Baby saver ban: geared for child ‘protection’ or spiralling out of control by increasing infant deaths?

Baby saver ban: geared for child ‘protection’ or spiralling out of control by increasing infant deaths?

Gauteng Social Development’s October ban of baby savers as a place to relinquish babies followed 10 years of advocacy by civil society to prevent unsafe abandonment. Government terms it ‘child protection’, but given the number of children dying or left disabled when babies are abandoned in rubbish dumps, disgusting pit latrines or the open veld, who is this protecting? Instead, baby savers should be considered an essential service.

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In October 2023, the Gauteng Department of Social Development (DSD) issued a directive to Child and Youth Care Centres (CYCCs), as well as private temporary safe care homes, declaring all baby savers in the province illegal, ordering them to close with immediate effect, and threatening legal action for those organisations that do not comply.  

Baby savers are mechanical boxes attached to CYCCs, places of safety or crisis pregnancy centres where a mother who is experiencing a crisis pregnancy, who cannot or will not raise the child and isn’t able to place that child into the child protection system, can safely relinquish the child as an alternative to unsafe abandonment. Based on the ancient practice of foundling wheels, they are designed to provide a last resort safe haven for vulnerable infants.  

Dr Yolande van der Hyde, a senior pathologist at the Observatory Forensic Pathology Institute, recreated an autopsy she had just performed on a dead abandoned baby. She said that many abandoned children were not born dead, but took a breath before they died.

South Africa has the distinction of having the first modern baby saver in the world. Situated at the Door of Hope, it’s been operational since 1999.  Based in Gauteng, the baby saver, which has rescued 270 infants over the last 24 years, is one of those ordered to close.

No response

At the time of publishing, the DSD had failed to respond to questions posed to it about its motivation for issuing the directive, the extent and impact of abandonment and DSD’s strategy for preventing it. However, its position has been well articulated, both in the directive and interviews given by Yvonne Deonarin, Director Children Protection Services: Gauteng DSD on radiotelevision and news media since news of the directive broke in mid-October. 

In a nutshell, the department’s position is that safe relinquishment through baby savers:

  • Is a form of abandonment, which is a criminal offence in the Children’s Act.
  • Encourages abandonment.
  • Is not in the best interests of a child.
  • Denies the child’s right to a name, family, social, cultural and religious identity.
  • “Silences the voice” of the child’s biological father.
  • Creates a caseload of “abandoned children”.
  • Is linked to illegal adoption and trafficking.

It further argues that baby savers are unnecessary because babies can be relinquished at the DSD’s offices, at clinics, hospitals and police stations, and that it has no knowledge of the organisations running baby savers.

They are important points, but to date, no one has been able to debate them publicly. Nor has the department veered off script to respond to any of the counter-arguments raised by child protection experts from Baby Savers South Africa (BSSA), the Teddy Bear Clinic, and Women & Men Against Child Abuse. The issues are therefore worth interrogating, particularly because what is missing from the department’s argument is as significant as what is included.  

Notably absent is an appreciation of the desperation of abandoning parents, and recognition of the extent and impact of abandonment. 

The department has never publicly acknowledged that more abandoned babies die than survive, and that those who survive are often left physically scarred or with trauma-related psychological challenges. In Deonarin’s recent interviews she also downplayed the numbers of babies surviving abandonment. Stating that the Gauteng DSD only had records of 13 babies abandoned in the province between April and September, she said that the department was not aware of the “thousands of babies being abandoned annually”. 

Deonarin’s comment insinuates that the numbers are either overstated, or that the abandoned children are being received by baby savers but not placed into the child protection system, but instead trafficked through illegal adoption for financial gain.  

However, the department knows the origins of the statistic. It’s derived from Dr Dee Blackie’s 2013 master’s thesis on abandonment. Blackie used figures provided by child protection organisations such as child welfare to calculate that 3,500 babies survived abandonment in 2010. 

In the absence of any other formal research on the topic, including by the DSD, Blackie’s statistic has been cited ever since. 

Nor is it likely to be inaccurate. In March 2022, in response to a question posed by the Parliamentary Portfolio Committee on Social Development about how many babies had been abandoned in the years since Blackie’s research, national DSD sought to answer the question by conducting informal research across CPOs in each province, rather than referring to Part A of the child protection register, which should include an accurate tally of the number of babies surviving abandonment in the period.

A baby saver, also referred to as a baby box or baby safe, is a structure built into a wall where mothers can leave infants as a safe alternative to baby abandonment. (Photo: Whitney Rosenberg)

Babies that survived abandonment

Numbers provided were incomplete (there was no data from the Northwest Province, and limited information from others such as KwaZulu-Natal). But the combined total of 10,500 babies that survived abandonment over the period is substantial. Moreover, the Minister of Social Development told Parliament that 1,024 babies had been abandoned from April 2019 to March 2021 alone.

There’s no minimising the problem. Deonarin herself admitted in a November 2022 TV interview that “the prevalence of child abandonment is on the increase” and that those abandonments included babies “put into packets or dropped off in a nearby field”.

It’s also been flagged by the UN Committee on the Rights of the Child. In 2022, after the committee received South Africa’s five-yearly report from government, and shadow reports from civil society, it specifically highlighted abandonment and its prevalence on its list of concerns needing more investigation.  

In 2023 to date, there were 86 stories written about abandoned babies. Two thirds (57) were found dead, in rubbish bins, pit toilets, in buckets, on train tracks, in plastic bags, the veld, on the street, in an oven, in the mouths of animals, and in one devastating headline, strangled and being eaten by a dog.

But while the number of children who survive abandonment every year is significant, until government recognises how fatal unsafe abandonment can be, it will always understate abandonment figures.  

One of the unanswered questions posed to Deonarin for this article was “how many abandoned babies die annually?” Her silence wasn’t unexpected. The number of abandoned babies that die is not formally tracked by the SAPS or through forensic pathology labs.  

As a result, these children are completely invisible.  

Completely invisible

Child protection activist Luke Lamprecht however says that when he was researching abandonment, one Johannesburg mortuary recorded 20 dead abandoned babies every month for every six found alive. Lamprecht’s figure, amounting to an intake in one mortuary of 240 babies per year dying through unsafe abandonment, infanticide or neonaticide, was confirmed by Dr Jena Stuart, Chief Specialist Forensic Pathologist at Gauteng Department of Health’s Forensic Pathology Services. She says that the problem is “spiralling out of control” and placing the health sector in crisis.

A 2009 child homicide study completed for the Medical Research Council included 454 children under the age of five who died of unnatural causes.  Of these children, 233 (53%) died in the first six days of life, prompting the researchers to conclude that in South Africa, children under five were most likely to die of unnatural causes in the first six days of life and that the country has some of the highest rates of neonaticide (murder of children within the first 28 days of life: 19.6 per 100,000 live births) and infanticide (murder of babies under one: 28.4 per every 100,000 live births) in the world. In the study, 85% of the neonates died because they were abandoned in the open veld, rubbish dumps and dustbins, toilets, rivers and dams or were buried in shallow graves.

A recent Carte Blanche feature on dead abandoned babies included an interview with bone specialist Dr Roxanne Thornton, who establishes cause of death in the often decomposed bodies of abandoned babies. She identified illegal abortions, concealment of birth and infanticide as common causes of death for abandoned babies. Tragically, the babies she examines can be as old as nine months. But even then, their deaths are seldom investigated. 

In the feature, Dr Yolande van der Hyde, a senior pathologist at the Observatory Forensic Pathology Institute, recreated an autopsy she had just performed on a dead abandoned baby. She said that many abandoned children were not born dead, but took a breath before they died.    

But government has removed the word “abandoned” from its crime records and pathology reports. These babies are now all classified as stillborn even when there is evidence that the child was born alive and then died, or where there was blunt or sharp force trauma. 

One abandoned baby survives, two die

Following their reclassification, an investigative reporter analysing the number of “stillborns” in pathology reports in Gauteng confirmed Lamprecht’s findings that in the province, for every abandoned baby that survives, two die.  

Nor is the prevalence of death specific to Gauteng. Media stories from across the country show that in 2023 to date, there were 86 stories written about abandoned babies. Two thirds (57) were found dead, in rubbish binspit toilets, in buckets, on train tracksin plastic bags, the veld, on the street, in an oven, in the mouths of animals, and in one devastating headline, strangled and being eaten by a dog.  

These stats and stories show the deadly impact of unsafe abandonment.  But the thousands that survive seldom escape unscathed either. Instead, they suffer debilitating physical and psychological injuries. It’s hardly surprising, many of the 29 children whose abandonment and survival was documented in the media in 2023 were found in drains, in municipal rubbish bins, in pit latrines and in plastic bags, including a baby rescued in Gauteng’s Sedibeng municipality during the 16 days of activism for no violence against women and children, after being sealed in a plastic bag and thrown into a river. 

CYCCs and Places of Safety report that many abandoned babies have physical or psychological disabilities. These include brain injuries due to oxygen deprivation, cerebral palsy, autism, ADHD, cognitive delays, limbs and other extremities missing due to rat bites, damage to lungs due to exposure after a child was abandoned outside in winter or at night, from near drowning or breathing in faecal matter when abandoned in pit latrines, tremors due to being abandoned at the side of a highway or children plagued with night terrors because they were left in dark drains for extended periods of time, or even buried alive.

Not surprisingly, the department doesn’t acknowledge these cases. If it recognised the risk of children’s death or disability following unsafe abandonment and did not act to prevent it, it would be acting negligently at best, and potentially, even criminally. 

Read more in Daily Maverick: Closure of baby savers in Gauteng will lead to more unsafe abandonments and deaths — experts

Nonetheless, the DSD is on the same page as child protection activists about many things related to unsafe abandonment. Everyone agrees that first prize is for children to be raised in their nuclear or extended families, that it’s not optimal for children to be robbed of their cultural identities, heritage or relationship with their biological fathers. They even agree that abandonment is rife and that if societal factors such as poverty, unemployment, sexual violence, teen pregnancies and the breakdown of extended family exist, so will abandonment. 

Where they disagree is about if unsafe abandonment should be prevented at all costs, whether government’s efforts to stop crisis pregnancies and assist women to place their children into the child protection system are working, and if women can relinquish their babies at all DSD offices, clinics, hospitals and police stations. Activists further query if baby savers rob fathers of rights because women who abandon typically report that they’ve been sexually assaulted or abandoned by the biological father. Most importantly, civil society disagrees that abandonment is an “easy option” or that abandoning parents would abandon if they had alternatives.    

Underestimating desperation is as dangerous as ignoring the extent and impact of abandonment.

Pervasive factors driving abandonment

Frustratingly, despite being aware of the factors driving abandonment – Deonarin listed many in her November 2022 interview – the department seems curiously lacking in empathy about the despair they can cause.   

Moreover, government doesn’t understand that no one would deliberately risk arrest, prison, hurting or killing their child, or sacrificing any future relationship with them if they felt they had options.  

Recognising that people abandon as a last resort when they cannot or will not raise a child, and when placing the child into the child protection system is either not possible or government fails to assist them, refutes the argument that safe relinquishment is an enabler allowing parents to avoid parental responsibilities. Equally, if abandonment is a certainty, it’s inevitable that the child will be separated from the extended family, from culture and from its origins. 

People who use savers see abandonment as their only choice, making assertions that baby savers promote abandonment spurious. They’re instead a last resort to stop death.  

Armed with that knowledge, government should recognise that banning baby savers to stop abandonment is akin to government banning lifeguards to stop people drowning.

Even when it recognises desperation, the DSD still deems savers unnecessary, arguing that parents can relinquish at DSD offices, hospitals, clinics and police stations instead. Worryingly though, some women report being “chased away” when they have tried. 

Deonarin calls these “isolated incidents”.  However, the Gauteng DSD was unable to provide standard operating procedures for safe relinquishment at these institutions, and when BSSA asked for them, it was allegedly told that the department was in the process of writing them. 

‘Go home and parent’

In the interim, incidents of women seeking help being told to “go home and parent” abound. As recently as November, there were two separate incidents in Gauteng on the same day.  

In the East Rand of Johannesburg, a desperate mother tried to relinquish her baby at a police station because she had not received help from the department. When the SAPS took the baby to the local DSD offices to get it placed into the child protection system, the department ordered the police to arrest the mother because, despite the DSD’s directive, the police were told that she wasn’t allowed to relinquish her child to them. 

On the same day, in the West Rand of Johannesburg, a care worker from a place of safety escorted a mother to her local DSD offices because she wanted to place her four-month-old baby into care. The social workers apparently told her “she didn’t look poor” and sent her away. Even after a senior DSD manager intervened, the mother was told she couldn’t put her baby into the place of safety she had chosen. She left the offices with the baby. The child has since been placed into care, but without intervention, she might have abandoned her baby.

The DSD’s concerns about the potential illegality of baby savers based on the Children’s Act and the risk of trafficking through baby savers are however valid. It’s why advocacy groups have been working for years to amend the Children’s Act to allow for safe relinquishment. In March 2022, Dr Whitney Rosenberg from BSSA, whose PhD is focused on safe relinquishment, presented to the Social Development Parliamentary Portfolio Committee and explained children’s constitutional right to life and the importance of acting in their best interests. She showed how abandonment statistics necessitate a solution to end unsafe abandonment, and the impact on children of government’s failure to act.  

She then presented potential amendments to the wording of the Children’s Act to be incorporated into the Children’s Amendment Bill (CAB). These would legalise safe relinquishment through baby savers while ensuring that unsafe abandonment remains a criminal offence.  

But the amendments were not made in 2022. The committee’s priority was instead to pass the bill in time to meet the November 2022 deadline imposed by the North Gauteng High Court. The order compelled the DSD to provide a comprehensive legal solution to the foster care crisis, thus preventing the Minister of Social Development from being deemed to have acted unconstitutionally. The committee therefore decided to only pass the 12 foster-care related clauses, rejecting the remaining 126 clauses of the bill and effectively removing the option for new provisions in the Act to legalise baby savers.  

Despite this, the department still missed its deadline, and the order had to be extended for another 12 months.    

The committees’ plan was to include the remaining 126 CAB clauses in a committee bill to ensure that extensive work done on them through national and provincial public consultations wasn’t in vain. But calamitously, it discovered in May 2023 that it had been given inaccurate advice by the parliamentary law advisor who told parliamentarians that if the committee rejected the remaining clauses in the bill, they could still work on them as a committee bill.  

Advocate Charmaine van der Merwe, the Senior Parliamentary Legal Advisor in the Legislative Drafting Unit, clarified that the committee should have divided the bill into two, and then passed the clauses related to foster care. This would have allowed it to deliberate on the other clauses thereafter. 

Instead, when the committee rejected the 126 clauses, they were taken “off parliament’s radar”.   

While the number of children who survive abandonment every year is significant, until government recognises how fatal unsafe abandonment can be, it will always understate abandonment figures. (Photo: City Press / Media 24 / Gallo)

Upshot: restart baby saver legislation

The upshot is that work on the remaining clauses and suggested provisions related to baby savers must be restarted from scratch. Moreover, if the committee revives the process now but doesn’t have time to introduce the bill in the sixth Parliament, it cannot be carried over until the seventh Parliament. The result is that the bill, along with proposed new safe relinquishment clauses, has been shelved until a new committee is formed after the 2024 elections.  

The state law advisor was so appalled by the advice given that she felt duty-bound to report her colleague, an action opposed by the ANC members of the committee.  

Given that the DSD was privy to these discussions and aware of the plans to amend the act (and that its inability to fix foster care led to the delay effecting the changes), it seems disingenuous for the Gauteng department to act now to close baby savers, knowing legislative changes are pending.

Equally disingenuous is its continued assertion that it’s unfamiliar with the organisations running baby savers. BSSA met with a senior director from the Gauteng DSD on 4 October and explained in detail the vision for baby savers, its member organisations, the CPOs working with each saver to ensure that children placed in savers are immediately put into the child protection system, what processes they use when a baby comes through the saver, as well as the plan, also presented to parliament, for BSSA to become a regulatory body for savers. 

Acknowledging the risk of trafficking through unregulated savers, BSSA’s proposal is to register all savers who work with accredited CPOs and follow the processes dictated by the Children’s Act. This would ensure that every child placed in a saver is put into the child protection system. Equally, any saver not following the procedures would be flagged and suspended, pending compliance, or closed. 

At the meeting’s end, the DSD and BSSA agreed to pursue ways of working together. But, on the same day, the DSD issued the directive to ban baby savers and make their activities illegal. 

Since most baby savers are run by places of safety or CYCCs, if they defy the directive, they risk legal action, loss of funding and having their accreditation removed. But if they close, unsafe abandonment, which will continue unabated, will result in even more babies dying or being maimed.  If savers are driven underground, the risk of trafficking, minimal when savers are regulated, could also become real.  

Banning savers to prevent trafficking may ironically result in trafficking increasing.

Going upstream to stop abandonment at its source: addressing gender-based violence and prevention of crisis pregnancies should minimise abandonment numbers. As should options counselling and, when they are finally drafted, the implementation of safe relinquishment standard operating procedures for clinics, hospitals, police stations and DSD offices, especially if the DSD accompanies them with training, and includes the number of children relinquished into care as a performance indicator for DSD social workers. 

But, government prevention and intervention programmes lack urgency and effectiveness, as attested by abandonment stats. And societal circumstances in our country and resultant desperation mean there is no end to abandonment in sight. 

It’s therefore time to deal with the reality of abandonment rather than pretending that the savers are the genesis of the problem and that if abandonment numbers aren’t tracked and managed, abandonment isn’t happening.  

Ignoring this scourge won’t allow government to escape the consequences if it fails to end it. 

Baby savers an ‘essential service’

To quote Dr Sheheda Omar from the Teddy Bear Clinic, when you acknowledge that women who abandon feel that they have no other option, and that most abandoned babies die, it makes baby savers an “essential service”. Reinforcing that the right to life always trumps the right to identity, Omar explains that if you accept that the children placed in baby savers were going to be abandoned, not raised or placed in the child protection system, avoiding death, disability or psychological damage will always be in the child’s best interests. 

It’s also in the best interests of government. Now that the UNCRC has flagged abandonment as a reporting issue, government will be required in terms of the country’s treaty obligations to track abandonments (including those that result in death) and to show progress in minimising unsafe abandonments. Moreover, if the department deliberately denies children their inalienable rights to life and dignity, they could be deemed to have acted unconstitutionally. 

Government therefore needs to withdraw its directive and work with baby savers across the country to ensure that all savers are registered with BSSA and that the processes outlined in the act for placing a child into the child protection system are followed by those running savers. Further, it should expedite amendments to the Children’s Act to make safe relinquishment legal.  

In the interim though, DSD intransigence is costing many of our most vulnerable their lives. It seems incomprehensible that government must be compelled to save the lives of infants, but until it ends this perpetration of violence against those with no voices to protest, the 16 days of activism for no violence against women and children is a farce. DM

First published in the Daily Maverick: 08.12.2023

Why are the lives of Namibian babies more valuable than ours?

Why are the lives of Namibian babies more valuable than ours?

It’s been four years since Namibia legalised ‘safe relinquishment’. This followed government, civil society and the ruling party’s youth and women’s leagues declaring child abandonment a national crisis when 13 babies were found dead every month. By contrast, despite South Africa’s exponentially bigger problem, its government opposes legislation to end unsafe abandonment. It begs the question, do South African authorities really believe that every child has a constitutional right to life, or are the lives of Namibian babies more important than ours?

Listen to this article: BeyondWords

Namibia began 2023 with a campaign to inform women of their right to safely relinquish a child that they cannot care for.

South Africa started 2023 the same way it ended 2022, with soaring numbers of abandonments, media reports indicating that for every child that survives abandonment, at least one, but as many as two, die, abandoning mothers being arrested despite being failed by authorities when they attempt to put their children into the child protection system, and no approved plan to minimise or mitigate the impact of unsafe abandonment. 

By contrast, the Namibian campaign is a follow-up to its government declaring child abandonment a national crisis and a resultant 2019 change to legislation allowing for the safe relinquishment of a child that parents chose not to raise.  

Safe relinquishment is defined as the safe, usually anonymous, surrender or placement of a child into a baby saver, or with a designated safe haven provider. Certain criteria must be met for the child to be safely relinquished, including that the child be below a certain age, and free from abuse, neglect or malnutrition.

The number of babies that were being abandoned prior to Namibia’s legislative change is unknown. But, in her 2021 article in the African Human Rights Law Journal on curbing unsafe baby abandonment, Dr Whitney Rosenberg, whose doctoral thesis is on global practices for the safe relinquishment of babies, described how in 2008 staff at the water works in Namibia’s capital Windhoek reported 13 babies were dumped or flushed down toilets every month.

Although Namibian abandonment statistics were hard to access, Rosenberg highlighted widespread concern expressed across the Namibian government and the ruling party about the prevalence and impact of child abandonment. 

The need for intervention was voiced by the departments of Home Affairs, whose minister stressed children’s right to life as protected in article 6 of the Namibian constitution; Health, whose deputy minister emphasised the need to train health care workers to deal more sensitively with pregnant teens; and Gender Equality and Child Welfare, whose minister articulated the need to provide support and services for desperate pregnant women. Parliament, Women’s Action for Development (WAD), the SWAPO Party Women’s Council and the SWAPO Party Youth League all called for increased government action to combat unsafe abandonment.

Combined government and civil society pressure led to the 2019 promulgation of the country’s Child Care and Protection Act which included a clause prohibiting the prosecution of women who relinquish their babies safely at a prescribed location (such as a police station, hospital or place of safety), and whose baby shows no signs of harm. 

Significantly, this law, which decriminalises the safe relinquishment of babies, was Namibia’s first departure from child-focused legislation that it inherited from South Africa, and was also driven by a need to decolonise its legislation and create child-related laws that are relevant in Africa. 

Despite the change in law, the BBC reported that 140 babies were still abandoned unsafely across Namibia between 2018 and 2022. This prompted its government to initiate the 2023 awareness campaign encouraging women to make use of baby savers or relinquish their babies safely with authorities.

SA’s different approach

Although Namibia and South Africa are neighbours, South Africa’s approach to abandonment could not be more different.

During the 2021 and 2022 hearings for the Children’s Amendment Bill, South African civil society painted a bleak picture of unsafe abandonment in the country, and petitioned Parliament to include clauses into the Bill to allow safe relinquishment.

Its submissions included detailed changes to the wording of the Children’s Act and consequential amendments which would legalise the use of baby savers provided the baby was under one and showed no signs of abuse or neglect.  

In the Gauteng hearings on the bill, the chairperson of the portfolio committee for social development who, along with many of her colleagues, was visibly moved by the stories of abandoned children who died or were maimed through unsafe abandonment, asked activists “to stop telling these sad stories, they are touching, I’m telling you”.  

She and the committee then invited Dr Rosenberg to present on proposed safe relinquishment legislation in March 2022.  

Within months, however, the committee had decided to reject most of the clauses in the Bill to focus exclusively on foster care.  All discussions about safe relinquishment were also shelved, and despite commitments that the remainder of the clauses would become a committee bill, nine months later and the bill is yet to reappear on the committee’s agenda.

Even if Parliament does reopen discussions about ending unsafe abandonment, it probably won’t get any support from government. 

Unlike Namibia, neither the executive, nor the ANC woman’s or youth leagues have made statements about the crisis of child abandonment or the need to save lives.  Nor has it ever been on an agenda during Child Protection Week or the 16 Days of Activism for no violence against women and children.  

Baby murder rate

This is despite South Africa reportedly having among the highest rates of neonaticide (murder of children within the first 28 days of life: 19.6 per 100,000 live births) and infanticide (murder of babies under one: 28.4 per every 100,000 live births).  

The same Medical Research Council study found that children under 5 in South Africa were most likely to die of unnatural causes during the first six days of life as a result of unsafe abandonment.

Nevertheless, the Department of Social Development responded to questions posed by the committee in March 2022 about ending unsafe abandonment by stating that legalising life-saving interventions would be unconstitutional: 

“The Children’s Amendment Bill did not make provision for safe abandonment of children nor does it seek to decriminalise safe abandonment. The matter arose as part of the public hearings. If it has to be considered; such consideration will be unconstitutional as it will be in contravention of Section 28 of the Constitution. According to the Constitution of the Republic; children must be protected from maltreatment, neglect, abuse and degradation which are also reiterated in the definition of care in the Principal Act (Children’s Act 38/2005) where a child must be protected from maltreatment, abuse, neglect, degradation, exploitation and any other physical, emotional or moral harm and hazards. Therefore decriminalisation of abandonment will continue to put children’s lives [at risk].”

In her presentation to the committee, Rosenberg countered this argument emphasising (as the Namibian government did) that the child’s constitutional right to life and dignity should trump all other rights, and further, per Section 28(2) of the constitution, that the best interests of the child are paramount in all decisions regarding the child. 

She also refuted the department’s claim that legalising safe relinquishment amounts to legalising abandonment.  Unsafe abandonment, which epitomises the maltreatment, neglect, abuse and degradation that the department wants to prevent, would remain a criminal offence.  If however the mother could not raise the child and was not able to place it into the child protection system, her act of safely relinquishing the child into an accredited baby saver would no longer be a crime. 

Legalising safe relinquishment is thus designed, wherever possible, to stop unsafe abandonment which could result in disfigurement and psychological harm, or death.

Prevention

Where Rosenberg and the DSD do agree is about the need to prevent abandonment.  

According to the department, its position is to strengthen prevention and early intervention programmes to identify and support pregnant mothers and inform them of “alternatives to abandonment such as termination of pregnancy, giving a child up for adoption or placing a child in alternative care (foster care or child and youth care centres). Early identification of mother at risk upon delivery of the baby must be done and such mothers assessed for appropriate referrals and immediate counselling upon giving birth to avoid abandonment of babies. Communities at large must also be educated about dangers of abandonment and support required by mothers of newborn babies.

Whilst concurring that prevention is critical to saving lives, activists contend that while the circumstances driving abandonment exist, such as poverty, unemployment, gender-based violence, patriarchy, rampant teen pregnancies, and the restrictive legislation that prevents under 18s and foreigners from placing their children into the child protection system, abandonment will never be eliminated.

They further argue that, across all levels, government has proved very poor at the early identification of at-risk women, providing counselling and support, and assisting mothers to exercise options other than raising their child. And, they argue, the situation has become worse over the last year since the department made this policy statement.  

Case studies

The failure is painfully illustrated by the stories of four mothers from four provinces, all experiencing a crisis pregnancy and trying to seek help.

In October 2022, a 23-year-old mother from Veralum, KwaZulu Natal abandoned her three-month-old baby girl next to a stream.  Her baby was clothed, and she was left with a nappy bag containing nappies, a dummy and a bottle of milk, along with a note explain why her mother abandoned her:

“Hi, You might be wondering why I dumped my baby, don’t wonder, just help her if you can or call authorities but don’t judge me. I have spoken twice with social workers they delaying to assist. I know this looks bad but I had no option. The system is fragile and we can’t even abort safely anymore. Hospitals have strict rules.” (sic)

Despite the child being in good health when found, her mother was arrested for child abandonment after she handed herself in to police following a furore that erupted on social media.  She was charged and released on R500 bail.  

In response, the KwaZulu-Natal MEC of social development Nonhlanhla Khoza, who cited the Veralum child’s story with two others in which babies narrowly survived unsafe abandonment: one where a newborn baby boy was left to drown in a pit latrine in northern KwaZulu-Natal, and another, in Newcastle, where a child was thrown out of a hospital window, said that it “was devastating to see such despicable incidents of dumping of children”.  

The MEC then insisted that mothers have “a lot of options” when facing a crisis pregnancy: “We encourage parents who are unable to care for their children to seek help at a clinic, hospital or the department. We have a lot of options made available by our government to ensure that we safeguard the children and we want to urge parents not to resort to dumping children regardless of situations they face. 

She painstakingly detailed the process that authorities follow.  A clinic refers a mom to a social worker, options counselling occurs, a safety and risk assessment is conducted for the child, followed by the child’s removal to temporary safe care in a family or child and youth care centre. Finally, a care plan for reunification is developed.  Urging mothers to approach the department if they are in crisis, she threatened that abandoning mothers would “face the might of the law”.

It sounds constructive, except that the MEC was patently ignoring the mother’s protest that the system doesn’t work.  It’s a depressingly common narrative.

In the Western Cape, Amanda Jones, a volunteer from the Helderberg, Baby Saver, had to threaten the Department Of Social Development with charges of culpable homicide if they did not allocate a social worker to a mother experiencing a crisis pregnancy who was at high risk of abandoning her baby.  

Aphiwe* was adamant she did not want her baby. She told Jones that she was revolted by the child moving in her womb.  She had tried to abort her baby three times over the course of the pregnancy, the final time at 37 weeks when she again failed, but her attempt resulted in an infection.   Yet. at 39 weeks, regardless of the danger, she was still talking about trying to abort her child a fourth time.  

The baby’s father told her he didn’t care what happened to the baby, and it was her problem. He threatened to block her if she kept contacting him.

When Aphiwe eventually went to the local clinic in her third trimester, she described being “chased away” by the nursing sister who told her that they didn’t have time for people like her who didn’t know what they wanted, and came so late in the pregnancy to get care.  Aphiwe then sought help from a local GP who diagnosed a serious infection from the failed late-term abortion.  He gave her medication, but although he said that the infection could be life threatening for the baby, did not book her into hospital.

After weeks of trying to get help for Aphiwe and her baby, it took Jones’s email begging the department to intervene and threatening to press charges if anything happened to Aphiwe’s baby, for it to get a child welfare social worker allocated to her case to help her book into hospital and place her baby into the child protection system.  

Jones specifically requested that Aphiwe’s file contain a note stating that the hospital should not give the baby to her mother post-birth because she was at high risk for harming the child.

Despite this, in Aphiwe’s words, the child welfare social worker assigned to her case told her that, “I should not give the baby up for adoption because it’s going to haunt me for the rest of my life… If I do, I will never have peace and nothing will ever go according [to plan] with my life.”  

The social worker then told her she may be bewitched and should visit her church for help.  

Further, despite Aphiwe’s hospital admittance form stating the baby was to be adopted and the clear message given to the social worker that she may hurt her child, Aphiwe’s baby girl was handed to her after she was born.  Aphiwe was placed on a chair outside the delivery room and instructed to breastfeed her child before they would allocate her a bed for her post-birth recovery.  

Had she been discharged with her daughter, Aphiwe’s baby may have become another heartbreaking abandonment statistic or story.  Mercifully though, Jones, dismayed at the child welfare social worker’s approach to the case, obtained help from another child protection organisation that removed the child. Aphiwe’s baby is now in the loving care of a temporary safe care parent.

The outcome could have been very different.  In another troublingly similar story, a mother in Gauteng who also did not want her child was forced to breastfeed and care for her newborn in hospital for three days while the hospital blocked efforts from the temporary safe care parent to collect him. This was despite the mother also being deemed high risk for abandonment.  

The safety parent’s relief at finally being handed the baby boy was short-lived.  A medical checkup shortly after Thando* was placed in her care showed that the baby had a fractured skull.  

The hospital’s insistence that his mother parent him almost cost Thando his life.

Shortly after the Veralum mom’s arrest for child abandonment, another safety parent, this time in the Eastern Cape, sat in a car with a young mother who had just confessed to abandoning her newborn daughter.  The story of a baby girl left behind a fast-food restaurant at night had made it into the media in their hometown and Lorraine* had read it with dismay. She knew immediately that she had spoken to the abandoning mommy a week before. 

During their discussion, Nkululeko* had told Lorraine that she had hidden her pregnancy and didn’t want anyone to know about the new baby.  She was adamant that she would neither identify the birth father nor raise the child.

Lorraine is not a statutory social worker and cannot take a child into the child protection system.  She therefore referred the mom to the local DSD, warning them that Nkululeko was terrified of anyone finding out about the pregnancy and that they should not ask questions until they had her baby in temporary safe care.  Heedless, the DSD social workers pushed for details about Nkululeko, her family and the birth father. They then told Lorraine that she had disappeared and would no longer answer their calls. 

The day after the referral, news broke that a baby girl had been abandoned the night before.

Although Nkululeko’s baby survived, Lorraine was appalled.  Not only had Nkululeko felt she had no option but to abandon her baby after getting assistance from the DSD, but Lorraine knew she had to counsel her to turn herself in to police. 

Nkululeko was arrested and charged with abandonment.   

There is a small glimmer of hope in this story.  At court, Nkululeko was released on her own recognisance, and after counselling, was reunited with her daughter who she has chosen to raise.  

But she still faces criminal charges.  She is back in court this month to see what the penalty will be for her crime. 

All four stories have a common link, the singular lack of assistance for women experiencing a crisis pregnancy from hospitals, government social workers and the DSD.  Without the intervention of volunteers and temporary safety parents, these babies could have died or been permanently estranged from their birth families.

The stories belie the MEC’s promise that birth mothers have a lot of options. Conversely, they show that government interventions often drive mothers to abandonment rather than preventing it.  

And despite the promises and her threats, unsafe abandonment continues unabated, especially in KwaZulu Natal. 

In January 2023, another baby was abandoned about 15km from where the Veralum baby was found in Phoenix, this time on the side of a highway, wrapped in a plastic bag.  Babies were also found on an electrical box in Margateoutside a house, also in Margate, in a construction site in Port Shepstone, and at a clinic in Durban.    

Nadene Grabham from Baby Savers SA says that in January and the first two days of February alone, there were 10 media reports of babies abandoned unsafely.  Half of the babies were found dead: in stormwater drains, on dumping sites and on the street wrapped in plastic bags.  

Although all forms of abandonment, including safe relinquishment, are still illegal in South Africa, Grabham says that 12 babies have been safely relinquished into baby savers so far this year.  All survived and were immediately placed into the child protection system.

It’s hard to argue that there is no crisis.  It is even harder to argue that government interventions are sufficient to end unsafe abandonment.  It’s hardest to argue that it would be unconstitutional to pass legislation that saves the lives of unwanted babies and prevents the physical and psychological trauma of unsafe abandonment. 

Bottom line is that safe relinquishment saves lives. But perhaps, as statistics and anecdotal evidence show, in South Africa, unlike Namibia, these little lives just aren’t that valuable.

*Names changed to protect their identities.

This article was first published in the Daily Maverick: 26.02.2023

To cite please use the author’s name, the year of publication, the title of the article, name of publication (Daily Maverick), date of publication.

The Children’s Amendment Bill: Needs and rights of the vulnerable trumped by political expediency

The Children’s Amendment Bill: Needs and rights of the vulnerable trumped by political expediency

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.

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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:

  1. 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
  2. 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”.

https://youtube.com/watch?v=YjedbuZuX2Y%3Ffeature%3Doembed

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


First published in the Daily Maverick: 21.06.2022

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What to expect from the controversial Children’s Amendment Bill

What to expect from the controversial Children’s Amendment Bill

by Robyn Wolfson Vorster and Paula Proudlock

Two years after the Children’s Amendment Bill was first gazetted for public comment, it has finally been tabled in Parliament. The public have until this Friday, 27 November, to send submissions to Parliament. With 147 clauses, it is overwhelming in its breadth despite its quite simple initial objective of providing a comprehensive legal solution for the foster care crisis. So, what do the changes mean for children, and why should those invested in children respond to Parliament’s call?

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Although this amendment to the Children’s Act was intended to provide a comprehensive legal solution to end the decade-long foster care crisis, the resultant Children’s Amendment Bill (CAB) is not a set of targeted amendments to the clauses affecting foster care, allowing for a quick passage through Parliament and enabling the Department of Social Development (DSD) to meet its (then) November 2019 deadline for the provision of the comprehensive legal solution. Instead the department produced a 147 clause amendment to the act, including some controversial changes to other areas of child care and protection such as adoption, the removal of privacy clauses protecting children during children’s court processes, and Early Childhood Development (ECD).

It’s testament to just how lengthy and complex the bill is that Parliament has scheduled a year for its debate, requiring the DSD to obtain another court extension for it to provide the solution to the foster care crisis (after the deadline had already been extended three times in 2014, 2017 and 2019 respectively). With the High Court granting a further two-year extension two weeks ago, the DSD will have the dubious distinction of having taken 10 years to comply with a High Court order. 

But, despite the ostensible focus on foster care, the bill’s first outing in Parliament, a DSD briefing of the parliamentary Portfolio Committee on Social Development on 6 October, elicited so much discussion about the sections on adoption and ECD that the committee chairperson requested separate briefings on the two topics by the department. It is therefore not surprising that adoption and ECD, along with foster care, will be the topic of a number of public submissions to Parliament.

Solving the crisis in the foster care system

Truthfully, there are only a handful of clauses in the bill that relate to solving the foster care crisis.

The department is hopeful that small amendments to section 159 (allowing a six-month grace period after foster care court orders have lapsed, and six month interim extension orders), and section 186 (which increases the frequency of supervisory visits to children placed in foster care until the age of 18, with the goal of inducing more magistrates to grant orders for the duration of childhood), will provide the comprehensive legal solution.

But, if the foster care system is functioning optimally (as in, an appropriate number of children in care, relative to the number of social workers), section 159’s amendment should be a fail-safe, but not the norm. In addition, magistrates can already grant foster care orders lasting until a child is 18.

But, they are reluctant to do so because children in foster care are wards of the state and the court has a responsibility in terms of international law to continually monitor their circumstances. Annual supervision by social service practitioners is therefore unlikely to address magistrate’s concerns.

This may seem dismaying. However, there is a real answer to the foster care crisis in the Social Assistance Amendment Bill which was passed by Parliament in October, and is soon to be signed into law by the President.

This bill empowers the Minister of Social Development to pay a higher Child Support Grant (CSG) to relatives caring for orphaned and abandoned children. This CSG “top-up” will replace the Foster Care Grant (FCG) for this category of children, and will be much quicker to access because it doesn’t depend on social workers or the courts.

It’s also not subject to two yearly court reviews and won’t lapse every two years. Once the CSG Top-Up is in place (hopefully April 2021), social workers will be able to refer relatives directly to Sassa to apply for a social grant without having to first do an investigation, report or court order. 

The CSG Top-Up is complemented by an amendment to section 150(1)(a) in the Children’s Amendment Bill. Together they provide the comprehensive legal solution to the overburdening of the foster care system. The CAB proposes to amend section 150(1)(a) by removing orphaned and abandoned children who have a suitable and able family member from the list of children deemed to be in need of state care and protection.

The implication is that orphaned or abandoned children in the care of kin will no longer need to be placed in foster care before they can access an adequate social grant. 

While this is heartening, the implication is that this enormous 147 clause amendment bill could have been a one-clause change.

Adoption 

Despite there being relatively few adoption-related changes in the bill, adoption remains one of its biggest focal points, largely because of the nature of the changes and, more importantly, the motivation behind those amendments.

Much of the debate revolves around the changes to section 249 of the Act, “consideration in respect of adoption”. In the draft bill gazetted in October 2018, Section 2, clauses B-G were deleted which effectively made the charging of fees for an adoption illegal.

The change produced a furore, with the sector arguing that it would put an end to adoption in South Africa and the DSD countering that it was necessary because adoption fees were “exorbitant” and that the change was justified because as long as fees are charged for adoption, it’s akin to child trafficking or the sale of a child. 

But despite the DSD’s public insistence on the link between adoption and trafficking, behind the scenes, it was providing the adoption sector with assurances that the goal of the amendment was to remove all reference to fees from the Children’s Act to allow fees to be regulated by the relevant professional bodies (in a manner similar to attorneys).

Months of debate resulted in the State Law Advisers completely deleting Section 249 from the bill eventually tabled in Parliament, seemingly reinforcing the argument that it intended fees to be regulated elsewhere. 

Even now, the purpose of the amendment is still up for debate. The Memorandum of Objects, an addendum to the tabled bill, states that the purpose of amending Section 249 is to “delete reference to all fees that may be charged for adoption”, which is self-explanatory, but unhelpful. 

The department’s objective can be better understood from the October briefing where the DSD legal adviser, Luyanda Mtshotshisa, emphasised four key concerns the department purportedly has about adoption.

They are that adoption social workers choose adoption over family reunification which is the government’s primary strategy for the care of vulnerable children, that they do this because they consider adoption to be a commercial venture rather than a child protection measure, that adoption social workers charge exorbitant fees, and that there is a fine line between adoption and the sale of a child.

Mtshotshisa proposed that the department would be “moving away” from the adoption of unrelated children, particularly through intercountry adoptions.

In response, clarificatory questions from the parliamentarians asked if the Children’s Act is currently deficient in promoting family first as a placement option, and why fees could not be regulated rather than prohibited. 

Mtshotshisa replied with a resounding yes to the first question, despite Section 230 of the act stating that a child can only be declared adoptable if the child is (a) “an orphan and has no guardian or caregiver who is willing to adopt the child; or (b) “the whereabouts of the child’s parent or guardian cannot be established” or (c) the “child has been abandoned”. (d) and (e) focus on abuse or neglect or children in need of permanent placement.

All require the social worker to establish that family care is not an option first. Furthermore, no national adoptions can be granted until both the provincial DSD and the magistrates court have evaluated the case and determined that there was no appropriate family care available (as part of the Section 239 process in the Children’s Act). 

Mtshotshisa didn’t answer the question about the regulation of fees. If he had, he would have had to confess that adoption fees are already regulated and capped for designated child protection organisations (DCPOs) and intercountry adoptions, and that while they aren’t regulated for private social workers, all fees must be available for scrutiny by the provincial DSD and both declared to the court and approved prior to an adoption order being granted.

He also failed to mention that on average, a national adoption costs between R11,000 and R13,000 to complete and that agencies charge adoption fees on an income-dependent sliding scale, ranging between R1,500 (for adoptive parents earning less that R5,000 per month) to R23,000, as the upper threshold for those earning above R30,000 per month. Fees drop even further when organisations get partial government subsidies. Adoptions are free to those who can’t pay and on average cost between R9,000 and R12,000. 

When the department provides its adoption briefing to the committee next year, it will undoubtedly be asked to specify examples of adoption being used for trafficking, evidence of exorbitant fees being charged by adoption social workers and instances where social workers have consistently ignored available and suitable family members and instead placed children in adoptive families.

If such evidence is presented, it will also have to account for why, despite the stringent legislative requirements for adoption, its monitoring and evaluation process have failed so consistently.

It will further need to explain why it’s using legislation to correct the problem instead of criminal proceedings (in the case of trafficking), and professional sanctions (in cases of unethical practices), and why these alleged cases have never been made public despite numerous requests from the sector. 

Equally, questions must be asked about why the DSD’s solution is to make adoption the sole domain of government social workers instead of reforming and dealing with individual problems within the sector and why, given its apparent inability to adequately monitor and evaluate adoptions, it would be suitable, let alone adequately resourced to facilitate all future adoptions. 

The department may argue that it has dealt with the resourcing issue with a change to Section 239, substituting the term ‘‘adoption social worker’’ with ‘‘a social worker responsible for adoption’’ to ensure that more departmental social workers can perform adoptions. But this wording is likely to be challenged in multiple public submissions.

Given the ethical complexity and legal implications of adoption and a global movement towards making adoption more specialised, not less, many would argue that social workers without specialisation should not be allowed to process adoptions.

Ultimately, the ongoing furore about fees may be a moot point for this bill (although likely an ongoing area of conflict between the DSD and the sector), because legal experts seem to agree that the complete deletion of section 249 no longer makes the charging of professional fees illegal. It’s more likely (despite Mtshotshisa’s assertions) to allow fees to be regulated elsewhere. However, this may have unintended consequences. 

Clause 249 was included in the Children’s Act to stop anyone other than professionals from charging fees for an adoption. Its absence (and the fee regulation gap until professional regulatory bodies can define them) could create a void allowing unscrupulous people to financially benefit from adoptions.

So, while the current legislative framework makes it implausible that there is currently “a fine line between adoption and the sale of a child” in South Africa as the DSD asserts, the deletion of 249 could make it true.

And, as important as the focus on fees is, the issue has detracted attention from how regressive the adoption amendments in the bill are (perhaps because of Mtshotshisa’s claim that the department is “moving away from” it). None of the changes address current challenges with adoption, despite these resulting in a paltry number of adoptions occurring annually (an average of just over a thousand per year). 

When adoptions do take place, processes are elongated because of government’s failure to deliver its adoption services timeously (especially provision of form 30s and the 239 panels) and its family first policy that goes beyond the requirements of the Act.

This can lead to the violation of both the birth mothers’ rights to confidentiality and to make an adoption decision for her child, and lengthy and fruitless investigations into suitable family placements before a child is declared adoptable.

On average, adoptions are taking twice as long as necessary to process (18-24 months, versus 9-12). 

The result is children languishing in institutions instead of permanent family care, inconsistent caregiving and no matter how nurturing the care, the risk of them developing attachment disorders.

Given that the first thousand days of a child’s life are critical for emotional, cognitive and social development, delayed placement can produce long-term damage to intellectual capability, the child’s ability to complete school, obtain higher education, earning potential, psychological well-being, relationships and overall health. 

Despite assertions that the bill promotes children’s best interests, there’s no mention in it of the importance of permanency, the impact of placement delays on attachment, and what will become of abandoned children who cannot be reunified with family – especially the many babies abandoned with no trace of family connections.

As such, the bill represents a missed opportunity to increase and speed up adoptions and provide permanent families for abandoned children.

Early Childhood Development

This missed opportunity is also evident in portions of the bill focused on Early Childhood Development (ECD), a sector whose ongoing challenges have been exacerbated by lockdown. The sector has already been to court twice to ensure its continued survival.

The first case was an attempt to induce the DSD to allow it to reopen after lockdown, the second to force government to back-pay promised subsidies that had been withheld since March. Although the sector won both cases, the subsidy ruling is being appealed by government.

Given how beleaguered the sector is, and that many of the lockdown problems stem from DSD’s inability to regulate ECD adequately because the registration criteria in the Act and its regulations are so onerous and unachievable, it would have been opportune for the bill to address the sector’s key concerns.

Unfortunately, in its current form, the CAB makes the situation in the ECD sector worse rather than better.

There are five critical problems with the ECD content in the bill, problems that ECD practitioners and NPOs have done excellent work in communicating simply and clearly. All relate to government’s lack of recognition of the demographics of the sector and failure to support its vulnerable constituents. 

According to the petition started by these groups, “over six million children are of ECD-going age (excluding Grade R) and the majority of these children live in poverty. However, 3.2 million children are not accessing any ECD programmes.

Of those who do access some form of ECD programme, 2.9 million children are in unregistered programmes and only 800 654 children are in registered centres. Only 626 574 (25%) of the children who need it are obtaining subsidised learning”. Most providers are poor, black working-class women without the means to meet burdensome registration requirements. 

Registration is essential for the protection of children, and will ensure that the sector is better regulated and open options for more children in need to access subsidies. But, while it’s in the best interests of government and children to facilitate compliance, for many, the Act and its regulations make compliance impossible. 

The CAB makes registration even harder, not easier. Not only is there a one-size fits all approach to ECD which treats toy libraries, playgroups, home-based care and nursery schools the same, despite experts arguing for a targeted approach for each different modality, but there are also troubling multiple registration processes.

According to ECD practitioners, “The bill not only fails to address the challenges of the dual-registration process but also now introduces the possibility of a third registration requirement.

Under the bill, a facility which provides ECD programmes for more than six children from birth to school-going age will be considered both a partial care facility and an ECD centre”. 

This means that an ECD programme provider may be required to register as a partial care facility, an ECD centre and register its ECD programmes.

To compound providers’ misery, the move of ECD to the Department of Basic Education may result in some ECDs having to register as a school too, potentially adding a fourth process. 

ECD providers are therefore recommending a one-step registration process and the simplification of registration requirements. They’ve also argued for simplified health and safety standards which can be assessed through one process. 

Further, given the challenges of compliance, experts propose that ECDs get conditional registration if they can’t meet all of the registration requirements and that provincial MECs provide support to poorer communities to help them meet these criteria.

The conditional registration option and the obligation to provide support is already in the Act, but is not widely implemented. And now, a troubling change in wording in the CAB makes this imperative to help optional (the word “must” is changed to “may” in Section 78(4) and 93(4)). 

The department has argued that MECs will help if they have funds, making the obligation unnecessary. But this is a weak argument belied by experience, especially after the department’s recent history of withholding financial assistance from ECDs during lockdown. Provincial departments will be increasingly cash strapped as the economic effects of COVID 19 and austerity budgeting worsen over the next five years. Prioritising ECD funding should therefore be strengthened in the law, not weakened. 

In the 20 October 2020 High Court ruling about the lack of payment of subsidies to ECD the judge stressed that subsidies are necessary to: “provide access to nutrition and stimulation to infants and young vulnerable children, thereby promoting the rights of children to life, nutrition, social services, education and the enhancement of their development”.

It’s therefore essential for all children in need of subsidies to receive those subsidies, regardless of the registration status of their service provider.

Equally anti-poor is the bill’s prohibition of infrastructural assistance for ECD providers operating from private land, this despite the huge percentage of poor service providers who run ECD centres from private homes, shacks or huts .

Many in the sector can’t afford separate premises and can’t afford the capital outlay to make current premises compliant with the norms and standards.

Curtailing infrastructural funding for ECDs operating from home will prevent many ECDs from ever obtaining full registration, and may even put children at risk. 

Next steps

There’s still a long road ahead for the bill, but the next step is written public submissions to Parliament on these and other key amendments. Submissions are due on Friday, 27 November to Lindiwe Ntsabo at childrens-amendment-bill@parliament.gov.za.

A selection of these submissions will then be chosen to present at public hearings scheduled for February and March 2021. For more information about how to submit input re adoption, see National Adoption Coalition of South Africa.

For more information about how to submit about ECD, see Real Reform for ECD in SA. For information on any of the other amendments in the bill, contact Paula.proudlock@uct.ac.zaDM


First published in the Daily Maverick: 25.11.2020

To cite please use the authors’ names, the year of publication, the title of the article, name of publication, date of publication

Abandonment

Adoption

Child Abuse

Child and Youth Care Centres

Child Homicide

Child Protection Legislation & Child Rights

Covid and Children

Early Childhood Development

Foster Care

Health and Hunger

Missing and Trafficked Children

Undocumented Children