BRIEFING TO PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT ON THE CHILDREN’S BILL – 12 NOVEMBER 2003
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.
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.
The main objects of the proposed Children’s Bill (the current Bill) are:
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:
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:
It is recommended that the Portfolio Committee