Regressive and deeply flawed, the Children’s Amendment Bill is rushed to the new Parliament

By Robyn Wolfson Vorster

Originally published on the Daily Maverick, 29 May 2019

One of the first tasks of South Africa’s Sixth Parliament will be to determine the fate of the Children’s Amendment Bill. Despite content and process errors that could expose vulnerable children to harm and increase the burden on overworked social workers and discrepancies with both the National Child Care and Protection Policy and government’s strategy for early childhood development, the bill has been rushed to Parliament. So why the indecent haste?

The furore about the Children’s Amendment Bill has raged in the media since it was first brought to the public attention at the beginning of 2019. For the most part, criticism has focused on adoption, and specifically the impact of the bill making adoption fees illegal, and excluding specialists such as doctors, therapists, psychologists and attorneys from the adoption process.

The public is right to be concerned. Child protection experts argue that removing, limiting or delaying adoption as an option for vulnerable children, especially abandoned babies, would not be in their best interests, violating their constitutional right “to family care or parental care”.

But while apprehension around adoption has dominated the press, a review of the bill reveals myriad other process and content flaws. Children’s rights groups have raised concerns about critical child protection and development issues such as orphan care, early childhood development, corporal punishment and privacy, highlighting clauses that may have been accidentally omitted in the department’s hurry to get the bill ready for Parliament, a lack of agreement between approved government policy and the proposed bill and fundamental changes that were made to the bill after the consultation process was complete.

The overarching feedback is that the process has been hasty and that the bill will not achieve the government’s stated goals for amending the act. These two issues coalesce around the focal point of the amendments, solving the crisis in the foster care system. In truth, while the outgoing chair of the Social Development portfolio committee allegedly named this bill, “the Adoption Bill”, it should probably be called “the Foster Care Bill” because most of the decisions around its timing and justification relate to foster care.

To contextualise, the problem with foster care in South Africa dates back to the early 2000s. Then Minister of Social Development Zola Skweyiya identified the foster care system as a way for the state to better support children who had been orphaned by the Aids pandemic and were in the care of an extended family.

The strategy was well-meaning in its desire to address the burden of orphan care on poor, often elderly, relatives. But, the decision resulted in the government using the Foster Care Grant (FCG), a grant that is not means-tested and is 60% more than the Child Support Grant (CSG), to incentivise the care of orphans by kin.

From the outset, there were concerns that this “solution” to orphan care would be too expensive. Moreover, children’s rights organisations warned that it was too resource intensive because children would need a social worker report and a court order to obtain the grant, and then every two years thereafter, and that it would negatively affect the handling of child abuse cases. As numbers inevitably soared, it would ultimately become unsustainable.

The government ignored the warnings, and by 2010 there were half a million orphans in a system designed for the temporary care and protection of 50,000 vulnerable children. Predictably, with a shortage of social workers and pressure on the courts, they could no longer manage the caseload and the system collapsed. Between 2009 and 2011, 120,000 foster care orders expired, and families stopped receiving the grant.

To mitigate the impact of the collapse on South Africa’s poorest families, the Centre for Child Law initiated legal proceedings which resulted in a moratorium on foster care grants lapsing. Those that had lapsed were reinstated, and Sassa was ordered to continue paying the grant.

The department, which was then under the tenure of Bathabile Dlamini, was given until December 2014 to come up with a comprehensive legal solution to the problem. By the time the deadline arrived, the department had 300,000 expired foster care orders, but no legal solution, resulting in the court reluctantly extending the order for another three years. Yet by 2017, there was still no solution. This time the minister admitted in a settlement order that the department’s failure to remedy the foster care problem was unconstitutional and unlawful. It asked for a further 24-month extension.

The department now has a November 2019 deadline to provide a comprehensive legal solution for the foster care problem, at which point the temporary solution will end, 200,000 foster care orders will expire, and Foster Care Grant payouts to affected families will cease.

When Minister Shabangu took over the Social Development portfolio in February 2018, it was rumoured that she had one key mandate to counteract the embattled reign of her predecessor. It was to sort out the grant payment system and keep the department out of court. It’s a mandate she has taken seriously, positioning the Children’s Amendment Bill as the comprehensive legal solution to the foster care problem.

But the unfortunate result is that the bill had to be hurried through the final vetting and approval processes to get it introduced to Parliament in time to meet the February 2019 High Court order deadline, and Parliament will only have six months to debate and pass the bill before the November 2019 “Cinderella” moment when everything returns to its former state.

After her predecessor’s disastrous tenure, the minister should be commended for attempting to remedy the problem. However, the department’s last-minute haste to technically comply with the deadline has already resulted in some significant errors in the bill, which is not surprising, given untenable turnaround times, like one day for department officials to consider legal opinion from the State Law Advisers, incorporate changes and then submit it to Cabinet (rumour has it that some of the department’s experts weren’t even in the room on the day final changes were made).

And frustratingly, none of the children’s rights groups that evaluated the version of the bill approved by Cabinet in February 2019 could identify how it will provide the promised comprehensive legal solution to the foster care crisis, short of government miraculously pulling a hidden rabbit out of a hat.

On the contrary, in its current form, the bill could make the problem worse because the wording of the revised bill extends the definition of an orphan to legally include all children who have lost one or both parents. The impact is that the already overburdened foster care system could now grow to include as many as 1.4 million children (the number of children classified as orphans and eligible under that definition).

Disappointingly, the version of the bill submitted to Parliament also no longer contains a change to Section 150(1)(a) of the act, stating that orphaned children in family care are no longer deemed in need of state care and protection. If the clause, which was thoroughly negotiated with children’s rights groups and present in the version of the bill published in the Government Gazette in October had been retained, it would have freed children in kinship care from being included in the foster care system and its accompanying court orders, social worker supervision, and massive delays in accessing a social grant.

Instead, the government’s comprehensive legal solution seems to pivot around “additional options for children in need” including granting guardianship to relatives. However, these additional options still require court orders and a social worker investigation and report, which means that the 400,000 cases will still need to be addressed. With more than one million additional orphans also needing support, the proposed solution will be disastrous when the November deadline arrives, especially now that department social workers will also be responsible for adoptions.

What makes this clumsy attempt at fixing the problem even more bewildering is that the government had an alternative, elegant solution available which already had stakeholder buy-in.

To implement this solution, the department simply needed to retain the Section 150(1)(a) change to the definition of orphans and abandoned children in need of care and protection found in the gazetted version of the bill, to exclude those in familial care. Parliament then needed to debate and pass the Social Assistance Amendment Bill, which includes a new Child Support Plus Grant (CSG+), designed to lessen the financial impact on families of being removed from the foster care system and no longer receiving the Foster Care Grant. The grant allows for a R210 top-up to the CSG (currently R420) to compensate families for orphan care.

The impact would have been to remove about 1.4 million children from the court process and social worker supervision, freeing them up to focus on at-risk children while still enabling properly financed orphan care.

But the minister and her department chose not to implement this solution. There was no explanation for the removal of the Section 150(1)(a) change. And troublingly, although the Social Assistance Amendment Bill, which would facilitate the creation of the CSG+ grant, was tabled in Parliament in early 2018, it has reportedly been gathering dust on the Social Development Portfolio Committee’s table and has not yet been addressed.

Without it, there would be little motivation for families to convert from foster care to guardianship: They would still need a court and social worker intervention and although the process would probably be once-off rather than ongoing, the downside would be that they would go from receiving R1,000 a month to the CSG grant of R420. Most are likely to protest, possibly through the courts.

So, it is a stretch to characterise the bill as a comprehensive legal solution. And, concerningly, the department’s last-minute hurry to technically comply with the court’s deadlines has led to some significant unintended consequences.

The most serious is the deletion of Section 74, which protects the privacy of children involved in Children’s Court cases such as abuse cases, custody cases, adoptions and removal from care. The patch clause, Section 6A, fails to include children in Children’s Court cases, so if the bill is passed in its current form, the implication is that the media would be allowed to identify and publish photos of children such as the siblings of murdered “Baby Daniel” because the Children’s Court is currently determining if they should be reunified with family members. The impact would be appalling.

It is arguable that its need to meet the February and November deadlines also contributed to the department removing the corporal punishment clause from the version of the bill submitted to Parliament.

To understand the impact of this exclusion, some background is necessary.

In 2017, a parent found guilty of assault for physically punishing his 13-year-old son appealed against his conviction in the South Gauteng High Court on the grounds of the common law defence of “moderate and reasonable chastisement”.

The court found that the defence violated children’s rights and rejected the appeal, thus striking down the common law defence which had previously allowed parents to use physical punishment. In response, Freedom of Religion SA appealed against the ruling at the Constitutional Court. The case was heard in November 2018, so a ruling is due any day. In the interim, the removal of the defence of reasonable chastisement from the law has been suspended pending its outcome.

The Department of Social Development might like the public to believe that it removed the clause making corporal punishment in the home illegal because of the number and persuasiveness of submissions made to it after the bill was gazetted. But this argument is somewhat disingenuous.

First, it would be incongruous for the department to have incorporated these submissions, given that it chose not to take account of any other public or expert feedback from children’s rights groups. But, more importantly, the department joined the High Court case as an amicus curiae (friend of the court) and a respondent in the Constitutional Court, supporting the removal of the defence from the law.

That, along with the wording of its Child Care and Protection Policy is a clear indication that banning corporal punishment is a government strategy. The policy, whose content was approved by Cabinet, contains a clause banning corporal punishment and states that:

“The Children’s Act will have to be revised to prohibit corporal punishment and any other form of cruel, inhuman or degrading treatment or punishment.”

So, if the department wasn’t really persuaded by the public’s arguments, and doesn’t believe that corporal punishment is in children’s best interests, why did it remove the corporal punishment clause from the draft bill going to Parliament? It is rumoured that it was instructed by the State Law Advisers to do so pending the outcome of the Constitutional Court case.

What is mystifying, given the proximity of the judgment, is that the department hasn’t chosen to wait for the ruling instead. It would certainly be the wiser approach, given that if the Constitutional Court rules against the common law defence of “reasonable chastisement”, the department will have to amend the Children’s Act again to address the impact of the ruling: The deleted corporal punishment clause offered a supportive counselling remedy for offending parents and caregivers, effectively shielding them from criminal proceedings unless the offence was continuous or crossed the line into abuse.

Removing this clause may have the potential unintended consequence of criminalising parents who use corporal punishment until the act is amended again.

Another area dramatically affected by the rush to get the bill to Parliament is Early Childhood Development (ECD). ECD, one of the government’s flagship initiatives to end poverty and grow South Africa’s economy, is largely enabled by community-based initiatives. But incomprehensibly, stringent regulations in the Children’s Act have been a barrier to its successful grass-roots implementation. For ECD practitioners, the bill was an opportunity to simplify registration requirements and better support home and community-based programmes.

However, the government largely ignored the input of community practitioners and children’s rights groups. Instead, the bill includes regressive changes that will make it much harder for ECD practitioners to register and qualify for state funding, removes the peremptory duty of government to fund ECD programmes in poor communities and effectively makes it more difficult for poor children to access quality ECD programmes.

In addition, during the 2019 State of the Nation Address, President Ramaphosa announced that the overall responsibility for ECD would be transferred to the Department for Basic Education: “This year, we will migrate responsibility for ECD centres from social development to basic education, and proceed with the process towards two years of compulsory ECD for all children before they enter Grade 1.”

However, there is nothing in the bill to cater for this stated strategic priority and the consequent changes in responsibility. The implication is that either the intent or timing of the plan announced by the President is in dispute, or that the department, in its haste to get the bill passed, simply omitted any inclusion of the plan in the amendments. Either way, it means that the act will need to be amended again shortly after it is passed to include the ECD shift, or, that the plan will be massively delayed.

When assessing the amendments, what is least explicable is the impact that they will have on the Department of Social Development itself. It is an open secret that the department’s end game is to wrest responsibility and control of social welfare services from NGOs and private practitioners.

It is an agenda clearly visible in the adoption amendment in the bill. But, the timing of the bill is problematic for the department too. Already overburdened and thinly stretched, it is unlikely to have the resources needed to process its share of 200,000 expiring foster care orders in November, especially if it involves converting many of them to guardianships and trying to persuade the families to accept a 60% drop in their grant payments, as well as investigating and writing reports for a million more orphans in need of guardianship. Add to that the burden of adoption (for which it is allegedly unprepared) and the ongoing responsibility for ECD, and the bill seems somewhat of an own-goal.

In the end, though, it is the children who the law is intended to protect that will suffer most. It is hard to argue that the bill will protect children’s rights and best interests if children will be poorer, less likely to receive early childhood interventions, unable to access care and protection because of stretched resources, less likely to be placed in permanent parental care, and more likely to be raised in institutions or long-term cluster foster care when family reunification is not available. Even the “cost of delay” will negatively impact children’s chances of permanent placement and attachment.

It will soon be up to the new parliamentary portfolio committee for social development to evaluate this regressive piece of legislation. When it does, the department will present it as a comprehensive legal solution to foster care and request that the committee approves it quickly.

But, even if parliamentarians agree that it provides the solution to foster care, they need to ask if the government’s sudden urgency to comply with an eight-year-old legal order justifies pushing the bill through with its current errors and omissions.

Children’s rights groups across civil society unanimously agreed that content problems and extensive clauses in need of amendment make the bill too flawed to be debated and passed in its current form and that it cannot be rescued through edits and patches.

They proposed that it should be removed from the parliamentary process and reworked by the department. It is the right solution, but an unlikely one, so it looks like the committee will be faced with the messy and arduous task of fixing the problems in the bill, ensuring that the final version upholds the rights and best interests of South African children and still makes the November 2019 deadline. How they will accomplish it is anyone’s guess.