A government committed to Early Childhood Development would not pass the Children’s Amendment Bill

by | Child Protection Legislation & Child Rights, Early Childhood Development

Early Childhood Development is one of the government’s flagship projects in the war against poverty. But optimising ECD involves a delicate balance between enabling it through funding and registration and using regulations and quality control to protect children. Many argue it’s a balance the government hasn’t got right. Now the Children’s Amendment Bill will make it worse. It’s not only self-defeating, but could potentially put children at risk. So why would a government committed to ECD even consider passing the bill in its current form?

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South Africa has about six million children between the ages of birth and four years old, the majority of whom live in poverty. So how will it ensure that the cycle of poverty is not perpetuated? One of the most important strategies is through Early Childhood Development or ECD.

ECD, which is defined in Section 91 of the Children’s Act as “the process of emotional, cognitive, sensory, spiritual, moral, physical, social and communication development of children from birth to school-going age’ is a critical part of the ANC-led government’s efforts to alleviate poverty and end the cycle of generational illiteracy. It is has become even more important in the wake of the horrifying global Grade 4 literacy study in 2016 which placed South Africa last out of 50 countries, with a functional illiteracy rate of 78%. This finding was a further catalyst for government’s strategy to provide two years of compulsory pre-school education to South African children.

In addition (although the Minister of Basic Education has yet to acknowledge it), ECD is a far more feasible solution for managing learner volumes in schools than her current plan to use automatic passage through the foundation phase for Grades 1-3 learners.

The “automatic passage plan” has produced a sharp reaction among many educators who believe the “solution” will drive problems into the higher grades where teachers have less time to address them, add to the learned helplessness of children who have not been able to secure solid foundations in numeracy and literacy, reinforce the depressingly poor Grade 4 literacy results, and ultimately result in significant “failure” among children, and possibly even higher drop-out rates.

By contrast, ECD is by far the most effective way of ensuring that children pass through foundation phase quickly and with the necessary skills and knowledge required for subject work and more advanced content.

However, while ECD is crucial strategically, its implementation and management has been far from problem-free. With just over 10 years before the 2030 target of achieving universal access to ECD, Statistics SA reports that only 37% of children 0-4 attend an ECD facility and fewer than half of the children under five have access to ECD programmes. Experts in the field are also deeply concerned about the rate of attrition among ECD providers.

The government has argued that this is a necessary result of the high-quality standards that providers must meet in order to protect and advance the best interests of children. But according to civil society, regulations are too stringent and frequently unrealistic, the approach of officials is often draconian and the government takes a top-down approach with providers rather than partnering with them to ensure that quality ECD occurs in whatever environment children find themselves.

So, when ECD made headlines in June after the tragic deaths of two children in an unregistered creche in Johannesburg who had ingested rat poison, government’s response was swift, vowing to shut down all illegal ECD centres and warning parents of the dangers of placing their children in unregistered centres. It also confirmed that there are stringent registration conditions in place to safeguard their children. However, there is a counter-argument that in making registration so difficult for legitimate providers committed to the well-being of the children in their care, government is actually creating the conditions where unregistered providers are a reality. It makes the Department of Social Development’s contention about upholding the best interests of children a little less convincing.

Bonthle sits on a little mat in a converted shipping container. Now three (and-a-half, she hastens to add), her little face is a picture of concentration as she places the final pieces in the puzzle she is building. Bonthle lives in an informal settlement which was cobbled together when several farms were joined and then populated. Known as an area with a high child population and limited service provision such as childcare, health and education, Bonthle is fortunate to be attending a facility.

She is one of 86 learners in the centre whose classrooms are built out of four shipping containers. It has been operating for almost 20 years, but despite being a registered NPO and having all the necessary certificates validating the structural integrity of the classrooms, as well as the health and occupational safety certificate issued by the local municipality, the facility is still not registered. Given that the government usually only provides the per-child subsidy to registered ECD facilities, this means that it isn’t getting the financial support it needs to continue.

ECD specialists state that the biggest challenges to ECD centres are land tenure constraints, the lack of basic infrastructure to provide learning services, and the lack of funds to sustain ECD work and meet the basic resource requirements to provide early learning in poor communities. In addition, registration as an ECD provider is an onerous process, involving a dual registration as a Partial Care Facility and an Early Childhood Development programme (in terms of chapters five and six of the Children’s Act); and compliance with both national regulations and municipal by-laws including: health and safety, building regulations, fire safety, and conditions regarding land and tenure use, not all of which are understandable or universally applicable.

Compliance is notoriously difficult, and some regulations are clearly discriminatory, such as the requirement to produce the title deed for the property in which a centre operates. This is impossible in informal settlements or unproclaimed land. It reinforces bias against programmes operating in areas that have historically experienced discrimination in terms of land allocation, ownership and security of tenure.

The rigid regulatory environment and the arduous dual registration process has resulted in many ECD centres closing down or operating outside the “regulatory net”. Disturbing examples abound, such as the NGO which rolled out early learning programs for children in 12 community-based organisations in 2017. It initially recruited and trained more than 103 ECD practitioners to provide ECD across communities including farms, mining communities and informal settlements. But two years later, Bonthle’s centre is one of only 64 remaining, leaving hundreds of children without quality ECD provision.

One expert in ECD, who asked not to be named, explained that when deciding on whether an ECD centre should be registered, Department of Social Development and municipal officials “come out as agents with power and authority to determine the future of these operations”. He argued that there weren’t many cases where they acted as “development facilitators” ready to mobilise the systems necessary to work for South Africa’s most marginalised children, or embraced their role “to provide education as a basic right”.

What is clear is that government is not affording sufficient remediation for those who need assistance to get long-term registration. The inevitable impact is inconstant and erratic ECD service provision for the country’s most vulnerable children.

It isn’t all doom and gloom though, there have been a few glimmers of hope that things are changing. The emergence of non-centre-based programmes is providing innovative solutions to expanding children’s access to ECD. For example, in Gauteng, the provincial Department of Social Development is working hard to find ways to register and fund non-centre ECD based programmes. But specialists agree that legislative changes are essential for these benefits to be wide-spread and long term.

In a position paper focused on rethinking the Children’s Act, 42 organisations with expert ECD knowledge, skills and experience proposed that the government amended the Children’s Act to end dual registration, distinguish between different modalities of ECD and so end the “one size fits all approach to ECD”, give proper recognition to home and community-based ECD, and identify minimum standards for registration, as well as incentivising best practice.

Significantly, these are priorities that the government shares with civil society. As far back as 2012, it published the Buffalo City Declaration which committed to “a comprehensive review and harmonisation of policy and legislation within the ECD sector moving towards universal access” and to “streamlining the registration process.”

In light of current problems and the 2030 goal, it was logical that the Children’s Amendment Bill would be the vehicle to address the difficulties that ECD centres face. ECD providers therefore eagerly anticipated the changes which they have been working towards for almost 15 years.

But, inexplicably, the bill contains none of the sector’s proposed amendments. Instead, if passed in its current form, the bill will make expanding access to ECD even more difficult. In a joint letter sent by civil society to the Minister of Social Development on 3 July 2019, designed to highlight problems in the Children’s Amendment Bill and ask the minister to rework it, the ECD sector emphasised some significant problems with the bill:

The bill does not include amendments to create an inclusive and enabling regulatory framework for ECD which is urgently needed to ensure that more poor children have access to quality ECD programmes and which is a government commitment (in the NDP, the National Integrated ECD Policy, the February 2019 SONA and the ANC manifesto). For example, there are no amendments to deliver on the government’s commitments to streamline registration processes and to give proper recognition to home and community-based ECD. The bill also includes a number of regressive, anti-poor amendments. These include changing the current duty to prioritise funding for partial care and ECD programmes in poor communities to a discretionary power, and introducing a new prohibition on funding infrastructure improvements to partial care facilities on private property.”

Specialists argue that although the Children’s Act requires compliance with standards of the “highest attainable” level, it does currently contain two pro-poor mechanisms. These allow for conditional registration of facilities that are working towards full registration, and for provinces to assist applicants (financially or otherwise) to comply with registration requirements. The bill is not only disappointing in its failure to facilitate a more efficient and intuitive process for ECD registration, it also narrows these powers to assist providers, makes them more confusing and makes the duty of provincial departments of social development to prioritise funding for ECD programmes in poor communities optional.

The letter went on to raise concerns that the proposed split of ECD between the Department of Social Development and the Department of Basic Education outlined by the president in his February 2019 State of the Nation address was not reflected anywhere in the Children’s Amendment Bill. Of special concern is the current definition of ECD which provides services for children up to “school-going age”.

If the definition of a school-going child is changed in the School’s Act to include Grade RRs, it’s possible that some of the country’s most vulnerable children may fall through the cracks between departments, and therefore between ECD and school. What is particularly troubling is that ECD is far broader than simply schooling, designed to encompass all “of the emotional, cognitive, sensory, spiritual, moral, physical, social and communication development” of children, which would, of necessity, be outside of the scope of the Department of Basic Education.

Not surprisingly, the legislation drafters rejected the “regressive, anti-poor” accusation, countering that the provision of funds are only discretionary if there are no funds available (if there are funds, the MEC or DG will provide the funding). But, they have also stated publicly that ECD providers need to know that they must register first and comply with the norms and standards: “we must not create the impression that those not registered are entitled to funding”.

Even considering how notoriously underfunded the Department of Social Development is, such statements confirm that the government’s approach to ECD tends to be top-down rather than enabling. What is equally worrying is that while the obligation to provide funds if they are available may be taken as a given by the Department of Social Development, it will no longer be a legal requirement, nor is there any certainty about how the discretionary power to distribute funding will be applied across provinces.

Given the intensive registration process for ECD providers, the thought that funding is not guaranteed is alarming, as is the lack of defined conditions under which funding will be granted if the amendment is passed in its current form. And since this change will likely affect providers working in the poorest areas where funds are most needed, it’s worth questioning the basis for the amendment if ECD remains such a critical programme for addressing the needs of the country’s poorest children.

The department went on to justify the proposal in the bill to prohibit funding for infrastructure improvements when partial care facilities are on private property as an unwillingness to spend public funds on private infrastructure. While there are legitimate questions about how to manage structural improvements if a facility closes down or the owner dies, the move seemingly shows ignorance on the Department of Social Development’s part regarding ECD delivery.

The lack of appropriate dwellings for ECD is a huge limitation towards quality ECD provision. To place a ban on alterations to houses when a Department of Social Development audit in 2014 showed that about a third of conditionally registered ECD facilities and as many as 55% of unregistered ECD facilities are run from private homes or informally built shacks and huts, seems short-sighted.

Given that unregistered and conditionally registered facilities are more likely to be attended by poor children, and that infrastructure funding is needed to get the centres to full registration, this amendment could further impact on providers’ ability to offer quality ECD services, and mean that poor children are excluded from the funding necessary for them to be educated in a safe and healthy environment. It would, therefore, be far better for the government to find creative mechanisms to recoup its spend, rather than ending it completely.

Defending the lack of meaningful changes to ECD in the bill, drafters reported to the National Child Care and Protection Forum (NCCPF) in July 2019 that the problem was one of timing. They stated that the department wanted to incorporate the changes to ECD proposed by civil society, but ran out of time because of the decision to include ECD in the iteration of the Children’s Amendment Bill developed as an attempt to fix foster care, and the resultant deadlines (a reference to the court-imposed November deadline for solving foster care which the Department of Social Development for some inexplicable reason decided to conflate with the entire Children’s Act amendment process).

It did, however, say that some of the proposals could be reflected through changes to the Children’s Act regulations which will follow the bill’s approval. In addition, the department argued that the split of ECD between the Department of Social Development and Department of Basic Education would necessitate changes to the School’s Act, but none to the Children’s Act.

Elements of the department’s argument are misleading, though. First, given how involved the ECD sector was in consultation around changes to the Children’s Act prior to it being gazetted, it seems inexplicable that the drafters only began to consider issues raised by civil society when the bill was about to be submitted to Cabinet. Second, even if regulations are drafted, they can only enable current legislation. Regulations cannot negate the Children’s Act conditions for dual registration, or the stringent registration requirements that have resulted in the alarming rate of attrition among providers.

In addition, although the strategic change to how ECD will be managed was announced only in February 2019 when the Children’s Amendment Bill had already been approved by Cabinet, it couldn’t have taken the government by surprise. Someone in Cabinet should have raised concerns about its absence from the bill when it was reviewed.

According to the National Integrated Early Childhood Development Policy: “The Government of the Republic of South Africa has prioritised early childhood development within its National Development Plan 2030. Overwhelming scientific evidence attests to the tremendous importance of the early years for human development and to the need for investing resources to support and promote optimal child development from conception. Lack of opportunities and interventions, or poor quality interventions, during early childhood can significantly disadvantage young children and diminish their potential for success.

Given the importance of ECD in alleviating generational poverty and combating unemployment, there seems to be no room for failure in the implementation of ECD programmes. But the changes encompassed in the Children’s Amendment Bill will make ECD provision harder, especially to poorer children. It’s therefore not surprising that the proposed amendments have been labelled regressive and a massive missed opportunity. So why would a government committed to ECD pass the Children’s Amendment Bill in its current form? The answer is, it wouldn’t. DM

First published in the Daily Maverick: 29.10.2019

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