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South African Legislation

A milestone for Defence of Rights

The National Assembly of the South African Parliament passed the first part of the Children's Bill on 22 June. The Children's Bill Working Group, a national network of umbrella organisations working with children, is celebrating this moment as a major milestone in the struggle to protect children from abuse and neglect. Lucy Jamieson of the Children's Institute in Cape Town, which together with SASPCAN – convenes the Working Group, outlines the achievements – and the task ahead.

The Children's Bill provides a legislative framework to give effect to some of the rights of children that have yet to be fully realised, such as the right to family care, the right to be protected from maltreatment, abuse and neglect and the right to social services. It makes provision for services to support and strengthen families, and for the state to provide appropriate care to vulnerable children who are in need of protection.

Process

The Portfolio Committee on Social Development debated the Children's Bill over the past eight months. The Working Group engaged in intensive advocacy with the committee and many of our recommendations were heard, considered and incorporated. Members of the Portfolio Committee returned from their constituencies in mid-May to begin-the final clause-by-clause deliberation of the Bill. They made a range of amendments, the most significant of which are detailed below.

Legal representation

Magistrates must now consider whether a child needs a lawyer when a case appears in the Children's Court. If the Court is of the opinion that it would be in the best interests of the child to have a lawyer, then the Court must refer the matter to the Legal Aid Board. The Legal Aid Board must then decide whether to grant the child a lawyer at state expense. Regulations will guide the courts and the Legal Aid Board, as to which situations would result in substantial injustice if the child did not have a lawyer.

Disability

Major advances have been made in recognising the rights of children with disabilities and chronic illnesses, and guaranteeing them access to all services provided by the Bill. The disability task team has worked closely with the members of the committee and the drafters to make certain that the Bill creates an enabling environment and responds to the special needs of children with disabilities. The general principles section of the Bill recognises that to have equal access to services, disabled children may require special support.

All children have the right to be treated equally and to have access to justice and the protection offered to them by the courts. They also have the right to participate fully in decisions that affect them, Throughout the Bill, sub-clauses have been added to give effect to this principle but the biggest advance is the addition of a section dedicated to children with disability and chronic illness. This states:

11. (1) In any matter concerning a child with a disability due consideration must be given to:
(a) providing the child with parental care, family care or special care as and when appropriate;
(b) making it possible for the child to participate in social, cultural, religious and educational activities, recognising the special needs that the child may have;
(c) providing the child with conditions that ensure dignity, promote self-reliance and facilitate active participation in the community; and
(d) providing the child and the child's care-giver with the necessary support services.

Care and Contact

The debate on replacing the terms “access” and “custody” with “care” and “contact” repeatedly dogged the committee. However they finally decided that it was important to shift from the concept of parental power to a new emphasis on parental responsibilities and rights and that the new terminology was essential for this shift to take place. They therefore decided to use the new terms of “care” and “contact”.

The debate then focussed on whether the terms should be restricted to the Children's Bill or whether a sub-clause should be added to amend all legislation and common Law where the terms access and custody were used. This would ensure that the jurisprudence behind the terms “access” and “custody” was retained for interpretation purposes while ensuring that the courts could shift to adopting the new terms of “care” and “contact” when interpreting other laws such as the Divorce Act.

The issue remained unresolved until the very last second. The committee voted to have the following subsection inserted into the interpretation section:

1. (2) In addition to the meaning assigned to the terms “custody” and “access” in any law, and the common law, the terms “custody” and “access” in any law must be construed to also mean “contact” and “care” as defined in this Act.

Cultural Practices

Female genital mutilation and virginity testing have been banned, and a male child now has the right to refuse to be circumcised. Anyone who violates these provisions, or who fails to protect the child from such an abuse, is guilty of an offence.

Consent to medical treatment

Children over 12 can give consent to medical treatment or a surgical procedure for themselves. Caregivers can now give consent for medical treatment for children under 12; however, consent for a surgical procedure, in a non-emergency, may only be given by the Minister or the High Court, where no parent or guardian is available or unreasonably withholds consent.

National Child Protection Register

Provision for the establishment of a National Child Protection Register has been reincorporated into the Section 75 Bill. The amended chapter includes changes to the data held on children, allowing for disaggregation on the basis of age, gender and disability. So that trends in abuse and neglect can be monitored and services adapted accordingly. When the Bill is promulgated in 2007, all welfare organisations working with children will have to check the names of all staff, and anyone who has access to children in their care. This includes current employees. Everyone who is placed on Part B of the Register (people unsuitable to work with children) will be notified. If such a person fails to notify their employer and is working in one of the prescribed institutes, she is eligible for dismissal. Anyone who commits more than one offence against a child will remain on the register in perpetuity.

Children in need of care and protection

The categories of children identified as in need of care and protection have been redefined; now only orphans without any visible means of support are included, rather than all orphans. To determine whether they are in need of care and protection, a social work investigation is compulsory for children who fall into one of the following categories: street children; a child who is a victim of child labour, a child who is a victim of trafficking; a child in a child-headed household; and an unaccompanied foreign child.

Inter-sectoral co-ordination

The National Policy Framework was removed from the Bill by Cabinet before the Bill was tabled in Parliament, but after months of determined lobbying a new section has been added creating an obligation for all spheres of government to work together, and to create to inter-sectoral coordination mechanisms.

Implementation

The Bill obliges all government departments to take reasonable measures to the maximum extent of their available resources to achieve the realisation of the Act.

The inclusion of the words “maximum extent” before “available resources” is a major victory for children. This means that all departments need to prioritise children when they are making decisions about budgets and the allocation of resources. These words come from Article 4 of the UN Convention on the Rights of the Child and are aimed at ensuring that children's issues are prioritised in budget decisions.

Adoption

The bill creates a register of adoptable children and adoptive parents (RACAP).

The financial test that prevented many poor people from adopting children has now been removed.

A provision that allowed the adopting parents to pay the biological mother compensation for loss of earnings has been removed. This removes a possible form of unfair inducement to a mother to pressurise her to consent to the adoption of her child. Section 233(1)(a) requires that a parent who is a minor (under 18) must be assisted by her guardian in giving consent for her child to be adopted. Under the current law, a sixteen year-old who wants her child adopted can give consent on her own without her parent’s knowledge. Requiring the young mother to tell her parents about her pregnancy may prevent many young mothers from considering adoption as an option.

Inter-country adoption

Bi-lateral agreements can be made to regulate inter-country adoptions with countries that have not signed the Hague Convention. In terms of the Hague Convention, South Africa can only allow South African children to be adopted by foreigners from countries that have signed the Hague Convention on Inter-Country Adoptions. This provision excludes inter-country adoptions between many African countries. The ability to conclude bilateral agreements will therefore help to facilitate adoptions between African countries.

Trafficking

The Bill makes trafficking of children a criminal offence. Various people in the trafficking chain can now be arrested for trafficking; this includes those who are involved in advertising, harbouring or transportation activities. Syndicates can now also be prosecuted.

Next steps

The Bill will not be implemented until both the Section 75 and Section 76 parts are passed by both houses in Parliament. The two Bills will then become one Act.

The Section 75 Bill will now be considered by the National Council of Provinces (NCOP). The NCOP has three options: it can pass the Bill, it can amend the Bill or it can reject the Bill. If it passes the Bill without amendments, the Bill will be submitted to the President for assent. If the NCOP amends or rejects the Bill, it will have to be reconsidered by the National Assembly.

The Minister for Social Development is very eager to have this Bill finalised as soon as possible, and the Select Committee will therefore be under pressure to pass the Bill with no amendments. However, recently the NCOP has taken its legislative function more seriously and has put aside its rubber stamp in favour of scrutinising the legislation.

There are a number of controversial issues that the Select Committee may object to. It is therefore essential that civil society maintains the momentum of its advocacy strategy, to protect the advances in children's rights that the current draft promises. The next step is constituency visits to members of the Select Committee. They will be available in their constituencies until 31 July.

With regard to virginity testing the South African Human Rights Commission was very involved in lobbying to outlaw this as a harmful cultural practice, arguing that it is discriminatory and a violation of basic human rights. The Commission and others also made the case for the right of boys to refuse circumcision. These measures are likely to be opposed by traditionalists (the IFP has raised virginity testing as an issue it will pursue).

The issues that the working group believes most need to be focused on are:

• The new clauses on disability, such as access to Courts, which add a burden on the state to make provision in the budget.

• The changes to parental rights and responsibilities – the sub-clause that amends all legislation pertaining to children and common law, which some members may want to remove.

• The clause requiring implementation to the “maximum extent of available resources” may come under fire from Treasury and needs to be protected as it is firmly in line with article 4 of the UNCRC.

Civil society needs to be able to convince NCOP members of the merits of these provisions.

Legal representation and access to courts need to be defended. All courts must be accessible to children with disabilities. It is also very important for vulnerable children who can’t afford to go to the High Court that they can get protection from the Children's Court. For example, many orphaned children need legal protection against property grabbing by unscrupulous family members. This can be achieved by making a protective family member, such as a grandmother, the child's guardian. It is more time- and cost-effective for this to be done by order of a magistrate in the Children's Court than by a judge in the High Court.

Members of the committee had been persuaded that the Children's Court should be empowered to hear guardianship applications but the Deputy Minister of Justice argued against this as he was concerned about corruption, capacity and cost. He also wanted to remove the clauses aimed at ensuring that magistrates received appropriate training for this. After much deliberation and a last-minute caucus by the ANC, the MPs decided to abide by the Deputy Minister of Justice’s instruction. Guardianship therefore remains the exclusive jurisdiction of the High Court. This is a major problem for the many caregivers who need to protect the property rights of the orphans in their care – especially those living in rural areas.

The working group is also concerned that if a girl under 18 must obtain the permission of her guardian to put up her child for adoption, it could lead to more babies being abandoned.

Footnotes

1. South African Society for the Prevention of Child Abuse and Neglect

2. Section 75 Bills are those deemed not to affect the provinces, in terms of Section 75 of the Constitution and Section 76 Bills are those that do affect the provinces, in terms of Section 76 of the Constitution.

This feature: Jamieson, L. (2005) Vote is a milestone for defence of rights. ChildrenFIRST, Vol.9 No.62, pp. 36-39