CHILDREN

1
CHILDRENS AMENDMENT BILL

• Portfolio Committee on Social Development
• 6 June 2007, Cape Town

2
General Background and Overview

• Existing legislation was found to be not in
  keeping with the realities of current social
  problems and no longer protected children
  adequately
• SA has acceded to various international
  conventions, the principles of which had to be
  incorporated into local legislation

3
General Background and Overview

• During 1997 the then Minister for Welfare
  requested the South African Law Reform Commission
  to develop new comprehensive legislation for
  children
• After an extensive process of research and
  consultation, the Law Reform Commission finalised
  its report and proposed draft Childrens Bill in
  December 2002.
• Intersectoral National Policy Framework.

4
Background

• The Bill that was initially submitted to
  Parliament in 2003 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.
• It was however found to be a mixed Bill, because
  it included elements that had to be handled in
  terms of both section 75 (functional area of
  national legislative competence) and section 76
  (functional area of provincial legislative
  competence) of the Constitution.
• Due to its mixed character the consolidated Bill
  was split. The Section 75 Bill was first dealt
  with in parliament and published as the
  Childrens Act 38 of 2005.
• The Childrens Amendment Bill will amend the
  Childrens Act
• It will complete the Childrens Act by inserting
  provisions dealing with welfare services as
  delivered by provinces

5
Background

• The Minister of Social Development introduced the
  Childrens Amendment Bill (Section 76 Bill) in
  the National Council of provinces on 25 July
  2006.
• The Childrens Act 38 of 2005 and the Childrens
  Amendment Bill have been through a costing
  process and the final costing report was
  submitted to the Department of Social Development
  in July 2006.
• The Department has appointed a service provider
  to draft the regulations.

6
The Content of the Childrens Act 2005 and
Childrens Amendment Bill

• Interpretation, objects, application and
  implementation of the Act.
• Principles
• Parental responsibilities and rights
• Childrens Courts
• Partial Care
• ECD
• Protection of Children
• Prevention and Early Intervention
• Child in need of Care and Protection
• Contribution Order

• 11 Alternative Care
• 12 Foster Care
• Child and youth care centres
• Drop-in centres
• Adoptions
• Inter-country Adoptions
• Child Abduction
• Child Trafficking
• Surrogate Motherhood
• Enforcement of Act
• Administration of Act

7
Objects of the Amendment Bill

• The Childrens Amendment Bill is to amend the
  Childrens Act 2005.
• To insert certain definitions.
• To provide for partial care and early childhood
  development.
• To further provide for the protection of
  children.
• To provide for prevention and early intervention
  services.
• To provide for children in alternative care.
• To provide for foster care.
• Child and Youth Care Centres.
• Drop-in centres.
• To create certain new offences relating to
  children.

8
Partial Care

• Focus is on the facility
• 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, in terms of a private
  arrangement between the parents or care-givers
  and the provider of the service, but excludes the
  taking care of a child
• by a school as part of tuition, training and
  other activities provided by the school
• as a boarder in a school hostel or other
  residential facility managed as part of a school
  or
• by a hospital or other medical facility as part
  of the treatment provided to the child.

9
Partial Care (Cont.)Partial Care facility to be
registeredAny person may establish or operate a
partial care facility.AppealAn applicant may
lodge an appeal.Record, inspection and provision
of partial care facilityAssignment of functions
to municipalityThe provincial head of social
development may, by agreement with a
municipality, assign the performance of some or
all of the functions pertaining to partial care
to the municipal manager if the provincial head
of social development is satisfied that the
municipality has the capacity to perform the
functions concerned.
10
Partial care (Cont.)

• Death, abuse or serious injury in a partial care
  facility
• 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 childs death
  report such death to a police official, the
  provincial head of social development and the
  parent or guardian of the child.

11
Early Childhood Development

• Early childhood development, for the purposes of
  this Act, means the process of emotional, mental,
  spiritual, moral, physical and social development
  of children from birth to school-going age.
• Early childhood development services means
  services intended to promote early childhood
  development andprovided by a person, other than
  a childs parent or caregiver, on a regular basis
  to children up to school-going age.
• An early childhood development programme means a
  programme structured to provide early childhood
  development services.
• Strategy concerning early childhood development
• The Minister, after consultation with the
  Minister of Education, must include in the
  departmental strategy a comprehensive national
  strategy aimed at securing a properly resourced,
  co-ordinated and managed early childhood
  development system.

12
Provision of early childhood development services

• Early childhood development services provided by
  an organ of state or a designated child
  protection organisation.
• Funding a designated child protection
  organization only qualify for funding from money
  appropriated by a provincial legislature if such
  services comply with the national norms and
  standards.The Minister must determine national
  norms and standards for childhood development
  services after consultation with interested
  persons and the Departments of Education and
  Health.

13
Norms and standards for early childhood
development

• Early childhood development programme to be
  registeredConsideration of applicationConditiona
  l registrationCancellation of registration
• Advice
• A provincial head of social development may give
  advice to a partial care facility or a child and
  youth care centre which provides early childhood
  development services on complying with the
  minimum requirements.
• Assignment of functions to municipality
• Assessment of early childhood development
  programmes to monitor compliance

14
Child protection system

• Strategy concerning child protection
• The Minister must develop a comprehensive
  national strategy aimed at securing a properly
  resourced, co-ordinated and managed child
  protection system.
• National Policy Framework and strategic
  plan for the prevention
• and management of child abuse, neglect
  and exploitation.

15
Mandatory Reporting

• Reporting of child in need of care and
  protection
• Any correctional official, dentist, homeopath,
  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, drop-in centre or child and youth care
  centre who on reasonable grounds concludes that a
  child has been sexually abused, deliberately
  neglected or abused in a manner causing physical
  injury must report that conclusion to the
  provincial department of social development, a
  designated child protection organisation.
• Other people may report any person like
  neighbours, family and friends.
• Investigations and possible removal of the child
  or perpetrator

16
Provision of child protection services

• The Minister must determine national norms and
  standards for child protection services
• Designated child protection services may be
  provided by the Department
• a provincial department responsible for social
  development in a province and
• a designated child protection organisation.

17
Designation of child protection organisation

• The Director-General or a provincial head of
  social development may designate any appropriate
  organization that complies with the prescribed
  criteria as a child protection organization to
  perform all or any specific designated child
  protection services in the relevant provinces.
• Existing child welfare organizationAny
  organisation which is a designated welfare
  organisation within the meaning of the Child Care
  Act must be regarded as having been designated as
  a child protection organisation to perform the
  designated child protection services which it
  performed immediately before that section took
  effect.
• Delegation of powers and duties to designated
  child protection organization
• Withdrawal of designation

18
Other protective measures

• Application to terminate or suspend parental
  responsibilities and rights
• Refer to Chapter 3 in the Childrens Act.
• Child-headed household
• A provincial head of social development may
  recognize a household as a child-headed household
  if-
• the parent or care-giver of the household is
  terminally ill or has diedno adult family
  member is available to provide care for the
  children in the household and
• a child is over the age of 15 years has assumed
  the role of care-giver in respect of a the
  children in the household.
• A child-headed household must function under the
  general supervision of an adult designated by-
• a childrens court or
• an organ of state or a non-governmental
  organisation determined by the provincial head of
  social development.
• Child participation is important

19
Unlawful removal or detention of child

• No person may without lawful authority or
  reasonable grounds remove a child from the
  control of a person who has lawful control of the
  child ordetain a child with the result that the
  child is kept out of the control of a person
  entitled to lawful control of the child.
• Unlawful taking or sending of child out of
  RepublicNo person may take or send a child out
  of the Republic-in contravention of an order of
  a court prohibiting the removal of the child from
  the Republic orwithout consent.

20
Discipline of Children

• A person who has care of a child, including a
  person who has parental responsibilities and
  rights in respect of the child, must respect the
  childs right to physical integrity as conferred
  by the Constitution.
• No child may be subjected to corporal punishment
  or be punished in a cruel, inhuman or degrading
  way.
• The common law defence of reasonable chastisement
  available to persons referred to in subsection
  (1) in any court proceeding is abolished.
• 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.

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Discipline of Children (cont.)

• The Department must take all reasonable steps to
  ensure that-
• Education and awareness raising programmes
  concerning the effect are implemented across the
  country and
• Programmes promoting appropriate discipline at
  home and at school are available across the
  country.
• 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.
• 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.

22
Other provisions

• Child safety at place of entertainment
• Child labour and exploitation of children
• No person may -
• (a) employ a child who is under the age of 15
  years(b) use, procure, offer or employ a
  child for purposes of commercial
• sexual exploitation(c) use, procure,
  offer or employ a child for illicit activities,
  including
• drug production and trafficking
• (d) use, procure, offer or employ an child for
  child labour.
• A social worker or social service professional
  who becomes aware of instances of child labour or
  contraventions of the provisions of the Basic
  Conditions of Employment Act, 1997 must report it
  to the Department of Labour.

23
PREVENTION AND EARLY INTERVENTION PROGRAMMES

• Early intervention programmes means programmes
  which are
• (a) provided to families where there are
  children identified as being
• vulnerable to or at risk of harm or
  removal into alternative care.
• Prevention programmes means programmes -
• (a) 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 unchecked, may lead to
  statutory intervention.

24
Purposes of prevention and early intervention
programmesPrevention and early intervention
programmes must focus on(a)
preserving a childs 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(c) establishing appropriate
interpersonal relationships within the
family(d) promoting the
well-being of children and the relation of their
full potential(e)
providing psychological, rehabilitation and
therapeutic programmes for
children
25
Purposes of prevention and early intervention
programmes (cont.) (f) preventing
the neglect, abuse or inadequate supervision of
children and preventing other
failures in the family environment
to meet childrens 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.
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Prevention and early intervention programmes may
include

• (a) assisting families to obtain the basic
  necessities of life
• empowering families to obtain such necessities
  for themselves.
• Prevention and early intervention services must
  involve and promote the participation of
  families, parents, care-givers and children in
  identifying and resolving their problems.
• Court may order early intervention.Socia
  l work report must contain summary of prevention
  and early intervention programmes.

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ALTERNATIVE CARE

• 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.
• Permanent discharge from alternative care
• The relevant HOD for 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 discharged from
  alternative care as from a date specified in the
  notice.
• Death abuse or serious injury of child in
  alternative care

28
FOSTER CARE

• 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 an
  order of a childrens court
• Definition of foster care excludes the placement
  of a child in temporary safe care or in the
  care of a child and youth care centre.
• A child can be placed in foster care with a
  family member who is not the parent or guardian
  of the child, or with a non-family member.
• The purposes of foster care are toprotect and
  nurture children by providing a safe and healthy
  environment with positive support family
  preservation ,family reunification

29
Prospective foster parents

• 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) properly assessed by a designated social
  worker
• A person unsuitable to work with children is not
  a fit and properperson to be entrusted with the
  foster care of a child.

30
Prospective foster parents (cont.)

• No 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 related
  or
• (b) the court considers this for any other
  reason to be in the best interest of
  all the children.
• More than six children may be placed in foster
  care in terms of a cluster foster care scheme
  which provides for the children to be grouped in
  houses accommodating not more than six children
  per house or such other number of children per
  house as the court may determine.

31
Duration and reunification

• Duration of foster care placements
• An order made by a childrens court lapses after
  two years from the date it was made or a shorter
  period.
• Reunification of child with biological parent
• If a childrens court placing a child in foster
  care is of the view that reunification between
  the child and the childs 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

32
Child and youth care centre

• New concept that replaces the reference to
  residential facilities such as
• childrens homes, places of safety, secure
  care center etc.
• A child and youth care centre is a facility
  for the provision of
• residential care to more than six children
  outside the childs family
• environment in accordance with a residential
  care programme or
• programmes suited to the children in the
  facility.
• A child and youth care centre must offer a
  therapeutic programme
• designed for the residential care of children
  outside the family
• environment,

33
Child and youth care centre (cont.)

• A child and youth care centre may, in addition
  to its residential care
• programmes, offer
• (a) the provision of programmes for
  appropriate care and development
  of children with physical or mental disabilities
  or chronic illnesses (b)
  a programme for the treatment of children for
  addiction to dependence-
  producing substances or (c) any other
  service that may be prescribed by regulation.
• Child and youth care centres include shelters
  as is traditionally known.
• Existing shelters must register as child and
  youth care centes within 5
• years.

34
Establishment and registration of child and youth
care centre

• Establishment of child and youth care centre by
  organ of state
• The MEC for social development must, from money
  appropriatedby the relevant provincial
  legislature, establish and operate child and
  youth care centres for that province.
• Such child and youth care centres(a) must be
  managed and maintained in accordance with this
  Act and(b) must comply with (i)
  the national norms and standards as prescribed.
  (ii) 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.
• Norms and standards.

35
DROP-IN CENTRES

• 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.

36
Establishment of drop-in centresDrop-in centres
to be registeredAny 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)
norms and standards for drop-in centres (ii)
the structural, safety, health and other
requirements of the municipality.Appeal against
and review of certain decisionsRecord,
inspection and provision of drop-in
centresDeath, abuse or serious injury in
drop-in centres
37
NEW INSERTIONS TO THE BILL
PARTIAL CARE Provides for children with a
disability or chronic illness. Partial care may
be provided for by the Minister. Provides for a
strategy and norms and standards. May provide
programmes. Partial care facilities to be
registered with the exception of partial care
facilities operated by a national or provincial
department of social development.
38
NEW INSERTIONS TO THE BILL (Cont.)
Application for registration and renewal of
registration must be accompanied by a report by a
social service professional. Provides for death
of a child in partial care and include serious
injury or abuse of a child in partial
care. EARLY CHILDHOOD DEVELOPMENT Provides for
a strategy, norms and standards and provision
must be made by the MEC for ECD
programmes. Provide for children with
disabilities and chronic illness. Programmes
must be provided by a suitably qualified person.
39
CHILD PROTECTION SYSTEM Provide for
strategy. MEC must provide child protection
services. NGO funding must be one hundred
percent for statutory services rendered. Provide
for norms and standards. Reporting of a child in
need of care and protection to be done on
reasonable grounds if anybody concludes that a
child has been abused in a manner causing
physical injury, sexually abused or deliberately
neglected.
40
CHILD HEADED HOUSEHOLD A child older than 15
years may be a head of a child headed
household. Such a household must function under
the supervision of an adult appointed by a
childrens court, organ of state or
NGO. Supervising adult may not supervise more
than 12 children.
DISCIPLINE OF CHILDREN Prohibition of corporal
punishment. Abolish reasonable chastisement as
defence.
41
PREVENTION AND EARLY INTERVENTION Provide for
programmes, strategy, norms and
standards. Provision of such services may be made
by MEC, programmes must be provided. Court
ordered early intervention services
ALTERNATIVE CARE Leave of absence and
abscondment is an administrative function, as
well as transfer of a child. Only take placement
back to court if a child moves deeper into the
system. Include abuse or serious injury of child
in alternative care.
42
FOSTER CARE Court ordered kinship care the same
as traditional foster care. CHILD AND YOUTH CARE
CENTRES Provide for norms and standards and
strategy. Existing shelters must register as
child and youth care centres. MEC must provide
for child and youth care centres. HOD may give
advice to such a centre to comply with norms and
standards.
43
DROP-IN CENTRES Provide for strategy. Provision
may be made by MEC. Minister must determine
norms and standards. Staff must have prescribed
skills.
44
CONCLUSION The amendments that was made
originated from workshops arranged by DSD with
the Childrens Act Steering Committee, the
provinces, the national and provincial NGOs as
well as public hearings arranged by provincial
legislatures.