It’s Christmas time, a time of joy, celebration and family. But in a country with tens of thousands of forgotten children in institutional care, what do an 11-year-old, abandoned at his school in Grade one, a 7-year-old living in a child and youth care centre while the only parents he has ever known fight a desperate legal battle to adopt him, and an 18-year-old made homeless when she finished her final matric exam have to celebrate this Christmas?
James*, Sky* and Ezekiel*, three children from different provinces, of different ages, genders and races, whose stories show that even the best institutions can never replace family care.
The preamble of the Hague Convention to which South Africa has acceded prioritises permanent family solutions over any other form of care.
It states that “for the full and harmonious development of [their] personality”, every child “should grow up in a family environment, in an atmosphere of happiness, love and understanding”.
It further states that “national adoption or other permanent family care is generally preferable, but if there is a lack of suitable national adoptive families or carers, it is…not preferable to keep children waiting in institutions when the possibility exists of a suitable permanent family placement abroad. Institutionalisation as an option for permanent care, while appropriate in special circumstances, is not…in the best interests of the child.”
But despite our signature on the document, South Africa seems very far from prioritising permanent family care. Department of Social Development (DSD) practice guidelines have recently been declared unconstitutional in court and the department was sanctioned for elevating them over the Children’s Act, the Hague Convention and the best interests of the child, which in the case of adoption should be “paramount”.
CASE 1
James — the authority also forgot about the boy forgotten at school
Starting Grade 1 was exciting for little James. He loved the kind teachers, the school meals and the excitement of learning to read, write and do maths. He was clever and quick to grasp new concepts. But while other children looked forward to the weekends, he dreaded them. His mother was never home, and his granny, who had been forced into caring for James and his little sister Sarah*, was increasingly frustrated and angry.
Nothing prepared him for that rainy Friday in May during his second term at primary school though.
When the bell rang for the end of the day, James watched as his friends were collected. But there was no one there to fetch him. As the afternoon wore on and extra murals finished, still no one came. By the time the principal found him when he did his rounds of the school before heading home for the weekend, James was all alone in the rain, huddled in a corner clutching his school bag, eyes focused on the gate so he didn’t miss his lift when it came.
Alarmed, the principal called his family. When he finally got through, he was told that no one would be fetching James, his family no longer wanted him. They’d left the 7-year-old at school to “figure out his life”.
Shocked and heartbroken, the principal began trying to find a social worker, but no one was available on a late Friday afternoon. Eventually, he contacted Isiaiah 54 Children’s Sanctuary who offered to look after James until social workers could make a permanent plan for his care.
At a loss about what else to do, James’ principal raided the lost property storeroom for a clean uniform for the little boy to wear to school on Monday, then went to collect James’ meagre belongings before driving him to the sanctuary in the pouring rain.
Visibly moved, he delivered James, sodden and devastated, still clutching his school bag and an empty lunch box. Along with a black dustbin bag with old clothes and shoes, it was all this tiny boy had left of the first seven years of his life.
After his principal left, Youandi Gilain from the sanctuary said James came to her and said, “thank you auntie for keeping me, I don’t belong anywhere”.
James spent the weekend at Isiaiah 54 and then on Monday, social workers began looking for a permanent solution for him. His family was adamant that they didn’t want him back, but rather than finding a foster care placement for him, he was inexplicably placed in a Child and Youth Care Centre (CYCC). Despite its caring assistants, with 80 children and dormitory accommodation, the CYCC they chose for him could not have been further from a family environment.
Then it seems that those in authority also forgot about the boy who was abandonned at school.
That was in 2019.
Youandi didn’t forget James though. She says she thought about him often and wondered how he was doing. Then in 2022, while doing a series of talks to boys in institutional care about puberty and manhood, she recognised James. 10 at the time, James told her how lonely he was and that no one ever visited. Despite only having spent a week at the sanctuary, he told her that he missed them and his time there.
Heartbreakingly, he begged her to let him “come home” and “promised to be a good boy if he could just go home with her”. Explaining that she couldn’t take him was one of the hardest things that Youandi has ever had to do.
She didn’t see him again that year. Then in October 2023, his social worker contacted her to say that despite excelling at school, James was not doing well emotionally. Confirming how lonely he was, she said that when the other children in the CYCC went home for holidays and weekends, he was left on his own. He was desperate for her and Glynnis, the head of Isiaiah 54, to visit. The following month when they went to see him, taking along some treat sweets and cooldrink, he was overjoyed. They also invited him for Christmas. So have the family fostering his younger sister Sarah. They didn’t want James, but were happy for him to spend Christmas with Sarah. James’ social worker told him he has to choose.
This Christmas, the lonely little boy has the prospect of being with one of the few people who love him. But, four and a half years since that fateful Friday, and there is still no permanent plan for his life. Barring a family coming forward to look after him, he will languish in care for the remaining seven years of his childhood.
CASE 2
Sky – being punished for her ‘unlucky behaviour’
That was Sky’s fate. Like James, she entered a CYCC when she was in foundation phase at school. She turned 18 this year and was given notice that as soon as her matric exams were finished, she had to move out, to a shelter if necessary. There would be no exit strategy for her.
Now an adult, Sky’s story is her own to tell. But, CYCCs have a legislative and moral prerogative to develop an aftercare programme for all children exiting the home to avoid them becoming one of the horror statistics of previously institutionalised young adults left homeless, addicted, pregnant, living in poverty or making a living through prostitution after exiting a CYCC. So, the reason for the CYCC’s lack of aftercare is noteworthy.
It seems that Sky is being punished for her “unlucky behaviour”.
Veteran child protection activist Luke Lamprecht explains that children respond to trauma in different ways. Many children respond through sadness, tears, depression and by becoming more dependent on adult care and support. Lamprecht describes how adults tend to feel sympathetic and caring towards those children. But others respond to trauma with anger, substance abuse, self-harm, promiscuity and disrespect of authority. Not surprisingly, Lamprecht says that adults don’t feel quite as sympathetic towards children who spit in their faces, scream, throw rocks at their cars or flagrantly disobey rules.
Extensive research shows that these children have been overwhelmed by their circumstances beyond their ability to cope, and their nervous system takes over with one of the well-known “f” responses: “fight, flight, fawn, freeze or flop.” Psychologist Dr Stephen Porges says that when a child’s nervous system has been compromised through trauma, it “replaces patterns of connection with patterns of protection.”
Children with unlucky behaviours typically respond to perceived threats with a fight response. It’s no more conscious than freeze, fawn or flop, but adults, even those trained in childcare, often perceive it as deliberate defiance, rudeness, disrespect and self-destruction.
Those in authority at the CYCC seemed to have little appreciation of the genesis of Sky’s behaviour, despite “unlucky behaviours” being common for institutionalised children (especially those who have spent their teen years in care, and who have been let down by their families and those in authority). If, unlike other children from the same CYCC, there is no exit strategy for Sky, it will be life-defining.
Mercifully, caring adults from her local church have intervened so she won’t end up homeless or without options. But her road will be much harder than it could have been, and she may end up paying for her behaviour for years to come.
CASE 3
Ezekiel — a glimmer of hope that come Christmas 2024, he will finally have a family
Sky isn’t the only child paying for decisions made by adults on her behalf. Not far away from her, little Ezekiel is about to spend his 7th Christmas in institutional care.
Unlike Sky and James, Ezekiel is very happy in the busy CYCC that has been his home since he was two months old. He has lots of friends and loves the care workers. But, given that he was orphaned in 2020, and that there is a family desperate to adopt him, it seems inexplicable that he will be spending another Christmas in care.
Ezekiel’s story isn’t unusual. He was two months old when he was deemed in need of care, and removed from his mom whose mental illness and substance abuse led to her neglecting him. He was placed in a CYCC in December 2016, four days before Christmas. At the time, the home was short-staffed because of the Christmas holidays, so they asked one of their volunteers if she and her family could look after Ezekiel over that period.
The Thomas* family, foreign nationals from Europe who were resident in South Africa at the time, were happy to help. They fell in love with Ezekiel and since his biological father was unknown, none of his mother’s relatives stepped forward to assist while his mother was working on her health. The family hosted Ezekiel over weekends and holidays and helped with the costs of his schooling, clothes and medical needs. As foreign nationals without permanent residency, they were not permitted to foster him, but they were nonetheless screened and deemed a safe place for Ezekiel to spend extended periods of time.
They also helped Ezekiel’s mom visit her son. She was hopeful that she would be reunited with her Ezekiel, but was happy for him to spend time with the Thomases because she knew that they loved him.
Then in January 2020, the Thomas family’s work commitments ended, and they left South Africa. They visited again shortly thereafter and while in the country, they discussed if it would be best for Ezekiel to be adopted. His mother, still certain that she would be reunited with her son, denied the request.
But a month later, she contacted the Thomas family asking them if, when they returned to South Africa, they could “take” Ezekiel. She wanted him to be in their care.
Sadly, less than a month after the message, Ezekiel’s mother passed away.
Things weren’t so simple though. Despite Ezekiel’s mother’s wish for her three-year-old son to be raised by the couple and their desire to adopt him, they were blocked by authorities who told them that adopting him wasn’t possible.
In the interim, the Thomases proceeded with adoption screening in their home country, completing their requirements. Their local Central Authority then communicated with its South African counterpart which stated that Ezekiel was not adoptable and there was no working agreement with the country. They thus rejected all possible cooperation.
On a local level, the DSD also excluded the option of the Thomases adopting Ezekiel. It argued that according to DSD practice guidelines, the “subsidiarity principle” applied, and that an impermanent foster care placement in Ezekiel’s extended family or even placement with a stranger in his home country would always be preferable to permanent placement in another country.
In addition, frustratingly for the Thomases, their relationship with Ezekiel and the years of love and care with no intention of adopting Ezekiel precluded them from consideration. Authorities stated that their prior relationship with him amounted to “pre-identification” of a child, pre-selecting a child from a CYCC for the purpose of adoption, which is labelled “baby shopping”.
The matter dragged on for two years and finally in 2022, after the Thomases’ attorneys wrote to the various authorities, including the Children’s Court, authorities finally acted. Intent on placing Ezekiel in foster care with his mother’s aunt, he was taken to visit her several times.
However, the potential placement was opposed by two uncles of Ezekiel’s mother who had supported her when she was alive. Their view was that the aunt had rejected Ezekiel’s mother when she gave birth to him, and had absolutely no interest in the child. They believed that she wanted to foster Ezekiel because of the foster care grant.
Inexplicably, despite the extended family’s reservations, the DSD advised the social worker that she was to proceed with the placement, and that they would flag the matter with social workers in the aunt’s location in case things went wrong: “They suggested that we continue with the transfer and inform the new social worker about the allegations so that we can follow up on them.”
Litigation and legal proceedings
Concerned for Ezekiel, the Thomases took the matter to court to overcome the bureaucratic hurdles preventing them from even applying to adopt him.
In the judgement which was handed down on Ezekiel’s 7th birthday, the judge explained South Africa’s dilemma regarding intercountry adoptions.
The UN Convention on the Rights of the Child (UNCRC) and African Charter (AC) to which South Africa is a signatory prioritise national forms of care including foster care and institutionalisation over intercountry adoptions. These values are also reflected in the DSD practice guidelines for adoption.
As she pointed out, however, according to the Hague Convention, subsidiarity doesn’t mean that intercountry adoption is a “last resort”. Instead, while “due consideration” should be given to adoption in the state of origin, “national solutions for children such as remaining permanently in an institution, or having many temporary foster homes, cannot…be considered as preferred solutions ahead of intercountry adoption. Finding a home for a child in the country of origin is a positive step, but a temporary home in the country of origin in most cases is not preferable to a permanent home elsewhere.”
It further states that “permanent care by an extended family member may be preferable, but not if the carers are wrongly motivated, unsuitable, or unable to meet the needs (including the medical needs) of the particular child.”
Where there is variance between treaties, the Hague Convention takes precedence because, as the judge noted, the Children’s Act was enacted to give effect to the Hague Convention and section 256(2) of the Act states that “where there is conflict between the ordinary law of the Republic and the Convention, the Convention prevails”.
She concluded that the Convention accepts that “ensuring that a child grows up in a loving, permanent home is the ultimate form of care a country can bestow upon a child, even if that result is achieved through an intercountry adoption. It follows that children’s need for a permanent home and family can in certain circumstances be greater than their need to remain in the country of their birth.”
Citing a constitutional court ruling, she explained that in insisting on its interpretation of the subsidiarity principle, the DSD had: “failed to heed the constitutional imperative of the best interests of the child”, and “ignored the child-centred, case-by-case approach the Constitutional Court has prescribed should be adopted in considering international adoptions.”
For this reason, “the subsidiarity principle itself must be seen as subsidiary to the paramountcy principle. This means that each child must be looked at as an individual, not as an abstraction.”
The judge also stated that throughout the adoption provisions in the law, preference is given to those with a prior relationship with the child because it is clearly in the child’s best interests. The exception is intercountry adoption where DSD’s Guidelines state that “prospective adoptive parents who have ‘pre-identified’ a child will be precluded from adopting that child. These Guidelines are applied in all circumstances, irrespective of whether the prior relationship between the foreign prospective adoptive parents and the child makes them eminently best suited to adopt the child as it would be in the best interests of the child to be placed in their care.”
The judge said that “the DSD explained in its answering affidavit that these rules were designed to prevent child trafficking and ‘baby shopping’.” However, she stated, “they make absolutely no sense in the present context where there can be no question at all that the applicants will traffic [Ezekiel] and their prior relationship can never be regarded as their having pre-identified him as a suitable baby to adopt as it arose at a time when they had no intention at all of adopting [him]”.
Explaining that the Children’s Act gives preference to family members who want to adopt a child, but doesn’t specify that a child must always be placed with biological family, the judge stated that foster care would have made sense when Ezekiel’s mother was alive and reunification possible. But, after she died, adoption, which “offers permanent care and creates lifelong bonds between the adopted child and his adoptive family, carrying with it the duty of support and the benefit of possible succession… must in virtually all circumstances be preferable to foster care.”
Critically, the judge affirmed that there is nothing in Chapter 16, the intercountry adoption chapter of the Act, “that stipulates that where a local placement is available for a child, that child may not be declared ‘adoptable’ for the purpose of an intercountry adoption or would prohibit prospective adoptive parents who have had prior contact with an adoptable child from adopting that child.”
The DSD practice guidelines however specify that intercountry adoption is a last resort, and precluded if there is a prior non-biological relationship with the child. They also specify that for a child’s best interests, “priority must be given to adoption by the family of origin” or where this is not an option, to adoption within the child’s community or own culture before another culture or race can be considered. It further states that “adoption of a child outside his own family shall be considered only if no appropriate placement or adoption within the extended family is possible,” and that “as a priority, a child shall be adopted within his own community and State of origin”.
The National Guidelines further state that “language, culture, race and religion should always be respected and taken into consideration in the matching and placement of the child.” The judge expounded that the national adoption policy of the DSD, already ruled unconstitutional by Dippenaar J in the TT judgement, but still used in practice, reflects an aversion to cross-cultural adoptions, irrespective of the best interests of the child.
The judge ordered that bureaucratic hurdles be removed, allowing the Thomases to apply to the Children’s Court for Ezekiel’s adoption. This included the DSD appointing an intercountry adoption agency to work with the Thomases in their home country to consider the adoption. She further ordered that the Thomases appoint a local social worker to decide if Ezekiel is adoptable, and that neither pre-association nor local placement options should prevent his adoption. The Children’s Court must consider what is in Ezekiel’s best interests on an expedited basis, and in the interim, the Thomases can maintain contact and Ezekiel may not be removed from the CYCC without a court order.
Ezekiel will spend another Christmas in the CYCC which has been his home for seven years. Unlike James and Sky though, he has the promise of a visit from the Thomases and a glimmer of hope that next Christmas he will finally have a family.
But until the DSD sets its rigid, authoritarian stance on adoption aside, and regards the best interests of each child as paramount, those tasked with the well-being of SA’s most vulnerable children will continue to be the “grinch that stole Christmas”.
After four years of debate and consultation around the Children’s Amendment Bill, it took only half an hour for the Social Development Portfolio Committee to decide on amendments. It was done without a clause-by-clause analysis, without reference to public contributions and with no input from opposition MPs who had walked out in protest.
The Social Development Portfolio Committee’s agreement to the Children’s Amendment Bill clauses should have been a cause for celebration for those advocating for vulnerable children.
A response to the North Gauteng High Court judgment ordering the Department of Social Development (DSD) to find a comprehensive legal solution to the country’s years-long foster care crisis, the amendments have been pending since 2011.
Eleven years and four court order extensions later, the DSD is only five months away from its latest deadline of November 2022.
But much of the process and content related to this bill has been flawed and dogged by controversy, and proceedings on 25 May 2022 reached a new low.
On the cusp of Child Protection Week, observers watched in mute horror as the committee chose to reject 136 clauses in the admittedly bloated bill, and then unilaterally agreed to the wording of the remaining 12 clauses in the time it took for the parliamentary legal adviser to read them out.
Despite four years of public consultation, national and provincial hearings, and over 1,000 submissions from civil society, there was no reference to public comment, or the needs of the orphaned, abandoned and abused children who the comprehensive legal solution was designed to protect.
There was no discussion about individual clauses, no proposed amendments or additions to wording, no questions about the new clause inserted by the parliamentary legal adviser and DSD on the morning of the meeting, and no debate, largely because the opposition had walked out in protest.
How did it go so wrong?
So, how did the process go so wrong, and what are the implications for vulnerable children whose best interests seem to have been lost in the decision-making?
Although it’s been a decade in the making, civil society argues that the comprehensive legal solution to foster care is relatively simple to achieve.
Orphaned and abandoned children in the care of family members need financial assistance without the largely unnecessary and unmanageable administrative burden of first placing them in foster care. The solution involves two key components:
Amending the Social Assistance Act to include provisions for the minister to action a new grant tailored for orphans in the care of relatives, the Child Support Grant (CSG) Top-Up; and
Amending key sections of the Children’s Act to specify which orphaned and abandoned children need care and protection, ensuring that the majority in the safe care of family members don’t need to be placed in the foster care system, and making it easier for relatives and unmarried fathers to legally care for them.
Although endorsed by Cabinet and experts in the department and civil society, the planned solution was initially implemented at glacial pace, necessitating multiple court extensions and forcing then-minister Bathabile Dlamini to admit, as part of the 2017 settlement order, that her failure to meet the court-imposed requirements was “unconstitutional, unlawful and invalid”.
The order of unconstitutionality was suspended along with the court order, on condition she prioritised achieving a comprehensive legal solution by the court-imposed deadline.
When Lindiwe Zulu took over as minister in 2019, she inherited the pending order of unconstitutionality against her as minister, a Social Assistance Amendment Bill that was gathering dust after being stalled by her predecessor, a Children’s Amendment Bill which had swollen to 148 clauses, and an ongoing crisis for hundreds of thousands of children made more vulnerable by the foster care system’s collapse.
But fortunately for the minister, the post-election Portfolio Committee for Social Development, under the guidance of then-chair Mondli Gungubele, took the problem seriously.
It passed the Social Assistance Amendment Bill in 2020 enabling the CSG Top-Up. This allowed Zulu to announce in her 2022/2023 budget speech that Treasury had allocated “R687-million in 2023/24 and R871-million in 2024/25” to implement the new grant.
With a quantum of R720 per month, roll-out for the CSG Top-Up began on 1 June 2022.
The only remaining task to achieve the comprehensive legal solution is therefore amending the Children’s Act to define which orphaned and abandoned children need care and protection, and to make it easier for relatives to care for them.
Biggest obstacle
Ironically though, the minister’s own department has created the biggest obstacle to completing it. The DSD inexplicably used the bill to amend the whole Children’s Act, rather than only focusing on changes needed for the solution.
When questioned about the size of the bill and why DSD had ignored the advice of civil society and the state law adviser to concentrate exclusively on the comprehensive legal solution, the bill’s drafter argued that for the solution to be “comprehensive”, it needed to focus on ways to prevent children from ending up in the foster care system.
It’s a valid point. But the version of the bill gazetted for comment in October 2018 contained clauses related to everything from genital mutilation to privacy to early childhood development (ECD), which no amount of argument could link to the crisis in foster care.
Nor did the department seem sure about what the comprehensive legal solution comprised.
The result was an enormous and controversial bill that necessitated four years of post-gazetting public consultation. And even after the ECD clauses were jettisoned because the department had failed to consult with the SA Local Government Association, and, more importantly, because ECD was becoming part of the basic education department (which the DSD must have known was imminent), there was such extensive feedback from national and provincial hearings that the resulting matrix — containing public input and the DSD’s responses — was so large that the current committee chairperson, Nonkosi Mvana, was reluctant to travel with it.
The upshot is that on 1 April 2022, the committee found itself in a virtual meeting, being guided through the 148-clause bill by parliamentary law adviser Nathi Mjenxane, who confessed to being so busy with other committees that he was seemingly unfamiliar with the bill and the matrix.
While on Zoom, MPs were required to flip between the principal act, the bill and the matrix, which was neither indexed nor organised by clause.
Significant errors
The complexity of the process resulted in significant errors, including Mjenxane missing 24 pages of public comment about the bill’s infamous privacy clause (clause 3, section 6(a) of the act) because, although the clause was at the beginning of the bill, public feedback was hidden on page 102 of the matrix.
As frustration built, the chairperson could have stopped the process and questioned if the committee would be able to get the bill approved, through the National Council of Provinces, passed, and regulations developed, by the November 2022 deadline.
If she had, MPs would probably have agreed that it was impossible, and made a joint decision to focus only on the clauses related to the comprehensive legal solution.
But instead, the ANC contingent of the committee acted unilaterally.
After Mjenxane had read the first clause, ANC chief whip, Dikgang Stock, formally moved that the committee should only focus on the foster care clauses.
Stock then gave blanket endorsement for all the amendments proposed by the DSD. If accepted, it would have resulted in all clauses in the bill being approved with the DSD’s preferred wording — without any discussion by the committee.
His motion was supported by ANC colleague Anastasia Motaung, but it wasn’t put to the committee for approval or voting. Instead, the proposal, which effectively rejected 136 clauses in the bill, occurred without comment.
Bizarrely, the meeting then continued as if nothing had happened.
Mjenxane ploughed on through the bill, either oblivious to the motion or in the mistaken belief that all 148 clauses related to the crisis in foster care.
Proceedings were only suspended when the MPs gave up trying to navigate through the cumbersome matrix and called for it to be grouped per clause and for future meetings to be in-person.
MPs went into the Easter recess unaware that a decision had been “taken” to summarily dismiss 90% of the bill. The first that many of the MPs knew about it was when they received the new matrix and discovered that it had been pared down to 12 clauses.
Choosing to focus only on the clauses related to the comprehensive legal solution was wise and what government had been advised to do in 2011. But the way it was done was problematic.
Unilaterally curtailed
The decision to drastically curtail the bill was taken abnormally and unilaterally by two MPs, and only endorsed by the whole committee weeks later after a new matrix and bill had already been developed by the DSD drafter.
Further, it appeared that there was political pressure on the committee to get the bill completed ahead of the DSD’s court deadline.
In her 4 May address to the committee, the minister validated the decision before the committee had even approved it.
In addition, the ANC MPs apparently gave no thought to what would happen to the other 136 clauses excluded from the revised bill, or to the four years of public consultation around those clauses. It fell to the opposition to ensure that they weren’t lost.
Ultimately, the committee approved the “foster care bill” approach, with the proviso that the remaining clauses become a committee bill. But if it hadn’t, it risked the clauses needing to be reapproved by Cabinet and put before a new committee who hadn’t been present during the extensive public input, and who would be lacking institutional knowledge of the bill.
Moreover, it resulted in what the state law adviser Lisa Naidoo, who from the outset had cautioned about extending the bill from its intended focus, somewhat euphemistically referred to as an “irregular process”.
The irregularity was immediately evident.
While all MPs eventually agreed that it was the right decision to only focus on the clauses related to the comprehensive legal solution, which of the 148 clauses comprised the solution remained unclear and contested. The DSD proposed 12 clauses, while the law advisers argued that only one clause was worth retaining.
Then, during lengthy debates on 18 May, opposition MPs requested the inclusion of the amended definition of an orphan, which had inexplicably been omitted despite orphans being the group most affected; exclusion of the revised definition of a caregiver which hadn’t been debated publicly but had significant consequences for orphans in the care of relatives; and the insertion of two clauses from the original bill that weren’t in the DSD’s version.
Missing clauses
The first missing clause was an amendment to section 21 aimed at strengthening unmarried fathers’ capacity to parent their children and thereby lessening the number of maternal orphans in need of alternative care.
The second was a consequential amendment to section 24 which the drafters had missed, needed to give the Children’s Court jurisdiction over guardianship, making it easier for guardianship orders to be issued to relatives caring for orphans.
Both are essential for the legal solution because they make it easier for orphaned and abandoned children to be cared for by extended family and unmarried fathers.
It was section 21 — the rights of unmarried fathers — that proved strangely controversial with the parliamentary and DSD law advisers and the ANC MPs, who insisted that further consultation was necessary.
It fell to IFP member Liezl van der Merwe to point out that extensive consultation had already occurred, and that apart from some small amendments to wording which the DSD had approved, there hadn’t been any public objections to the clause in the tabled bill other than from one father’s rights group that wanted section 21 removed entirely from the Children’s Act, along with the distinction between married and unmarried fathers.
The DA’s Alexandra Abrahams asked the chairperson to put the inclusion of section 21 to the vote, but the proposal was categorically refused.
Sections 21 and 24
However, the committee finally agreed to include the amendments to sections 21 and 24 along with the revised definitions in the new bill, prompting Stock to remark that he was glad the committee had come to the decision “by consensus” and not a vote.
When the clause-by-clause process was again suspended, MPs expected to reconvene the following week to approve the wording of the 12 clauses included by the legal advisers, the new definition, and the amendments to sections 21 and 24 as agreed by the committee.
Instead, at the meeting on 25 May, MPs were confronted by a new version of the bill which hadn’t been distributed to them prior to the meeting, as procedurally required.
The definition of an orphan was included and that of a caregiver excluded, per their decision the week before. But amendments to sections 21 and 24 were inexplicably missing.
When opposition MPs protested, Stock and Mvana inexplicably denied that the committee had decided to include the amendments to sections 21 and 24. The DSD legal adviser stated that the process had broken down the previous week, so the legal team had reverted to the original clauses.
Cherry picking
Moreover, the legal team disclosed that they had already met and unilaterally updated the 12 remaining clauses “to reflect public comment”, unashamedly cherry picking which input they agreed with, and then including it into the wording of the bill.
In so doing, they pre-empted the committee’s task of determining which amendments from the public and the DSD should be incorporated, excluding much of the public comment, and prioritising the version of the legal solution favoured by the DSD.
They had even inserted a previously unseen amendment to section 160 of the act under the guise of “public comment”, although there’s nothing in the matrix to justify it being a response to public input.
When Van der Merwe pointed out that the change to the definitions showed that the legal team had understood the committee’s decision to amend the bill, and questioned why the team had only implemented some of the agreed changes, opposition MPs called for a halt to proceedings while they consulted last week’s minutes for clarity (most had already seen the Parliamentary Monitoring Group (PMG) minutes which stated that there had been consensus to include amendments to sections 21 and 24).
The chairperson demurred that the committee secretary was off studying for exams and that the acting secretary wouldn’t be able to locate them. However, the chair instructed the acting secretary to find them after the meeting, because the committee would be “rescinding whatever we agreed in the first meeting”.
EFF MP Letitia Arries, who was attending virtually, then asked for a caucus, but was muted while proceedings continued.
Eventually, all opposition MPs walked out in protest.
Cameras were turned off in the meeting room, so virtual observers, including the PMG monitor, were unaware of their departure.
They only knew that Abrahams had left because she responded to the chair’s question about why members weren’t excusing themselves, saying she couldn’t continue until the verbatim minutes of the last meeting were presented before the committee.
If the ANC committee members had orchestrated things, they could not have done it better.
Someone contacted Motaung, the missing 11th committee member. She suddenly appeared on Zoom and, with the quorum secured, those remaining listened to Mjenxane read the legal team’s version of the bill.
Once he had finished, all ANC members agreed that they had debated the clauses enough, with the chair stating that they had begun debating the clauses when she was “two years old, and now she was six years old”.
No one remembered that only clause one, the definition section, had ever been debated in committee meetings. No one considered it noteworthy that the legal team had unilaterally changed the wording of the bill without a committee instruction. No one referred to the matrix to check if the public comments had been interrogated.
No one objected to the previously unseen amendment to section 160 or suggested that the committee reject the insertion because it hadn’t been for public consultation. Ironically, Stock even affirmed that “the proposed amendments… were not new amendments”.
Anxious about the quorum, Mjenxane contacted the committee secretary, Lindiwe Ntshabo (deemed uncontactable by the chair), to check on the number of committee members. He could be clearly heard by observers directing her that the minutes from the previous meeting must reflect that the process had broken down and no decisions had been taken.
In the absence of the opposition, the committee then rejected section 21 and the legal team’s version of the bill was approved.
Blanket approval
The committee’s blanket approval of the version of the bill presented by the legal team means that the minister will meet her court deadline. But what are the implications for vulnerable children, who weren’t mentioned once during the meeting?
According to Paula Proudlock from the Children’s Institute, the biggest problems with the revised bill are the last-minute amendment to section 160; the omission of changes to sections 21 and 24, and amendments to sections 150(1)(a) and 159.
Proudlock explains that if passed, the amendment to section 160 could force relatives caring for approximately 700,000 orphans to be assessed by a social worker before they can apply for the CSG Top-Up.
Not only would this hinder the comprehensive legal solution to the foster care crisis, but because of the lack of social workers, it could also make the CSG Top-Up impossible to implement.
The omission of amendments to section 21 is also problematic and, oddly, those who chose to exclude it seemed to know little about it.
They incorrectly argued that section 21 is about adoption (it’s about unmarried fathers), that the amendment is controversial (it was approved by Cabinet and widely accepted by children’s rights organisations), that it was proposed by Fathers for Justice (this group actually wanted it removed from the Act), and that it needed further consultation especially with the House of Traditional Leaders (there had been broad consultation and the DSD had agreed to the House of Traditional Leaders’ amendments).
Focusing on damages (which are already in section 21 of the Act), members missed the importance of providing legal recognition and certification for unmarried fathers living with maternal orphans, enabling them to protect and care for their children, and act as their legal guardian.
Guardianship cases
Equally concerning was the omission of the amendment to section 24.
Like the amendment to section 45, it enables jurisdiction for the Children’s Court to hear guardianship cases. This crucial part of the comprehensive legal solution allows relatives caring for orphaned and abandoned children to obtain guardianship without having to incur high court fees.
Oddly, the new bill includes the change to section 45, but not to section 24. Without this important consequential amendment, the bill contradicts itself.
Despite opposition MPs raising this concern, section 24 wasn’t discussed because the chairperson confused it with clause 24, which is part of the bill.
At the heart of the legal solution is section 150(1)(a). According to Proudlock, civil society has long advocated for a change to s150(1)(a) to ensure that orphans in the care of relatives aren’t automatically considered in need of state care and protection and are rather assisted with an accessible grant and supportive services.
But, despite numerous submissions from child rights organisations, the wording of 150(1)(a) contradicts the department’s own Child Care and Protection Policy, and CSG Top-Up policy. However, neither policy was discussed by the committee.
‘Band-Aid’ approach
Proudlock also cautions against the “Band-Aid” approach to the comprehensive legal solution evident in changes to section 159.
“This amendment will enable social workers to ask magistrates to extend foster care court orders that have already expired. This protects the social workers who cannot keep up with the extension backlog, but isn’t in children’s best interests.
“It removes the accountability that ensures children’s alternative care placements are regularly reviewed by social workers and the courts.”
She’s particularly concerned that this amendment will result in children in child and youth care centres languishing in residential care for many years without their placement orders being regularly appraised or family reunification services provided.
Furthermore, the amendment doesn’t protect children in foster care from losing their Foster Care Grants for the time that their court order is expired.
“While the grant can be paid retrospectively once the expired order is extended, many orphans will be without their grants for months or years while they await a social worker to process their extension,” she explains.
Events of 25 May show that the DSD, parliamentary law adviser and ANC MPs have lost sight of the goal of the bill.
It isn’t to technically comply with a court order or prevent further embarrassment for the minister — it’s to provide secure and sustainable financial support for orphans, and legal status for their related caregivers, without having to use the over-burdened foster care system.
The needs and rights of vulnerable children were subsumed by political expediency in the committee’s rush to approve the CAB clauses.
And in contrast to the indecent haste of 25th May, formal approval of the A-list of the bill has taken a month, once again delaying the process.
If the decisions made without due consideration are not revisited when the A-list is evaluated on the 22nd June, it will be hard for the committee to argue that it has acted in children’s best interests.DM
