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 [email protected].

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 [email protected]. DM