It’s Christmas — a time for parties, presents and pity for those children spending the holidays in institutional care. It makes government’s plan for the mass deinstitutionalisation of children seem miraculous. But, instead, in an uncanny recreation of the first Christmas, it may leave many children out in the cold.
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It’s been three years since, on 18 December 2019, the UN General Assembly adopted a resolution on the “promotion and protection of the rights of children”.
The resolution has a section dedicated to “children without parental care”. It states that children should grow up in a family environment, and that “every effort should be directed to enabling children to remain in or swiftly return to the care of their parents or, when appropriate, other close family members and that, where alternative care is necessary, family and community-based care should be promoted over placement in institutions”.
This was followed on 25 June 2022 by the Kigali Declaration on care and protection reform — signed by all Commonwealth countries, including South Africa — which “encourage development agencies by 2025 to prioritise quality care arrangements at the community level, over institutionalisation” and “support projects which take a holistic and inclusive approach to child protection systems development and family strengthening”.
While the move towards deinstitutionalisation seeks to uphold the rights of children, it’s also predicated on the belief that all institutions are inherently damaging, unnecessary and even self-serving. It’s a perspective obvious in global thinking about institutional care.
A study which focuses on “dispelling the orphan myth” illustrates that, while there are an estimated eight million children in institutions globally, 80% have a living parent.
Although the study did not include South Africa, it indicated that, across multiple countries, children were placed in institutional care due to poverty, disabilities, abuse or neglect, discrimination (for example, families that did not want to raise a girl) or because organisations were using nefarious means such as removal orders or recruitment to populate their institutions.
Equally, the Kigali Declaration argues that institutional care is being promoted by “well-meaning international aid, donations, orphanage volunteering, mission trips or tourist visits”. These, it says, “can lead to unnecessary family-child separation and undermine care reform efforts”.
For South Africa, the declarations represent an important commitment from government to move away from long-term institutional care for vulnerable children and have received widespread support.
Lack of nuance
As with many child-rights-focused initiatives in the country, though, the lack of nuance in the global view on institutions may be unhelpful in a South African context, and the application and implementation of the approach is proving challenging.
South Africa has no published figures about the number of children in alternative care, but in March 2022, the department of social development (DSD) reported to the parliamentary portfolio committee on social development that the country had 15,552 children in registered child and youth care centres (CYCCs). There were 3,337 children in temporary safe care and 912 in secure facilities for children with behavioural, emotional and psychological difficulties.
These statistics have not been disaggregated, so it’s difficult to tell how many of these children have been placed in CYCCs because of abuse and neglect; how many have living family members, and how many are abandoned or orphaned with no family options for care.
But, if the figures are accurate — which is doubtful because they do not include unregistered institutions — the number of children in institutional care is relatively low given the country’s ongoing challenges with orphaning and abandonment.
According to UCT’s Children Count, in 2020 there were 2.9 million orphans in South Africa. This includes children without a living biological mother, father or both parents, and is equivalent to 14% of all children in South Africa. A total of 531,000 were maternal orphans and 620,000 (3% of all children) were double orphans.
In Gauteng, the General Household survey from 2020/2021 recorded 154,000 children between the ages of 0 and 17 being orphaned, a significant increase from the 2019 figure of 78,000, bringing the total number of single or double orphans in the province to 566,000.
While there are no formal statistics to confirm the number of abandoned children in the country, the March report sent to the social development portfolio committee estimated that about 10,500 children had been abandoned across eight of the country’s nine provinces in the past decade (North West did not provide statistics).
The Minister of Social Development admitted that over a thousand children entered the child protection system through abandonment in a two-year period.
Significant numbers need protection
Although not all orphaned or abandoned children need alternative care, the figures indicate that significant numbers of children require care and protection.
This is reinforced by anecdotal evidence. Baby Savers SA reports receiving between 10 and 20 queries every working day from desperate, pregnant moms experiencing a crisis pregnancy, and inquiring about options for placing their children into the child protection system.
Further, despite the DSD stating that CYCCs across the country are 3,000 children under-capacity, in Gauteng, CYCCs testify that they’re turning away between five and 10 children a week.
In this context, preventing babies entering care and shortening the stay of older children in institutional care seems like a Christmas miracle; a response to concerns raised by child protection activists and CYCCs themselves over the past two decades about the length of time children are spending in care.
Factors identified as leading to children’s protracted stays in institutions include high numbers of anonymous abandonments, violence against children, abuse and neglect, anti-adoption sentiment, lack of documentation, interminable bureaucratic processes to obtain birth certificates for children, prolonged attempts to trace first families, lengthy processes to place adoptable children into families, the ongoing collapse of the foster care system and the limited number of social workers able to vet, screen and monitor temporary safe care and foster care parents.
The upshot is that support for women experiencing a crisis pregnancy, violence prevention programmes, increased efficiencies, additional social worker resources and an openness to permanency planning through adoption are an essential part of any plan to end institutional care.
It’s too soon to tell if these components will be included in government’s eventual plan. But despite this, in Gauteng, the DSD has already fast-tracked the phasing out of institutional care for children in accordance with a memorandum of understanding (MOU) signed between the Gauteng DSD and Hope and Homes, a global organisation focused on deinstitutionalisation.
Although this MOU was first agreed in 2016, the Kigali Declaration has led to a flurry of activity towards ending the institutional care of children by the Gauteng DSD because the province has been identified as the prototype for the country.
In July 2022, just a month after the declaration was signed, Hope and Homes met with the CYCCs in Gauteng to inform them that all CYCCs would be closed by 2030. CYCCs were told that they can be repurposed in accordance with the established needs of communities derived through community mapping exercises and based on priorities and gaps the provincial DSD has identified in its planning.
Some suggestions made during the meeting about how CYCCs can “pivot”, are for them to become facilities for children aged 3-11 with oppositional defiant behaviours, day care centres, community outlets or step-down facilities for independent living which will be run by the DSD for children aged 11-21.
Only organisations that meet the DSD’s strategic priorities will continue to be funded.
When CYCCs raised concerns about changing the constitution of their NPO, about zoning permissions for their properties, donor requirements, and about managing the costs of running operations while also transforming their care environment for future requirements, they were told that they had the next five to eight years to review their operations model, repurpose existing buildings and change their funding streams, but that they would ultimately find the shift from “running an institution” more “rewarding in terms of children’s best interests”.
Supported by the DSD, Hope and Homes also declared an immediate moratorium on children aged 0-3 being placed in CYCCs, and reported that, as the bank of temporary safe care parents increases, children below the age of three currently in CYCCs could be moved too.
Hope and Homes will provide CYCCs with a tool to determine adoptability of those children currently in care. However, the goal will be to reunify children with families wherever possible.
Under the shadow of Life Esidimeni
No one disputes the dangers of long-term institutional care for children. But there are increasing concerns over the deinstitutionalisation strategy being employed in the province.
These focus on three key issues: Hope and Homes’ appreciation of the local South African child protection context and its complexities; the haphazard roll-out of the plan in the province, and the challenges and potential dangers of decentralised, potentially unsupervised care — especially in a province still living under the shadow of the Life Esidimeni tragedy.
Crucial to the disquiet is the question of why the DSD chose to work with a UK-based organisation to pioneer its plans for deinstitutionalisation, when it had local options available.
Initially, it didn’t. When Hope and Homes signed the MOU in 2016, it was in conjunction with Give a Child a Family Africa (GCF), an organisation based in KwaZulu-Natal that has had success across Africa with deinstitutionalisation and replacing institutional care with effective family-based care for children.
GCF believes that only a small percentage of children require long-term institutional care. However, it also recognises that deinstitutionalisation of children requires a serious commitment and a specific plan of action.
Following the signing of the MOU, it seconded its social worker to Hope and Homes for two years to help them understand the South African child protection challenges and develop a contextually relevant foster care programme.
However, when the contract ended after two years, it became clear that they had a different vision to Hope and Homes, who deemed GCF’s foster care strategy with its intensive vetting, recruiting and training regime, social worker involvement and support groups, too expensive.
Hope and Homes has run the programme without GCF since 2017.
While Hope and Homes has a wealth of experience running deinstitutionalisation strategies across the globe, there’s concern that it may not appreciate the complexity of the South African context.
During the CYCC briefing, Lourenza Foghill, national director of Hope and Homes for Children South Africa, appeared to diminish the challenge of abandoned babies without family care, claiming that Hope and Homes would be able to find the families of many “so-called abandoned babies” because it has experience using track and trace to do so.
She also intimated that the presence of CYCCs was encouraging desperate mothers to place their children into the child protection system rather than raising the child. She said there are currently “lots of people willing to help desperate mothers, which leads to mothers deciding that they can’t and won’t be able to care for their baby, which leads to the baby going to a CYCC and then being adopted”. This, she said, “is not optimal for Hope and Homes”.
In addition, although she recognised the impact of Covid on the recruitment of temporary safety parents, she didn’t acknowledge the current problems with the foster care system which have still not been solved more than a decade after the first court order instructing government to fix the overburdened and under-resourced system.
And despite referring to the availability of temporary safety parents to keep 0-3-year-olds out of institutions, as of July, Hope and Homes only had 18 parents in the “bank”.
Equally concerning is the seemingly haphazard way that the programme is being implemented by the department. No written directives on the deinstitutionalisation process or requirements have been published, and government confessed that, despite instructing the CYCCs in July that they were not allowed to receive any more children aged 0-3, it failed to brief the child protection organisations (CPOs) that place children with them about the change in policy.
CPOs have unwittingly continued to bring 0-3-year-olds to CYCCs, forcing them to either ignore the moratorium or turn children away.
Moreover, it appears that whether intentionally or coincidentally, the DSD is making the re-registration of CYCCs very difficult. The upshot is that it is culling CYCCs even before it is ready to roll out its plan for deinstitutionalisation.
Factors precluding re-registration include DSD requests for health and safety certificates despite these not being required when there are no structural changes; for building plans despite some buildings being more than 100 years old, and for certification of competence for child and youth care workers from the South African Council for Social Service Professions (SACSSP), which are mandatory, but the SACSSP cannot issue certificates because of technical problems and the DSD won’t accept written confirmation of competence.
The result of these bureaucratic challenges is that some CYCCs will lose their registration long before alternative arrangements can be made for the children in their care. They will be forced to turn children in need away and, if the problems persist, children in their care will be removed because magistrates will not renew orders if the CYCC is not registered.
Others will have their children forcibly removed.
Care centre re-registration
In March 2022, a Gauteng CYCC was denied re-registration after the department introduced new requirements that had not been in place when it was originally registered in 2016. Unlike other CYCCs experiencing similar challenges who managed to get short-term re-registration while they raised money for architect fees and developing building plans, obtained health certificates in a pandemic or assisted the SACSSP to verify their staff training, this CYCC was given no grace period.
It was informed that its 10 children, aged three and under, would be removed and placed elsewhere.
In disbelief, caregivers packed everything for their children and watched while they were relocated to temporary safe care in Pretoria. For two months, they transported their care workers to Pretoria every day to maintain continuity of care for their children. Their nursery manager slept in a sleeping bag on the floor at the children’s new home to try to mitigate the trauma of the move.
By May, however, it became clear that they wouldn’t be re-registered and, for the sake of the children, they chose to withdraw.
They now face the dilemma of whether they should continue to employ their nine staff members whose salaries they still pay, despite not having any children in their care.
The story of Hannah
Notwithstanding their best efforts to minimise disruptions to the children, the nursery manager told the story of Hannah* who had been placed in the CYCC’s care at birth. At the age of three, she was moved from the only family she had known. As she arrived at her new “home”, she was greeted by her new house mother who asked her how she was.
The little girl looked at the nursery manager, then tensed up and threw herself face down on the ground. Recognising a trauma-induced “freeze” response, the nursery manager picked Hannah up, comforted her and helped her to deal with her distress.
A month later, Hannah’s best friend and “sister” was adopted and left the home, and a month after that, the nursery manager and her beloved “aunties” had to leave. Hannah, who is not adoptable because she has family with whom she cannot yet be reunited, will spend this Christmas in temporary safe care without the adults or friend who love her, and to whom she attached at birth.
Hannah’s story epitomises the damage that can be done without a proper deinstitutionalisation roll-out plan or way of ensuring continuity of care for all children.
Equally concerning is what has become of the 0-3-year-old children whose stories cannot be told, but who are already being turned away from CYCCs despite there being no alternative plan for their care.
Who’ll step in?
While an end to long-term institutional care is both a global priority that the South African government has endorsed — and an ethical imperative — important questions need to be asked about who will care for these children when institutions are gone.
How will we devolve quality care away from organisations but still ensure that there is proper recruiting, vetting, training and monitoring of their replacement carers?
How will we ensure that a professional foster care and temporary safe care system is not equally destructive, as has been experienced in other parts of the globe?
Although the UN resolution emphasises permanency, how will we provide permanency for vulnerable children in a country with a statistically verifiable problem with anonymous abandonment; more than half a million double orphans; the ongoing challenge of violence, neglect and abuse; an anti-adoption stance; an overburdened foster care system and too few social workers?
As the deinstitutionalisation plan is executed, many CYCCs will be forced to close their doors and dismiss their caregivers. Others will pivot and reinvent themselves in a desperate attempt to continue receiving government subsidies.
It is the children and their best interests that should be of primary concern.
As the spectre of Life Esidimeni continues to loom over Gauteng, the haphazard implementation of decentralised care without proper supervision and support is a terrifying prospect.
With our most vulnerable children at stake, we cannot afford to get this wrong. DM
* Name changed to protect her identity.
Hope and Homes was asked for comment for this article, but had not responded at the time of publishing.
Article first published in the Daily Maverick 21.12.22
To cite please use the author’s name, the year of publication, the title of the article, name of publication, date of publication.
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:
- 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.
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.
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.
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.
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.
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.
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.
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.
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
To cite please use the author’s name, the year of publication, the title of the article, name of publication, date of publication.
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.
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.
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 firstname.lastname@example.org.
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.
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