With only two months before the foster care system implodes, there is still no sign of the bill being tabled in parliament, and despite rushing the fatally flawed bill through Cabinet under the guise of a court-imposed deadline, not even the department can show how it solves the problem. With both the Children’s Amendment Bill and the Social Assistance Amendment bill (another part of the legal solution) multiple months away from approval and operationalisation, the department has resorted to Plan B, requiring the provinces to manually renew all foster care orders before they expire. It’s an impossibility, given that they would have to process an estimated 36,500 cases per month, or 1825 investigations, reports and Children’s court appearances per day to eliminate the backlog.
But the hidden cost could be greater than the cost in resources. Some provinces have admitted to using all of their social workers and resources to renew foster care orders, diverting them away from abuse cases and children in immediate danger. Not only is this “solution” too little too late for hundreds of thousands of children in foster care, but errors and omissions in the rushed Children’s Amendment bill, especially related to adoption, early childhood development, guardianship and positive discipline could place all children at risk. What the government does next will determine just how damaging the outcome with be.
The foster care crisis is not new. In 2011, the North Gauteng High court received an urgent application from the Centre for Child Law (CCL) asking the court to intervene after the foster care system collapsed, resulting in over 120,000 children losing their grants. Backlogs had caused foster care to grind to a halt and, according to a CCL attorney, in “child protection organisations and departmental social workers spending all their resources on resolving the crisis, and de-prioritising other essential child protection services.” The parties reached a settlement and the court ordered the Minister of Social Development and provincial DSD MECs to solve the crisis by amending the Children’s Act to produce a “comprehensive legal solution” by the end of 2014, and creating the necessary “mechanisms, structures, resources to ensure that the foster care system operates in a sustainable and effective manner”.
Eight years, two amendments to the Children’s Act, and two additional court orders later (in 2014 and 2017), not much has changed. This despite then Minister Dlamini admitting as part of the 2017 settlement order that her failure to meet the court-imposed requirements was “unconstitutional, unlawful and invalid” (a declaration of unconstitutionality that was suspended for 24 months provided the Minister solves the problem). The DSD has prevaricated and dithered, forcing the High court to intervene every three years to ensure that children weren’t in harm’s way. But now, faced with the seemingly immovable deadline of solving the problem by November 2019 before its own estimate of almost 150,000 foster care orders expire, the department should be in a last-minute panic to avoid the consequences of its inaction.
However, in a 4 September presentation to the Portfolio Committee on Social Development about foster care, the national department and the majority of the provinces downplayed the extent of the crisis. It’s a questionable approach, as is the department’s strategy for solving the problem. If it doesn’t fix foster care by November, and address the underlying reasons for the backlog, about a quarter of all foster care orders could expire. Sassa’s legal position is “no order, no grant” which could leave countless of the country’s poorest families destitute. Surely if the department appreciated the impact of its failure, it would be acting with more urgency. Yet, it seems far more focused on technical compliance to the court order, than actually overhauling foster care to ensure the affected children don’t go hungry.
So, despite reporting to the court in February 2019 that it had submitted the comprehensive legal solution to parliament, with the November deadline looming, neither the Children’s Amendment bill nor the Social Assistance Amendment bill has appeared on the desks of the Social Development Portfolio Committee for deliberation. Some department officials have been quick to blame parliament for the delays, one even quipping that “parliament keeps its own diaries”. But this is disingenuous. The department has had eight years to provide the solution, and could have done so in either the First or the Second Amendment to the Children’s Act. It didn’t, and when faced with the tighter deadline provided by the November 2017 judgement, it chose not to complete a targeted amendment to the Children’s Act, focused only on solving the foster care challenge. Instead, according to Paula Proudlock from the Children’s Institute at UCT, it elected to do a mass amendment to 156 clauses in the Act, most unrelated to foster care, and many controversial. Given these choices, even if the bill had been formally tabled in February, rather than just submitted, there was no feasible way that it could have proceeded through parliament in time to meet the November deadline.
It has led many child protection organisations to question whether anyone, including the department, believes that it has drafted a comprehensive legal solution to the foster care crisis. There is quite compelling evidence to support these concerns. The most important are the department’s unwillingness to specify which clauses in the Children’s Amendment bill will fix foster care, the focus on the provinces trying to manually renew all the soon-to-expire foster care orders instead of waiting for the legal solution, former Minister of Social Development Shabangu’s threat to retract the Social Assistance Amendment bill, and most bizarrely, the government’s statement to civil society that if the Centre for Child Law approached the court to get the November 2017 court order rescinded, the Children’s Amendment Bill could be withdrawn from parliament.
After eight months of avoidance, the department chose the presentation to the Social Development Portfolio Committee for its first public disclosure about which clauses in the Children’s Amendment bill would be used to fix foster care. Prior to that, written and verbal questions, including from the Centre for Child Law, who were legally mandated to obtain the information on the topic, were met with an odd silence. The most obvious example of evasion was during a presentation on the bill at the National Child Care and Protection Forum (NCCPF) in July 2019 when the legislation drafters managed to painstakingly explain how the bill was rushed through drafting and review so that it could provide the comprehensive legal solution to foster care, without once disclosing how it would achieve this objective, even when directly questioned.
This unwillingness to outline a plan was reinforced in a letter from the Minister of Social Development to the Centre for Child Law (CCL) in late August. The letter meticulously answered all of the questions posed about the process of introducing the Bills, the number of foster care orders lapsing in 2019 and 2020, as well as DSD’s progress towards addressing the crisis. However, it completely ignored a request for clarity regarding how (and where) the Children’s Amendment bill would provide the comprehensive legal solution to foster care, instead, making a cryptic reference to the State Law Advisers stating that certain clauses in the bill were “unconstitutional” and that these “issues” should be dealt with in regulations rather than the legislation.
Even the Memorandum of Objects (MOO) which should have been released when the bill was submitted to parliament in February, and which explains some of the reasons for clauses being included, was only made public in August 2019.
So why the lack of transparency? Its plausible that the department didn’t want civil society debunking its proposed solution, especially since a cursory glance at the clauses listed in the Portfolio Committee briefing show that most are unlikely to have a short-term impact on the number of children in foster care. Instead, two of the clauses are strategies to prevent children entering the system in future, and one relates to using adoption to manage the foster care crisis.
While experts agree that adoption is the best option for permanency when a child is orphaned or abandoned and has no option for family reunification, the state has made the adoption process so difficult that adoptions currently cost Child Protection Organisations an average of R40,000 per child and take an experienced adoption social worker approximately two years to process. But the presentation to the Portfolio Committee confirmed that the department wants all adoptions to be provided by government social workers who currently have no experience. Unless the adoption process is radically overhauled, the department dedicates resources to adoptions, and adoptive parents obtain a grant, it will be impossible to use adoption as a solution for the close to 386,000 children currently in foster care, or the 600,000 additional orphans seeking foster care orders.
That leaves only two clauses that could contribute towards fixing foster care. The first clause amends Section 186 of the Children’s Act which allows magistrates to extend a foster care order until a child is 18, thus removing the need for multiple foster care orders. A long-term extension of foster care placements has always been an option in the Children’s Act, designed to lessen the burden that foster care has placed on the courts, and ensure that foster care orders don’t keep lapsing. It is why the Deputy Minister of Social Development has referred to Section 186 as the key to
the foster care system”.
But by the department’s own admission, many magistrates are reluctant to use Section 186 because it removes the need for periodic judicial review of the placement of children who are by definition “in need of care and protection”, and in “state alternative care”. So, to counter-act this hesitancy, the Children’s Amendment bill has increased social worker’s mandatory home visits from every two years to every year. If it’s enforced, it may appease some magistrates and induce them to use long-term placements more often. But, it will increase the burden on already overburdened social workers. The department’s lack of social worker resources is well-known, and not surprisingly, it was a common lament across all of the provinces: the