Opinionista Robyn Wolfson Vorster 20 September 2019

Can the Department of Social Development solve the foster care crisis?

With only two months to go until a court-imposed moratorium on foster care orders lapsing ends, the government’s contingency plans are beginning to look a lot less like progress towards a goal and a lot more like last-minute panic, a panic that has resulted from its failure to publicly acknowledge the extent of the problem and seek help.

The two most critical questions related to foster care in South Africa are: how many children will be affected when the High Court moratorium on the lapsing of foster care orders ends in November 2019, and, is the Department of Social Development able to solve the long-term crisis that may ensue?

The department has answered the first question with figures ranging from 154,000 orders expiring by the end of December 2019 to as few as 8,280, and made concerted efforts to address what some call “the backlog”. But, its failure to provide the comprehensive legal solution required by the High Court will mean that all 416,441 children in foster care will need their foster care orders manually renewed over the next two years.

While the department’s efforts may be commendable, the crisis will be ongoing and mass redeployment of resources to deal with the backlog is not sustainable. The impact on children could be felt as soon as December. But will the department recognise the coming crisis before it is too late?

On 4 September 2019, the department presented to the Portfolio Committee on Social Development about what has become widely known as South Africa’s “foster care crisis”.

Slides from the presentation revealed that 128,383 foster care orders were due to expire in November 2019, and a further 8,471 over December 2019. These figures are alarming. But they were an improvement on those reported to the Centre for Child Law in a 23 August update (this was in response to a request for information about the department’s progress in renewing orders that dates back to 21 May).

In that letter, the Department of Social Development confessed to having 145,729 orders expiring in November and 8,480 in December. The sheer scale of the challenge seems enormous.

However, even then, the department’s figures in the same 23 August communication did not align. The reports sent by individual provinces as attachments to the 23 August letter did not match the figures included in the letter, or the ones sent to the portfolio committee two weeks later.

To make things more bewildering, when the provinces gave individual updates at the portfolio committee briefing, their numbers were again markedly different (the HOD for the Eastern Cape, for example, reported a backlog in cases that was 25,000 children less than those included in the Centre for Child Law briefing). Only six of the provinces were represented at the briefing (significantly, one of the absentees was KwaZulu-Natal, the province with the most lapsing orders), so it is hard to tell what the actual numbers would have been.

But, the provinces that attended admitted to having a backlog of 33,000 cases. Once again, the figures show no correlation to any previously disclosed, but if accurate, they would have signified the department’s progress in addressing the backlog.

However, in the follow-up briefing to the portfolio committee (on 18 September), the department reported a far higher number of cases still to be processed in the next two months. The total number of cases is now reported to be 89,538 which, even with the addition of the three provinces that failed to attend the original briefing, is substantially more than the provinces had disclosed two weeks previously. The Eastern Cape’s backlog figures for example grew by 10,000 foster care orders in the two weeks between presentations.

If that wasn’t confusing enough, on 11 September, in the week between the two portfolio committee briefings, the deputy minister for social development answered a question in Parliament about the number of foster care orders that will likely have expired by December 2019 with the figure of 8,280. It is possible that she misinterpreted the question or that she believes that the November backlog will be cleared and only the December one will be a problem. But, even so, her answer, which appeared to be a political side-step, epitomised the department’s failure to acknowledge the extent of the problem.

The upshot is that in less than a month, and depending on who you listen to, the department’s own numbers of foster care orders due to lapse this year has shifted by more than 145,000.

There are only a handful of possible explanations for the shift. Either the department is unable to quantify the extent of the problem or misunderstood the court ruling and so underestimated the challenge; or, it over-reported the problem in August in a bid to show how well it has progressed with addressing the backlog. Another option is that although the latest figures show that it still has almost 90,000 foster care orders that need to be renewed, it really has made astonishing progress. An alternative view is that the department knows how big the problem is, but has chosen not to be transparent about it. The most plausible option however, is that it is a combination of all of the above.

On the positive side, the department certainly has made progress towards addressing the foster care orders due to lapse in November, progress that it strongly feels should be acknowledged. In a press release from 10 September, the spokesperson for social development took The Citizen to task for its article reporting concerns raised about foster care during the portfolio committee briefing on 4 September, lambasting the author for not noting the department’s achievements in addressing the backlog.

The spokesperson’s focus on one specific article (there were others) was unusual, although not as unusual as her allegation that the article was “written and published with the malicious intention to taint the name of the department and to cause panic among vulnerable children and foster care families”.

The spokesperson did make some valid points, however. The department has been quite creative in some of its solutions for addressing the backlog, including approaching Treasury to use half the funds allocated towards scholarships for social work students for employing new social workers (a necessity since there are currently 7,583 unemployed social work graduates nationally, so training more at present seems to be an exercise in futility).

The result has been the employment of an additional 566 social workers to combat backlogs. Other provinces have also used savings to employ an extra 200 social workers. Further, the department is using veteran social workers to make up for the dearth of social workers with the 10 years’ experience necessary for them to become supervisors.

Moreover, input given at the 18 September briefing shows that the Department of Social Development is using every means available to deal with the backlog. This includes ring-fencing resources for foster care, obtaining paper and transport from Sassa, deployment of social workers from other regions to deal with high caseloads in some provinces and prioritising all foster care backlog cases.

In Gauteng, Tuesdays and Wednesdays have been declared as “foster care days.” And both KwaZulu-Natal and the Northern Cape stated that “all social workers must participate in dealing with foster care cases; and all vehicles will be availed for this project”.

The department has also, in its view, taken steps towards developing the comprehensive legal solution necessary to solve the foster care problem in the long run. The same 10 September press release argued (again, taking The Citizen report to task) that:

The article conveniently and blatantly ignores to mention the progress the department has registered with regard to the implementation of a long-lasting comprehensive legal solution to the foster care system as directed by the North Gauteng High Court.”

This is also a valid point. The department did submit both the Children’s Amendment and Social Assistance Amendment Bills to Parliament as part of the said legal solution.

However, while the Department of Social Development should be commended for its efforts to address the backlog and find a long-term solution to foster care, the media is right to report fundamental concerns raised during the portfolio committee briefings, and by civil society.

Chief among these is the department’s failure to acknowledge that even with additional resources, manually renewing the foster care orders of the 416,441 children in the system is not achievable. It is the very reason why the courts had to intervene in 2011. And although the number of children in foster care has declined since its zenith in 2012, it isn’t substantively different from when the system collapsed in 2010, and is almost the same as in 2017 when the department was forced to concede that its failure to fix foster care was unlawful and unconstitutional.

So although the addition of the social workers is positive, when faced with a deficit of 55,000 social workers required to implement the Children’s Act and ratios in rural areas in provinces such as the Northern Cape of one social worker for every 10,000 people, it is hard to see how 766 additional social workers could make a significant impact.

Even if the department miraculously manages to renew the almost 90,000 foster care orders due to expire in November, it could still be seen as a pyrrhic victory. The provinces’ plans show graphically how much the strategy to renew all soon-to-lapse foster care orders is impacting on social worker time and departmental resources.

During question time in the National Assembly, the deputy minister answered a question about the effect of its efforts to sort out the backlog by stating that they would not impact on key social worker activities such as managing abuse, neglect or abandonment cases. But the departmental reports belie this. It seems impossible for the department to sustain its foster care renewal programme without compromising other activities, including its ability to provide emergency interventions. It could have significant consequences for vulnerable children.

Most importantly, the department’s plans seem to imply that once it has caught up on the outstanding foster care orders, the focus on foster care will end. But it won’t. The Department of Social Development will still have an additional 8,000 to process over December, and a further 97,000 during 2020.

Given that foster care runs on a two-year cycle, all 416,000 cases will have to be renewed sometime in the next two years. The sheer volume of children in the system, and those still awaiting placement in foster care makes the manual renewal of orders an unsustainable and impractical solution (the very reason for the 2011 collapse and the multiple High Court orders). The upshot is that even if, as the department vehemently contends, it is making progress towards clearing the backlog, it remains progress towards an unattainable goal.

In addition, while the Department of Social Development may argue that it has technically complied with the court order by submitting the Children’s Amendment and Social Assistance Amendment Bills to Parliament, the goal of the comprehensive legal solution ordered by the High Court was to “fix” the foster care problem by November 2019, and thus prevent the need for mass renewals.

With only one session of Parliament left for 2019, a review of the Parliamentary Monitoring Group website still has the status of the Children’s Amendment Bill listed as “draft” and the Social Assistance Amendment Bill as “lapsed”. Moreover, even when they are officially introduced to Parliament, they are months away from approval and will still need to be operationalised through regulations. This is quite apart from civil society concerns that there is nothing in the Children’s Amendment Bill that will resolve the foster care crisis. It is, therefore, a stretch to call these bills a solution to the problem.

During the 18 September portfolio committee briefing, the chairperson cautioned the Department of Social Development that: “the capacity that took you to the High Court is still the same”, and that the situation, “hasn’t changed”. He continued: “If you weren’t able to meet these requirements before court order, on what basis are you now committing to meeting the deadline?”

But the department seems unwilling to admit that manually renewing foster care orders isn’t manageable, and that it has not delivered a legal solution that will be capable of fixing foster care by November 2019 when the foster care orders begin expiring.

With only two months to go until the court-imposed moratorium on foster care orders lapsing ends, the government’s contingency plans are beginning to look a lot less like progress towards a goal and a lot more like last-minute panic, a panic that has resulted from its failure to publicly acknowledge the extent of the problem and seek help.

Which brings us to the core of the civil society’s concerns, a concern that was echoed by the new minister, which is that each of those numbers (90,000, 8,000, 97,000 and just above 200,000) represents individual children with specific needs. If the department has not solved the foster care problem by November 2019 (or December, or 2020), it will have nowhere to hide; everyone will know. But, for the affected children, it will be too late to fix the system.

Surely the best interests of these children and the possible impact on them of losing their foster care grant should be more important to the department than defending its actions?

So once again, it will fall to the portfolio committee to articulate these concerns and help the department face the extent of its predicament, and once again, civil society will offer help.

It’s time to address the fundamental issues that have kept foster care in crisis for a decade, to legally resolve the problems, and to move on from disaster management to sustainable solutions. But, will the department recognise this, and act?

With only two months until the system unravels, it is still too soon to tell. DM

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