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 “unblocking 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 Children’s Act requires the department to have 65,000 social workers. But, a 2017 study, “Out of Harm’s Way”, revealed that as recently as two years ago, there were only 9289 social workers employed by the DSD and non-profit organisations, only a portion of whom work with children and families. Many would therefore argue that the “blockages” in the system come from the lack of available social workers, not the courts. So, this clause may actually worsen the problem.

The second clause, which amends section 159 of the Children’s Act, is designed to “remedy” lapsed foster care orders. It allows for a 6-month court extension to foster care orders to stop them from lapsing or to retrospectively restore them after they have lapsed. According to the MOO, the clause seeks to “provide recourse” for orders “left to lapse due to administrative shortfalls that infringe the constitutional rights of such children”. What is disturbing about this clause is the implication that the department can argue “administrative shortfalls”, and allow foster care orders to lapse with relative impunity because they can be restored. This has resulted in some experts arguing that it is less a solution, and more an admission that the backlog is unlikely to be addressed. And, according to Proudlock, when a foster care order lapses, the child will still lose their grant. Although the retrospective extension of the order will restore the grant and SASSA can back-pay it, it won’t alter the fact that extremely poor families may have to endure months without grant payments first.

While the department may be concerned about civil society publicly debunking its legal solution, it is equally plausible that it also has no confidence in the solution. Why else would focus all of its attention on manually renewing all of the foster care orders that will lapse at the end of 2019 and during 2020, when a comprehensive legal solution should, in theory, have minimised this task? The DSD has described this process as “normalising” its functioning so it will “not be ruled by court orders” and even aspires to apply therapeutic interventions to the children in the system. But its plan to get more than 100,000 social work investigations completed, reports written, and court orders issued between now and November is improbable. While most provinces (except the Free State) appear upbeat about their progress, provincial updates show slow progress in the renewal of foster care orders.

Equally worrying is the cost of this exercise. Provincial reports were quick to clarify that they did not receive any increased funds to implement the 2017 court order (probably because the provinces processing all 400,000 orders manually was never the intention). Some provinces have therefore deployed all their social workers to work on foster care renewals, others have stated that all of their vehicles and other resources are being dedicated to the task. Far from being a commendable sign of urgency, this should be alarming, prompting questions about who is handling abuse, neglect and rape cases in the interim, and who is intervening when children are in immediate danger?

Which brings us to the final indicator that the department isn’t confident about its “comprehensive legal solution”, it’s apparent willingness to pull the Bills that it has painstakingly drafted. From the beginning of the foster care crisis, experts within government and across civil society argued that orphaned children need a financial grant that isn’t linked to the foster care system, a Child Support Grant top up (or CSG+). The Social Assistance Amendment bill, which was tabled in parliament in April 2018, finally proposed the legislation necessary for it to be developed. But, the bill lapsed after former Minister Shabangu threatened to withdraw it for reasons unrelated to foster care. The department is therefore only reviving the bill now, 18 months later and with only two months to go until the November deadline.

The department has also publicly named circumstances under which the controversial Children’s Amendment bill could be withdrawn. At the July NCCPF, the bill’s chief drafter blamed the Centre for Child Law (CCL) for the speed at which the bill had been prepared (and by extension for any errors in it), and then (in an unashamedly transparent act of manipulation) told CCL that it had the power to have the bill withdrawn. All it had to do was approach the High court to get the order requiring the DSD to fix foster care rescinded. If it didn’t, DSD would proceed with the bill in its current form. The department’s apparent willingness to withdraw the bill if the court removed the legal consequences of its inaction could be construed as both a vote of no confidence in the bill, and confirmation that it is more concerned about the legal consequences for the Minister if it doesn’t meet the November deadline, than the impact on the hundreds of thousands of children who could be affected by its non-compliance (the very reason that CCL instituted the legal proceedings).

The logical conclusion is that the department doesn’t have an achievable plan to solve the foster care crisis. Nor can it provide the necessary comprehensive legal solution by November: the CSG+ which the Social Assistance Amendment bill could enable cannot be operationalised for months, and the Children’s Amendment bill contains very few clauses to “fix” foster care. If it is passed, the department would still be forced to develop and rely on regulations to solve the problem. The implication is that it is also more than a year away from being implementable.

Without the comprehensive legal solution, the only option is that foster care orders to be renewed manually, which is simply not achievable in the remaining time, and with limited resources available. Realistically, “normalisation” is impossible. The system has been bigger than the department’s capacity to manage it for the last 15 years. Regrettably, “normal” for the foster care in South Africa is a state of crisis.

So, what will the department do?

It could approach the High Court, and request a further extension. But the court will probably be reluctant to grant one, given that the department has already had almost a decade to fix the problem. Another consideration is that although many of the children in foster care are in relatively safe kinship care, the Children’s Institute estimates that there are approximately 60,000 children in the system who were removed from family care because of abuse or neglect. The High Court blanket extensions to foster care orders has already resulted in some of those children going up to four years without social worker home visits or family reunification services. A further court extension could be even more detrimental for those vulnerable children.

A crisis is therefore coming, and the department seems unable to acknowledge the extent of the problem, or present a solution. The Portfolio Committee on Social Development, who concurred that there is no concrete plan, has ordered the department to report back to it again in two weeks. What the department will say in mid-September is anyone’s guess. Yet, a collaboration between the department, civil society and the Committee could still solve the problem. With the lives of so many children at stake, the country will be waiting with bated breath. DM