ATC220707: Report of the Portfolio Committee on Social Development on the Children’s Amendment Bill [B18 – 2020] (National Assembly – sec 76)], dated 6 July 2022

Social Development

Report of the Portfolio Committee on Social Development on the Children’s Amendment Bill [B18 – 2020] (National Assembly – sec 76)], dated 6 July 2022

The Portfolio Committee on Social Development, having considered the subject of the Children’s Amendment Bill [B18 – 2020] (National Assembly – sec 76)], referred to it and classified by the Joint Tagging Mechanism as a section 76 Bill, reports the Bill with amendments [B18A – 2020].

The Committee wishes to report as follows:

Context and background

This Bill emanates from a litigation by the Centre for Child Law v the Minister of Social Development (DSD), the South African Social Security Agency (SASSA) and others at the North Gauteng High Court in 2011. The litigation was as a result of a high backlog in the processing of foster care orders which led to the lapse of 299 076 orders. The Court ruled that the Minister of Social Department should introduce in Parliament a comprehensive legal solution to the challenges in the foster care. This would be done by amending the Children’s Act (No. 38 of 2005) and the Social Assistance Act (No. 13 of 2014). The Court set a deadline of 12 December 2012. It was however, extended to 2017, 2019, 2020 and to 2022 due to the department’s delays in implementing the Court’s deliverables. As indicated above, the Children’s Amendment Bill was finally tabled in Parliament in August 2020. The Bill is comprehensive in that it does not only focus on clauses related to foster care but also addresses gaps that had been identified in the implementation of the Act.

The Bill seeks to amend the Children's Act, 2005, so as to amend and insert certain definitions; to provide for children’s right to privacy and protection of information; to further provide for the rights of unmarried fathers; to extend the children's court jurisdiction; to further provide for funding of early childhood development programmes; to provide for the designation and functions for a Registrar of the National Child Protection Register; to further provide for the care of abandoned or orphaned children and additional matters that may be regulated; to further provide for rules relating to care and protection proceedings; to further provide for medical testing of children in need of care and protection or adoption; to provide for additional matters relating to children in alternative care; to further provide for matters relating to adoption and inter-country adoption; to further provide for the hearing of child abduction matters; to further provide for matters relating to surrogate motherhood; and to provide for matters connected therewith.

Parliamentary process

The Children’s Amendment Bill [B18 -2020] was introduced to Parliament and referred to the Committee through Announcements, Tablings and Committee Reports (ATC) on 31 August 2020. The Committee received a briefing on the Bill on 06 October 2020. It raised a concern that it had a short period of time to process the Bill in its entirety as per the legal advice, before the Court’s deadline of 28 November 2020. During the Committee meeting of 02 September 2020, the Committee supported the legal option that the Department should approach the Court to seek further extension. On 12 November 2020, the Court extended the deadline by a further 18 months, to 27 November 2022. In the interim, the Committee placed a six weeks (16 October – 27 November 2020) advertisement for written submissions. The Committee received 3 083 written submissions, which were all summarised, analysed and presented to the Committee on 7 May 2021. It then conducted national public hearings virtually from 11 May to 18 May 2021.

The provincial public hearings were conducted from 05 June – 10 December 2021. The Committee visited all nine (9) provinces. However, in July the public hearings were suspended due to Covid 19 lockdown travel restrictions. They resumed in August but again suspended in September due a House Resolution for Parliament to go on recess to allow Members of Parliament to prepare for local government elections which were going to be held on 1 November 2021. The public hearings then resumed on 05 November until 10 December 2021.

As part of its consultative process before the commencement of the public hearings, the Committee met with the Department of Social Development on 17 February 2021, with the South African Local Government Association on 24 February 2021 and with the Department of Home Affairs on 03 March 2021. The Committee was briefed on the implications of the Children’s Amendment Bill to these sectors, respectively. It also held a joint meeting with the Portfolio Committee on Basic Education on 16 March 2021 to receive a briefing from the Department of Basic Education (DBE) and the Department of Social Development on their state of readiness for the ECD function shift to DBE.

The Committee also held two closed sessions with children representatives from children’s organisations. The first session was held in person in Parliament on 14 May 2021. There were five (5) organisations that were represented, namely, the Western Commission for Children, Say Yes Alumni, National Association of Child and Youth Care workers, Mamelani Projects and the Bayakhanya Foundation. The second session was held virtually with the children representatives from the Nelson Mandela Children’s Fund on 10 September 2021 while the Committee was in North West for provincial public hearings.

After concluding the public hearings, the Committee invited the Department of Social Development, the Department of Home Affairs, the Department of Justice and Constitutional Development, the Department of Basic Education and the South Africa Local Government Association (SALGA) to respond to the issues raised on submissions made by the public, both nationally and provincially. Furthermore, two experts, Prof Ann Skelton and Dr Rosenberg, were invited on 16 February and on 30 March 2022, to brief the Committee on the on the legal interpretation and application of the age of majority drawing from international, regional and local legislative framework and on the Baby Saver concept, respectively.

The Committee proceeded to the formal stage of the Bill (clause by clause) from 1 April to 29 June 2021, wherein it deliberated on the clause by clause of the shortened Bill, which only focused on the foster care related clauses. It considered the public inputs and the department’s responses. It then adopted the Children’s Amendment Bill A-List on 29 June 2022, the B-List and the Committee report on 06 July 2022.

Key decisions made in the process

On 02 September 2020, the Committee received a legal advice from the legal team of the department and Parliament on whether the Committee could split the Bill into two. The advice gave two (2) options. Option 1 was based on fast-tracking the period, which meant the Parliament would be required to shorten its process to pass the Bill. It however cautioned that splitting the Bill may work against the Department because the Bill had provisions that required Regulations to implement the comprehensive legal solution dealing with foster care. This process would still go beyond the time remaining for the lapsing of the court order, which is 26 November 2020. Parliament would also be disadvantaged as the time frame remaining until 26 November 2020 was too little to comply with all the requirements for processing the Bill.

With the regard to option 2, it was reported that this option would enable Parliament to comply with all legislative process requirements. This implied that a longer period for processing the Bill will also go beyond 26 November 2020. It would, however be to the advantage of the Department as a comprehensive package will not only deal with Foster care but with other long outstanding amendments to comply with other challenges that the Department is faced with. There was also an indirect connection between the rest of the Bill and the provisions that deal with foster care.

The second option will also entail that the court must be approached for an extension. The Department would request Parliament to assist in advising it about the approximate time frame that the Department would ask the court’s extension for and any other support that may be required in this regard. Based on a legal advice received the Committee resolved to proceed with the Bill on its entirety.

On 24 February 2021, during SALGA’s briefing, the Committee was informed that the sector was not consulted by the Department of Social Development on ECD and other related clauses, even though it has a constitutional mandate to provide certain ECD services – structural, health and safety standards, inspections and infrastructure. The Committee then requested the department to present a legal opinion on the matter.

On 05 March 2021, a legal opinion was presented and advised that the contested part in the Bill (all ECD related clauses) be removed, consulted with SALGA and published separately as a second amendment to this current process. This therefore entailed that the current process must continue as scheduled without the contested provisions. Mr Mjenxane, Parliamentary Legal Advisor concurred with the opinion to reject amendments related to Early Childhood Development so as to allow further consultation with SALGA.

The Committee agreed with the legal opinion from the DSD, Office of the Chief State Law Advisor and Parliamentary Legal Advisor to remove clauses dealing with ECD and continue with processing of the Bill so that it could meet the Court order deadline. It also requested the technical team consisting of representatives from SALGA, DSD and the Department of Basic Education to prepare a presentation to the Committee with a list of ECD clauses to be rejected and also to indicate whether such clauses would have an impact on the provision dealing with comprehensive legal solution on foster care backlog. The Committee was also advised of the imminent (1 April 2022) ECD function shift from DSD to the Department of Basic Education. The implications of that was that the Committee would not be prudent for it to legislate for a function that it would not conduct oversight over.

On 17 March 2021, the Department presented the ECD clauses to the Committee. It noted that the rejection of these clauses would have no impact on the provision dealing with comprehensive legal solution on foster care backlog. The Committee resolved that during the formal stage it would reject the ECD related clauses based on the legal advice mentioned earlier.

On 01 April 2022, the Parliamentary Legal Advisor provided a legal advice to the Committee to consider prioritizing 12 foster care related clauses so that it could meet the court deadline. The Committee agreed on the advice. It also agreed that other substantive clauses will be considered in the Committee Bill as a second amendment. It then requested the legal team to identify the actual clauses that respond to the Court order.

On 18 May 2022, the Committee considered the Bill clause by clause and proposals was made that clause 10 amending Section 21 of the Act should be added into the Bill. It was motivated that this clause is important because there are many abandoned and orphaned children who are living with their unmarried fathers. Therefore, the application of this clause will prevent these children from ending up in the foster care system. Whilst the Committee was considering the Bill clause by clause, it was made aware that it did not consider the matrix which contained the public inputs and responses from the Department of Social Development. It was then proposed and agreed that the Committee will start afresh the process in the next meeting of 25 May 2022.

On 25 May 2022, the Committee considered the Bill clause by clause and was in agreement with most of the clauses except for clause 10 which is amending section 21. The majority Members maintained that the Committee will only deal with this clause as part of the Second Amendment Bill as it had agreed. Also, this clause received substantial public inputs that need an extensive public participation process which could possibly also have to include consultation with the House of Traditional Leaders and the Department of Justice and Constitutional Development. It was then decided that clause 10 will not be considered in the current process.

The minority Members objected and stated that the Committee had agreed to include clause 10 in its previous meeting. They questioned the exclusion of clause 10 with the motivation that giving effect to this clause will have an impact on the foster care system in that it will lessen the pressure off the system as biological fathers will have access to their children. The meeting could not reach a consensus on whether an agreement was made or not regarding the inclusion of clause 10 at it its previous meeting, as a result the following Members left the meeting:

Ms Bridget Masango
Ms Alexandra Abrahams
Ms Marie Sukers
Ms Gizella Opperman
Ms Tammy Breedt
Ms Laetitia Arries
Ms Liezl van der Merwe

Consequently, the minority Members rejected the minutes of 18 and 25 May 2022 as not the true reflection of what transpired at those meetings.

Expression of minority views

Rule 288 (3) (f) of the National Assembly states in its report the Committee must, if it is not a unanimous report—

(i) specify in which respects and why there was no consensus, and

(ii) in addition to the views representative of the majority in the committee, convey any views of a minority in the committee in order to facilitate debate when the report comes before the House.

Clause 10 amending Section 21 of the Act:

Members of the minority parties objected the rejection of clause 10 amending Section 21. They submitted that amendments to Section 21 of the Act as reflected in clause 10 of the Children’s Amendment Bill form an integral part of the comprehensive legal solution to the crisis in foster care. Many unmarried fathers are the primary caregivers of maternal orphans. Clause 10 was in the full Bill and all submissions agreed with this section, plus the Department of Social Development. The process before the Committee was one to give effect to the court order, which required the Committee to come up with a comprehensive, sustainable, effective legal solution. The Committee was tasked to solve a major crisis, affecting 700 000 orphans and thousands of abused children. By not amending this section the end result will be that the Committee might be exacerbating the crisis in the foster care system rather than alleviating it. Ninety percent (90%) of submissions supported Section 21, as tabled. There was no reason therefore to defer it to a further consultative process.

However, should clause 10 not be included in the Bill as a result of the concerns expressed by some MPs regarding adopting the amendments to Section 21 at this stage of the process, a compromise approach would be to adopt only the new Section 21A certificate process and not the amendments proposed to Section 21(1) – (4).

The proposed amendment is aimed at enabling the Childrens Court to also issue the certificate because in many rural areas the family advocate is not available. Maternal orphans often do not have birth certificates and this poses a barrier to them accessing social grants and school. This certificate process will help unmarried fathers who are caring for maternal orphans to obtain the proof they need when approaching the Department of Home Affairs to register the child’s birth. The child will also need a parent’s assistance to obtain their ID. If they are a maternal orphan and their father does not have any proof that he is their father, the Department of Home Affairs will not accept him as a ‘parent’ to assist the child to obtain their ID and the child is at risk of never obtaining their ID. The certificate process will also enable working father to add the child to his medical aid, pension policy or life policy – thereby contributing to the child’s financial needs in the present and future.

The new certificate process goes through the family advocate or the Children’s Court so that the necessary checks and balances to protect women, children and father’s rights are ensured. For example, if the mother does not agree, then mediation ito Section 21(3) must happen before the family advocate will entertain the certificate application. This certificate process will help unmarried fathers who are caring for maternal orphans to obtain the proof they need when approaching Home Affairs to register the child’s birth. The child will also need a parent’s assistance to obtain their ID.

Clause 82 amending Section 150(1) of the Act:

Members of the minority parties proposed for the amendment of Section 150(1) to reflect the Department’s new policy that the majority of orphans in the care of family members are not in need of statutory care and protection and do not need to go through the foster care system. They submitted that the wording in the tabled Bill should mirror the wording that was finally decided on for the National Child Care and Protection Policy 2019, after many years of consultation. However, with regards to the amendment proposed in the tabled Bill for Section 150(1) (a), this is not the case.

They submitted that the wording of the tabled Bill does ensure that orphaned or abandoned children in the care of family members will no longer have to go through the foster care system. However, it also implies that the family members must be assessed first to find out if they are ‘suitable’ caregivers. This should be discouraged as DSD does not have the capacity to assess the caregivers of approximately 700 000 to 1 million orphans in the care of relatives. If they attempt to do this, it will bottleneck access to the CSG Top-Up and consume scarce social worker resources that should rather be spent on responding effectively to children’s calls for help and active reports of abuse, neglect, and exploitation.

The wording of the tabled Bill also goes beyond what the Child Care and Protection Policy provides, by implying that an orphaned or abandoned child who is found on their own with no caregiver, can be informally placed (no court order) with a distant relative that the child has never met without there being any follow up statutory supervision or monitoring. Orphaned or abandoned children who are not in the care of a family member, such as abandoned babies, or abandoned children or orphans living on their own, should be considered children in need of care and protection and be eligible for foster care. The question should therefore not be about whether the child ‘has no parent, guardian, family member or caregiver who is able and suitable to care for that child’ but rather whether the child is in the care of a family member. The process of looking for a suitable and able caregiver for an abandoned or orphaned child who is found on their own, is a foster care process and should go through the formal child care and protection system. It could be converted to guardianship after a period of time in foster care once the caregiver and child have formed an attachment.

The DSD’s own Child Care and Protection Policy recognises the principles of attachment theory and therefore uses the phrase ‘orphaned or abandoned and not in the care of a family member’. These are the words that the Bill should also use. This would match the DSD’s own policy and be in keeping with the public submissions made by child rights organisations including Centre for Child Law, Children’s Institute, Children in Distress Network and Child Welfare.

Clause 86 amending Section 159(2A) of the Act:

Members of the minority parties submitted that in practice Section 159(2A) will mean that alternative care court orders can be allowed to expire and then can be brought to the court for extension after they have expired. While this is aimed at providing a temporary solution to the foster care crisis, in particular the large number of orphans in foster care with family members, it will also negatively affect a large number of other children in alternative care. In total it will affect approximately 370 000 children with alternative care orders.

The amendment in the Bill as tabled will allow the Court to extend an already expired foster care order retrospectively. But SASSA (South African Social Security Agency) is obliged, in terms of the Social Assistance Act, to stop paying Foster Care Grants once a court order expires. The amendment to Section 159 will not stop grants from lapsing. If the court order expires, SASSA computer automatically lapses the grant. If the payment does not lapse, SASSA will get an audit query. Even though the payment of the grant can backdate once the Court Order is extended, the child would still be without a grant until the back pay and that could be for a year or more, as there is no time period cap in the Section 159 amendment.

Additional proposals

5.1 Clause 10 amending Section 21

Members of the minority parties submitted additional proposals to clause 10 amending Section 21 of the Act, which were not effected into the A-List. The proposals read as follows:

‘s21 (1A) A family advocate or a children’s court may, in the prescribed manner, issue a certificate confirming that the biological father has automatically acquired full parental responsibilities and rights in terms of subsection (1)(a) or (1)(b) on application from—

(a) the mother and biological father jointly;

(b) the biological father, after reaching an agreement during the mediation process referred to in subsection (3); or

(c) the biological father, if—

(i) in terms of subsection (3), he referred the matter for mediation and the mother, after receiving such notice of mediation, unreasonably refused to attend the mediation, or

(ii) the mother is deceased or has abandoned the child; and

(iii) the biological father has shown to the satisfaction of the family advocate or the children’s court that he has automatically acquired full parental responsibilities and rights in terms of subsection (1)(a) or (1)(b).

(1B) If the child’s mother is deceased or has abandoned the child and the child’s father is not the child’s primary caregiver; the family advocate or children’s court should hear representations from the child’s primary caregiver and the child, before making a finding on the section 21A certificate; and where applicable, should assist the father and primary caregiver to complete a parenting rights and responsibility agreement in terms of section 22.

5.2 Clause 82 amending Section 150(1)

Members of the minority parties submitted an additional proposal to clause 82 amending Section 150(1) of the Act, which was not effected into the A-List. The proposal read as follows:

The Bill should replace the words ‘has no … family member who is able and suitable to care for that child’ with ‘is not in the care of a family member’.

It is important that the Act is clear that orphaned children who are already in the care of a family member are not considered in need of statutory care and protection (ie in need of foster care). For instance, an orphan who has been living with their granny for the past 10 years should rather be referred to SASSA to obtain the CSG Top-Up and then assisted by the Children’s Court to obtain legal guardianship. This approach recognises the principles of ‘attachment theory’ – ie that an existing and established bond of attachment between a child and caregiver is recognised as a family relationship that does not require the state to supervise or assess the suitability of the caregiver [unless someone has alleged abuse or neglect or there is a family dispute about who has parental responsibilities and rights (PRRs) in which case other subsections of Section 150(1) apply].

5.3 Clause 86 amending Section 159

Members of the minority parties submitted an additional proposal to clause 86 amending Section 159 of the Act, which was not effected into the A-List. The proposal read as follows:

“(2A) For three years from the date of commencement of this Act, in relation to orphaned or abandoned children in foster care with family members, a court may extend an order that has lapsed or make an interim extension of an order for a period not exceeding six months, on good cause shown and if such an extension will be in the best interests of the child.”

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Report to be considered.

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