2. The lives of children are affected by various pieces of legislation and international conventions. Apart from section 28 of the Constitution, which deals with the rights of children specifically, some of the statutes pertaining to children currently on the statute book are the following:

    Over the past few years, it has become clear that existing legislation is not in keeping with the realities of current social problems and no longer protects children adequately. In addition thereto, the Republic of South Africa has acceded to various international conventions, such as the UN Protocol on the Rights of the Child and the African Charter on Children’s Rights, the principles of which have to be incorporated into local legislation.

    During 1997 the then Minister of Welfare, Ms G Fraser-Moleketi, requested the South African Law Reform Commission to investigate the Child Care Act, 1983 and to make recommendations to the Minister for the reform of this particular branch of the law. After an extensive process of research and consultation, the Law Reform Commission finalised its report and proposed a draft Children’s Bill in January 2003.

    The Department of Social Development then took the process further through close liaison with the national Departments of Justice and Constitutional Development, Education, Health, Labour, the South African Police Service, the provinces, national non-governmental organisations and service providers as well as the Office on the Rights of the Child in the Presidency. Consultative workshops were also held with the Portfolio Committee on Social Development.

    After these processes a further draft was prepared and submitted to Cabinet. At a meeting of Cabinet the Ministers of Social Development, Justice, Finance and Education discussed the draft Bill and proposed amendments to it. On 23 July 2003, after satisfactory consultations were conducted between the relevant Ministers, Cabinet approved that the Children’s Bill be submitted to Parliament for consideration during the 2003 session of Parliament. Cabinet also noted that the agreed upon amendments should be effected by the Department before the submission of the Bill to Parliament.

    After the necessary changes were made, the draft Bill was referred to the Office of the Chief State Law Adviser on 4 August 2003 for review and certification. The explanatory memorandum of the Bill was published in the Gazette of 13 August 2003 and arrangements were made for the translation of the Bill into Zulu. During October 2003 the State Law Adviser certified the Bill and submitted the Bill to Parliament.

    2. The current Bill contains part of the envisaged Children’s Act. The Bill that was initially submitted to Parliament ("the consolidated Bill") dealt with the full spectrum of protection of children in both national and provincial spheres and was to be dealt with in terms of section 76 of the Constitution (functional area of concurrent national and provincial legislative competence). It was later found to be a "mixed" Bill, including elements to be handled in terms of both section 75 (functional area of national legislative competence) and section 76 of the Constitution. Due to its mixed character, the Deputy Speaker of the National Assembly requested the Executive to split the consolidated Bill, which has now been done. The provisions of the consolidated Bill, which will apply to the provincial government, have been removed and, consequently, the current Bill only contains matters, which have to be dealt with in terms of section 75 of the Constitution. The numbering of the consolidated Bill has, however, been retained, hence the gaps in the current Bill, indicated by "*****". As soon as the current Bill is enacted, an amendment Bill containing the matters, which apply to the provincial government, only ("the amendment Bill") will be introduced. The amendment Bill will have to be dealt with in terms of section 76 of the Constitution. The amendment Bill will complete the current Bill by inserting the provisions, which deal with welfare services.

    3. OBJECTS
    4. The main objects of the proposed Children’s Bill (the current Bill) are:

        1. to make provision for the structure, the services and the means for promoting and monitoring the sound physical, intellectual, emotional and social development of children;
        2. to strengthen and develop community structures which can assist in providing care and protection for children;
        3. to protect children from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical and moral harm or hazards;
        4. to provide care and protection for children who are in need thereof;
        5. to give effect to the Republic’s obligations concerning the well-being of children in terms of the international instruments binding on the Republic; and
        6. in general, to promote the protection, development and well-being of children.

        Significant new proposals to address gaps in the present situation include specific provision for the participation of children in matters affecting them, an extension of the rights of unmarried fathers, provision for a High Court procedure to allow persons other than parents to gain rights with regard to children, the need to formally recognise and provide for child-headed households and the protection of children. The Bill proposes to lower the age of majority and provides for parental responsibilities and rights agreements. Provision is made for parenting plans in certain instances. A chapter to formally regulate surrogate motherhood is also introduced to give effect to an earlier parliamentary investigation into this issue.

        The current Bill has 19 chapters, which can be summarized as follows:

      1. Chapter 1 deals with the interpretation, objects, application and implementation of the Bill, while the general principles underlying the Bill and the best interest of the child standard is set out in Chapter 2.
      2. Chapter 3 provides for children’s rights and deals with issues such as the paramountcy of the best interest of the child, child participation, harmful social and cultural practices, access to children’s court and the age of majority.
      3. Chapter 4 deals with all matters pertaining to parental responsibilities and rights, parental responsibilities and rights agreements and the assignment of parental responsibilities and rights by order of court. This chapter also provides for the rights of fathers, presumption of paternity, parenting plans and the rights of children conceived by artificial fertilization.
      4. The functioning, powers and jurisdiction of children’s courts, the conduct of proceedings before the children’s court and presiding officers and other court officials form the subject matter of Chapter 5 of the Bill.
      5. Chapters 6, 7, 10, 12, 14 and 15, respectively, deal with partial care, the definition of "early childhood development" and "early childhood development services", the identification of children in need of care and protection, children in alternative care, child and youth care centres and shelters and drop-in centres.
      6. Chapters 16 and 17, respectively, provide for adoption and inter-country adoption and give effect to the Hague Convention on Protection of Children and Co-operation in respect of Inter-Country Adoption.
      7. Chapter 18 gives effect to the Hague Convention on the Civil Aspects of International Child Abduction, while Chapter 19 similarly gives effect to the UN Protocol to Prevent Trafficking in Persons.
      8. Chapter 20 introduces new legislation into the South African legal system by formally providing for surrogate motherhood.
      9. Chapter 21 provides for the enforcement of the Bill through powers of inspection and the creation of offences.
      10. Chapters 22 and 23 of the Bill deal with general administrative issues and other miscellaneous matters such as regulations, delegations and assignments, outsourcing of services and transitional measures.
      12. The amendment Bill referred to in paragraph 2 will add to welfare service delivery and further protection of families and children. The amendment Bill will insert the following chapters in the envisaged Act:

        • Chapter 8 is a crucial part of the Bill as it will provide for measures for the protection of children. The chapter introduces a provision on the compulsory reporting by certain persons of children in need of care and protection, addresses the child protection system, the provision of child protection services, the National Child Protection Register and measures relating to the heath of children.

          • Chapter 9 will make provision for prevention and early intervention as a first layer of services provided to children and families in need of assistance.

          • Chapter 11 will deal with contribution orders and Chapter 13 will deal with foster care and care by family members.


        It is recommended that the Portfolio Committee

        1. Take note of the progress made with the development of the Bill; and
        2. Support the introduction of the Bill during the current session of Parliament and its eventual approval.