identifies the
services or programmes that prevention and early intervention services must
focus on. A detailed and comprehensive list is provided. The list
however does not take cognizance of the need for emotional and psychological
care and counseling for children and families traumatized due to violence,
abuse or loss. In order to aid children in developing into emotionally
healthy adults, the trauma needs to be dealt with. The impact of trauma is
evident in many ways during childhood and adult life. One possible result
of trauma is post traumatic stress disorder. Other results may include
depression, substance abuse, generalized anxiety and bipolar disorder.
The General Household
Survey, 2005 sates that of the 3.4 million orphaned children in the world, 18%
of these live in
Recommendation
It is recommended that the
following clauses be inserted in 144(1)
(i)
assistance and support for families and children who have experienced trauma
due to violence, abuse or loss.
(j)
assistance and support for families and children who have experienced
bereavement, as well as children residing within child headed households.
(k)
assistance and support for families and children living with chronic illnesses.
Additional
Discussion
A key object of the Children’s Act No.38 of 2005
states that the law is to:
(f)
protect children from discrimination, exploitation and any other physical,
emotional, or moral harm or hazard.
The core aspects of this objective are covered in
the prevention and early intervention purposes identified in the Bill, except
for that of moral harm. Considering the
recent debate about children of 12 years accessing contraception the issue of
moral development comes to the forefront.
Prevention services should therefore make provision for programmes
focusing on moral growth and sexuality.
Recommendation
It is recommended that the
following clause be inserted in 144(1)
(l)
providing programmes focusing on moral growth and development
Provision
of prevention and early intervention services
Clause 146 (1)
Discussion
Prevention and Early Intervention services should
not be seen as a secondary service but as an essential service in ensuring the
protection of children. Strong
Prevention and Early Intervention services reduce the need for more costly
statutory interventions. Once again the
Children’s Act 38 of 2005 values the importance of family care and of
preserving family life. Prevention and
Early Intervention services are key in ensuring that children are not separated
from parents and drawn into the formal child protection system. For these reasons the government should
ensure that all necessary resources are provided for these services. They should be seen as a “must”, essential
and not as a “maybe”.
Recommendation
It is recommended that the clause read as follow:
The
MEC for social development of a province must, from money appropriated
by the relevant provincial legislature, provide and fund prevention and early
intervention programmes for that province.
Discussion
Schools as protection
systems
In ensuring that children
are protected through the use of prevention and early intervention it is
essential that children at risk be identified. The education system
through schools provides the optimal opportunity to identify these children, as
it is often the environment in which most time is spent. Furthermore, the
education system has an obligation to report suspicions of abuse as emphasized
in Chapter 7, Clause 110 (1). The importance of this sector was highlighted in
the SALRC draft of the Children’s Bill and now needs to be included in Section
76.
Recommendation
The insertion of following
clause:
The principle of a public or private school must on a confidential
basis –
(a)
identify children who are frequently absent from school, where this may be due
to their becoming involved in exploitative child labour or excessive household
responsibilities, or to lack of appropriate family care;
(b)
take all reasonable steps to assist them in returning to school or to discourage
them from leaving school;
(c) submit the names and addresses of those children to an appropriate
prevention or early intervention
programme or alternative support service, or to the nearest office of the
Department of Social Development for assistance.
CHAPTER 10:
FOSTER CARE
Introduction
CWSA statistical data
reflects that the number of children assisted between 2004 and 2005 increased
by 16%. This increase was further
reflected in a 33% increase in Children’s Court Enquiries. Of the additional 33% of children dealt with
through the Children’s Court the majority was committed to family foster care
placements. Poverty and HIV/AIDS
appeared to play the largest role in the increase in children needing
assistance. This was evident from the increase
in reports of child neglect (35%), child abandonment (60%), children orphaned
(35%), children affected by HIV/AIDS (45%) as well as a 220% increase in the
provision of material assistance to destitute families and children. Alarmingly a decrease in the number of new
reports of physical and sexual abuse was recorded. It is strongly felt that the decrease in
reports was not due to a decrease in incidents of abuse but rather reflects the
shifting of the needs of orphaned children to the forefront of the child
protection system.
The impact of the increased
number of orphaned and neglected as well as children affected by HIV/AIDS in
need of care on our statutory system is growing. Social Worker caseloads
are rapidly increasing as the foster care system becomes a means to find
alternative care for orphaned children and those affected by poverty.
Concerns however arise in that not all children orphaned can be defined to be a
child in need of care in terms of our Child Care Act. Social Workers
however are becoming hard pressed to aid these families by providing foster
care as a means to provide financially for them. The difficulty arises in
that our courts become blocked with such foster care cases reducing court and
Social Worker time dedicated to children who may have experienced abuse and
exploitation and are clearly children in need of care and protection as
outlined in our law.
The social work profession
is also facing a crisis. The high staff
turnover resulting in organisations being crippled by vacancies along with the
inability to attract social workers, the continued disparity between Government
and NGO salaries and the differential provincial subsidies are causing havoc in
service delivery.
Additional concerns remain
in the ability of the South African economy to continue to support orphaned
children through the foster care system. Will our country be able to
continue to provide this level of financial support for the estimated orphans
expected due to HIV/AIDS? In order to rebalance the system, alternate means to
aiding children who are orphaned yet still have family support, need to be
developed.
Discussion
and Recommendations
In considering the South
African context it is recommended that a clear distinction be drawn between
foster care and court ordered kinship care.
Foster care could arise as a result of a Children’s Court enquiry
due to a child being found in need of care an protection in terms of Section
150 of the Children’s Act 2005. The
foster parent (care-giver) assigned the care of a child found in need of
protection would not be a blood relative of the child and would have been
recruited, screened and trained by a designated child protection
organisation. Such placements would
require supervision and support by a person assigned by the organisation as
well as reunification services.
Court Ordered Kinship
Care could arise as a result of a
Children’s Court enquiry due to suspected abuse, neglect, and exploitation of a
child or when a child is orphaned and it can be shown that the child has no
visible means of support. This could
result in a legal placement with a family member, and would require
reunification services as well as supervision and monitoring. A distinction between foster care and court
ordered kinship care is drawn in order to establish differing administrative
procedures in the obtaining of the court order.
In order to address the
aforementioned concerns, Kinship Foster pertaining to orphaned and abandoned
children who are identified as having no visible means of support should be
simplified. Changes would need to be made in the manner in which such
placements are undertaken so to reduce the high workloads of Social Workers and
open the courts to dealing with other matters such as child abuse. Two
suggested solutions are apparent:
(a) Kinship foster
care for reasons of a child being orphaned could be investigated, processed and
taken through court by Social Auxiliary Workers. Social workers would be
required to co-sign all reports but would not need to be present at the
court. Social Auxiliary Workers would further assume the responsibility
of monitoring and supervising all placements; alternatively
(b) Kinship foster care for
reasons of a child being orphaned could be investigated and processed by Social
Workers who complete the necessary report and submit it to court. No
court hearing is held at which the Social Worker or family need to be
present. The Commissioner of Child Welfare would review these reports and
make the necessary orders. Any queries and concerns regarding a report
can result in a court hearing being called.
These options would reduce
blockages at court as well as social worker caseloads freeing the system to
deal more effectively with children in deleterious situations. It would
also continue to allow for children who have been orphaned to receive foster
care grants.
Additional
Comment
In the long-term
Firstly, the child support
grant only extends to children up to the age of 14 years. A caregiver’s responsibility and a child’s
needs do not end at age 14 years. The
present system negatively impacts on the ability of children to complete
schooling and opens children especially those living in poverty to exploitation
and abuse. Secondly, the large gap in
the amount awarded for foster care in comparison to that of the child support
grant needs to be reduced. The present
gap is an incentive for family members of orphaned children to seek foster care
placements even in the event that the children concerned have been in their care
for many years without difficulty. If this gap was significantly reduced and
the age limit for the child support grant was extended to 18 years orphaned
children could remain in the care of their kin and access a suitable child
support grant. These matters would then
not be dealt with through the Children’s Court.
It can be postulated that a reduction in the amount of children
receiving foster care grants would increase the pool of funds available to our
child support grants allowing for an increase in this grant. More South
African children, be they orphaned or not could be reached through such a
system.
CHILD WELFARE