_________
CHILDREN’S AMENDMENT BILL
____________
(As amended by Portfolio
Committee for Social Development (National Assembly))
(The English text is the
official text of the Bill)
____________
(Minister of Social Development)
18 October 2007
Working document:
[B19C & D—2006]
GENERAL EXPLANATORY NOTE:
________________________ Words underlined with a solid line indicate
insertions in existing enactments.
BILL
To
amend the Children’s Act, 2005, so as to insert certain definitions; to provide for partial care of children; to provide for early childhood
development; to make further provision
regarding the protection of children; to
provide for prevention and early intervention [services]; to provide for children in alternative
care; to provide for foster care; to provide for child and youth care centres
and drop-in centres; and to create
certain new offences relating to children;
and to provide for matters connected therewith.
BE IT ENACTED by the
Parliament of the
Amendment of long title of Act 38 of 2005
1. The following long title is substituted
for the long title to the Children’s Act, 2005 (hereinafter referred to as the
principal Act):
“To
give effect to certain rights of children as contained in the
Constitution; to set out principles
relating to the care and protection of children; to define parental responsibilities and
rights; to make further provision
regarding children's courts; to
provide for partial care of children; to
provide for early childhood development;
to provide for the issuing of contribution orders; to provide for prevention and early
intervention [services]; to
provide for children in alternative care;
to provide for foster care; to
provide for child and youth care centres and drop-in centres; to make new provision for the adoption of
children; to provide for inter-country
adoption; to give effect to the Hague
Convention on Inter-country Adoption; to
prohibit child abduction and to give effect to the Hague Convention on
International Child Abduction; to
provide for surrogate motherhood; and
to create certain new offences relating to children; and to provide for matters connected
therewith.”
Amendment of Table of Contents of Act 38 of 2005
2. The Table of Contents after the long
title of the principal Act is hereby amended—
(a) by the insertion after “75. Regulations” of the following:
“CHAPTER 5
PARTIAL
77. Strategy
concerning partial care
78. Provision
of partial care
79. Norms
and standards for partial care
81. Application
for registration and renewal of registration
82. Consideration
of application
83. Conditional registration
86. Appeal against and review of certain
decisions
87. Record
and inspection of and provision for partial care facility
88. Assignment
of functions to municipality
89. Death,
abuse or serious injury of child in partial care facility
90. Regulations
CHAPTER
6
EARLY
CHILDHOOD DEVELOPMENT
92. Strategy
concerning early childhood development
93. Provision
of early childhood development programmes
94. Norms and standards for early childhood
development programmes
95. Early
childhood development programme to be registered
96. Application
for registration and renewal of registration
97. Consideration
of application
98. Conditional
registration
101. Assessment
of early childhood development programmes
102. Assignment
of functions to municipality
103. Regulations
(b)
by
the insertion after “PROTECTION OF
CHILDREN” of the following:
“Part 1
Child protection system
104. Strategy
concerning child protection
105. Provision of child protection services
106. Norms and standards for [concerning] child protection
107. Designation
of child protection organisation
108. Existing
child welfare organisation
109. Withdrawal of designation
110. Reporting of abused or neglected child and
child in need of care and protection
(b) by the insertion after “134. Access to contraceptives” of the following:
“Part 4
Other protective measures
135. Applications
to terminate or suspend parental responsibilities and rights
136. Child-headed
household
138. Unlawful
taking or sending of child out of Republic
139. Discipline
of child
140. Child
safety at place of entertainment
141. Child labour and exploitation of child
(d) by the insertion after “142. Regulations” of the following:
“CHAPTER 8
PREVENTION
143. Prevention
and early intervention programmes
144. Purposes
of prevention and early intervention programmes
145. Strategy
for securing prevention and early intervention
146. Provision
of prevention and early intervention programmes
147. Norms and standards for prevention and
early intervention programmes
148. Court
may order early intervention
149. Report
to include summary of prevention and early intervention programmes
(e) by the insertion after “166. Change of residence or work by respondent” of
the following:
“CHAPTER
11
ALTERNATIVE
167. Alternative
care
168. Leave
of absence
169. Child
in alternative care prohibited from leaving Republic
170. Child
absconding from alternative care
171. Transfer
of child in alternative care
172. Change
in residential care programme
173. Removal
of child already in alternative care
174. Provisional
transfer from alternative care
175. Discharge
from alternative care
176. Remaining in alternative care after
reaching age of 18 years
177. Appeal
against and review of certain decisions
178. Death,
abuse or serious injury of child in alternative care
179. Regulations
CHAPTER
12
180. Foster
care
181. Purposes
of foster care
182. Initial
proceedings
183. Prospective
foster parent
184. Determination
of placement of child in foster care
185. Number
of children to be placed in foster care per household
186. Duration
of foster care placements
187. Reunification
of child with biological parent
188. Responsibilities
and rights of foster parent
189. Termination
of foster care
190. Regulations
CHAPTER
13
CHILD
191. Child
and youth care centre
192. Strategy
to ensure sufficient provision of child and youth care centres
193. Provision
of child and youth care centres
194. Norms and standards for child and youth
care centres
Part 1
Establishment and registration of child and
youth care centre
195. Establishment of child and youth care
centre by organ of state
196. Existing government children’s home, place
of safety, secure care facility, school of industry and reform school
197. Establishment of child and youth care
centre by accredited organisation
198. Existing
registered children’s home and registered shelter
200. Application for registration or renewal of
registration
201. Consideration
of application
202. Conditional
registration
203. Amendment
of registration
205. Voluntary
closure of child and youth care centre
206. Child
in child and youth care centre to be closed
207. Appeal against and review of certain
decisions
Part 2
Operation and management of child and youth
care centre
208. Management board
209. Manager and staff of child and youth care
centre
210. Management
system
211. Quality
assurance process
Part 3
Miscellaneous
212. Regulations
CHAPTER 14
DROP-IN CENTRES
214. Strategy
concerning drop-in centres
215. Provision
of drop-in centres
216. Norms
and standards for drop-in centres
219. Application for registration and renewal
of registration
220. Consideration of application
221. Conditional
registration
223. Appeal against and review of certain
decisions
224. Record and inspection of and provision for
drop-in centres
225. Assignment
of functions to municipality
226. Death,
abuse or serious injury of child in drop-in centre
227. Regulations”.
Amendment of section 1 of Act 38 of 2005
3. Section 1 of the principal Act is
hereby amended—
(a) by the insertion after the definition of “adoptive parent” of the following
definitions:
“
‘alternative care’
means care of a child in accordance with section 167;
‘area’, in relation to—
(a) a
metropolitan or local municipality, means the area for which the municipality
has been established; and
(b) a
district municipality, means those parts of the area for which the municipality
has been established which do not fall within the area of a local
municipality;”;
(b) by the insertion after the definition of “child” of the following definition:
“ ‘child and youth care centre’ means a facility described in section
191(1);”;
(c) by the insertion after the definition of “Child Care Act” of the following
definition:
“
‘child-headed household’ means a household recognised as such in terms of section 136;”;
(d) by the insertion after the definition of “clerk of the court” of the following
definition:
“ ‘ cluster foster care’ means the reception of children in foster
care in accordance with a cluster foster care scheme registered by the
provincial head of social development;
‘cluster
foster care scheme’
means a scheme, managed by a non-profit organisation and registered by the
provincial head of social development for this purpose, providing for the
reception of children in foster care [means a scheme
providing for the reception of children in foster care in accordance with a
foster care programme operated by—
(a) a social, religious or other non-governmental
organisation; or
(b) a group of individuals, acting as
care-givers of the children, and managed by a provincial department of social
development or a designated child
protection organisation];”;
(e) by the insertion after the definition of “Department” of the following
definitions:
“
‘designated child protection organisation’ means an organisation designated in terms of section 107 to
perform designated child protection services;
‘designated child protection service’ means a child protection service referred
to in section 105;”;
(f) by the insertion after the definition of “divorce court” of the following
definitions:
“
‘drop-in centre’
means a facility referred to in section 213;
‘early
childhood development programme’ means a programme referred to in section 91(3);
‘early
childhood development services’ means services referred to in section 91(2);
‘early
intervention programme [service]’ means a programme [service] referred to in section 143(1);”;
(g) by the insertion after the definition of “family member” of the following
definitions:
“
‘foster care’
means care of a child as described in section 180(1) and includes cluster
foster care in a registered cluster foster care scheme;
‘foster
parent’ means a person who
has foster care of a child by order of the children’s court, and includes an
active member of an organisation operating a cluster foster care scheme and who
has been assigned responsibility for the foster care of a child;”;
(h) by the insertion after the definition
of “mental illness” of the following
definition:
“
‘midwife’ means
a person registered as a midwife under the Nursing Act, 1978 (Act No. 50 of
1978);”;
(i) by the insertion after
the definition of “Minister” of the
following definition:
“ ‘municipality’ means a metropolitan, local or
district [or
local] municipality established in terms of section 12 of the
Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), but to
the extent that a municipality may or must implement a provision of this Act in
or in relation to an area which falls within the area of both a local [district]
municipality and a district [local] municipality, “municipality” in such
a provision means the relevant local municipality;”;
(j) by the insertion after the definition
of “neglect” of the following
definition:
“
‘nurse’ means a person registered as a
nurse under the Nursing Act, 1978 (Act No. 50 of 1978);”;
(k) by the insertion after the definition of “parental responsibilities and rights”
of the following definition:
“
‘partial care’
means partial care referred to in section 76;”;
(l) by the insertion after the definition of “party” of the following definition:
“ ‘permanency plan’ means a documented plan referred to in
section 157(1);”;
(m) by the insertion after the definition of “presiding officer” of the following
definition:
“ ‘prevention services’ means services referred to in section
143(2);”;
(n) by the insertion after the definition of “psychologist” of the following
definition:
“ ‘quality assurance
process’
means the process referred to in section 211;
(o) by the insertion after the definition of “removal of body parts” of the
following definition:
“
‘residential care programme’ means a
programme described in section 191(2) which is or must be offered at a child
and youth care centre;”;
and
(p) by
the insertion after the definition of “school”
of the following definition:
“
‘secure care’ means
the physical containment in a safe and healthy environment—
(a) of children with behavioural and emotional
difficulties;
(b) of
children in conflict with the law
[“
‘secure care’ means the physical containment of children in a safe and healthy
environment conducive to addressing behavioural or emotional difficulties;”.]
Insertion of chapters 5 and 6
in Act 38 of 2005
4. The
following chapters are hereby inserted in the principal Act after Chapter 4:
“CHAPTER 5
PARTIAL
76. Partial care is provided when a person,
whether for or without reward, takes care of more than six children on behalf
of their parents or care-givers during specific hours of the day or night, or
for a temporary period, by agreement between the parents or care-givers and the
provider of the service, but excludes the taking care of a child –
(a) by
a school as part of tuition, training and other activities provided by the
school;
(b) as a boarder in a school hostel or other
residential facility managed as part of a school; or
(c) by a hospital or other medical facility
as part of medical [the]
treatment provided to the child.
Strategy concerning partial
care
77. (1) The Minister, after consultation with
interested parties and the Ministers of Education, Finance, Health, Provincial
and Local Government and [Education]
Transport must include in the departmental strategy a comprehensive
national strategy aimed at ensuring an appropriate spread of partial care
facilities throughout the Republic, giving due consideration as provided in
section 11 to children with disability or chronic illness.
(2) The
MEC must―
(a) maintain
a record of all the registered partial care facilities in the province
concerned;
(b) within
the national strategy referred to in subsection (1), provide for a provincial
strategy to ensure an appropriate spread of partial care facilities in the
province.
(3) The MEC must compile a provincial profile at the
prescribed intervals [from time to
time] in order to make the information available that is necessary for the
development and review of the strategies referred to in subsections (1) and
(2).
Provision
of partial care
78. (1) The
MEC for social development of a province may, from money appropriated by the
relevant provincial legislature, provide and fund partial care facilities and
services for that province, taking into consideration the national and
provincial strategies contemplated in section 77.
(2) A partial care facility contemplated in
subsection (1)—
(a) must
be management and maintained in accordance with this Act; and
(b) must
comply with—
(i) the prescribed norms and standards
contemplated in section 79 and such other requirements as may be prescribed;
(ii) the structural safety, health and other
requirements of the municipality of the area where the partial care facility is
situated.
(3) The owner or manager of a partial care
facility or provider of a partial care service only qualifies for
funding appropriated as contemplated in subsection (1) if it complies with the
prescribed norms and standards contemplated in section 79 and such other
requirements as may be prescribed.
(4) The funding of partial care facilities
must be prioritised—
(a) in
communities where families lack the means of providing proper shelter, food and
other basic necessities of life to their children; and
(b) to make
facilities accessible to children with disabilities.
Norms
and standards for partial care
79. (1) The
Minister must determine national norms and standards for partial care by
regulation after consultation with interested persons, including local
government.
(2) The norms and standards contemplated in subsection (1) must
relate to the following:
(a) A
safe environment for the children;
(b) proper
care for sick children or children that become ill;
(b) adequate
space and ventilation;
(c) safe
drinking water;
(d) hygienic
and adequate toilet facilities;
(e) safe
storage of anything that may be harmful to children;
(e) access to disposal of refuse services or
other adequate means of disposal of refuse generated at the facility;
(f) a
hygienic area for the preparation of food for the children;
(g) measures
for the separation of children of different age groups;
(h) the
drawing up of action plans for emergencies;
and
(i) the
drawing up of policies and procedures regarding health care at the centre.
(3) A partial care facility for children
with disabilities or chronic illnesses must, in addition to the norms and
standards contemplated in subsection (1)—
(a) be accessible to such children;
(b) provide facilities that meet the needs
of such children; and
(c) employ
persons that are trained in and provide training to persons employed at the
facility on—
(i) the
needs, health and safety of such children;
[and]
(ii) appropriate learning activities and
communication strategies for such children;
and
(iii) basic therapeutic interventions.
(5) A partial care facility may offer such programmes appropriate
to the developmental needs of the children in that facility as may be
prescribed.
80. (1) Any
person may establish or operate a partial care facility provided that the
facility –
(a) is registered with the provincial
government of the province where that facility is situated;
(b) is managed and maintained in accordance
with any conditions subject to which the facility is registered; and
(c) complies with the prescribed norms and
standards contemplated in section 79 and such other requirements as may be
prescribed.
(2) The Minister may by regulation exempt any person or
organisation or any category of person or organisation from the requirement to
register on such conditions as may be prescribed.
(3) Partial care facilities operated or managed by a national or
provincial state department or by a local authority [other than the national or provincial state department responsible for
social development] must comply with subsection (1).
(4) As from the date on which this section takes effect an
existing place of care registered or deemed to be registered in terms of the
Child Care Act must be regarded as having been registered in terms of this
section as a partial care facility.
(5) A facility referred to in subsection (4)
is regarded to be a registered partial care facility for a period of five years
from the date on which that subsection takes effect, unless its registration is
withdrawn in terms of section 84 before the expiry of that period.
Application
for registration and renewal of registration
81. (1) An
application for registration or conditional registration of a partial care
facility or for the reinstatement or renewal of registration must—
(a) be lodged with the provincial head of
social development of the province where the facility is situated in accordance
with a prescribed procedure [prescribed
by regulation];
(b) contain
the prescribed particulars [prescribed
by regulation]; and
(c) be
accompanied by—
(i) a report by a social service professional on the viability
of the application; and
(ii) any documents that may be prescribed [by regulation].
(2) An applicant must provide such additional information
relevant to the application as the provincial head of social development may
determine.
(3) An application for the renewal of registration or conditional
registration must be made at least 90 days before the registration is due to
expire, but the provincial head of social development may allow a late
application on good cause shown.
(4) The provincial head of social development must renew the
registration of a partial care facility before the expiration thereof if the
application for renewal was lodged at least 90 days before the registration was
due to expire as mentioned in subsection (3).
Consideration
of application
82. (1) The
provincial head of social development must—
(a) consider
an application for registration or conditional registration or for the renewal
of registration and either reject the application or, having regard to
subsection (2), grant the registration or renewal with or without conditions;
(b) issue to
the applicant a certificate of registration or conditional registration or
renewal of registration in the form prescribed by regulation if the application
is granted; and
(c) state in
the certificate of registration the period for which the registration will
remain valid.
(2) When
considering an application the provincial head of social development must take
into account all relevant factors, including whether—
(a) the facility complies with the
prescribed norms and standards contemplated in section 79 and such other
requirements as may be prescribed;
(b) the
applicant is a fit and proper person to operate a partial care facility;
(c) the applicant has the necessary funds
and resources available to provide the partial care services of the type
applied for;
(d) each person employed at or engaged in
the partial care facility is a fit and proper person to assist in operating a
partial care facility; and
(e) each person employed at or engaged in
the partial care facility has the prescribed skills and training to
assist in operating that partial care facility.
(3) A person unsuitable to work with children is not a fit and
proper person to operate or assist in operating a partial care facility.
(4) The provincial head of social development must consider the
report contemplated in section 81(1)(c)(i)
of a social service professional before deciding an application for
registration, conditional registration or renewal of registration.
(5) Notwithstanding the provisions of section 78(3) a provincial
head of social development may assist the owner or manager of a partial care
facility to comply with the prescribed norms and standards contemplated in
section 79 and such other requirements as may be prescribed.
Conditional
registration
83. The registration or renewal of the
registration of a partial care facility may be granted on such conditions as
the provincial head of social development may determine, including conditions—
(a) specifying the type of partial care that
may or must be provided in terms of the registration;
(b) stating
the period for which the conditional registration will remain
valid; and
(c) providing
for any other matters that may be prescribed by regulation.
84. (1) The provincial head of social development may
cancel the registration or conditional registration of a partial care facility
by written notice to the registration holder if—
(a) the facility is not maintained in
accordance with the prescribed norms and standards contemplated in section 79
and such other requirements as may be prescribed;
(b) any condition subject to which the
registration or renewal of registration was issued is breached or not complied
with;
(c) the registration holder or the
management of the facility contravenes or fails to comply with a provision of
this Act;
(d) the registration holder becomes a person
who is not a fit and proper person to operate a partial care facility; or
(e) a person who is not a fit and proper
person to assist in operating a partial care facility, is employed at or
engaged in operating the facility.
(2) The provincial head of social development may in the case of
the cancellation of a registration in terms of subsection (1)(a), (b),
(c) or (e) –
(a) suspend the cancellation for a period to
allow the registration holder to correct the cause of the cancellation; and
(b) reinstate the registration if the
registration holder corrects the cause of the cancellation within that period.
(3) The provincial head of social development may assist a
registration holder to comply with the prescribed norms and standards
contemplated in section 79, any
requirements as may be prescribed or any provision [provisions] of this Act where the
cancellation was due to non-compliance with those norms and standards,
conditions, requirements or provisions.
85.
(1) A provincial head of social
development may by way of a written notice of enforcement instruct—
(a) a
person operating an unregistered partial care facility—
(i) to
stop operating that facility; or
(ii) to apply for registration in terms of section 81 within a
period specified in the notice; or
(b) a person operating a registered partial
care facility otherwise than in accordance with the provisions of this Act or
any conditions subject to which the registration was issued, to comply with
those provisions or conditions.
(2) A person operating an unregistered partial care facility and
who is instructed in terms of subsection (1)(a)(ii)
to apply for registration within a specified period may, despite the provisions
of section 80, continue operating the facility during that period and, if that
person applies for registration, until that person’s application has been
processed.
(3) The Director-General or the provincial head of social
development may apply to the High Court for an order to instruct a partial care
facility, whether registered or not, to stop operating that facility.
(4) The High Court may grant an order for costs against the owner
of manager of the partial care facility referred to in subsection (3) if so
requested by the Director-General or provincial head of social development.
Appeal against and review of certain
decisions
86. (1) An applicant aggrieved by a decision of
a provincial head of social development in terms of section 82 or 83, or a registration holder aggrieved by
a decision of a provincial head of social development in terms of section 84
may lodge an appeal against that decision with the MEC for social development.
(2) An
applicant that is not satisfied with the outcome of an appeal referred to in
subsection (1) may apply to the competent division of the High Court to review
that decision.
Record
and inspection of and provision for partial care facility
87. (1) A
provincial head of social development must—
(a) maintain
a record of all available partial care facilities in the province, the types of
partial care facility and the number of each type of facility;
(b) compile a
profile of the children in that province in the prescribed manner; and
(c) conduct [regular] inspections at the
prescribed intervals of partial care facilities in the province to enforce
the provisions of this Act.
(2) A provincial strategy contemplated in
section 77(2) [Provincial
strategies] must include a strategy [strategies] for the provision of partial care facilities in the
province [its area], which must
include measures—
(a) facilitating the establishment and
operation of sufficient partial care facilities in that [the] province;
(b) prioritising
those types of partial care facilities most urgently required; and
(c) liaising with municipalities on
facilitating the identification and provision of suitable premises.
Assignment
of functions to municipality
88. (1) The
provincial head of social development may, by written agreement with a
municipality, assign the performance of some or all of the functions
contemplated in sections 80, 81, 82, 83, 84, 85 and 87 to the municipal manager
if the provincial head of social development is satisfied that the municipality
complies with the prescribed requirements with regard to the capacity of that
municipality to perform the functions concerned.
(2) The agreement must be in the prescribed form and contain the
prescribed particulars.
(3) The municipal manager referred to in subsection (1) may
delegate any power or duty assigned to him or her in terms of this section to a
social service professional [designated
social worker] in the employ of the municipality.
(4) A delegation in terms of subsection (3)—
(a) is subject to any limitations,
conditions and directions which the municipal manager may impose;
(b) must
be in writing; and
(c) does not divest the municipal manager of
the responsibility concerning the exercise of the power or the performance of
the duty.
(5) The municipal manager may—
(a) confirm, vary or revoke any decision
taken in consequence of a delegation in terms of this section, subject to any
rights that may have accrued to a person as a result of the decision; and
(b) at any time withdraw a delegation.
(6) An
applicant or a registration holder aggrieved by a decision of an official in
the employ of a municipality [with
regard to an application for registration or renewal of registration in terms
of section 81, the conditions on which registration was granted in terms of
section 82 conditional registration in terms of section 83 or a registration
holder aggrieved by a decision to cancel the registration of a partial care
facility] in terms of section 84 may lodge an appeal with the municipal
council 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.
(8) (a) The provincial head of social development must monitor the
performance of the functions assigned in terms of this section.
(b)
The provincial head of social development may by notice in writing require the
municipal manager or any other person in possession of information required by
the provincial head of social development for purposes of monitoring the
performance of the functions assigned by this section, to provide such
information to the provincial head of social development within the period
specified in the notice.
(c)
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 may—
(i) amend the written agreement contemplated in subsection
(1); or
(ii) withdraw the assignment of the functions.
Serious
injury, abuse or death of child in partial care facility
89. (1) If a child is seriously injured or
abused while in partial care or following an occurrence at a partial care
facility, the person operating the partial care facility or a person employed
at the partial care facility must immediately report such injury or abuse to
the provincial head of social development, who must cause an investigation into
the circumstances of the serious injury or abuse to be conducted.
(2) If a child dies while in partial care or following an
occurrence at a partial care facility, the person operating the partial care
facility or a person employed at the partial care facility must immediately
after the child’s death report such death to—
(a) the
parent or guardian of the child;
(b) a
police official;
(b) the
provincial head of social development;
and
(3) The police official must cause an investigation into the
circumstances surrounding the death of the child to be conducted by the South
African Police Service, unless the police official is satisfied that the child
died of natural causes.
[Death,
abuse or serious injury of child in partial care facility
89. (1) If a child dies while in partial care or
following an occurrence at a partial care facility, the person operating the
partial care facility must immediately after the child’s death report such
death—
(a) to a police official;
(b) the provincial head of social development; and
(c) the parent or guardian of the child.
(2) The
police official must cause an investigation into the circumstances surrounding
the death of the child to be conducted by the South African Police Service if
the police official is satisfied that the child did not die of natural causes.
(3) If a
child is abused or seriously injured while in partial care or following an
occurrence at a partial care facility, the person operating the partial care
facility must immediately report such injury or abuse to the provincial head of
social development, who must cause an investigation into the circumstances of
the abuse or serious injury to be conducted.]
Regulations
90. The Minister may make regulations in terms
of section 306 concerning—
(a) the norms and standards that partial
care facilities must comply with;
(b) the procedure to
be followed in connection with the lodging and consideration of applications
for registration in terms of this Chapter, for the renewal of such registration
and for the suspension or cancellation of registration;
(c) the different
types of partial care that may be provided in terms of such registration;
(d) the period for which registration is
valid;
(e) the requirements that the different
types of partial care facilities have to comply with;
(f) the management of partial care
facilities;
(g) the procedure to be followed with
regard to the children in a partial care facility if the partial care facility
is closed down;
(h) the
procedure to be followed and the fees to be paid in connection with the lodging
and consideration of appeals in terms of this Chapter; and
(i) any other matter
that may be necessary to facilitate the implementation of this Chapter.
CHAPTER
6
EARLY
CHILDHOOD DEVELOPMENT
91. (1) Early
childhood development, for the purposes of this Act, means the process of
emotional, cognitive, sensory, spiritual, moral, physical, [and] social and communication
development of children from birth to school-going age.
(2) Early childhood development services means services—
(a) intended
to promote early childhood development;
and
(b) provided by a person, other than a
child’s parent or caregiver, on a regular basis to children up to school-going
age.
(3) An early childhood development programme means a programme
structured within an early childhood development service to provide learning
and support appropriate to the child’s developmental age and stage.
Strategy
concerning early childhood development
92. (1) The Minister, after consultation with
interested persons, and the Ministers of Education, Finance, [and] Health, Provincial and Local
Government and Transport must include in the departmental strategy a
comprehensive national strategy aimed at securing a properly resourced,
co-ordinated and managed early childhood development system, giving due
consideration as provided in section 11 to children with disability or chronic
illness.
(2) The
MEC for social development must―
(a) maintain
a record of all the early childhood development programmes registered in the
province;
(b) within
the national strategy referred to in subsection (1), provide for a provincial
strategy aimed at a properly resourced, co-ordinated and managed early
childhood development system.
(3) The MEC must compile a provincial profile at the
prescribed intervals [from time to
time] in order to make the information available that is necessary for the
development and review of the strategies referred to in subsections (1) and
(2).
Provision
of early childhood development programmes [services]
93. (1) 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.
(2) An early childhood development programme
[programmes] must—
(a) be
provided in accordance with this Act;
and
(b) comply
with the prescribed norms and standards contemplated in section 94 and such
other requirements as may be prescribed.
(3) The provider of an early childhood
development programme only qualifies for funding contemplated in subsection (1)
if such provider complies with the prescribed norms and standards contemplated
in section 94 and such other requirements as may be prescribed.
(4) The funding of early childhood
development must be prioritised—
(a) in
communities where families lack the means or providing proper shelter, food and
other basic necessities of life to their children [must be prioritised]; and
(b) to make
early childhood development available to children with disabilities.
(5) Early childhood development programmes must be provided by—
(a) a partial care facility providing
partial care services for any children up to school-going age; and
(b) a child and youth care centre which has
in its care any children up to school-going age.
(6) Any other person or organisation not disqualified in terms of
section 97(3) may provide early childhood development programmes, provided that
those programmes comply with the prescribed norms and standards contemplated in
section 94 and such other requirements as may be prescribed.
Norms
and standards for early childhood development programmes
94. (1) The
Minister must determine national norms and standards for early childhood
development programmes by regulation after consultation with interested
persons, including the Departments of Education and Health.
(2) The norms and standards contemplated in subsection (1) must
relate to the following:
(a) The
provision of appropriate developmental opportunities;
(b) programmes
aimed at helping children to realise their full potential;
(c) caring for children in a constructive manner,
providing support and security;
(d) ensuring
development of positive social behaviour;
and
(e) respect for and nurturing of the
culture, spirit, dignity, individuality, language and development of each
child.
(f) meeting
the emotional, cognitive, sensory, spiritual, moral, physical, [and] social and communication
development needs of the children.
(3) Early childhood development programmes
provided in terms of this section must be appropriate to the needs of the
children to whom the programmes [services]
are provided, including children with disabilities, chronic illness and other
special needs.
Early
childhood development programme to be registered
95. (1) A
person or organisation providing [operating
or managing a partial care facility or a child and youth care centre where]
an early childhood development programme [is
provided] must—
(a) register the programme with the
provincial head of social development of the province where that programme is
provided;
(b) provide the programme in accordance with
any conditions subject to which the programme is registered; and
(c) comply with the prescribed norms and
standards contemplated in section 94 and such other requirements as may be
prescribed.
(2) The Minister by regulation may exempt any person or
organisation or any category of person or organisation from the requirement to
register on such conditions as may be prescribed.
(3) Early childhood development programmes provided by a national
or provincial state department or a municipality [other than a national or provincial state department responsible for
social development] must comply with subsection (1).
Application
for registration and renewal of registration
96. (1) An
application for registration or conditional registration of an early childhood
development programme or for the renewal of registration must—
(a) be lodged with the provincial head of
social development of the province where the early childhood development
programme is provided [partial care
facility or child and youth care centre is situated] in accordance with a prescribed
procedure [prescribed by regulation];
(b) contain
the prescribed particulars [prescribed
by regulation]; and
(c) be accompanied by any documents that
may be prescribed [by regulation].
(2) An applicant must provide such additional information
relevant to the application as the provincial head of social development may
determine.
(3) An application for the renewal of registration or conditional
registration must be made at least 90 days before the registration is due to
expire, but the provincial head of social development may allow a late
application on good cause shown.
(4) The provincial head of social development must renew the
registration of an early childhood development programme [a partial care facility] before the
expiration thereof if the application for renewal was lodged at least 90 days
before the registration was due to expire as contemplated in subsection (3).
Consideration
of application
97. (1) The
provincial head of social development must—
(a) consider
an application for registration or conditional registration or for the renewal
of registration, and either reject the application or, having regard to
subsection (2), grant the registration or renewal with or without conditions;
(b) issue to
the applicant a certificate of registration or conditional registration or
renewal of registration in the prescribed form [prescribed by regulation], if the application is granted; and
(c) state in
the certificate of registration the period for which the registration will
remain valid.
(2) When
considering an application, the provincial head of social development must take
into account all relevant factors, including whether—
(a) the early childhood development
programme complies with the prescribed norms and standards as contemplated in
section 94 and such other requirements as may be prescribed;
(b) the applicant is a fit and proper person
to provide an early childhood development programme [services];
(c) the applicant has the prescribed skills,
training, funds and resources available to provide the early childhood
development programme as applied for;
and
(d) the early childhood development
programme meets the emotional, cognitive, sensory, spiritual, moral,
physical, [and] social and
communication development needs of the children to whom the programme
will be presented [in that partial
care facility or child and youth care centre].
(3) A person unsuitable to work with children is not a fit and
proper person to provide or assist in the provision of early childhood
development [services or]
programmes.
(4) The provincial head of social development must consider the
assessment referred to in subsection (6) of a suitably qualified person [a report of a social service professional]
before deciding an application for registration, conditional registration or
renewal of registration.
(5) Notwithstanding the provisions of section 93(3), a provincial
head of social development may assist a person [a partial care facility or a child and youth care centre]
providing an early childhood development programme [programmes] to comply with the
prescribed norms and standards contemplated in section 94 and such other
requirements as may be prescribed.
(6) A provincial head of social development must authorise a
suitably qualified person to assess the provision and content of an early
childhood development programme in order to determine whether the programme
complies with the prescribed norms and standards contemplated in section 94 and
such other requirements as may be prescribed.
(7) Section 304(2) and (3), read with such changes as the context
may require, applies to any assessment in terms of subsection (6).
Conditional
registration
98. The registration or renewal of the
registration of an early childhood development programme may be granted on such
conditions as the provincial head of social development may determine,
including conditions—
(a) specifying the type of early childhood
development programme that may or must be provided in terms of the
registration;
(b) stating
the period for which the conditional registration will remain
valid; and
(c) providing
for any other matters that may be prescribed by regulation.
99.
(1) A provincial head of social
development may cancel the registration or conditional registration of an early
childhood development programme by written notice to the registration holder
if—
(a) the programme is not run in accordance
with the prescribed norms and standards contemplated in section 94 and such
other requirements as may be prescribed;
(b) any condition subject to which the
registration or renewal of registration was issued is breached or not complied
with;
(c) the registration holder contravenes or
fails to comply with a provision of this Act;
(d) the registration holder becomes a person
who is not a fit and proper person to provide an early childhood development
programme [programmes]; or
(e) a person who is not a fit and proper
person to provide or assist in the provision of an early childhood
development programme [programmes]
provides or assists in the provision of such a programme [programmes].
(2) The provincial head of social development may in the case of
the cancellation of a registration in terms of subsection (1)(a), (b),
(c) or (e)—
(a) suspend the cancellation for a period to
allow the registration holder to correct the cause of the cancellation; and
(b) reinstate the registration if the
registration holder corrects the cause of the cancellation within that period.
(3) A provincial head of social development may assist a
registration holder to comply with the prescribed norms and standards contemplated
in section 94 and such other requirements as may be prescribed or any
provisions of this Act where the cancellation was due to non-compliance with
those norms and standards, requirements, conditions or provisions.
(4) The cancellation of the registration or conditional
registration of an early childhood development programme in terms of subsection
(1) does not affect the registration or conditional registration of a partial
care facility or a child and youth care centre.
100.
A provincial head of social development may by way of a written notice of
enforcement instruct—
(a) the person operating or managing a
partial care facility or a child and youth care centre which does not provide
an early childhood development programme, to comply with section 93(5) within a
period specified in the notice;
(b) the person operating or managing a
partial care facility or a child and youth care centre which does provide an
early childhood development programme [programmes] but of a standard that does not comply with the
prescribed norms and standards contemplated in section 94 and such other
requirements as may be prescribed , to comply with those norms and standards
and other requirements within a period specified in the notice; or
(c) a person who provides an early childhood
development programme which does not comply with the prescribed norms and
standards contemplated in section 94 and such other requirements as may be
prescribed—
(i) to stop the provision of that programme; or
(ii) to comply with those norms and standards and other
requirements within a period specified in the notice.
101. (1) An
applicant or a registration holder aggrieved by a decision of a provincial head
of social development may lodge an appeal against that decision in the
prescribed form within 90 days with the MEC for social development, who must
decide on the appeal within 90 days of reception thereof.
(2) An applicant that is not satisfied with the outcome of an
appeal referred to in subsection (1) may apply to the competent division of the
High Court to review that decision.
[Assessment
of early childhood development programmes
101. (1) A provincial head of social development
must authorise a suitably qualified person to assess the provision and content
of an early childhood development programmes in order to determine
whether the programme complies with the prescribed norms and standards
contemplated in section 94 and such other requirements as may be prescribed].
(2) Section
304(2) and (3), read with such changes as the context may require, applies to
any assessment in terms of subsection (1)].
Assignment
of functions to municipality
102. (1) The
provincial head of social development may, by written agreement with a
municipality, assign the performance of some or all of the functions
contemplated in sections 95, 96, 97, 98, 99, 100 and 101 to the municipal
manager if the provincial head of social development is satisfied that the
municipality complies with the prescribed requirements with regard to the
capacity of that municipality to perform the functions concerned.
(2) The agreement must be in the prescribed form and contain the
prescribed particulars.
(3) The municipal manager referred to in subsection (1) may
delegate any power or duty assigned to him or her in terms of this section to a
social service professional [designated
social worker] in the employ of the municipality.
(4) A delegation in terms of subsection (3) [(2)]—
(a) is subject to any limitations,
conditions and directions which the municipal manager may impose;
(b) must
be in writing; and
(c) does not divest the municipal manager of
the responsibility concerning the exercise of the power or the performance of
the duty.
(5) The municipal manager may—
(a) confirm, vary or revoke any decision
taken in consequence of a delegation in terms of this section, subject to any
rights that may have accrued to a person as a result of the decision; and
(b) at any time withdraw a delegation.
(6) An
applicant or a registration holder aggrieved by a decision of an official in
the employ of a municipality [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 against that decision
in the prescribed form within 90 days with the municipal council [against that decision], who must
decide on the appeal within 90 days of reception thereof.
(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.
(8) (a) The provincial head of social development must monitor the
performance of the functions assigned in terms of this section.
(b) The provincial head of social
development may by notice in writing require the municipal manager or any other
person in possession of information required by the provincial head of social
development for purposes of monitoring the performance of the functions
assigned by this section, to provide such information to the provincial head of
social development within the period specified in the notice.
(c) 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 may—
(i) amend the written agreement contemplated in subsection
(1); or
(ii) withdraw the assignment of the functions.
Regulations
103. The Minister may make regulations in terms
of section 306 concerning—
(a) the norms and standards that early
childhood development programmes must comply with;
(b) any other requirements with which early
childhood development programmes must comply;
(c) the procedure to be followed in connection
with the lodging and consideration of applications for registration in terms of
this Chapter and for the renewal of such registrations;
(d) the assessment and compulsory monitoring of
early childhood development programmes [offered
at partial care facilities and child and youth care centres]; and
(e) any other matter necessary to facilitate
the implementation of this Chapter.”.
Amendment of chapter 7 of Act
38 of 2005
5. Chapter
7 of the principal Act is hereby amended—
(a) by the insertion
before Part 2 of the following Part:
“Part 1
Child protection system
Strategy concerning child protection
104. (1) The Minister, after consultation with
civil society and relevant interested persons, and the Ministers of Education,
Finance, Health, Justice and Constitutional Development and the South African
Police Service, must develop a comprehensive inter-sectoral strategy aimed at
securing a properly resourced, co-ordinated and managed national child
protection system.
(2) The
MEC must within the national strategy referred to in subsection (1), provide
for a provincial strategy aimed at a properly resourced, co-ordinated and
managed child protection system.
(3) The MEC must compile a provincial profile at the
prescribed intervals [from time to
time] in order to make the information available that is necessary for the
development and review of the strategies referred to in subsections (1) and
(2).
Provision
of designated child protection services
105. (1) The MEC for social development of a province
must, from money appropriated by the relevant provincial legislature, provide
and fund designated child protection services for that province.
(2) Designated child protection
services—
(a) must
be management and maintained in accordance with this Act; and
(b) must
comply with the prescribed norms and standards contemplated in section 106 and
such other requirements as may be prescribed.
(3) Designated child protection services provided by an organ of
state or a designated child protection organisation only qualify for funding
from money appropriated by a provincial legislature if it complies with the
norms and standards contemplated in section 106 and such other requirements
as may be prescribed.
(4) Designated child protection services may be provided
by―
(a) the
Department;
(b) a
provincial department responsible for social development in a province; and
(c) a
designated child protection organisation.
(5) Designated child protection services include—
(a) services aimed at supporting—
(i) the proceedings of children’s
courts; and
(ii) the implementation of court orders;
(b) services relating to—
(i) prevention services;
(ii) early intervention services;
(iii) the reunification of children in
alternative care with their families;
(iv) the integration of children into
alternative care arrangements;
(v) the placement of children in
alternative care; and
(vi) the adoption of children, including
inter-country adoptions;
(c) the
carrying out of investigations and the making of assessments, in cases of suspected
abuse, neglect or abandonment of children;
(d) intervention and removal of children in
appropriate cases;
(e) the
drawing up of individual development plans and permanency plans for children
removed, or at risk of being removed, from their family; and
(f) any other social work service as
[that] may be prescribed [by regulation].
Norms
and standard for [concerning] child protection
106. (1) The
Minister must determine national norms and standards for child protection
by regulation after consultation with interested persons.
(2) The norms and standards contemplated in subsection (1) must
relate to the following:
(a) Prevention
and early intervention programmes;
(b) assessment;
(c) therapeutic
programmes;
(d) after-care;
(e) family
reunification and reintegration;
(f) foster
care supervision;
(g) family
preservation;
(h) integration
into alternative care;
(i) adoption;
(j) permanency
plans;
(k) development;
(l) education
and information;
(m) outreach;
(n) support
groups;
(o) child-headed
households;
(p) [(o)] preparation programmes; and
(q) [(p)] social security.
[(3) Child
protection services only qualifies for funding from money appropriated by a
provincial legislature if it complies with the norms and standards as
determined by the Minister by regulation.]
Designation of child protection organisation
107. (1) The
Director-General or provincial head of social development, on written
application, may designate any appropriate organisation that complies with the
prescribed criteria as a child protection organisation to perform all or any specific designated child protection
services in the relevant province.
(2) A designation in terms of subsection
(1)―
(a) must be in writing;
(b) may be
made on such conditions as the Director-General or provincial head may
determine; and
(c) must be
made for such period as may be prescribed.
(3) The Director-General or provincial
head of [for] social development may assign [delegate] to a designated child
protection organisation such powers and duties in terms of this Act as may be
necessary for the proper provision of designated child protection services by
the organisation.
(4) Section 304 [Sections 303 and 304], read with such changes as the context may
require, apply to any assignment [delegation]
in terms of subsection (1).
Existing child welfare organisation
108. (1) Any organisation which, when section 107
takes effect, is a designated welfare organisation within the meaning of the
Child Care Act must be regarded as having been designated in terms of section 107
as a child protection organisation to perform the designated child protection
services which it performed immediately before that section took effect.
(2) An organisation referred to in
subsection (1) is regarded to be a designated child protection organisation for
a period of five years from the date on which section 107 takes effect, unless
its designation is withdrawn in terms of section 109 before the expiry of that
period.
Withdrawal
of designation
109. (1) The
Director-General or provincial head of [for] social
development may withdraw 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) Before the designation of a child protection organisation is
withdrawn as contemplated in subsection (1), the Director-General or provincial
head of [for] social
development, as the case may be, must conduct quality assurance in the
prescribed manner of the child protection organisation concerned [in the prescribed manner, employ a quality
assurance process to evaluate the child protection organisation].
Reporting
of abused or neglected child and child in need of care and
protection
110. (1) Any correctional official, dentist,
homeopath; immigration official, labour inspector, legal practitioner,
medical practitioner, midwife, minister of religion, nurse, occupational
therapist, [police official,]
physiotherapist, psychologist, religious leader, social service professional,
social worker, speech therapist, teacher, traditional health practitioner,
traditional leader or member of staff or volunteer worker at a partial care
facility, [shelter,] drop-in centre
or child and youth care centre who on reasonable grounds concludes that a child
has been abused in a manner causing physical injury, sexually 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 provincial department of social development or a police official in the
prescribed form.
(2) Any person who on reasonable grounds 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 or a police official.
(3) A person referred to in subsection (1) or (2)—
(a) must substantiate that conclusion or
belief to the provincial department of social development, a designated child
protection organisation or police official;
(b) who makes a report in good faith is not
liable to civil action on the basis of the report.
(4) A police official to whom a report has been made in terms of
subsection (1) or (2) or who becomes aware of a child in need of care
and protection must—
(a) [within
24 hours] ensure the safety and well-being of the child concerned if the
child’s safety or well-being is at risk;
and
(b) within 24 hours notify the
provincial department of social development or a designated child protection
organisation of the report and any steps that have been taken with regard to
the child.
(5) The provincial department of social development or designated
child protection organisation to whom a report has been made in terms of
subsection (1), (2) or (4), must—
(a) ensure
the safety and well-being of the child concerned, if the child’s safety or
well-being is at risk;
(b) make an initial assessment of the report;
[(c) submit such particulars as may be
prescribed to the Director-General for inclusion
in Part A of the National Child Protection Register;]
(c) [(d)] unless the report is frivolous or obviously
unfounded, investigate the truthfulness of the report or cause it to be
investigated; [and]
(d) [(e)] if the report is substantiated by such investigation,
without delay initiate proceedings in terms of this Act for the protection of
the child; and
(e) submit
such particulars as may be prescribed to the Director-General for inclusion in
Part A of the National Child Protection Register.
(6) A designated child protection organisation to whom a report
has been made in terms of subsection (1), (2) or (4) must report the matter to
the relevant provincial department of social development.
(7) The provincial head of social development must monitor the
progress of all matters reported to it in terms of subsection (6).
(8) [(6)] The provincial department of social
development or designated child protection organisation who has conducted an
investigation as contemplated in subsection (5) may—
(a) take measures to assist the child,
including counselling, mediation, prevention and early intervention services,
family reconstruction and rehabilitation, behaviour modification, problem
solving and referral to another suitably qualified person or organisation;
(b) if he or she is satisfied that it is in
the best interest of the child not to be removed from his or her home or place
where he or she resides, but that the removal of the [an] alleged offender from such home or
place would secure the safety and well-being of the child, request a police
official in the prescribed manner to take the steps referred to in section
153; or
(c) deal with the child in the manner contemplated in
sections 151, 152 or 155.”;
(9) The provincial department of social development or designated
child protection organisation who has conducted an investigation as
contemplated in subsection (5) must report the possible commission of an offence
to a police official.
(b) by the insertion after section 134 of the following
Part:
“Part 4
Other protective measures
Applications
to terminate or suspend parental responsibilities and rights
135. (1) The
Director-General, a provincial head of social development or a designated child
protection organisation may apply to a High Court, or a divorce court in
divorce matters or a children's court for an order―
(a) suspending for a period, terminating or
transferring any or all of the parental responsibilities and rights which a
specific person has in respect of a child;
or
(b) restricting or circumscribing the
exercise by that person of any or all of the parental responsibilities and
rights that person has in respect of a child.
(2) An application in terms of subsection (1) may be brought
without the consent of a parent or care-giver of the child if the child, at the
time of the application―
(a) is older than seven years and has been
in alternative care for more than two years;
(b) is older than three years, but not older
than seven years, and has been in alternative care for more than one year; or
(c) is three years or younger and has been
in alternative care for more than six months.
(3) When considering an application the court must―
(a) be guided by the principles set out in
Chapters 2 and 3 to the extent that those principles are applicable to the
matter before it; and
(b) take
into account all relevant factors, including―
(i) the need for the child to be permanently settled,
preferably in a family environment, taking into consideration the age and stage
of development of the child;
(ii) the success or otherwise of any attempts that have been made
to reunite the child with the person whose parental responsibilities and rights
are challenged;
(iii) the
relationship between the child and that person;
(iv) the degree of commitment that that person has shown towards
the child;
(v) whether there had been any contact between the parent and
the child over the year preceding the application; and
(vi) the probability [probabilities]
of arranging for the child to be adopted or placed in another form of
alternative care.
(4) Section 29, read
with such changes as the context may require, applies in respect of any
proceedings in terms of this section.
Child-headed
household
136. (1) A provincial head of social
development may recognise a household as a child-headed household if―
(a) the parent, guardian or
care-giver of the household is terminally ill, [or] has died or has abandoned the children in the household;
(b) no adult family member is available to
provide care for the children in the household;
(c) a child over the age of 16 [15] years has assumed the role of
care-giver in respect of the children in the household; and
[(d) the children in the household have
been investigated by a social worker as contemplated in section 150(2); and]
(d) [(e)] it is in the best interest of the children in the
household.
(2) A child-headed household must function under the general
supervision of an adult designated by―
(a) a
children's court; or
(b) an organ of state or a non-governmental
organisation determined by the provincial head of social development.
(3) The supervising adult must—
(a) perform the duties as prescribed in
relation to the household;
(b) be a fit and proper person to
supervise a child-headed household [may
not supervise more than 12 children in child-headed households].
(4) A person unsuitable to work with children is not a fit and
proper person to supervise a child-headed household.
(5) (a) The
child heading [at the head of]
the household or the adult contemplated in subsection (2) may collect and
administer for the child-headed household any social security grant in terms
of the Social Assistance Act, 2004 (Act No.
of2004) or other assistance to which the household is entitled.
(b) An
adult that collects and administers money for a child-headed household as
contemplated in paragraph (a) is
accountable in the prescribed manner to the organ of state or the
non-governmental organisation that designated him or her to supervise the
household.
[(5)(a) The organ of state or non-governmental
organisation contemplated in subsection (2) may collect and administer for the
child-headed household any social security grant or other grant or assistance
to which the household is entitled.
(b) An organ of state or non-governmental
organisation is accountable to the provincial department of social development
or the children’s court for the administration of any money received on behalf
of the household.]
(6) The adult referred to in subsection (2) [and the organ of state or non-governmental organisation referred to in
subsection (3)] may not take any decisions concerning such household and
the children in the household without consulting—
(a) the
child heading [at the head of]
the household; and
(b) given the age, maturity and stage of
development of the other children, also those other children.
(7) 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].
(8) The child heading the household or, the given the age,
maturity and stage of development of the other children, such other children,
may report the supervising adult to the organ of state or non-governmental
organisation referred to in subsection (2)(b) if the child or children are not
satisfied with the manner in which the supervising adult is performing his or
her duties.
(9) [(8)] A child-headed household may not be excluded
from any grant, subsidy, aid, relief or other assistance or programmes [for poor households and vulnerable
children] provided by an organ of state in the national, provincial or
local sphere of government solely by reason of the fact that the household is
headed by a child.
137. (1) No
person may without lawful authority or reasonable grounds―
(a) remove a child from the care of a person
who lawfully cares for the child; or
(b) detain a child with the result that the
child is kept out of the care of a person entitled to lawful care of the child.
(2) For the purposes of subsection (1) a
person must be regarded as detaining a child if that person―
(a) causes
the child to be detained; or
(b) induces
the child to remain with him or her or any other person.
Unlawful
taking or sending of child out of Republic
138. (1) No
person may take or send a child out of the Republic―
(a) in contravention of an order of a court
prohibiting the removal of the child from the Republic; or
(b) without consent―
(i) obtained in terms of section 30(5) from
persons holding relevant parental responsibilities and rights in respect of
that child;
(ii) obtained in terms of section 169 with
regard to a child in alternative care;
or
(iii) of a court.
(2) For the purposes of subsection (1) a
person must be regarded as―
(a) taking
a child out of the Republic if that person―
(i) causes the child to be taken, or in any way assists in
taking the child, out of the Republic;
or
(ii) causes or induces the child to accompany or to join him or
her or any other person when departing from the Republic; or
(b) sending a child out of the Republic if
that person causes the child to be sent, or in any way assists in sending the
child, out of the Republic.
[Discipline
of children
139. (1) A person who has care of a child,
including a person who has parental responsibilities and rights in respect of
the child, must respect, promote and protect the child’s right to physical and
psychological integrity as conferred by section 12 (1)(c), (d) and (e) of the Constitution.
(2) No
child may be subjected to corporal punishment or be punished in a cruel,
inhuman or degrading way.
(3) The
common law defence of reasonable chastisement available to persons referred to
in subsection (1) in any court proceeding is hereby abolished.
(4) No
person may administer corporal punishment to a child or subject a child to any
form of cruel, inhuman or degrading punishment at a child and youth care
centre, partial care facility or shelter or drop-in centre.
(5) The
Department must take all reasonable steps to ensure that―
(a) education and awareness programmes
concerning the effect of subsections (1), (2), (3) and (4) are implemented
throughout the Republic; and
(b) programmes promoting appropriate
discipline are available throughout the Republic.
(6) A
parent, care-giver or any person holding parental responsibilities and rights
in respect of a child who is reported for subjecting such child to
inappropriate forms of punishment must be referred to an early intervention
service contemplated in section 144.
(7) Prosecution
of a parent or person holding parental responsibilities and rights referred to
in subsection (6) may be instituted if the punishment constitutes abuse of the
child.]
First proposal: Abolishing corporal punishment
Discipline
of children
139. (1) A
person who has care of a child, including a person who has parental
responsibilities and rights in respect of the child, must respect, promote and
protect the child’s right to physical and psychological integrity as conferred
by section 12 (1)(c), (d) and (e) of the Constitution.
(2) No child may be subjected to corporal punishment or be punished
in a cruel, inhuman or degrading way.
(3) The common law defence of
reasonable chastisement available to persons referred to in subsection (1) in
any court proceeding is hereby abolished.
(4) No person may administer corporal punishment to a child or subject
a child to any form of cruel, inhuman or degrading punishment at a child and
youth care centre, partial care facility or drop-in centre.
(5) The Department must take all reasonable steps to ensure that
education and awareness programmes promoting parenting skills and positive
forms of discipline are implemented throughout the Republic.
(6) When making a decision to prosecute in respect of this
section, the prosecutor may consider diversion options as an alternative to
prosecution.
(7) For the purposes of this section diversion means the referral
of a person away from formal court procedures to informal procedures, which may
include, but are not limited to, early intervention programmes aimed at
appropriate parenting skills and the promotion of positive, non-violent forms
of discipline.
(8) The National Prosecuting Authority may consider—
(a) withdrawing the charge against the
accused if diversion referred to in subsection 7 has been successful.
(b) prosecution
of the offence if diversion referred to in subsection 7 has failed.
Second proposal: Retaining corporal punishment
Discipline
of children
139. (1) A
person who has care of a child, including a person who has parental
responsibilities and rights in respect of the child, must respect, promote and
protect the child’s right to physical and psychological integrity as conferred
by section 12 (1)(c), (d) and (e) of the Constitution.
(2) No child may be subjected to corporal punishment which in its
manner or degree, is cruel, inhuman or degrading.
(3) No person may administer corporal punishment to a child or
subject a child to any form of cruel, inhuman or degrading punishment at a
child and youth care centre, partial care facility or drop-in centre.
(4) Corporal punishment may be applied only in the following
circumstances:
(a) by a person who has parental
responsibilities and rights in respect of the child and who acts in accordance
with subsection (1);
(b) in a moderate, reasonable and restrained
manner, without anger, taking into consideration the child’s age, maturity and
the circumstances of the offence;
(c) after the reason for the punishment has
been explained to the child; and
(d) using either an open hand or a light,
flat object which causes no physical harm.
(5) The Department must take all reasonable steps to ensure
that―
(a) education and awareness programmes
concerning the effect of subsections (1), (2), (3) are implemented throughout
the Republic; and
(b) programmes promoting appropriate
discipline are available throughout the Republic.
(6) Corporal punishment that violates subsections (2) and (3)
falls outside the defence of reasonable chastisement.
Third proposal: retaining corporal punishment
Discipline
of children
139. (1) A
person who has care of a child, including a person who has parental
responsibilities and rights in respect of the child, must respect, promote and
protect the child’s right to physical and psychological integrity as conferred
by section 12 (1)(c), (d) and (e) of the Constitution.
(2) A parent or caregiver of a child has the right to subject a
child to discipline that is not excessive, deliberate, abusive or involves a
degrading use of force.
(3) No person may administer corporal punishment to a child or
subject a child to any form of cruel, inhuman or degrading punishment at a
child and youth care centre, partial care facility or drop-in centre.
(4) The Department must take all reasonable steps to ensure
that―
(a) education and awareness programmes
concerning the effect of subsections (1) and (2) are implemented throughout the
Republic; and
(b) programmes promoting appropriate
discipline are available throughout the Republic.
(5) When making (5) When making a decision to prosecute in
respect of this section, the prosecutor must consider diversion options, as an
alternative to prosecution.
Child
safety at place of entertainment
140. (1) A
person providing entertainment to children on any premises or enclosure must
comply with subsection (2) if―
(a) access to the premises or enclosure
where the entertainment is provided requires the use of doors, stairs,
escalators, lifts or other mechanical means;
(b) the
majority of the people attending the entertainment are children; and
(c) the number of people, including
children, who attend the entertainment exceeds 50.
(2) A person providing entertainment to children in the
circumstances specified in subsection (1) must―
(a) determine the number of people,
including children, who can safely be accommodated on the premises or enclosure
and each part of the premises or enclosure;
(b) station a sufficient number of adult
attendants to prevent more people, including children, being admitted to the
premises or enclosure, or any part of the premises or enclosure, than the
number of people determined in terms of paragraph (a) for the premises or enclosure or that part of the premises or
enclosure;
(c) control the movement of people admitted
to the premises or enclosure, or any part of the premises or enclosure, while
entering or leaving the premises or enclosure or that part of the premises or
enclosure; and
(d) take all reasonable precautions for the
safety of the children and other people attending the entertainment.
(3) No alcohol or tobacco products may be sold, served or made
available to children at places of entertainment.
(4) If the person providing the entertainment is not the owner of
the premises or enclosure where the entertainment is provided, the owner or the
owner’s agent must take all reasonable steps to ensure that subsections (2) and
(3) are complied with.
(5) (a) A person authorised by
a municipality in whose area a premises or enclosure is situated where
entertainment described in subsection (1) is or is to be provided, or on
reasonable suspicion is or is to be provided, may enter such enclosure in order
to inspect whether subsections (2) or (3) are complied with.
(b) Section 304(2) and (3), read with such
changes as the context may require, applies to any inspection in terms of
paragraph (a).
Child
labour and exploitation of children
141. (1) No person may—
(a) use, procure or offer a child for slavery
or practices similar to slavery including but not limited to debt bondage,
servitude and serfdom, and forced or compulsory labour or provision of services [employ
a child contrary to the provisions of the Basic Conditions of Employment Act,
1997 (Act No. 75 of 1997)];
(b) use, procure, offer or employ a child
for purposes of commercial sexual exploitation;
(c) use, procure or offer a child, or attempt
to do so, for the commission of any offence listed in Schedule 1 or Schedule 2
of the Criminal Procedure Act, 1977 [use,
procure, offer or employ a child for illicit activities, including drug
production and trafficking]; or
(d) use,
procure, offer or employ a child for child labour;
(2) A social worker or social service professional who becomes
aware of—
(a) instances
of contraventions of subsection (1), must report it to a police official; and
(b) instances of child labour
or contraventions of the provisions of the Basic Conditions of Employment Act,
1997 (Act No. 75 of 1997) must report it to the Department of Labour.
Amendment of section 142 of
Act 38 of 2005
6. Section
142 of the principal Act is hereby amended by the insertion in subsection (1)
before paragraph (g) of the following
paragraphs:
“(a) prescribing criteria
for determining organisations which may be designated as child
protection organisations;
(b) prescribing norms and standards and
codes of good practice to guide designated child protection organisations,
organs of state and social workers involved in the provision of designated
child protection services;
(c) prescribing a broad risk assessment
framework to guide decision-making in the provision of designated child
protection services;
(d) prescribing
–
(i) criteria for determining suitable persons who may conduct
investigations into cases of alleged child abuse or neglect; and
(ii) the powers and responsibilities of persons contemplated in
subparagraph (i);
(e) prescribing the conditions for the
examination or assessment of children who have been abused or neglected,
including the consent of the child for any such examination or assessment given
the age and maturity of the child;
[(f) prohibiting or regulating cultural and
religious practices violating the physical integrity of children;]”.
Insertion of chapter 8 in Act
38 of 2005
7. The following chapter is hereby
inserted in the principal Act after Chapter 7:
“CHAPTER 8
PREVENTION
Prevention
and early intervention programmes
143. [(1) Early intervention programmes means
programmes―
(a) designed
to serve the purposes mentioned in section 144;
and
(b) provided
to families where there are children identified as being vulnerable to or at
risk of harm or removal into alternative care;]
[(2)] (1) Prevention programmes means
programmes―
(a) designed
to serve the purposes mentioned in section 144;
and
(b) provided to families with children in order to
strengthen and build their capacity and self-reliance to address problems that
may or are bound to occur in the family environment which, if not attended to,
may lead to statutory intervention.
(2) Early
intervention programmes means programmes―
(a) designed
to serve the purposes mentioned in section 144;
and
(b) provided
to families where there are children identified as being vulnerable to or at
risk of harm or removal into alternative care;
Purposes
of prevention and early intervention programmes
144. (1) [Prevention and early intervention
programmes must focus on] The
purposes of prevention and early intervention programmes must be the following —
(a) preserving
a child’s family structure;
(b) developing
appropriate parenting skills and the capacity of parents and care-givers to
safeguard the well-being and best interests of their children, including the
promotion of positive, non-violent forms of discipline;
(c) developing
appropriate parenting skills and the capacity of parents and care-givers to
safeguard the well-being and best interests of children with disabilities and
chronic illnesses [establishing appropriate interpersonal
relationships within the family];
(d) promoting
appropriate interpersonal relationships within the family [promoting the well-being of children and
the realisation of their full potential];
(e) providing
psychological, rehabilitation and therapeutic programmes for children;
(f) preventing
the neglect, exploitation, abuse or inadequate supervision of children
and preventing other failures in the family environment to meet children’s
needs;
(g) preventing
the recurrence of problems in the family environment that may harm children or
adversely affect their development;
(h) diverting
children away from the child and youth care system and the criminal justice
system; and
(i) avoiding
the removal of a child from the family environment.
(2) Prevention and early intervention
programmes may include—
(a) assisting
families to obtain the basic necessities of life; [and]
(b) empowering
families to obtain such necessities for themselves;
(c) providing
families with information to enable them to access services;
(d) supporting
and assisting families with a chronically ill or terminally ill family member;
(e) early
childhood development; and
(f) promoting
the well-being of children and the realisation of their full potential.
(3) Prevention and early intervention
programmes must involve and promote the participation of families, parents,
care-givers and children in identifying and seeking solutions to their
problems.
Strategy
for securing prevention and early intervention programmes
145. (1) The Minister, after consultation with
interested persons, including the Ministers of Education, Finance, [and] Health, Provincial and Local
Government and Transport must include in the departmental strategy a
comprehensive national strategy aimed at securing the provision of prevention
and early intervention programmes [services]
to families, parents, care-givers and children across the country.
(2) The
MEC for social development must within the national strategy referred to in
subsection (1) provide for a provincial strategy aimed at the provision of
properly resourced, co-ordinated and managed prevention and early intervention programmes.
(3) The MEC must compile a provincial profile at the
prescribed intervals [from time to
time] in order to make the necessary information available for the
development and review of the strategies referred to in subsections (1) and
(2).
Provision
of prevention and early intervention services
146. (1) The MEC for social development of a
province must [may], from
money appropriated by the relevant provincial legislature, provide and fund
prevention and early intervention programmes for that province.
(2) Prevention and early intervention
programmes must—
(a) be
provided in accordance with this Act;
and
(b) comply
with the norms and standards prescribed by the Minister.
(3) The provider of prevention and early
intervention programmes only qualifies for funding appropriated as contemplated
in subsection (1) if the programmes comply with the prescribed norms and
standards contemplated in section 147 and such other requirements as may be
prescribed.
(4) In implementing prevention and early
intervention programmes families who lack the means of providing proper
shelter, food and other basic necessities of life to their children must be
prioritised.
Norms
and standards for prevention and early intervention programmes
147. (1) The
Minister must determine national norms and standards for prevention and
early intervention programmes by regulation after consultation with
interested persons, including the Departments of Education, [and of] Health and
of Local Government.
(2) The norms and standards contemplated in subsection (1) must
relate to the following:
(a) Outreach;
(b) education,
information and promotion;
(c) therapeutic
programmes;
(d) family
preservation;
(e) skills
development programmes;
(f) diversion
programmes;
[(g) protection;]
(h) temporary
safe care;
(i) assessment;
and
[(j) social
security;]
(k) family
participation[; and]
[(l) empowerment].
[(3) Prevention
and early intervention services only qualify for funding from money
appropriated by a provincial legislature if it complies with the prescribed
norms and standards.]
Court
may order early intervention services
148. (1) Before making an order concerning the
temporary or permanent removal of a child from that child's family environment,
a children’s court may order—
(a) the
provincial department of social development, a designated child protection
organisation, any other relevant organ of state or any other person or
organisation to provide early intervention programmes in respect of the child
and the family or parent or care-giver of the child if the court considers the
provision of such programmes appropriate in the circumstances;
(b) the
child’s family and the child to participate in a prescribed family preservation
programme.
(2) An order made in terms of subsection (1)
must be for a specified period not exceeding six months.
(3) 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.
(4) After considering the report, the court
may—
(a) decide
the question whether the child should be removed; or
(b) order the
continuation of the early intervention programme for a further specified period
not exceeding six months.
(5) Subsection (1) does not apply where the
safety or well-being of the child is seriously or imminently at risk.
Report
to include summary of prevention and early intervention services
149. When a report of a designated social worker is
produced before a court in order to assist a court in determining a matter
concerning a child, the report must contain a summary of any prevention and
early intervention programmes provided in respect of that child and the family,
parent or care-giver of the child.”.
Amendment of section 156 of Act 38 of 2005
8. Section
156 of the principal Act is hereby amended by the insertion in subsection (1)
after paragraph (e) of the following
paragraph:
“(f) if
the child lives in a child-headed household, that the child must remain in that
household subject to section 136;”.
Insertion of chapters 11, 12,
13 and 14 in Act 38 of 2005
9. The
following chapters are hereby inserted in the principal Act after Chapter 10:
“CHAPTER
11
ALTERNATIVE
Alternative
care
167. (1) A
child is in alternative care if the child has been placed―
(a) in
foster care;
(b) in the care of a child and youth care
centre following an order of a court in terms of this Act or the Criminal
Procedure Act, 1977 (Act No. 51 of 1977);
or
(c) in
temporary safe care.
(2) A child may not be in temporary safe care or be kept or
retained at any place or facility, including a registered child and youth care
centre, for longer than six months without a court order placing the child in
alternative care [A child may not be
cared for, kept or retained at a facility or a place other that a registered
child and youth care centre or in foster care for longer than the prescribed
period without a court order placing the child in alternative care].
(3) (a) The head of social
development must approve a person, facility, place or premises for temporary
safe care in the prescribed manner.
(b) A person, facility, place or premises
for temporary safe care must comply with the prescribed criteria.
(4) As
from the date on which this section takes effect an existing place of safety
approved in terms of the Child Care Act must be regarded as having been
approved as temporary safe care.
Leave
of absence
168. (1) Leave
of absence may, subject to subsection (2) and such limitations and conditions
as may be prescribed by regulation, be granted to a child in alternative
care―
(a) by the management of a child and youth
care centre in whose care the child has been placed;
(b) by the person in whose alternative care
the child has been placed; and
(c) by the head of social development in the
relevant province, in the case of a child in temporary safe care.
(2) If a child has been placed in alternative care under the
supervision of a designated social worker, leave of absence may only be granted
with the approval of that social worker.
(3) The management or person referred to in subsection (1),
designated social worker or the head of social development in the province may
at any time cancel any leave of absence granted in terms of subsection (1)
(4) In the case of foster care, the supervising designated social
worker may at any time cancel any leave of absence granted in terms of
subsection (1).
(5) When a child’s leave of absence has been cancelled, the
management or person referred to in subsection (1), designated social worker or
the head of social development must request that the child be
returned [to return] to the
child and youth care centre or person, or to the place where the child is in
temporary safe care.
Child
in alternative care prohibited from leaving Republic
169. (1) A
child in alternative care may not leave the Republic without the written
approval of the provincial head of social development first being obtained.
(2) In granting approval in terms of [on] subsection (1), the provincial head of social development may determine
[prescribe any] terms and conditions
to protect the best interest of the child in alternative care.
Child
absconding from alternative
care
170. (1) Any
police official or designated social worker may apprehend a child in
alternative care who―
(a) has absconded from the child and youth
care centre or person in whose foster care or temporary safe care that child
has been placed; or
(b) has been granted leave of absence by the
child and youth care centre or person in whose foster care or temporary safe
care that child has been placed and who on cancellation or expiration of such
leave of absence fails to return to that centre or person.
(2) If a police official or designated social worker contemplated
in subsection (1) has reasonable grounds to believe that a child is in or on
certain premises, the police official or designated social worker may, without
a warrant, enter and search the premises for the purpose of apprehending the
child.
(3) A police official referred to in subsection (1) may use such
force as may be reasonably necessary to overcome any resistance against the
entry or search of the premises as contemplated in subsection (1), including
the breaking of any door or window of such premises: Provided that the police official shall first
audibly demand admission to the premises and notify the purpose for which he or
she seeks to enter such premises.
(4) On apprehending a child in alternative care who has absconded
or failed to return in terms of subsection (1), the police official must ensure
the safety and well-being of the child concerned, if the child’s safety or
well-being is at risk, and notify the provincial department of social
development or a designated child protection organisation of the fact the child
has been apprehended and of any steps that have been taken with regard to the
child.
(5) A child so apprehended or a child who returns, of his or her
own accord, to the centre or person in whose alternative care he or she was
before absconding―
(a) must without delay be brought before a
presiding officer of a children’s court;
and
(b) may, until brought before a presiding
officer of a children’s court, be kept in temporary safe care in terms of
section 152.
(6) When the child is brought before a presiding officer of a
children’s court, the presiding officer must―
(a) order that the child be put in the
temporary safe care of a child and youth care centre or appropriate facility or
person determined by the presiding officer and kept there until the proceedings
in terms of this section are completed and any order made or action taken in
terms of this section is given effect to;
(b) inquire into the reasons why the child
absconded from, or failed to return to, the relevant child and youth care
centre or person, and may for this purpose question the child; and
(c) order
that the child―
(i) be
returned to that centre or person;
(ii) may not be returned to that centre or person pending any
action by the provincial head of social development in the relevant province in
terms of subsection (8), if the presiding officer is of the opinion that there
are good reasons why the child should not be returned to that centre or
person; or
(iii) be
placed in another form of alternative care.
(7) The presiding officer of the children’s court must order the
clerk of the children’s court to―
(a) report to the provincial head of social
development in the relevant province the result of an inquiry in terms of
subsection (6); and
(b) notify the provincial head of any order
made in terms of subsection (6)(c).
(8) When an order has been made in terms of subsection (6)(c)(ii) the provincial head may, after
consideration of the report of the children’s court and such inquiry as the
provincial head may consider necessary―
(a) transfer
the child in terms of section 171;
(b) remove
the child from alternative care in terms of section 173;
(c) discharge
the child from alternative care in terms of section 175; or
(d) order that the child be returned to the
child and youth care centre or person in whose foster care or temporary
safe care that child has been placed.
Transfer
of child in alternative care
171. (1) The
provincial head of social development in the relevant province may, subject to
subsection (5), by order in writing transfer a child in alternative care from
the child and youth care centre or person in whose foster care or
temporary safe care that child has been placed to any other child and youth
care centre or person.
(2) The provincial head may not transfer a child to a child and
youth care centre in another province without the permission of the provincial
head of social development in that other province and without the prescribed
financial arrangements regarding the placement being made.
(3) (a) If the provincial head
transfers a child in terms of subsection (1) to the care of the child’s parent,
guardian or former care-giver under the supervision of a designated social
worker, the order must specify the requirements with which the child and that
parent, guardian or former care-giver must comply.
(b) If any requirement referred to in
paragraph (a) is breached or not
complied with, the designated social worker concerned may bring the child
before a children’s court, which may, after an inquiry, vary the order issued
by the provincial head or make a new order in terms of section 156.
(4) Before the provincial head issues an order in terms of
subsection (1), a designated social worker must consult―
(a) the
child;
(b) the
parent or primary care-giver of the child, if available;
(c) the child and youth care centre or
person in whose foster care or temporary safe care that child has been
placed; and
(d) the
child and youth care centre or person to whom the child is to be transferred.
(5) If the provincial head transfers a child from a secure care
child and youth care centre to a less restrictive child and youth care centre
or to the care of a person, the provincial head must be satisfied that the transfer
will not be prejudicial to other children.
(6) No order in terms of subsection (1) may be carried out
without ratification by a children’s court if the child is transferred―
(a) from
the care of a person to a child and youth care centre; or
(b) from the care of a child and youth care
centre to a secure care or more restrictive child and youth care centre.
Change
in residential care programme
172. (1) The
provincial head of social development in the relevant province may, subject to
subsection (3), determine that―
(a) a child in a child and youth care centre
be released from a residential care programme;
(b) another
residential care programme be applied to such a child; or
(c) an
additional residential care programme be applied to such a child.
(2) To give effect to subsection (1), the provincial head may
transfer the child to another child and youth care centre or to a person in
terms of section 171.
(3) No determination in terms of subsection (1) may be carried
out without ratification by a children’s court if that determination requires
the application to the child of a residential care programme―
(a) which
includes the secure care of the child;
or
(b) which
is more restrictive than the child’s current programme.
Removal
of child already in alternative care
173. (1) The
provincial head of social development in the relevant province may, in the best
interest of a child at any time whilst the child is in alternative care, issue
a notice directing that the child, pending any action in terms of subsection
(3)―
(a) be removed from the child and youth care
centre or person in whose foster care or temporary safe care the child
is; and
(b) be
put in temporary safe care at a place specified in the notice.
(2) The provincial head must, within six months from the date on
which a child has been moved and put in temporary safe care in terms of
subsection (1) and after such inquiry as the provincial head may consider
necessary―
(a) transfer
the child in terms of section 171;
(b) discharge
the child from alternative care in terms of section 175; or
(c) issue a notice directing that the child
be returned to the child and youth care centre or person in whose foster
care or temporary safe care the child was immediately before the
subsection (1) notice was issued.
Provisional
transfer from alternative care
174. (1) A
provincial head of social development may, in the best interest of a child at
any time whilst the child is in alternative care, issue a notice directing that
the child be provisionally transferred from alternative care into another form
of care that is not more restrictive, as from a date specified in the notice,
for a trial period of not more than six months.
(2) A notice of provisional transfer in terms of subsection (1)
may be issued only after―
(a) procedures
prescribed by regulation have been followed―
(i) to
assess the best interest of the child;
and
(ii) to reunite the child with the child’s immediate family or other
family members, if applicable; and
(b) a report on such assessment and
reunification has been submitted to and considered by the provincial head of
social development.
(3) Provisional transfer must be managed by a designated social
worker to establish the feasibility of—
(a) reunification of the child with the
child’s immediate family or other family members;
(b) integration into another family; or
(c) a transfer to another child and youth
care centre of any other form of placement.
(4) The provincial head—
(a) must revoke the transfer if the child
so requests and the social worker so recommends; and
(b) may at the end of or at any time during
the trial period confirm the child’s placement or [permanently] discharge the child from alternative care in terms of
section 175.
(5) The notice of provisional transfer shall be considered proof
of eligibility for any form of state support which would have been payable if
the transfer had been permanent.
Discharge
from alternative care
175. (1) The provincial head of social
development in the relevant province may, in the best interest of a child at
any time whilst the child is in alternative care, issue a notice directing that
the child be discharged from alternative care as from a date specified in the
notice.
(2) A notice of discharge in terms of subsection (1) may be
issued only after―
(a) procedures
prescribed by regulation have been carried out―
(i) to
assess the best interest of the child;
and
(ii) to reunite the child with the child’s immediate family or
other family members, if applicable; and
(b) a report on such assessment and
reunification by a designated social worker has been submitted to and
considered by the provincial head of social development.
(3) A notice of discharge relieves the alternate care-giver from
any further responsibilities in relation to the child.
Remaining
in alternative care beyond [after reaching] age of 18 years
176. (1) A
person placed in alternative care as a child is entitled, after having reached
the age of 18 years, to remain in that care until the end of the year in which
that person reaches the age of 18 years.
(2) A provincial head of social development may on application by
a person placed in alternative care as a child, allow that person to remain in
that care until the end of the year in which that person reaches the age of 21
years if―
(a) the
current alternative care-giver is willing and able to care for that
person; and
(b) the
continued stay in that care is necessary to enable that person to complete his
or her education or training.
Appeal
against and review of certain decisions
177. (1) A
child or person aggrieved by a decision in terms of section 168 or a decision
or action in terms of section 170(8), 171, 172, 173, 174, 175, or 176 may lodge
an appeal with the MEC against that decision.
(2) An applicant that is not satisfied with the outcome of an
appeal lodged as contemplated in subsection (1) may apply to the competent
division of the High Court to review that decision.
Abuse,
serious injury or death [Death, abuse or serious injury] of child
in alternative care
178. (1) If
a child in alternative care is abused or seriously injured, the management or a
person employed by the child and youth care centre or a person in whose foster
care or temporary safe care the child has been placed must immediately report
the matter to the provincial head of social development, who must cause an
investigation into the circumstances of the abuse or serious injury to be
conducted.
(2) If a child in alternative care dies, the management of the
child and youth care centre or person in whose care or foster care the child
has been placed must immediately after the child’s death report such death—
(a) the
parent or guardian of the child, if he or she can be traced;
(b) to
a police official;
(b) the
provincial head of social development;
and
(d) the
social worker dealing with the matter.]
(3) [(2)]
The police official must cause an investigation into the circumstances
surrounding the death of the child to be conducted by the South African Police
Service, unless [if] the
police official is satisfied that the child died [did not die] of natural causes.
[(3) If
child in alternative care is abused or seriously injured, the management of the
child and youth care centre or person in whose care the child has been placed
must immediately report the matter to the provincial head of social development
who must cause an investigation into the circumstances of the abuse or serious
injury to be conducted.]
Regulations
179. The Minister, after consultation with the
Minister for Justice and Constitutional Development where court orders are
regulated, may make regulations in terms of section 306 prescribing―
(a) the manner in which a person, facility,
place or premises for temporary safe care must be approved;
(b) the criteria that a person, facility, place
or premises for temporary safe care must be comply with;
(c) limitations or conditions for leave of
absence from alternative care;
(d) the manner in which children in alternative
care must be transferred or provisionally transferred, their residential care
programmes changed, be removed or permanently discharged from alternative care;
(e) fees payable to a child and youth care
centre on transfer or provisional transfer of a child in alternative care to
that centre;
(f) the manner in which applications for remaining
in [extension of] alternative
care beyond 18 years of age are to be made;
and
(g) any other matter that may be necessary
to facilitate the implementation of this Chapter.
CHAPTER
12
Foster
care
180. (1) 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―
(a) an
order of a children’s court; or
(b) a
transfer in terms of section 171.
(2) Foster care excludes the placement of a child―
(a) in temporary safe care; or
(b) in
the care of a child and youth care centre.
(3) A children’s court may place a child in foster care—
(a) with
a person who is not a family member of the child;
(b) with
a family member who is not the parent or guardian of the child; or
(c) in
a registered cluster foster care scheme.
Purposes
of foster care
181. The purposes of foster care are to―
(a) protect and nurture children by
providing a safe, healthy environment with positive support;
(b) promote the goals of permanency planning,
first towards family reunification, or by connecting children to other safe and
nurturing family relationships intended to last a lifetime; and
(c) respect the individual and family by
demonstrating a respect for cultural, ethnic and community diversity.
[Initial
proceedings
182. Before
a children’s court places a child in foster care, the court must follow the
children’s court processes stipulated in Part 2 of Chapter 9 to the extent that
the provisions of that Part are applicable to the particular case.]
Prospective
foster parent
182 [183]. (1) Before a children’s court places a
child in foster care, the court must follow the children’s court processes
stipulated in Part 2 of Chapter 9 to the extent that the provisions of that
Part are applicable to the particular case.
(2) A
prospective foster parent must be―
(a) a fit and proper person to be entrusted with
the foster care of the child;
(b) willing and able to undertake, exercise
and maintain the responsibilities of such care;
[and]
(c) have the
capacity to provide an environment that is conducive to the child’s growth and
development; and
(c) properly assessed by a
designated social worker for compliance with paragraphs (a) and (b).
(3) [(2)]
A person unsuitable to work with children is not a fit and proper person to be
entrusted with the foster care of a child.
(4) [(3)]
Subsections [(1) and] (2) and (3),
read with such changes as the context may require, apply to any person
employed at or involved in a non-profit organisation [or group of individuals] managing a cluster foster care scheme.
Cluster foster care
183. (1) A
cluster foster care scheme must be managed in the following manner:
(a) The
organisation operating or managing the cluster foster care scheme must be a
non-profit organisation registered in terms of the Non-profit Organisations
Act, …
(b) The
organisation referred to in paragraph (b)
must—
(i) comply
with the prescribed requirements; and
(ii) have been approved for offering cluster
foster care by the head of the provincial department of social development;
(c) The
scheme in terms of which cluster foster care is provided must—
(i) comply
with the prescribed requirements; and
(ii) have been registered with the provincial head of social
development in the prescribed manner.
(2) A cluster foster care scheme must be managed under the
auspices of a designated child protection organisation.
Determination
of placement of child in foster care
184. (1) Before
a children’s court places a child in foster care by court order in terms of
section 156, the court must consider a report by a designated social worker
about―
(a) the
cultural, religious and linguistic background of the child; and
(b) the availability of a suitable person
with a similar background to that of the child who is willing and able to
provide foster care to the child.
(2) A child may be placed in the foster care of a person from a
different cultural, religious and linguistic background to that of the child,
but only if―
(a) there
is an existing bond between that person and the child; or
(b) a suitable and willing person with a
similar background is not readily available to provide foster care to the
child.
Number
of children to be placed in foster care per household
185. (1) Not
more than six children may be placed in foster care with a single person or two
persons sharing a common household, except where―
(a) the
children are siblings or blood relations;
or
(b) the court considers this for any other
reason to be in the best interest of all the children.
(2) More than six children may be placed in foster care in terms
of a registered [prescribed]
cluster foster care scheme.
Duration
of foster care placements
186. (1) A
children’s court may, despite the provisions of section 159(1)(a) regarding the duration of a court
order, after a child has been in foster care with a person other than a family
member for more than two years and after having considered the need for
creating stability in the child’s life, order that―
(a) no
further social worker supervision is required for that placement;
(b) no
further social worker reports are required in respect of that placement; and
(c) the foster care placement subsists until
the child turns 18 years, unless otherwise directed.
(2) A children’s court may, despite the provisions of section
159(1)(a) regarding the duration of a
court order and after having considered the need for creating stability in the
child’s life, place a child in foster care with a family member for more than
two years, extend such an order for more than two years at a time or order that
the foster care placement subsists until the child turns 18 years, if―
(a) the
child has been abandoned by the biological parents; or
(b) the
child’s biological parents are deceased;
or
(c) there is for any other reason no purpose
in attempting reunification between the child and the child’s biological
parents; and
(d) it
is in the best interest of the child.
(3) Despite the provisions of subsections (1) and (2) [and (3)], a social service
professional must visit a child in foster care at least once every two years to
monitor and evaluate the placement.
Reunification
of child with biological parent
187. (1) If
a children’s court placing a child in foster care is of the view that
reunification between the child and the child’s biological parents is possible
and in the best interest of the child, the court must issue the placement order
subject to conditions providing for a designated social worker to facilitate
such reunification as contemplated in section 156(3)(a).
(2) If the child has not been reunited with the child’s
biological parents two months before the expiry of the initial court order or
any extension of the order, the designated social worker appointed to
facilitate the reunification must submit a report to the children’s
court―
(a) explaining
why the child was not reunited with the biological parents; and
(b) recommending
any steps that may be taken to stabilise the child’s life.
(3) The children’s court considering the report may―
(a) order that the designated social worker
must continue facilitating the reunification;
or
(b) order the termination of the
reunification services if there are no prospects of reunification.
Responsibilities
and rights of foster parent
188. (1) The foster parent of a child has
those parental responsibilities and rights in respect of the child as set out
in―
(a) the order of the children’s court
placing the child in the foster care of that foster parent;
(b) the responsibilities and rights of
foster parents as may be prescribed;
(c) an order of the children’s court amending the initial
order;
(d) an order of court assigning parental
responsibilities and rights in terms of section 23;
(e) a foster care [parenting] plan between the parent or
guardian of the child and the foster parent [in terms of section 33];
(f) any
applicable provisions of this Act.
(2) A foster parent may not take any decisions contemplated in
section 31(1)(b) involving a child
without giving due consideration to—
(a) any views
and wishes expressed by the child, bearing in mind the child’s age, maturity
and stage of development; and
(b) any views
and wishes expressed by the parent or guardian of the child.
(3) Notwithstanding subsection (2), an [An]
order of the children’s court may give parental rights and responsibilities to
a foster parent in addition to those normally necessary for a foster parent if―
(a) the
child has been abandoned;
(b) the
child is an orphan; or
(c) family
reunification is not in the best interest of the child.
(4) [(3)]
A children’s court may in terms of section 65 monitor the suitability of the
placement of a child in foster care.
Termination
of foster care
189. (1) Foster care may be terminated by a
children’s court if it is in the best interest of the child.
(2) Before terminating the foster care of a child, the court must
take into account all relevant factors, including―
(a) the bond that exists between the child
and the child’s biological parent, if the biological parent reclaims care of
the child;
(b) the
bond that developed between―
(i) the
child and the foster parent; and
(ii) the
child and the family of the foster parent;
and
(c) the
prospects of achieving permanency in the child’s life by―
(i) returning
the child to the biological parent;
(ii) allowing the child to remain permanently in foster care with
the foster parent;
(iii) placing
the child in any other alternative care;
or
(iv) adoption
of the child.
Regulations
190. The Minister, after consultation with the
Minister for Justice and Constitutional Development where court orders are
regulated, may make regulations in terms of section 306―
(a) prescribing the responsibilities and
rights of foster parents;
(b) regulating the establishment,
functioning and management of cluster foster care schemes;
(c) prescribing the requirements that
non-profit organisations must comply with to be approved for the establishment
and management of cluster foster care schemes;
(d) [(c)] prescribing
the requirements with which cluster foster care schemes [and any foster care programmes provided in terms of such schemes,]
must comply; and
(e) [(d)] prescribing any other matter that may be
necessary to facilitate the implementation of this Chapter.
CHAPTER
13
CHILD
Child
and youth care centre
191. (1) A
child and youth care centre is a facility for the provision of residential care
to more than six children outside the child’s family environment in accordance
with a residential care programme [or
programmes] suited for the children in the facility, but excludes―
(a) a
partial care facility;
(b) a
drop-in centre;
(c) a
boarding school;
(d) a
school hostel or other residential facility attached to a school;
(e) a prison; or
(f) any other establishment which is
maintained mainly for the tuition or training of children other than an
establishment which is maintained for children ordered by a court to receive
tuition or training.
(2) A child and youth care centre must offer a therapeutic
programme designed for the residential care of children outside the family
environment, which may include a programme designed for―
(a) the
reception, care and development of children other [otherwise] than in their family environment;
(b) the reception, care and development of
children on a shared basis with the parent or other person having parental
responsibilities;
(c) the
reception and temporary safe care of children pending their placement;
(d) early
childhood development;
(e) [(d)] the
reception and temporary safe care of children to protect them from abuse or
neglect;
(f) [(e)] the
reception and temporary safe care of trafficked or commercially sexually
exploited children;
(g) [(f)] the reception and temporary safe care of children for
the purpose of―
(i) observing
and assessing those children;
(ii) providing
counselling and other treatment to them;
or
(iii) assisting
them to reintegrate with their families and the community;
(h) [(g)] the
reception, development and secure care of children awaiting trial or sentence;
(i) [(h)] the reception, development and secure care of children
with behavioural, psychological and emotional difficulties;
(j) [(i)] the reception,
development and secure care of children in terms of an order―
(i) under
the Criminal Procedure Act, 1977 (Act No. 51 of 1977);
(ii) in terms of section 156(1)(h) placing the child in a child and youth care centre which
provides a secure care programme; or
(iii) in
terms of section 171 transferring a child in alternative care;
(k) [(j)] the reception
and care of street children; or
(l) [(k)] the reception and care of children for any
other purpose that may be prescribed by regulation.
(3) A child and youth care centre may in addition to its
residential care programmes, offer—
(a) the provision of appropriate care and
development of children with disabilities or chronic illnesses;
(b) therapeutic and developmental
programmes;
(c) the treatment of children for addiction to
dependence-producing substances;
(d) a programme for the treatment of children
with a psychiatric condition;
(e) a
programme to assist a person with the transition when leaving a child and youth
care centre after reaching the age of 18;
or
(f) any other service that may be prescribed by
regulation.
(4) The provincial head of social development must —
(a) approve
any programme offered in terms of subsections (2) and (3) by a child and youth
care centre; and
(b) before
approving a programme, authorise a suitably qualified person to assess the
content of the programme.
Strategy
to ensure sufficient provision of child and youth care centres
192. (1) The
Minister, after consultation with the Ministers of Education, of Health and of
Justice and Constitutional Development, must include in the departmental
strategy a comprehensive national strategy aimed at ensuring an appropriate
spread of child and youth care centres throughout the Republic providing the
required range of residential care programmes in the various regions, giving
due consideration as provided in section 11 to children with disability or
chronic illness.
(2) The MEC must within the national strategy referred to in
subsection (1) provide for a provincial strategy aimed at the establishment of
an appropriate spread in the province of properly resourced, co-ordinated and
managed child and youth care centres providing the required range of
residential care programmes.
(3) The MEC must compile a provincial profile at the
prescribed intervals [from time to
time] in order to make the information available that is necessary for the
development and review of the strategies referred to in subsections (1) and
(2).
(4) The provincial head of social development must maintain a
record of all available child and youth care centres in the province concerned
and of the programmes contemplated in section 191 offered by each centre.
Provision
of child and youth care centres
193. (1) The MEC for social development of a
province must, from money appropriated by the relevant provincial legislature,
provide and fund child and youth care centres for that province.
(2) Such child and youth care centres—
(a) must
be managed and maintained in accordance with this Act; and
(b) must
comply with—
(i) the prescribed norms and standards
contemplated in section 194 and such other requirements as may be prescribed;
(ii) the structural, safety, health and
other requirements of the municipality of the area in which the child and youth
care centre is situated.
(3) An accredited organisation operating a
child and youth care centre only qualifies for funding from money appropriated
by a provincial legislature if it complies with the prescribed norms and
standards as contemplated in section 194 and such other requirements as may
be prescribed [determined by the
Minister by regulation].
Norms
and standards for child and youth care centres
194. (1) The
Minister must determine national norms and standards for child and youth care
centres by regulation after consultation with the Minister of Education, Health
and Home Affairs, with interested persons.
(2) The norms and standards contemplated in subsection (1) must
relate to the following:
(a) A residential care programme;
(b) therapeutic
programmes;
(c) developmental
[development] programmes;
(d) permanency
plans for children;
(e) individual
development plans;
(f) temporary
safe care;
(g) protection
from abuse and neglect;
(h) assessment
of children;
(i) family
reunification and reintegration;
(j) after-care
with the purpose of prevention and early intervention;
(k) access
to and provision of adequate health care;
(l) access
to schooling and education; [and]
(m) security
measures for child and youth care centres;
and
(n) [(m)] measures
for the separation of children in secure care programmes from other children.
Part 1
Establishment and registration of child and
youth care centre
Establishment
of child and youth care centre by organ of state
195. (1) The MEC for social development of a
province must, from money appropriated by the relevant provincial legislature,
establish and operate child and youth care centres for that province.
[(2) Child
and youth care centres established and operated by the MEC for social
development in terms of subsection (1) The provincial department of education
must provide education to the children in the facilities mentioned in paragraphs
(d) and (e).]
Existing
government children’s home, place of safety, secure care facility, school of
industry and reform school
196. (1) As from the date on which section 195
takes effect―
(a) an
existing state operated children’s home established or deemed to have been
established in terms of the Child Care Act must be regarded as having been
established in terms of section 195 as a child and youth care centre providing
a residential care programme referred to in section 191(2)(a);
(b) an
existing state operated place of safety established or deemed to have been
established in terms of the Child Care Act must be regarded as having been
established in terms of section 195 as a child and youth care centre providing
residential care programmes referred to in section 191(2)(c) and (d);
(c) an
existing state operated secure care facility established or deemed to have been
established in terms of the Child Care Act must be regarded as having been
established in terms of section 195 as a child and youth care centre providing
a residential care programme referred to in section 191(2)(g);
(d) a
government industrial school established in terms of section 33 of the
Children’s Protection Act, 1913 (Act No. 25 of 1913) must be regarded as having
been established in terms of section 195 as a child and youth care centre
providing a residential care programme referred to in section 191(2)(h);
(e) a
reformatory established in terms of section 52 of the Prisons and Reformatories
Act, 1911 (Act No. 13 of 1911) must be regarded as having been established in
terms of section 195 as a child and youth care centre providing a residential
care programme referred to in section 191(2)(i).
(3) The provincial department of education
must provide education to the children in the facilities mentioned in
paragraphs (d) and (e).
(4) A reformatory referred to in paragraph (e) which is the responsibility of a
provincial department of education on the date when this section comes into
operation becomes the responsibility of a provincial department of social
development within two years of the coming into operation of this Act.
(5) All existing government children’s
homes, places of safety, secure care facilities, schools of industry and reform
schools must be registered as child and youth care centres within two years of
the coming of into operation of this Act.
Establishment
of child and youth care centre [by accredited organisation]
197. [(1)] Any national or provincial state
department responsible for social development and any accredited
organisation may establish and [or]
operate a child and youth care centre provided that the centre―
(a) is
registered with the relevant provincial department of social development;
(b) is managed and maintained in accordance
with this Act and any conditions subject to which the centre is registered;
(c) complies with the prescribed norms and
standards for child and youth care centres contemplated in section 194 and such
other requirements as may be prescribed;
and
(d) complies with the structural, safety,
health and other requirements of the municipality of the area in which the
child and youth care centre is or is to be situated.
[(2) Subsection (1) also applies to a child
and youth care centre established by an organ of state in terms of section 195
if the centre is operated by an accredited organisation.
(3) With
the exception of partial care facilities operated or managed by a national or
provincial state department responsible for social development, all partial
care facilities operated or managed by a national or provincial state
department must comply with subsection (1).]
Existing
registered children’s home and registered shelter
198. (1) As from the date on which section 197 [196] takes effect an existing
privately operated children’s home registered or deemed to be registered in
terms of the Child Care Act must be regarded as having been registered in terms
of section 196 as a child and youth care centre providing a residential care
programme mentioned in section 191(2)(a).
(2) A children’s home referred to in
subsection (1) is regarded to be a registered child and youth care centre for a
period of five years from the date on which that subsection takes effect,
unless its registration is withdrawn in terms of section 204 before the expiry
of that period.
(3) An existing shelter registered in terms
of the Child Care Act must register as a child and youth care centre within a
period of five years from the date on which this section takes effect.
199. (1) A provincial head of social development
may by way of a written notice of enforcement instruct―
(a) a person or organisation operating an
unregistered child and youth care centre―
(i) to stop operating that centre; or
(ii) to
apply for registration in terms of section 200 within a period specified in the
notice; or
(b) a person or organisation operating a
registered child and youth care centre otherwise than in accordance with the
provisions of this Act or any conditions subject to which the registration was
issued, to comply with those provisions or conditions.
(2) A
person or organisation operating an unregistered child and youth care centre
and who is instructed in terms of subsection (1)(a)(ii) to apply for registration within a specified period may,
despite the provisions of section 197 regarding the establishment of child and
youth care centres by accredited organisations, be given permission by the
provincial head of social development to continue operating the centre during
that period and, if that person applies for registration, until that person’s
application has been finalised.
(3) The
Director-General or the provincial head of social development may apply to the
High Court for an order to instruct a person or organisation operating a child
and youth care centre, whether registered or not, to stop operating that
centre.
(4) The
High Court may grant an order for costs against the person or organisation
referred to in subsection (3) if so requested by the Director-General or
provincial head of social development.]
Application
for registration or renewal of registration
199 [200]. (1) An
application for registration or conditional registration of a child and
youth care centre established by an accredited organisation as referred to in
section 196 or for the renewal of such a registration must―
(a) be lodged with the provincial head of
social development in the relevant province in accordance with a procedure
prescribed by regulation;
(b) contain
the particulars prescribed by regulation;
and
(c) be
accompanied by―
(i) a certified copy of the constitution or founding document of
the child and youth care centre;
(ii) a certificate issued by the municipality in which the child
and youth care centre is or is to be situated certifying that the premises in
which the centre is or is to be accommodated complies with all structural,
safety, health and other requirements of the municipality, taking into account
the National Building Regulations and Building Standards Act; and
(iii) any
documents that may be prescribed by regulation.
(2) An applicant must provide such additional information
relevant to the application as the provincial head of social development may
determine.
(3) An application for the renewal of registration must be made
at least 90 days before the registration is due to expire, but the provincial
head of social development may allow a late application on good cause shown.
(4) The provincial head of social development must renew the
registration of a partial care facility before the expiration thereof if the
application for renewal was lodged at least 90 days before the registration was
due to expire as contemplated in subsection (3).
Consideration
of application
200 [201]. (1) The
provincial head of social development must―
(a) consider
an application for registration or for the renewal of a registration and either
refuse the application or grant the registration or renewal with or without
conditions, having regard to subsection (2);
(b) issue to
the applicant a certificate of registration or renewal of registration in the
form prescribed by regulation if the application is granted; and
(c) state in
the certificate of registration the period for which the registration will
remain valid.
(2) When
deciding an application the provincial head of social development must take
into account all relevant factors, including whether―
(a) the child and youth care centre complies
with―
(i) the
prescribed norms and standards for child and youth care centres contemplated in
section 194; and
(ii) the
structural, safety, health and other requirements of the municipality taking
into account the National Building Regulations and Building Standards Act,
in which the child and youth care centre is or is to be situated;
(b) the
applicant is a fit and proper person to operate a child and youth care centre;
(c) the applicant has the necessary skills,
funds and resources available to operate the child and youth care centre;
(d) each person employed at or engaged in
the child and youth care centre is a fit and proper person to assist in
operating a child and youth care centre;
and
(e) each person employed at or engaged in
the child and youth care centre has the prescribed skills to assist in
operating a child and youth care centre.
(3) A person unsuitable to work with children is not a fit and
proper person to operate or assist in operating a child and youth care centre.
(4) The provincial head of social development must consider a
report of a designated social worker before deciding an application for
registration or renewal of registration.
(5) Notwithstanding the provisions of section 193(3) a provincial
head of social development may assist the person or organisation operating a
child and youth care centre to comply with the prescribed norms and standards
contemplated in section 194 and such other requirements as may be prescribed.
Conditional
registration
201 [202]. The
registration or renewal of the registration of a child and youth care centre
may be granted on such conditions as the provincial head of social development
may determine, including conditions―
(a) specifying the type of residential care
programme or programmes that may or must be provided in terms of the
registration;
(b) stating the period for which the conditional
registration will remain valid, which may not be longer than one year; and
(c) providing
for any other matters that may be prescribed by regulation.
Amendment
of registration
202 [203]. The provincial head of social development
in the relevant province may, on application in the prescribed circumstances by
the holder of a registration of a child and youth care centre, amend the
registration by written notice to that person.
203 [204]. (1) The
provincial head of social development in the relevant province may cancel the
registration of a child and youth care centre by written notice to the
registration holder if―
(a) the centre is not maintained in
accordance with―
(i) the
prescribed norms and standards contemplated in section 194 for child and youth
care centres and such other requirements as may be prescribed;
(ii) any
structural, safety, health and other requirements of the municipality in which
the child and youth care centre is situated;
(iii) any
organisational development plan established for the centre as part of the
quality assurance process in terms of section 211; or
(iv) any other
requirements of this Act;
(b) any condition subject to which the
registration or renewal of registration was issued is breached;
(c) the registration holder or the
management of the centre contravenes or fails to comply with a provision of
this Act;
(d) the registration holder becomes a person
who is not a fit and proper person to operate a child and youth care
centre; or
(e) a person who is not a fit and proper
person to assist in operating a child and youth care centre is employed at or
involved in activities at the centre.
(2) A person unsuitable to work with children is not a fit and
proper person to operate or assist in operating a child and youth care centre.
(3) The provincial head of social development may in the case of
the cancellation of a registration in terms of subsection (1)(a), (b),
(c) or (e)―
(a) suspend the cancellation for a period to
allow the registration holder to correct the cause of the cancellation; [and]
(b) suspend
the cancellation while an appeal procedure in terms of section 207 is
pending; and
(c) [(b)] reinstate the registration if the registration holder
corrects the cause of the cancellation within that period.
(4) The Director-General or a provincial head of social
development may assist a registration holder to comply with―
(a) the prescribed norms and standards for
child and youth care centres contemplated in section 194 and such other
requirements as may be prescribed;
(b) any structural, safety, health and other
requirements of the municipality in which the child and youth care centre is
situated; or
(c) any provisions of the organisational development plan
established for the centre in terms of the quality assurance process
contemplated in section 211,
where the cancellation was due to a failure
to comply with those norms and standards, requirements or process.
(5) The cancellation of a registration which has not been
suspended takes effect from a date specified in the notice referred to in
subsection (1), which may not be earlier than 90 days from the date on which
that notice was given, except if―
(a) the
provincial head of social development and the holder of the registration agree
on an earlier date; or
(b) the
safety or protection of the children in the centre requires an earlier date.
204. (1) A
provincial head of social development may by way of a written notice of
enforcement instruct―
(a) a person
or organisation operating an unregistered child and youth care centre―
(i) to
stop operating that centre; or
(ii) to apply for registration in terms of
section 200 within a period specified in the notice; or
(b) a person
or organisation operating a registered child and youth care centre otherwise
than in accordance with the provisions of this Act or any conditions subject to
which the registration was issued, to comply with those provisions or
conditions.
(2) A person or organisation operating an unregistered child and
youth care centre and who is instructed in terms of subsection (1)(a)(ii) to apply for registration within
a specified period may, despite the provisions of section 197 regarding the
establishment of child and youth care centres by accredited organisations, be
given permission by the provincial head of social development to continue
operating the centre during that period and, if that person applies for
registration, until that person’s application has been finalised.
(3) The Director-General or the provincial head of social
development may apply to the High Court for an order to instruct a person or
organisation operating a child and youth care centre, whether registered or
not, to stop operating that centre.
(4) The
High Court may grant an order for costs against the person or organisation
referred to in subsection (3) if so requested by the Director-General or
provincial head of social development.]
Voluntary
closure of child and youth care centre
205. The holder of a registration of a child and
youth care centre who voluntarily closes a child and youth care centre must
[may close the centre by]―
(a) give
[giving] written notice to the
provincial head of social development in the relevant province; and
(b) surrender
[surrendering] the certificate of
registration to the provincial head of social development for cancellation.
Child
in child and youth care centre to be closed
206. If a child and youth care centre is to be
closed as a result of the cancellation of its registration in terms of section
204 or voluntary closure of the centre in terms of section 205 every child
placed in that centre must be transferred in terms of section 171.
Appeal against and review of certain
decisions
207. (1) An applicant aggrieved by a decision of
a provincial head of social development with regard to the consideration of an
application for registration or renewal of registration in terms of section
200, or the conditions on which registration was granted in terms of section
201, or a registration holder aggrieved by a decision of a provincial head of
social development to cancel the registration of a child and youth care centre
in terms of section 204, may lodge an appeal against that decision with the MEC
for social development.
(2) An
applicant that is not satisfied with the outcome of an appeal lodged as
contemplated in subsection (1), may apply to the competent division of the High
Court to review that decision.
Part 2
Operation and management of child and youth
care centre
Management
board
208. (1) Each
child and youth care centre must have a management board consisting of no fewer
than six and no more than nine members.
(2) The members of a management board are appointed by―
(a) the MEC for social development in the
relevant province in accordance with a procedure prescribed by regulation, in
the case of a child and youth care centre which is operated by the
province; and
(b) the registration holder in accordance with
a procedure prescribed by regulation, in the case of a privately operated child
and youth care centre.
(3) In appointing members of the management board, equitable
representation by all stakeholders, including the community in which the child
and youth care centre is located, must be ensured.
(4) No person unsuitable to work with children may be appointed
or continue to serve as a member of a management board.
(5) A management board functions in terms of the regulations, and
may exercise the powers and must perform the duties conferred on it in terms of
this Act.
(6) The management board must create a children’s forum as part
of the management board to ensure the participation of resident children, in
the operation of the centre, taking into consideration the age, maturity and
stage of development of the children.
Manager
and staff of child and youth care centre
209. (1) The person or organisation operating
a child and youth care centre must appoint or designate―
(a) a
person as the manager of the centre; and
(b) a sufficient number of staff or other
appropriate persons to assist in operating the centre.
(2) A person may be appointed or designated in terms of
subsection (1) only—
(a) after
following an interview process prescribed [by
regulation];
(b) if
that person has the skills and training as prescribed; and
(c) if that person is a fit and proper
person to assist in operating a child and youth care centre.
(3) A person unsuitable to work with children is not a fit and
proper person to assist in operating or serving at a child and youth care
centre.
[(4) The
number of staff appointed or designated must be in accordance with any staff-to-children
ratios that may be―
(a) prescribed by regulation;
or
(b) required in the conditions of registration of the centre.]
Management
system
210. A child and youth care centre must be
managed―
(a) in
accordance with―
(i) a system of management that allows for a division of
responsibilities between the management board and the manager of the centre and
an appropriate interaction in the exercise of those responsibilities as may be
prescribed by regulation;
(ii) the organisational development plan established for the
centre in terms of its quality assurance process; and
(iii) any
other requirements of this Act; and
(b) in a manner that is conducive to
implementing the residential care programme and other programmes offered at the
centre.
Quality
assurance process
211. (1) The
provincial head for social development must ensure that a quality assurance process is conducted [carried out] in respect of each child
and youth care centre in the manner and at the intervals as prescribed.
(2) The quality assurance process must be done in the
following manner:
(a) a team
connected to the child and youth care centre conducts an internal assessment of
the centre;
(b) a team not connected to the centre
conducts an independent assessment of the centre;
(c) an organisational development plan for
the centre containing the prescribed particulars is established between the
teams by agreement; and
(d) the team
not connected to the centre appoints a mentor to oversee implementation of the
plan by the management of the centre.
(3) [(2)]
The management board of a child and youth care centre must without delay, after
completion of the quality assurance process, submit a copy of the
organisational development plan established for the centre in terms of the
quality assurance process to the MEC for social development in the province.
(4) [(3)]
A provincial head of social development may assist [give advice to] a child and youth care centre on carrying out the
quality assurance process as referred
to [contemplated] in subsection
(1).
Part 3
Miscellaneous
Regulations
212. The Minister may, where appropriate after
consultation with the Ministers of Education, [of] Health and [of] Justice and
Constitutional Development, in terms of section 306 make regulations
prescribing―
(a) the procedure to be followed in
connection with the lodging and consideration of―
(i) applications
for registration of child and youth care centres;
(ii) applications
for renewal or amendment of such registrations;
and
(iii) objections
to applications made in terms of sub-paragraphs (i) and (ii);
(b) the
norms and standards that child and youth care centres must comply with;
(c) the [matters] conditions with
which applicants must comply before, during or after the lodging of their
applications;
(d) consultation processes that must be
followed in connection with such applications;
(e) any additional factors that must be
taken into account when deciding such applications;
(f) the procedure to
be followed and the fees to be paid in connection with the lodging and
consideration of appeals in terms of this Chapter;
(g) the format and contents of registration certificates;
(h) methods and procedures to enforce compliance with
registration conditions;
(i) matters in connection with the physical
attributes, operation and management of child and youth care centres, including
the number of staff appointed at or designated to a child and youth care centre;
(j) matters in connection with residential care
programmes provided at child and youth care centres, including the setting of
criteria for―
(i) the
core components of such programmes; and
(ii) the
implementation of such programmes;
(k) the provision of programmes at child and
youth care centres to meet the developmental, therapeutic and recreational
needs of children;
(l) an assessment of and the formulation of
an individual developmental and permanency plan for each child;
(m) the powers and duties of the management
boards of child and youth care centres;
(n) the composition of management boards,
which may include representation for staff and residents;
(o) matters
relating to members of management boards, including―
(i) appointment
procedures;
(ii) qualifications
for membership;
(iii) term
of office;
(iv) filling
of vacancies; and
(v) suspension
or termination of membership;
(p) matters
relating to the functioning of management boards, including―
(i) designation
and functions of presiding members;
(ii) the
convening and conduct of meetings;
(iii) quorums; and
(iv) the
appointment and functioning of committees of a board;
(q) matters relating to training, qualifications
and experience of staff of child and youth care centres;
(r) matters relating to the
responsibilities of and interaction between the management board and the staff
and residents of a child and youth care centre;
(s) the reporting responsibilities of
management boards and staff to the department, person or organisation operating
the child and youth care centre;
(t) the format of the constitution or
founding document of a child and youth care centre and the matters to be
regulated in such constitution or founding document;
(u) the
rights of children in child and youth care centres;
(w) matters in connection with quality
assurance processes and organisational development plans established in terms
of such processes for child and youth care centres, including―
(i) the composition of teams to conduct internal and independent
assessments;
(ii) the qualifications of team members and the remuneration
payable to members of independent teams;
(iii) the manner in which internal and independent assessments must
be conducted;
(iv) the
core components of organisational development plans;
(v) the
implementation, revision and amendment of such plans;
(vi) the monitoring of implementation and reporting of violations
of such plans; and
(vii) the qualifications, functions and remuneration of mentors
appointed to oversee the implementation of such plans; and
(x) any other matter that may facilitate
the implementation of this Chapter.
CHAPTER 14
DROP-IN CENTRES
213. (1) A
drop-in centre is a facility providing basic services aimed at meeting the
emotional, physical and social development needs of vulnerable children [A drop-in centre is a facility located at
a specific place which is managed for the purpose of providing basic services,
excluding overnight accommodation, to children, including street children, who
voluntarily attend the facility but who are free to leave].
(2) A
drop-in centre must offer any of the following basic services:
(a) Provision
of food;
(b) School
attendance support;
(c) Assistance
with personal hygiene; and
(d) Laundry
services.
(3) A
drop-in centre may offer any of the following additional programmes appropriate
to the developmental needs of the children attending that centre:
(a) Guidance,
counselling and psychosocial support;
(b) Social
skills and life skills;
(c) Recreation;
(d) Community
services;
(e) School
holiday programmes;
(f) Primary
health care in collaboration with the local health clinic;
(g) Reporting
and referral of children to social workers or social service professionals;
(h) Promotion
of family preservation and reunification;
(i) Computer
literacy; and
(j) Outreach
services.
Strategy concerning drop-in
centres
214. (1) The Minister, after consultation with [civil society and the relevant]
interested parties, including the Ministers of Finance, [and] Health, Provincial and Local Government and Transport,
must include in the departmental strategy a strategy aimed at ensuring an
appropriate spread of drop-in centres throughout the Republic, giving due consideration
as provided in section 11 to children with disability or chronic illness.
(2) The
MEC must―
(a) maintain
a record of all the registered drop-in centres in the province concerned;
(b) within
the national strategy referred to in subsection (1), provide for a provincial
strategy to ensure an appropriate spread of drop-in centres in the province.
(3) The MEC must compile a provincial profile at the
prescribed intervals [from time to
time] in order to make the information available that is necessary for the
development and review of the strategies referred to in subsections (1) and
(2).
Provision
of drop-in centres
215. (1) The
MEC for social development of a province may, from money appropriated by the
relevant provincial legislature, provide and fund drop-in centres for that
province.
(2) Such drop-in centres—
(a) must be managed
[management] and maintained in
accordance with this Act; and
(b) must
comply with—
(i) the prescribed norms and standards
contemplated in section 216 and such other requirements as may be prescribed;
(ii) the structural safety, health and other
requirements of the municipality of the area where the drop-in centre is
situated.
(3) The owner or manager of a drop-in centre
only qualifies for funding appropriated as contemplated in subsection (1) if
the centre complies with the prescribed norms and standards contemplated in
section 216 and such other requirements as may be prescribed.
Norms
and standards for drop-in centres
216. (1) The
Minister must determine norms and standards for drop-in centres by
regulation after consultation with interested persons, including local
government.
(2) The norms and standards contemplated in subsection (1) must
relate to the following:
(a) A
safe environment for the children;
[(b) adequate
space and ventilation;]
(b) safe
drinking water;
(c) hygienic
and adequate toilet facilities;
(d) access to disposal of
refuse services or other adequate means of disposal of refuse; [generated at the shelter or drop-in
centre];
(e) a
hygienic area for the preparation of food for the children;
[(g) providing
adequate care for the children.]
(f) providing
programmes in life and social skills, as well as psychosocial services,
education, primary health care and recreation;
[(i) reporting
of all children residing in the drop-in centres to a social worker for
intervention and family reunification.
(j) drop-in centres should not be seen as a permanent or long
term placement.
(k) drop-in centres should have screened and trained staff and
care givers.
(l) shelters and drop-in centres should have management
committees.
(3) A
drop-in centre only qualifies for funding from money appropriated by a
provincial legislature if it complies with the prescribed norms and standards
as contemplated in section 216 and such other requirements as may be
prescribed.
(4) A
drop-in centre may offer such programmes appropriate to the developmental needs
of the children in that centre as may be prescribed.]
217. (1) Any
person or organisation may establish or operate a drop-in centre provided that
the drop-in centre―
(a) is registered with the provincial head
of social development of the province where that drop-in centre is situated;
(b) is managed and maintained in accordance
with any conditions subject to which the drop-in centre is registered; and
(c) complies with―
(i) the
prescribed norms and standards for drop-in centres contemplated in section 216
and such other requirements as may be prescribed; and
(ii) the
structural, safety, health and other requirements of the municipality.
(2) As from the
date on which this section takes effect an existing drop-in centre registered
in terms of the Child Care Act must be regarded as having been registered as a
drop-in centre in terms of this section.
(3) A drop-in centre referred to in
subsection (2) [(4)] is
regarded to be a registered drop-in centre for a period of five years from the
date on which that subsection takes effect, unless its registration is
withdrawn in terms of section 222 [84]
before the expiry of that period.
218. (1) The
provincial head of social development may by way of a written notice of
enforcement instruct―
(a) a person or organisation operating an unregistered drop-in
centre―
(i) to stop operating that drop-in
centre; or
(ii) to
apply for registration in terms of section 217 within a period specified in the
notice; or
(b) a person or organisation operating a
registered drop-in centre otherwise than in accordance with the conditions
subject to which the registration was issued, to comply with those conditions.
(2) A
person or organisation operating an unregistered drop-in centre and who is
instructed in terms of subsection (1)(a)(ii)
to apply for registration within a specified period may, despite the provisions
of section 217 be given permission by the provincial head of social development
to continue operating the drop-in centre during that period and, if that person
applies for registration, until that person’s application has been finalised.
(3) The
Director-General or the provincial head of social development may apply to the
High Court for an order to instruct a drop-in centre, whether registered or
not, to stop operating that centre.
(4) The
High Court may grant an order for costs against the owner of manager of the
drop-in care centre referred to in subsection (3) if so requested by the
Director-General or provincial head of social development.]
Application
for registration and renewal of registration
218 [219]. (1) An application for registration or
conditional registration of a drop-in centre or for the renewal of a
registration must―
(a) be lodged in accordance with a prescribed
procedure [prescribed by regulation,]
with the provincial head of social development in which the drop-in [facility] is or will be situated;
(b) contain
the prescribed particulars [by
regulation]; and
(c) be accompanied by any documents as
[that] may be prescribed [by regulation];
(2) An applicant must provide such additional information
relevant to the application as the provincial head of social development may
determine.
(3) An application for the renewal of registration must be made
at least 90 days before the registration is due to expire, but the provincial
head of social development may allow a late application on good cause shown.
(4) The provincial head of social development must renew the
registration of a drop-in centre before the expiration thereof if the
application for renewal was lodged at least 90 days before the registration was
due to expire as contemplated in subsection (3).
Consideration
of application
219 [220]. (1) The
provincial head of social development must―
(a) consider
an application for registration or conditional registration or for the renewal
of a registration, and either reject the application or grant the registration
or renewal with or without conditions, having regard to subsection (2); and
(b) issue to
the applicant a certificate of registration, conditional registration or
renewal of registration on a form prescribed by regulation if the application
is granted.
(2) When
considering an application, the provincial head of social development must take
into account all relevant factors, including whether―
(a) the drop-in centre complies with –
(i) the
prescribed norms and standards for drop-in centres contemplated in section
216; and
(ii) the
structural, safety, health and other requirements of the municipality;
(b) the
applicant is a fit and proper person to operate a drop-in centre;
(c) the applicant has the necessary skills,
funds and resources available to operate the drop-in centre;
(d) each person employed or engaged in the
drop-in centre is a fit and proper person to assist in operating a drop-in
centre;
(e) each person employed at or engaged in
the drop-in centre has the prescribed skills to assist in operating a drop-in
centre.
(3) A person unsuitable to work with children is not a fit and
proper person to operate or assist in operating a drop-in centre.
(4) 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.
(5) Notwithstanding the provisions of section 215(3) a provincial
head of social development may assist the person or organisation operating a
drop-in centre to comply with the prescribed norms and standards contemplated
in section 216 and such other requirements as may be prescribed.
Conditional
registration
220 [221]. (1) The registration or renewal of the
registration of a drop-in centre may be granted on such conditions as the
provincial head of social development may determine, including
conditions―
(a) specifying the type of services that may
or must be provided in terms of the registration;
(b) stating
the period for which the registration will remain valid; and
(c) providing for any other matters that may
be prescribed by regulation.
(2) A provincial head of social development may give advice to a
drop-in centre on complying with the prescribed norms and standards
contemplated in section 216 and such other requirements as may be prescribed.
221 [222]. (1) A
provincial head of social development may cancel the registration of a drop-in
centre by written notice to the registration holder if―
(a) the drop-in centre is not maintained in
accordance with―
(i) the
prescribed norms and standards for drop-in centres contemplated in section 216; and
(ii) any other
requirements of this Act;
(b) any condition subject to which the
registration or renewal of registration was issued is breached or not complied
with;
(c) the registration holder or the
management of the drop-in centre contravenes or fails to comply with any
provision of this Act;
(d) the registration holder becomes a person
who is not a fit and proper person to operate a drop-in centre; or
(e) a person who is not a fit and proper
person to assist in operating a drop-in centre is employed at or engaged in
operating the shelter or drop-in centre.
(2) A person unsuitable to work with children is not a fit and
proper person to operate or assist in operating a drop-in centre.
(3) The provincial head of social development may in the case of
the cancellation of a registration in terms of subsection (1)(a), (b),
(c) or (e)―
(a) suspend the cancellation for a period to
allow the registration holder to correct the cause of the cancellation; and
(b) reinstate the registration if the
registration holder corrects the cause of the cancellation within that period.
(4) A provincial head of social development may assist a
registration holder to comply with the prescribed norms and standards for
drop-in centres contemplated in section 216 and such other requirements as may
be prescribed.
222. (1) The
provincial head of social development may by way of a written notice of
enforcement instruct―
(a) a
person or organisation operating an unregistered drop-in centre―
(i) to
stop operating that drop-in centre; or
(ii) to apply for registration in terms of
section 217 within a period specified in the notice; or
(b) a person
or organisation operating a registered drop-in centre otherwise than in
accordance with the conditions subject to which the registration was issued, to
comply with those conditions.
(2) A person or organisation operating an unregistered drop-in
centre and who is instructed in terms of subsection (1)(a)(ii) to apply for registration within a specified period may,
despite the provisions of section 217 be given permission by the provincial
head of social development to continue operating the drop-in centre during that
period and, if that person or organisation applies for registration, until that
person’s application has been finalised.
(3) The Director-General or the provincial head of social
development may apply to the High Court for an order to instruct a drop-in
centre, whether registered or not, to stop operating that centre.
(4) The
High Court may grant an order for costs against the owner or manager of the
drop-in care centre referred to in subsection (3) if so requested by the
Director-General or provincial head of social development.
Appeal against and review of certain
decisions
223. (1) An applicant or registration holder
aggrieved by a decision of a provincial head of social development in terms of
this chapter [with regard to the
consideration of an application for registration, conditional registration or
renewal of registration in terms of section 219, or the conditions on which
registration was granted in terms of section 221, or a registration holder
aggrieved by a decision of a provincial head of social development to cancel
the registration of a drop-in centre in terms of section 222] may lodge an
appeal against that decision in the prescribed form within 90 days with the MEC
for social development [against that
decision], who must decide on the appeal within 90 days of reception
thereof.
(2) An
applicant that is not satisfied with the outcome of an appeal lodged as
contemplated in subsection (1), may apply to the competent division of the High
Court to review that decision.
Record
and inspection of and provision for drop-in centres
224. (1) A
provincial head of social development must―
(a) maintain
a record of all available drop-in centres in its area; and
(b) conduct
regular inspections of drop-in centres in the province in collaboration with
the municipality where the drop-in centres are situated to enforce the
provisions of this Act.
(2) The provincial strategy referred to
in section 214 [A province’s
strategies] must include strategies for the provision of drop-in centres in
the province, which must include measures―
(a) facilitating the establishment of
sufficient drop-in centres in the province;
(b) prioritising those types of drop-in
centres most urgently required; and
(c) facilitating
the identification and provision of suitable premises.
Assignment
of functions to municipality
225. (1) The
provincial head of social development may, by written agreement with a
municipality, assign the performance of some or all of the functions
contemplated in sections 215, 217, 218, 219, 221, 222 [and] and 224 to the municipal manager if the provincial
head of social development is satisfied that the municipality complies with the
prescribed requirements with regard to the capacity of that municipality to
perform the functions concerned.
(2) The agreement must be in the prescribed form and contain the
prescribed particulars.
(3) The municipal manager referred to in subsection (1) may
delegate any power or duty assigned to him or her in terms of this section to a
social service professional [designated
social worker] in the employ of the municipality.
(4) A delegation in terms of subsection (3) [(2)]—
(a) is subject to any limitations,
conditions and directions which the municipal manager may impose;
(b) must
be in writing; and
(c) does not divest the municipal manager of
the responsibility concerning the exercise of the power or the performance of
the duty.
(5) The municipal manager may—
(a) confirm, vary or revoke any decision
taken in consequence of a delegation in terms of this section, subject to any
rights that may have accrued to a person as a result of the decision; and
(b) at any time withdraw a delegation.
(6) An
applicant aggrieved by a decision of an official in the employ of a
municipality with regard to the consideration of an application for
registration, conditional registration or renewal of registration in terms of
section 220, or the conditions on which registration was granted in terms of
section 221, or a registration holder aggrieved by a decision of a provincial
head of social development to cancel the registration of a partial care
facility in terms of section 222 may lodge an appeal with the municipal council
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.
(8) (a) The provincial head of social development must monitor the
performance of the functions assigned in terms of this section.
(b)
The provincial head of social development may by notice in writing require the
municipal manager or any other person in possession of information required by
the provincial head of social development for purposes of monitoring the
performance of the functions assigned by this section, to provide such information
to the provincial head of social development within the period specified in the
notice.
(c)
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 may—
(i) amend the written agreement contemplated in subsection
(1); or
(ii) withdraw the assignment of the functions.
[Death,
abuse or] Serious injury, abuse or death of child in drop-in centre
226. (1) If
a child is seriously injured or abused while in a drop-in centre or following
an occurrence at a drop-in centre, the person operating the drop-in centre or
a person employed at the drop-in centre must immediately report such injury
or abuse to the provincial head of social development, who must cause an
investigation into the circumstances of the serious injury or abuse to be
conducted.
(2) [The provincial head
of social development must cause the serious injury or abuse of the child to be
investigated. (3)] If a child dies while in partial care or
following an occurrence at a drop-in centre, the person operating the drop-in
centre or a person employed at the drop-in centre must immediately after
the child’s death report such death—
(a) the
parent or guardian of the child, if he or she can be traced;
(b) to
a police official;
(b) the
provincial head of social development;
and
[(a) to
a police official and the provincial head of social development.]
(3) The police official must cause an investigation into the
circumstances surrounding the death of the child to be conducted by the South
African Police Service, unless the police official is satisfied that the child
died of natural causes.
[(4) The
police official must investigate the circumstances of the death of such child.
Regulations
227. The Minister, after consultation with the
Minister of Justice and Constitutional Development where review of decisions by
the courts are regulated, may make regulations in terms of section 306
concerning―
(a) the procedure to be followed in
connection with the lodging and consideration of applications for registration
in terms of this Chapter and for the renewal of registration;
(b) the different programmes and services
that may be provided in terms of such registration [registrations];
(c) the procedure to be followed and the
fees to be paid in connection with the lodging and consideration of appeals in
terms of this Chapter;
(d) the management of drop-in centres;
(e) any other matter that may be necessary
to facilitate the implementation of this Chapter.”.
Amendment of section 250 of
Act 38 of 2005
10. Section
250 of the principal Act is hereby amended by the insertion after subsection
(2) of the following subsection:
“(3) A welfare organisation referred to in section 108 which was
lawfully engaged in providing adoption services when this section took effect
may, despite the provisions of subsection (1), continue with such services for
a period of two years without being accredited in terms of section 251 to
provide adoption services, but must within that period apply for such
accreditation in terms of section 251.”.
Amendment
of section 304 of Act 38 of 2005
11. Section
304 of the principal Act is hereby amended by the insertion before subparagraph
(iii) of paragraph (a) of subsection
(3) of the following subparagraphs:
“(i) the norms and standards referred to in section 83, 209 or 220
applicable to it;
(ii) other norms and standards as may be prescribed by regulation;”.
Amendment
of section 305 of Act 38 of 2005
12. Section
305 of the principal Act is hereby amended—
(a) by
the substitution for paragraph (c) of
subsection (1) of the following paragraph:
“(c) fails
to comply with section 12(5), 12(9), 57(2), 105(1), 124, 126(1), 134(1), 139(2),
141(1) or 232(6);”
(b) by
the insertion after paragraph (d) of
subsection (1) of the following paragraphs:
“(e) misappropriates
money for which that person is accountable in terms of section 136(3);
(f) fails to comply with section 80(1), 95(1),
197(1) or 217(1) after that person has been instructed by way of a notice of
enforcement in terms of section 85, 100, 199 or 218 to comply with the relevant
section;
(g) fails to stop operating an unregistered
child and youth care centre, partial care facility or drop-in centre after that
person has been instructed by way of a notice of enforcement in terms of
section 85, 199, or 218 to stop operating that child and youth care centre,
partial care facility or drop-in centre;
(h) fails to stop providing early childhood
development programmes [services]
after that person has been instructed by way of a notice of enforcement in
terms of section 100 to stop providing those programmes [services];
(i) directly or indirectly counsels, induces
or aids any child to whom leave of absence has been granted in terms of section
168 not to return to the child and youth care centre or person in whose care or
temporary safe care that child has been placed, or prevents the child from
returning to that centre or person after the expiration of the period of leave
or after the cancellation of such leave;
(j) remove a child in alternative care from the
Republic without the prior written approval for such removal first being
obtained in terms of section 169;”.
Short title and commencement
13. This
Act is called the Children’s Amendment Act, 2007 [2006],
and takes effect on a date fixed by the President by proclamation in the Gazette.
-------------------------------------------------
MEMORANDUM
ON THE OBJECTS OF THE CHILDREN’S AMENDMENT BILL, 2006
LEGAL-TECHNICAL BACKGROUND OF THE
BILL
This
Amendment Bill contains part of the envisaged Children’s Act. The Bill that was initially submitted to
Parliament (the “consolidated Bill”) dealt with the full spectrum of protection
of children in both national and provincial spheres and was to be dealt with in
terms of section 76 of the Constitution of the Republic of South Africa Act,
1996 (functional area of concurrent national and provincial legislative
competence). It was later found to be a
“mixed” Bill, including elements to be dealt with in terms of both section 75
(functional area of national legislative competence) and section 76 of the
Constitution.
Due
to its mixed character, the Deputy Speaker of the National Assembly requested
the Executive to split the consolidated Bill, which was subsequently done. The provisions of the consolidated Bill that
will apply to the national government was passed by Parliament during 2005 as
the Children’s Act, No. 38 of 2005. The
provisions of the consolidated Bill that will apply to the provincial
government is contained in the current Amendment Bill as an amendment to the
Children’s Act, 2005 (the “Children’s Act”).
This Amendment Bill will be dealt with in terms of section 76 of the
Constitution and will complete the Children’s Act by inserting the provisions
that deal with welfare services as delivered by the provinces.
GENERAL BACKGROUND AND OVERVIEW
The lives of children are affected by various pieces
of legislation and international conventions.
Apart from section 28 of the Constitution, which deals with the rights
of children specifically, some of the statutes pertaining to children currently
on the statute book are the following:
Over the past few years, it has become clear that
existing legislation is not in keeping with the realities of current social
problems and no longer protects children adequately. In addition thereto, the Republic of South
Africa has acceded to various international conventions, such as the United
Nations Declaration on the Rights of the Child and the African Charter on the
Rights and Welfare of the Child, the principles of which have to be
incorporated into local legislation.
During 1997 the Minister for Social Development
requested the South African Law Reform Commission to investigate the Child Care
Act, 1983 and to make recommendations to the Minister for the reform of this
particular branch of the law. After an
extensive process of research and consultation, the Law Reform Commission
finalised its report and proposed a draft Children's Bill in January 2003.
The Department of Social Development then took the
process further through close liaison with the national Departments of Justice
and Constitutional Development, Education, Health, Labour, the South African
Police Service, the provinces, national non-governmental organisations and
service providers as well as the Office on the Rights of the Child in the
Presidency. After extensive discussions
in the parliamentary committees and two rounds of public hearings, the
Children’s Act was finally passed by Parliament in December 2005 and the
President assented to the Children’s Act on 8 June 2006. The Children’s Act will take effect on a date
fixed by the President by proclamation in the Government Gazette.
OBJECTS
The objects of the Children’s Act are:
(a)
To
promote the preservation and strengthening of families;
(b)
To
give effect to certain constitutional rights of children;
(c)
To
give effect to the Republic’s obligations concerning the well-being of children
in terms of international instruments binding on the Republic;
(d)
To
make provision for structures, services and means for promoting and monitoring
the sound physical, psychological, intellectual, emotional and social
development of children;
(e)
To
strengthen and develop community structures which can assist in providing care
and protection for children;
(f)
To
protect children from discrimination, exploitation and any other physical,
emotional or moral harm or hazards;
(g)
To
provide care and protection for children who are in need of care and
protection;
(h)
To
recognise the special needs that children with disabilities may have; and
(i)
Generally,
to promote the protection, development and well-being of children.
The Amendment Bill further expands on the
above-mentioned objects of the Children’s Act by proposing to insert the
sections that pertain to the provincial sphere of government. The parts to be inserted may be summarised as
follows:
·
Chapter
5 deals with partial care and the approval and registration of partial care
facilities, while chapter 6 regulates early childhood development and the
approval and registration of early childhood development programmes.
·
Part 1
of chapter 7 makes further provision for the protection of children by
providing for a strategy for child protection and the reporting of children
that has been seriously abused, sexually abused or deliberately neglected. The designation of child protection
organisations is also regulated in this part of the Amendment Bill. Part 4 of chapter 7 amongst others deals with
child-headed households, the unlawful removal or detention of children and
corporal punishment.
·
Chapter
11 provides for alternative care of children and chapters 12 and 13 further
expand on alternative care by respectively regulating foster care and child and
youth care centres.
·
Chapter
13 determines that child and youth care centres must comply with certain requirements,
be registered, offer certain programmes to children in the care of these
centres, must have a management system and that a quality assurance process
must be carried out in respect of the centres.
·
Chapter 14 regulates the establishment
and registration of and norms and standards for drop-in centres.
·
Other amendments proposed are amendments
to bring the long title, regulations provided for and the offences section in
line with the amendments to be effected by this Bill.
CONSULTATION
Apart from the broad consultation process followed by the South African
Law Reform Commission during its review of the Child Care Act, 1983, the
Department of Social Development also distributed the original consolidated
Bill to national departments, the provinces, non-governmental organisations and
other service providers for comment. The
consolidated Bill was also published for general comment in the Gazette on 13
August 2004. During the course of 2006,
the Department of Social Development consulted other national departments, the
provinces and non-governmental organisations through the holding of a series of
workshops. It is also envisaged that
public hearings on the Amendment Bill will be held once the Bill is in the
parliamentary process.
FINANCIAL
The Children’s Act and the proposed
Amendment Bill has been through an extensive and detailed costing process. The process involved all national and
provincial departments that play a part in the implementation of the Children’s
Act and the proposed Children’s Amendment Bill.
The final costing report was submitted to the Minister of Social
Development in July 2006.
PARLIAMENTARY
PROCEDURE
The Department of Social Development and the State Law Advisors are of
the view that this Amendment Bill must be dealt with by Parliament in
accordance with the procedure established by Section 76 of the Constitution.