PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT

Children's Amendment Bill

[B19B-2006]

Report

The Portfolio Committee on Social Development, having considered and examined the Children's Amendment Bill [B19B-2006] (National Council of Provinces - sec 76(2), referred to it, and classified by the JTM as a section 76(2) Bill, reports on the Bill with amendments as follows:

History of the Bill

· The development of this comprehensive bill started in 1997 under the former Minister for Welfare and Population Development with instruction to the SA Law Commission for a thorough review and consolidation of all legislation affecting children.

· By Dec 2002, DSD received proposed draft bill.

· This bill was workshop extensively amongst government departments between January 2003 and August 2003.

· Cabinet approved the comprehensive bill by Sept 2003, after taking cognisance and comments from all government departments.

· Under directive of Cabinet, an inter-sectoral departmental steering committee on the Children's Bill was established. This Steering Committee is still active today and deals with the National Policy Framework on Children, draft regulations and implementation plans.

· The comprehensive Children's Bill was tabled in the 4th semester in 2003 in Parliament, as priority legislation with the hope to be concluded before the 2004 elections.

· On instruction of Parliament, the comprehensive draft bill was classified as a mixed bill, meaning it contained both sec 75 and sec 76 provisions in terms of the Constitution.

· Within a week, DSD and State Law Advisor's split the Bill and reintroduced it Parliament by October 2003, B70-2003, Re-introduced. [Children's Rights and fundamentals, sec 75]

· B70-2003 was referred to the National Assembly as the first house and the Portfolio Committee on Social Development, did not complete the legislation before it in 2003/ 2004.

· After the 2004 elections, the status of this bill was revoked and after reconstruction of a new Portfolio Committee for Social Development, the PC concluded its work on this bill in mid 2005.

· The PC finalised its deliberations on the Children's Bill by 10 June 2005 and finalised it with report to the NA by 14 June 2005. After its second reading debate in the NA in June 2005 the B bill was referred to the NCOP for consideration and report.

· The NCOP Select Committee Social Services concluded its deliberations on this bill by December 2005.

· Public hearings in 2005 focussed more on cultural practices such as circumcision and virginity testing. [The shift of focus was the result of the House of Traditional Leaders meeting with the President and complaining on the approach taken to legislate and undermine cultural and traditional practices. Hence the increased focus on traditional practices.

· The Proposal for a National Policy Framework was adopted in principle but is being developed outside the legislation.

· Access to health care and contraceptives: Note that DSD proposed an increase to the age from 12 years to 14/15 years in the NCOP deliberation process, but this was rejected in the legislative process. The NCOP accepted pressure from NGO's in this regard.

· Assented to by President on 8 June 2006, Act 38 of 2005, as the Children's Act.

· During Aug 2006, DSD introduced the Sec 76 bill in the NCOP, this focuses on services related to children, ECD, early prevention and care, child and youth care centres, also child headed households and corporal punishment. Note: The introduction of the Bill met the cut-off time in Parliament, but the NCOP SS had to deal with the Civil Union Amendment Bill as well, which originated from a constitutional challenge. Hence the Children's Amendment Bill was not prioritised in the NCOP then.

· During October 2006, DSD hosted at its own expense, a joint workshop to the NA, NCOP Social Development Members and provincial legislature chair persons for social development. to explain the objectives of the Children's Amendment Bill where services are to be rendered in the provinces, plus a full explanation on the costing of the comprehensive bill.

· The NCOP held hearings on this bill in all provincial legislatures and concluded with work with amendments in May 2007. It has been stated that more than 60 plus events of public hearings were held in the various provincial legislatures collectively.

· Status on regulations: Service provider appointed in February 2007 has been instructed to complete the draft regulations by November 2007. Process is on going and on schedule.

The Children's Amendment Bill [B19B-2006] sec 76(2) was transmitted to NA on 29 May 2007.

The portfolio committee took a decision to visit national departments especially those mostly affected by the bill and a number of organisations dealing with children issues, the aim of these visits are;

· To raise awareness on the bill

· Evaluate the readiness of the departments to implement the bill .

· Interact with a sample of specific organisations affected by the bill

The following departments were visited by the Committee on 30 July-03 August 2007 in Pretoria:

The following departments were visited:

· Department of Social Development .

· Department of Education

· Department of Correctional Services

· Department of Justice and Constitutional Development

The Departments of Labour and Provincial and Local Government also briefed the Committee on the bill.

The following municipalities were visited

· City of Tshwane

· City of Johannesburg

The following organisations or facilities were also visited:

· Abba house (Adoption agency)

· Tshwane place of safety (Foster care)

· Leamogetswe Centre (Orphanage)

· Prinshof School ( Blind and partially sighted children)

· South African Congress for Early Childhood Development.

· Pretoria Secondary School (Children in need)

· Tshwane Home of Hope (Shelter for street children)

· Nulock prison

· Tutela place of safety (Juvenile Centre)

In line with Parliament's vision of providing a national forum for public consideration of issues and seeking to act a voice of people, the Committee conducted public hearings on the Bill on 13-17 August 2007.

Interested individuals, organisations, communities and groups wishing to comment on the bill were requested to forward their written submissions in any of the South Africa's official languages to the Committee.

The approach by the Committee was twofold and participation was by means of written submissions targeting NGO's, research institutions and civil society or verbal submissions.

Verbal evidence in any language of choice was considered in provinces through community participation. Record keeping: These submissions were captured extensively by the Parliamentary Monitoring Group and can be viewed under the link:

httc:/ /www.pmg.org.za/viewminute.php?id=4299

Community participation took place in the community halls of the following places:

1. Mpumalanga - Elukwatini, Mayflower and Acornhoek.

2. Limpopo - Giyane, Thohoyandou and Mokopane.

3. Eastern - Mthatha.

4. Northern Cape - Rustenburg.

Further to that, the Committee extended an invitation to all stakeholders and persons interested in making oral submissions to the Committee. Public hearings were held in Parliament on 18 September 2007.

As the Committee considered the bill clause by clause the following were highlighted:

CHAPTER 5 - PARTIAL CARE

Clause 77

The National Treasury should be invited to brief the Committee on the bill as the "MUST" forces them to finance the programmes.

Clause 79

It was mentioned that this section excludes children with disabilities, for example, private schools are not obliged to cater for them.

Most partial care centres are privately managed therefore, it is not easy to impose on them to accommodate children with disabilities, for example, build ramps and provide material in braille, especially those in rural areas. Although the Committee agreed on the above it was also mentioned that owners of the facilities should not be discouraged by asking too much, government should provide funding to those facilities and then it can impose.

The Department of Social Development mentioned that the bill would be as inclusive as possible because about 15% of children with disabilities stay at home.

Clause 87

The Department of Social Development mentioned that the partial care system is new and the strategy has not been developed yet but there is a plan to do so that could be made available to the Committee. Because most or all partial care facilities fall under municipalities the Department also mentioned that it plans to conduct workshops with municipalities to capacitate them.

Clause 90

It was agreed that the following phrase should be added: "the procedure to be followed with regard to the children in a partial care facility if the partial care facility is closed down."

CHAPTER 6 - EARLY CHILDHOOD DEVELOPMENT

Clause 91

It was agreed that the ECD programmes would be made available to children from birth to school going age not "pre-birth" because that stage is covered by or under the Department of Health.

The Department mentioned that about 315 000 children around the country are receiving ECD services. All children from 0-4 years should be afforded access to ECD programmes.

Clause 92

It was agreed that the Department of Provincial and Local government and the Department of Transport should involved in the whole programme. The Drafters should do away with "time to time" and come up with specific time frames on all the issues because "time to time" does emphasize the obligation.

Clause 93

The Department mentioned that in the country there are about 4.8 million children aged between 0-4 years old but only 2.8 million receive child support grant. About 700 000 children are awaiting child support grant. If all the 0-4 year old children were receiving ECD programmes the government would have to spend R12 billion.

There are about 1.4 million children in partial care, if the ECD programmes would be targeted for them R6 billion would be spent on them by 2010. The programmes "MUST" be provided to the vulnerable and disadvantaged children. ECD programmes are not a basic education.

Clause 110

The Drafters mentioned that the phrase "in the best interest of the child" was used based on the fact that there is a duty of confidentiality between attorney and client. There are cases where children do not want abuse to be reported, for example, if the child is being abused by his or her father the child might be worried that if the father is found guilty and has to go to jail nobody would provide food for the family. But there are instances where lawyers had to disclose such information for the safety of the child.

Clause 136

The Committee mentioned its concern on the age "15 years" chosen by the Department and asked the Department to elaborate on what informed them to choose 15 years because it was of the view that a 15 year old is still a child to be having a responsibility of looking after children.

The Department mentioned that the Basic Conditions of Employment Act and the Schools Act says that a 15 year old cannot go to work and should still be at school. They also mentioned that there are gaps in the bill and it was drafted on the basis of poor or vulnerable children and promised to do more research on the issue.

It was also mentioned that the "12" children that may be supervised in a child headed house hold was influenced by the fact that these might be more than one household and the supervisor does not live with children and perform full parental responsibilities but ensures that basic needs of the children are provided, for example, that children have done their homework, have their uniforms etc.

Clause 139

It was agreed that the clause should be removed. The Department would come up with further amendments in terms of section 75 of the Constitution next year.

The Committee was concerned about the fact that the Joint Tagging Mechanism had put this clause in the section 76 part of the bill.

The Committee mentioned that disciplining of children is not only about parents but also include the child are facilities where children behave improperly and some form of discipline would be required.

Clause 140

It was mentioned that tobacco and alcohol were mentioned because they could be legally sold while other substances are illegal. It was agreed that the Department of Provincial and Local government would be invited to brief the Committee on how they would deal with the issues in this clause.

Clause 141

This clause could be split into two parts. One part could deal with matters pertaining to criminalising child labour and the other to involve the involvement of the social workers. Child labour should be a criminal offence.

The Department mentioned that it accepts proposal made by the Department of Labour to the Committee about worst forms of child labour.

Clause 180

After the Department explained the meaning and advantages of the cluster foster care system, it was agreed that a clause on it should be developed and inserted in the bill.

Clause 191

It was agreed that the Department would provide a definition of "developmental" as it is not in the bill but only in the norms and standards. It mentioned that most of the programmes in this clause are run by NGO's but the Department regulates them.

It also mentioned that it would provide mainstreaming, which meant that it would include children with disabilities.

Adv. T M Masutha, MP

Chairperson: PC on Social Development

24 October 2007