Children’s Amendment Bill: public hearing

SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE
19 September 2007
CHILDREN’S AMENDMENT BILL: PUBLIC HEARING

Acting Chairperson: Mr M Masutha(ANC)

Documents Handed Out
Child Welfare South Africa presentation
Children’s Institute submission
Commission on Gender Equality submission (withdrawn)
Statutory Foster Care System to Support Long-term Kinship Care: Impact on Social Welfare System & Social Work Profession
National Welfare Social Service and Development Forum (NWSSDF)submission
Draft Committee Programme September – November 2007

Audio recording of meeting

SUMMARY
The Children’s Institute and Child Welfare gave public submissions on the Children’s Amendment Bill. The Children’s Institute focussed on three areas, indicating the need to strengthen the provisioning clauses to help the Department upscale delivery. It called to extend the age of the child support grant to eighteen. More prevention of HIV and Aids would in the long term reduce the costs of the Bill. The Bill could provide an opportunity to speed up service delivery by placing an obligation on MECs to fund, and it was suggested that the legislation use the obligatory “must” instead of “may”. Budgeting was discussed. It was stressed that the Bill was not about taking away children’s rights but strengthening the rights of children and parents vis a vis the State.
The Committee discussed the “may” and “must” provisions at length.  The difference between the grants was explained. The Department explained how the grants were working in practice and explained the Early Childhood Development Policies. A separate presentation would be held shortly.

Child Welfare South Africa suggested the addition of the words “civil society” to clause 106, called for changes to clauses 106 and recommended changes also to Clause 136. It felt strongly about child-headed households and their need for protection. Prevention and early intervention were vital. It endorsed replacement of “may” with “must”, and stressed the need also to prevent foster care and instead to look at other interventions. It supported the raising of child support grants until age eighteen.

The Commission on Gender Equality was committed to promotion of an environment-supported respect for all human rights. The perception created by the earlier submission that the CGE supported reasonable chastisement was incorrect, and therefore CGE requested to withdraw this submission in its entirety, and instead to make its official position known once the Commission had made input into the relevant submissions. The Committee was concerned that this raised more questions and there was a need for the Committee to interact with the Commission.

The Committee summarised its procedure for the Bill and indicated that it hoped to consider the Bill finally on 17 October

MINUTES
Children’s Institute Submission
Ms Paula Proudlock, Acting Director, Children’s Institute, delivered the submission, which focussed on three areas. The first referred to strengthening the provisioning clauses, which would help the Department of Social Development (DSD) to upscale service delivery. The second area of the submission referred to extending the age of the Child Support Grant to eighteen. The third area focussed on the premise that more prevention of HIV/AIDs and treatment of caregivers with HIV/AIDs, as referred to in clause 146, would reduce the cost of the Children’s Bill in the long term. Ms Proudlock took the Committee through the Institute’s arguments around lowering the cost of the Bill through applying measures in the three areas.

She urged the Committee that the Bill provided an opportunity to lay a foundation in law to speed up service delivery. This, for example, could be done through placing an obligation on MECs in the provinces to fund, by using the word ‘must’ instead of ‘may’. She put forward the question of why there should be any question about children’s services, as children’s rights should have greater protection than others. Children’s rights were civil and political rights and not really socio- economic rights.

The Institute alluded to the issue of the allocation of budgets to the Provinces, and particularly how they would receive money from the Equitable Share,  determined by Treasury using a formula. Ms Proudlock referred to Section 242 of the Constitution and the fact that obligations were imposed on provinces by national legislation. Education and health were the largest components of the Equitable Share. Treasury had indicated that the equitable share to a large extent dictated how provinces determined their budgets. The current system meant that provinces would first give money to education and health, then, if there was money left over, it would go to children’s issues. However, the formula was being reviewed.

The Institute further persuaded that if strong national obligations were placed in this law, then provinces would be bound by allocations and would be obliged to give money to the selected areas. Ms Proudlock further indicated that the Constitution did say provinces had to act according to national priorities, and hence Parliament could guide public decisions by placing obligations within the national law. If MECs had a tool, they could go to Treasury to ask for more money and this strengthened bargaining power at both provincial and national level. The essence of the Bill was to influence processes at national and provincial level.

Discussion
Ms M Gumede (ANC) asked how the children could be bound to respect other people’s rights. She wanted to know how children could learn to become responsible.

Ms Proudlock responded that the Bill was not about taking away children’s rights from children, but rather referred to children’s rights against the State and also parent’s rights against the State.

The Acting Chairperson identified the need to have engagement with the Department and Minister around the readiness of provinces to kick-start a massive turnaround, and expand the strategic policies and goals. He indicated that social grants had been taken away from the Department of Social Development, to allow fiscal space for welfare services to grow. He requested the Department to comment on the Welfare Services status as there was a need to get a sense what welfare services were working.

The Acting Chairperson further expressed that he understood that legislation could be used as a tool and referred to the case of the Legal Resources Centre, which had informed the Committee during their submission the day before that they were using the courts to enforce services. He said that the Courts were interpreting the “may” provisions already as the context would determine whether there were obligations being imposed in certain circumstances.  

Ms J Semple (DA) put forward that “may” implied choice on the part of the MEC or Minister. “Must” was definitely a stronger requirement. She asked the Institute if they had any idea why the
Drafts included “may”.

Ms C Dudley (ACDP) indicated that this was put in as the Department might be concerned about legal challenges.

The Acting Chairperson referred to a case in Eastern Cape Division, where the allocation was not used for its intended purposes. He asked the Institute how this case could be used as a learning path.  The Chairperson
Ms Gumede requested clarification on how the various amounts of R5.28 billion, R60.64 billion and R92billion presented in the submission could be compared.

The Acting Chairperson expressed the need to talk about quantifying budget in the whole country, for services going towards children. The argument was that of the whole basket going to children, social welfare services were but one component. He asked whether there were sufficient resources to ensure children access to those services. He expressed that Ms Gumede’s point was one to be borne in mind, and the Committee should not lose focus on the total package approach.

Ms Proudlock responded that The Children’s Institute had used a Constitutional rights-based approach on education, health and social services. The Institute had analysed the budget allocated to that right. The total package referred to all links, but social services to children was not present, and this was the link needing particular focus.

Ms Proudlock clarified that the institute had discussions with National Treasury and the drafters over the issue of “may” or “must” wording. The Constitution obliged the Government to provide services protecting children from abuse, and the right to child care. The Children’s Institute held that the issue depended on interpretation of words in the Constitution, as well as following the interpretation by the UN Committee on the Rights of The Child. In the prevention of abuse, there was a need for Early Childhood Development (ECD) services and care. It all came down to money. The MEC should be obliged to fund, by use of the word “must”. The cost of ECD was cheaper than resolving abuse.

The Acting Chairperson expressed that the Children’s Institute did not have to try so hard to convince the Committee as it was already committed to the issue of protection of the children. He expressed he did not really buy the legalistic arguments and that there was need for simplicity. It was not about “may” or “must” but about commitment on the part of those entrusted with delivering services.

Ms Gumede expressed concerns about the alarming statistics presented in the submission. She feared that the figures might triple if those most vulnerable were themselves to produce children.  She expressed the hope that this scenario would not happen. She related a personal story of a relative who had gone to a drop in centre voluntarily, as he did not want to comply with the rules at home. She requested if there was a check on children who entered drop in centres, to assess where they came from and to determine that some families could support them.

The Acting Chairperson questioned the Department of Social Development if they were aware of this and if any sudden surge in the numbers of people entering the drop in centres was interrogated.

Ms Proudlock responded to Ms Dudley and Mr Masutha about their commitment, saying that it was clear the Committee was committed, but provinces were not following the lead. Ms Proudlock indicated that if the legislation was worded in an obligatory fashion, then the sentiment would trickle down. There was some argument as to who should make the final decisions; Parliament or Treasury. She further clarified that the Institute’s analysis came from Treasury.

Ms Semple requested clarification on adjusting the monetary value of child support and foster care grants, and asked if it was intended that there should be a mid-line allocation.

Ms Proudlock responded that the difference between the two grants was that the Foster Care Grant (FSG) was about R600 and the Child Care Grant was R200. The Child Grant was more common in the rural areas as it was easier to obtain. The FSG was more difficult to get in the rural areas as there were less social workers to process the paper work.

The Acting Chairperson asked whether the analysis referred to came from drafters, Treasury or the whole of government. He expressed hopes that the DSD could tell the Committee why the provincial budgets have not grown.

Ms H Weber (DA) asked if it would not be advisable that MECs meet with the Committee so that it could hear what was happening.

The Acting Chairperson indicated that he would talk to the Minister about these matters and perhaps he too could come to the meeting with the Committee. For the current purpose, it would be sufficient to deal with the department officials.

Ms Gumede posed a question what would happen to an adolescent at a drop in centre, who happened to have a child that might be put up for adoption, without consideration being given as to whether the family of the adolescent wished to adopt.  She believed that families should be consulted about adoption of children related to them, as it eased the burden faced by drop in centres.

Mr Masutha commented that some of these matters were structured nicely in legislation, but people gave them wrong interpretation. Primary care givers would sometimes get a grant, which may not be used for the child but for other purposes.

Ms Gumede commented that this was a problem, and asked who was monitoring the process, which involved a great deal of money. There was a need to decrease the numbers of vulnerable children. 

Ms Ronel Van Zyl, Researcher, South African Law Commission, responded to the question of “may” or “must”. She indicated that the NCOP had argued that the Early Childhood Development references were worded as “must”, then the government would be obliged to fund all ECD issues, including for children whose parents could afford it. The other issue raised was that of social services, relating to what provinces would provide and what national should deal with, in terms of the Constitution. National government could not prescribe to provinces how to spend their money.

The Acting Chairperson explained that perhaps the problem lay elsewhere, as his interpretation was that the courts could interpret the legislation even if it was stated in terms of “may”.

Ms Dudley asked for clarification with regard to government having to have to fund all ECD cases, and for an explanation in relation to education, where Government was not funding across the board.

A representative of the Department of Social Development responded that the fundamental principle was that there was a need to support parents to raise their children in an optimal way. With ECD, the first consideration was the responsibility of parents to raise children. The State would intervene where parents were unable to provide for the child. The point of departure would be a proper definition of a “vulnerable” child, as all children could be described as vulnerable. Some of the children in stable environments had well-protected rights. Others might be abused or orphaned. These definitions needed to be considered when deciding upon “may” or “must”.  Vulnerability of a child was compounded by the inability to access traditional safety nets. From the social development side, there was a need to ensure vulnerable children’s rights were protected.  The difference between ECD and protection was that parents should look after their children from an early age. No country forced parents to take their children to ECD.

The Acting Chairperson acknowledged that this was one side of the coin. The other was a totally different question, and government funding would be needed to drive the issues, however they were structured. Unless there was allocation, none of what was being discussed would be realised. There were cases where allocations did not find its way to where they should. He asked how actual implementation of an allocation could be secured.

Ms Maria Mabetoa, Chief Director: Children, DSD, indicated that the Department had an integrated ECD policy. She clarified that the cases referred to of misallocation of ECD money were misunderstood. The R4.2 billion was for other provinces as well, and not just for ECD in one province. She clarified that the provinces misunderstood the allocation process and that this time round, Treasury was dealing with the matter differently.

She informed the Committee that at a meeting with National Treasury earlier in the year, all provinces had bid for R7billlion over the next three years. ECD was not high on the agenda but social grants took about 80% of the budget of provinces.

She called for the understanding of the Committee, as the Department was experiencing shortages in staff after some of the DSD staff had moved to the new social security Agency situation, hence there was also a need to replenish human resources. She clarified that there was a monitoring system in place to ensure that this happened. She informed the Committee that DSD had been to the provinces and had seen their ECD systems. If the department received the allocation requested, it would be targeting children on the child support grant (R2.8 million) – with particular focus, to begin with, on 1.4million.

Ms Mabetoa added that the Department would look into the issues raised by Ms Gumede and would monitor the situations and would be checking what was happening locally. The grants were intended to ensure proper development of the child. ECD was part of the expanded public works programme and was referred to as a priority of government.

Other matters such as the welfare financing model needed a separate presentation, and the Department has noted this and would make a presentation in a future meeting.

The Acting Chairperson explained that there had been a lot of misconceptions and misunderstanding of the information. He expressed that there was a need for a comprehensive report and information from the Department as to where the problems were and what the plans were to go forward. Once all the submissions were considered and the Committee had a sense of what people were saying, then the Department would get an opportunity to respond.

Child Welfare South Africa: Submission
Ms Trix Marais, Regional Director for Northern and Western Cape, Child Welfare, informed the Committee that the organisation started 90 years ago, as a branch-off from the SPCA which was looking after animals, extending to looking after children. Its main interest was early intervention for children and families.

One of the biggest preventative services was in ECD. Child Welfare would also take care of the elderly in rural areas, due to lack of resources, and there was talk of integrated services in communities.

Child Welfare South Africa would like to add the words “Civil Society” to Clause 106(1) as laid out in the submission. They also recommended changes to Clauses 106(2), and 106(3). She referred the Committee to their detailed written submissions. She indicated that Child Welfare felt strongly about Child Headed Households as they recommended that children should not allowed to take on parental roles, as most of them were very young and needed to find themselves and grow into adults, but were hindered by being burdened with parental responsibilities. She recommended changes to Clause 136(1). It was important to look at every child’s individual situation. Sometimes children needed to find money for the household, as the child support grant was not always enough for one child to look after others. Research showed that often in the rural areas, those children heading the household and providing for the family often were forced to resort to prostitution.  Child Welfare recommended age fifteen be maintained, to uphold the rights of the children in the Constitution. These children needed services such as other adults to assist them. In the Child Welfare programmes, children were thoroughly investigated and placed with adults as they believed children had the right to complete school.

Prevention and early intervention was the main area of focus. If these were strong, then this would save costs. Early interventions could be done in integrated services. Child Welfare agreed that the word “may” should be replaced with “must”. Child Welfare was struggling with high numbers of case loads on foster care placement that had increased by 16% from 2004 to 2005. It believed that there was a need to look at alternative care. It was important to prevent children from being placed in foster care where this was possible, and rather to keep the child in the family structure. There was a need to look at Foster Care in a different way. There was a shortage of social workers to deal with foster care. Some of the other programmes of Child Welfare could assist.

Ms Marais related a story of an organisation that had been criticised for moving the child outside of the area of the family as he was abused. Because of high case load and shortage of social workers she recommended that auxiliary social workers should be allowed to process the paperwork and go to court, alternatively to assume responsibilities of supervision alternatively.

She noted that there was a need to look at other alternatives so that families and children could get the services they needed. The Child Support Grant ended at age 14, but the work did not end there and this may affect the child’s ability to go to school as there would be no other means of income. There was a gap that needed to be reduced, and service delivery did not always reach the rural areas.  Child Support Grants should be extended to age 18, as this would continue to support children to the end of their schooling and until they could find further means of income.

Discussion
The Acting Chairperson indicated that there was insufficient time for discussion.

Ms Dudley indicated that it would have been useful to find out if Child Welfare agreed with the submission of the National Welfare Social Service & Development Forum (NWSSDF) on long term solutions for kinship care for orphans and vulnerable children, and immediate proposals to the Bill.

Mr Masutha requested clarification from Ms van Zyl on the kinship provision.

Ms van Zyl indicated that the Social Assistance Act did not provide for a kinship care grant but only a child support grant and foster care grant. A child could be placed in foster care with a family member to cut down on the paperwork and the Court could make an order to extend that placement up to age 18.

Mr Masutha supported the assertion but as far as he was concerned, kinship placement in the social security context was provided for already. By introducing the notion of long term foster care, it was creating a new challenge for interpretation and the contradictions of child care grant would be further accentuated.

Commission on Gender Equality
The Parliamentary Officer read out the letter from the Commission, which was a request by the Commission to withdraw their submission. As the Commission was a Chapter 9 Institution, it was committed to the promotion of an environment-supported respect for all human rights. The perception created by the earlier submission that the CGE supported reasonable chastisement was incorrect and therefore CGE requested to withdraw this submission in its entirety. The Commission indicated that their official position would be made known once the Commission had made input into the relevant submission.

Discussion
Mr Masutha indicated that this message raised more questions than answers. He expressed that the Committee needed to interact with the Commission in order to sort out the matter, as it did not take what the Commission said lightly. If the submission conveyed a particular sentiment that was then withdrawn, then there was a need to communicate more on the issue.

Committee programme
The Acting Chairperson advised that the Committee would now consider all submissions received and look at whether there was any need to effect adjustment to the Bill, as it came from the NCOP. Once the process was concluded, then the Committee would consider the Bill clause by clause, pass it, and it would go to the NCOP.

The target of the Committee was to finish the Bill before parliament rose in November, as it needed to be ready for implementation by 1 April 2008, being the last financial year of this current parliament.

The Committee went through its schedule, and noted that the final drafting would need to be done from 11 to 17 October, and that the Committee would aim to pass the Bill on 17 October. Written submissions would take precedence, but every document would be considered and the Committee was free to refer to any document. The public could have access to documents, but the Committee was not obliged to provide copies. The summary was for Members.

The Researcher explained that a summary had been drawn but that ten more submissions had since been received and the new draft would incorporate these and the oral submissions. 

The meeting was adjourned.