Submission to the Department of Social Development

INTRODUCTION

1. The South African Council of Churches (SACC) is the facilitating body for a fellowship of 26 Christian churches, together with associate and affiliate para-church organisations. Founded in 1968, the SACC includes among its members Protestant, Catholic, African Independent, and Pentecostal churches, representing between 16-18 million Christians in South Africa. SACC members are committed to expressing jointly, through proclamation and programmes, the united witness of the church in South Africa, especially in matters of social and economic justice as they pertain to matters of national debate.



2. The SACC, having joined with various civil society and non-governmental organisations in the formation of a Children's Bill Working Group, welcomes this opportunity to make submission on in this tenth year of our democracy on this vital and central piece of legislation, the Children's Bill, that will shape the focus of our nation's concerns and its future for the next decade.



3. The objects of this Bill are: to put in place structures for the promotion, monitoring of the sound development of children; strengthening and development of community structures for their protection; the protection of children from exploitation and other moral hazards as well as provision of care when in such need; to give effect to the Republic's obligations to international instruments that promote the protection, development and well being of children. Generally we believe that this Bill carries with it the litmus test for, what President Mbeki often refers to as his vision for the nation, a "compassionate, caring and people centred South Africa".



4. The Churches seek also to cherish these values of compassion, care and human dignity because, when guided by the Bible, we are reminded that in the final analysis, judgement will be handed over the nations depending on whether or not they fed, clothed, cared for and protected "the least of society". In more contemporary times social commentators remind us that the values of society may be judged on the manner in which it treats its children who, through no fault of their own, are poor, vulnerable and in need of society's compassion. When values such as these are enshrined as rights, and cultivated within our communities and families, whatever their composition and structure, we believe our nation will impact significantly for the common good on the least of society, vulnerable children in need of protection.



5. Secondly, the SACC supports a rights based approach to the Bill because of its educational value and for a developmental approach to social and human capability. Writing about the place of human rights law in Africa, Dr. John S. Pobee reminds us that, as in Europe and elsewhere, so too in Africa, the formulation of law needs to be accompanied by the education of society "in order to win the commitment of the peoples in their plurality." He continues to make a plea that, for the education and formation of a nation, special attention be paid to children, because they are "... the leaders of the future, ... the energy and enthusiasm of today."



6. In the light of the centrality of children to the life of the Christian faith, the realities of serious hurts and abuses that children suffer in our nation, continent and in the world, as well as the positive education role that this piece of legislation holds for human development, the SACC raises the following challenges.

CALL FOR THE INCLUSION OF A COMPREHNSIVE BILL OF CHILDREN'S RIGHTS

7. The SACC is deeply concerned at the excision of the following Children's Rights from the reintroduced Bill [B70-2003]:
   • Unfair discrimination
   • Name, nationality and identity
   • Property
   • Education
   • Social Security
   • Refugee and undocumented migrant children
   • Children with disabilities and chronic illnesses
   • Leisure and recreation
   The SACC therefore supports the call by the Alliance for Children's Entitlement to Social Security (ACESS) on the Department of Social Development to reinstate the fuller expansion on Child Rights as previously reflected in the 2002 draft of the Bill. This ought to both supplement the rights of Children (s 28) of the Constitution as well as clearly articulate the "best practice" models of policy to the nation's most vulnerable children.



8. Furthermore, the SACC notes that the second paragraph of the "Implementation of the Act" [4 (2)] is out of kilter with the spirit and intention of the Children's Bill of Rights. We understand that Children's Rights are non derogable and indivisible and that, defining the Act against a backdrop of "competing social and economic needs" opens it up to possible litigation even though a fear of litigation appears to be the reason for the inclusion of this paragraph. The SACC therefore recommends that the paragraph read as follows:
   "Recognising that Children's Rights are non derogable and indivisible, the state must take every possible measure available in order to implement this Act."

A CALL FOR INTER-SECTORAL IMPLEMENTATION/NATIONAL POLICY FRAMEWORK

9. The SACC notes that the Bill is supposed to provide for a comprehensive, integrated, harmonized strategy across various sectors and departments in order to ensure protection and care of children. As a result of revision, the current Bill [B70-2003 (Reintroduced)] has given rise to the removal of the comprehensive policy framework requirements, we are deeply concerned since this seriously undermines the capacity of this version of the Bill to satisfy even its revised objectives. As Dr. Skweyiya has made known and as is a slogan for DSD, "Children are everybody's business", the purpose of the Policy Framework was to enable government and civil society to work together in protecting children from abuse, neglect and exploitation. Clearly, the cooperation of the Departments of Health, Education, Justice, Safety and Security, amongst others, is vital if the well being, security and protection of our children is to become a national priority. As a result, the SACC joins its voice with those in the Working Group who call for the reintroduction of an inter/multi-sectoral implementation through a National Policy Framework.

A CALL FOR THE INCLUSION OF COMPREHENSIVE SOCIAL SECURITY FOR CHILDREN IN NEED OF CARE AND PROTECTION

10. The SACC records its disappointment and concern at the .the lack of clarity on the lines of implementation caused by splitting of the Bill as well as by the total excision of social security measures. A national social security system that aims to reach its target extensively must form a key component of the child protection system. As a result, we are alarmed at the extent to which the chapter on social security is excised from the Bill. Even more alarming is the fact that this section was supposed to have been moved into the Social Assistance Bill, but was not. For this reason, the SACC supports the submission of the Alliance for Children's Entitlement to Social Security (ACESS) which voices is objection to these vague and indecisive processes in greater detail.

FURTHER COMMENTS ON OTHER ISSUES IN THE BILL

11. There are, however, further issues on which the SACC therefore takes the liberty of supplementing the submission from ACESS with comments on issues it has not addressed. We revisit some of these issues that were raised at the March 2003 Children's Institute workshop on the earlier version of the Children's Bill as these relate to the faith community in general and to the Churches in particular. These issues lie at the heart of the value systems as well as framework that strengthen the rights of children in a democracy. The SACC therefore expresses further and deep concern at the apparent dilution of the previous Bill's attempt to implement Children's Rights evident in the costing implications as outlined in the ACESS submission. We are also concerned at the resultant regression of the current Bill as may impact negatively on the poorest and most vulnerable children and therefore on family values in our nation.



12. We wish to see a Bill that addresses the needs of children through a far more compassionate and caring social system, a Bill that seeks to bolster a framework that rests on a pointed social security system for our children. To this end, our submission and comments on the draft Bill follow.

CHILD HEADED HOUSEHOLDS

13. The previous Bill (S 234) allowed for adult mentors to be designated as responsible for child headed households (CHH). The revised Bill [B -2003, S 136] states that a CHH must function under the general supervision of an organ of state or non-governmental organization (NGO). While this arrangement places broader responsibility on the state and certain voluntary organisations, it erodes the traditional family support structure especially the extended family evident in rural areas. Such an arrangement ignores informal caregivers who often work within faith communities and faith based organizations. We are also concerned that since many of the caregivers are children themselves, some of whom are from HIV affected households, they may have little to ensure access to education as well as mental and health care for themselves. Given the rising number of such households, the SACC supports the view that the role of adults and their relationship to the state and NGO's be spelt out as in the previous Bill [B -2002, S 234].

CORPORAL PUNISHMENT, HARMFUL CULTURAL AND SOCIAL PRACTICES

14. The SACC notes with concern the removal of Chapter 8 of the previous Bill (Protection of Children) and together with it all references to previous discussions calling for the abolition of common law defence of "reasonable chastisement" by those who exercise parental responsibilities and rights over the child (previous S 142 (2)). Again, unless there is reference through a Bill of Rights, a Bill that is mute on this issue may be misconstrued to call into question the responsibility that all citizens and especially adults are required to "respect to the fullest extent the child's right to physical integrity". We are concerned too that the removal of this section may be misunderstood to mean that the Bill no longer intends to prohibit corporal punishment by parents. Similarly we are deeply concerned that the same reasoning may apply for the use of corporal punishment of children by traditional authorities, courts and schools. The question that arises is whether these decisions will be left to provincial and local governments. Should this be the case the SACC expresses its desire that the Section 75 Bill spell out the State's commitment through this Bill to the child's physical integrity. Recent reports on fatal consequences of a case of corporal punishment demand that the national legislature allow for courageous and alternative solutions to questions of discipline and conflict such as non-violent communication, restorative resolutions to conflict and violence as well as the use of alternative dispute mechanisms of conflict resolution at home and at schools.

    On the other hand, the SACC welcomes the retention of the section (S 12) which prohibits the compulsory marriage or engagement of minors as well as female genital mutilation. Similarly, the SACC supports the extension of rights to children, allowing them the right to refuse circumcision or virginity testing.

CHILDREN'S PROTECTOR AND REPORTING REQUIREMENT OF CHILDREN IN NEED OF CARE AND PROTECTION

15. The SACC notes the removal of the office of the Children's Protector (previous S 318-337) from the revised Bill. Since, in our opinion, these functions may be covered by judicial, police and other social mechanisms and as it clouds the role of civil society in taking responsibility for the protection of children, the SACC does not hold a position on this office. With further regard to the protection of children, however, we note with dismay that the duties incumbent upon the Minister to include a comprehensive national strategy within the National Policy Framework to secure a comprehensive child protection system (previous Bill S 113 (1) (a)-(e) has been deleted. Likewise, all mention of the duty to establish an inter-sectoral mechanism to co-ordinate and manage such a system has been excised. The SACC believes, once again, that an NPF is essential for developing a comprehensive child protection strategy and supports the calls by the Children's Institute and the Children's Bill Working Group for the reinstatement of this mechanism. The SACC further recommends that for the NPF to be effective in the protection of children, that a strategy be incorporated within the NPF enabling the responsibilities of the state, its inter-sectoral agencies, including the roles of provincial and local government to be defined.

AGE OF MAJORITY

16. The SACC notes and welcomes the lowering of the age of majority from 21 to 18 and supports this as consistent with the definition as in section 28 (3) of our Constitution. We welcome too the possibility of the extension of parental rights and responsibilities after the child reaches 18 years (S 28) for a maximum of a further three years under special circumstances, where the protection and well-being of that child warrant such application.

CHILDREN'S COURTS AND PARENTING PLANS

17. Chapter 4 deals with parental responsibilities and rights while Chapter 5 deals with Children's Courts. The proposal for a family to work out a parenting plan with a child within a family of legally conflicting relationships, such as divorce, may not be as easy a solution as appears at first. The Department, as a state institution, is to be acknowledged and commended for attempting to promote practical guidelines that may develop skills promoting peace, harmony and conflict resolution. The further support of community resources such as those of faith communities is required to enhance and back this up. In particular we welcome the inclusion of parental responsibility for "the schooling and religious upbringing of the child" (S 33 (2) (e) as content of a parenting plan. We note with interest the provision in S 37 for a court of law to determine, in the best interest of the child in a paternity suit where one or other party refuses to submit to a blood sample test, an appropriate conclusion. This may contribute to removing the discrimination that may exist with regard to adoption on the basis of gender. The SACC notes that in S 42 the revised Bill calls for the implementation of children's courts which remain, for all intents and purposes, Magistrates' Courts. Financial implications may or may not be the major stumbling blocks to the restructuring of Children's Courts such as "one stop centres" which appear to favour the "best options for children" approach. The SACC does not hold a clear position on these matters. We note, however, that there appears to be an underlying resistance to such implementation based on the need for a paradigm shift in dealing with family conflict through processes that involve community participation other than the civil-criminal-procedural mode of justice. Apart from decreasing the load on an overloaded system, the use of appropriate persons and organizations that are skilled in developing alternate dispute resolution mechanisms will further lighten the load as well as strengthen the current justice system. Further synchronization between the Children's Bill and the Child Justice Bill are essential in order to give speedier recognition and acclaim to the current international practice of using Family Group Conferences (S 70) and, in the South African context, Other lay-forums (S 71). The SACC affirms the use of the alternative mechanisms on the express understanding that they aim at a first level of understanding the causes of harms to children, the prevention of such harm rather than a primary focus on punishment associated with guilt. We also affirm the notion that the criminal justice system is strengthened through the participation of civil society in the resolution of disputes related to families and children in conflict with the law. The development of human-focused, and therefore "child friendly" systems of dispute resolution, contain the advantage of promoting stability, peace and wellbeing within the families and therefore in society as a whole.

STRATEGIES TO ENSURE SUFFICIENT PROVISION OF CHILD AND YOUTH CARE CENTRES

18. The SACC notes the view that youth care facilities be administered and, where necessary, established under the auspices of the Minister of Social Development (S 192). While we note the drafters' including within the departmental strategy "a strategy aimed at ensuring the establishment of an appropriate spread of child and youth care centres throughout the Republic ...", we question whether such a strategy will not place an undue burden upon a department already strained in implementing current policies and ask whether the roles of local and provincial government ought not to be extended to such provision. (cf. submission by ACESS)

SURROGATE MOTHERHOOD

19. The SACC notes with interest the revised Bill's focus of this important issue into a single section (Chapter 20, S 285-298). We furthermore welcome proposed legislation that recognizes surrogate motherhood through a written agreement and confirmed by the High Court..

CONCLUSION

1. The SACC has worked with civil society in general and with the Children's Bill Working Group in particular over the past years. We know that the Department of Social Development and particularly Minister Skweyiya voices our concern for children when he says that "children are everyone's business". We are together in the concern that both government and civil society look forward to a comprehensive form of legislation that will provide for an environment that will be conducive to the well being, development and flourishing of children distinct from what we had witnessed under apartheid. For these reasons we make the calls in this submission trusting that the best foundation for legislation over the next decade that seeks to deal with children in need will be reached as fast as soon as is possible.

   We thank you for this opportunity.