Opinionista Robyn Wolfson Vorster 22 July 2020

Children’s rights, a silent casualty of Covid-19

If, as the government professes, the rights of children are absolute, why are child protection advocates forced to litigate to uphold those rights? And why have authorities routinely failed to anticipate and appreciate children’s needs during the Covid-19 crisis, or to respond to them appropriately?

Few would argue with the statement from Hendrietta Bogopane-Zulu, the Deputy Minister of Social Development, that the rights of children are absolute. Upholding these rights is the standard against which we should judge any child-focused initiatives. So, using that measure, how is the government doing?   

The answer is dismaying. While the legislative framework is excellent, policies are for the most part enabling, and our social welfare structures contain many experts and staff committed to the needs of children, but government has largely failed to uphold many of children’s constitutional rights since the onset of the Covid-19 pandemic. These rights include the rights to basic nutrition and education; to social services; to family or parental care, or to appropriate alternative care when removed from the family environment; and to be protected from maltreatment, neglect, abuse or degradation. Nor can government argue that it is making decisions in children’s best interests.  

Examples abound, including the catastrophic closure of the National School Nutrition Programme (NSNP) without contingency planning for feeding 9 million vulnerable children during lockdown, shutting schools and Early Childhood Development (ECD) centres with no real plan to keep children learning during lockdown, its failure to prepare for the timeous reopening of ECDs, and a lack of provision and resources to protect children from violence. There was also the refusal to re-register Child and Youth Care Centres in Gauteng which meant that abused and abandoned children had to be turned away, a bureaucratic shutdown which has left hundreds of children eligible for family care stuck in institutions, and its unconscionable denial of the problem of abandonment.

It’s now common knowledge that when lockdown started, government failed to grasp the effect that it would have on the vulnerable. Minister of Social Development Lindiwe Zulu admitted that she hadn’t anticipated that the economic impact of the Covid-19 pandemic would be so crippling for the poor.  

If the minister is to be believed, the result of the pandemic was unforeseeable. A common refrain in the minister’s speeches is that we are in uncharted waters and that no one could have anticipated this outcome. Zulu has also said that Covid-19 had exposed the deeper challenge the country was still facing to take better care of the poor, which is undoubtedly true. 

Also true is that globally, governments have been left scrambling. But while uncertainty and structural inequality have exacerbated the crisis, the minister and her counterpart, Angie Motshekga, have left vulnerable children staring into the abyss because of circumstances that, if not preventable, could certainly have been mitigated were it not for some crucial government failings.

Contrary to government’s claim, social development’s spectacular failure to care for children’s rights during the pandemic is not crisis-related. The challenges facing children were common knowledge prior to lockdown and the argument that “no one could have known” is deceptive. 

From the outset of the crisis, the National Coronavirus Command Council produced daily predictions about the impact and spread of the disease. Had the council contained social scientists, models could have included the impact of measures on the poor and vulnerable. It’s an oversight that’s now being addressed. On 13 July 2020, Zulu announced that the Intersectoral Ministerial Advisory Committee would ask “behavioural scientists, practitioners, academics and researchers in the humanities, and social sciences for their contribution towards establishing socially sustainable solutions to challenges that accompany Covid-19”. It’s commendable, but surely four months too late.

Nonetheless, as is typical in the social welfare space, advocacy groups and academics did the work on government’s behalf. Before lockdown began, Equal Education warned Motshekga that there would be a dramatic increase in child hunger if the minister closed the NSNP. By the first week of April 2020, the Children’s Institute had produced a position paper on the lockdown’s probable economic impact on children, along with the recommendation that Treasury increase the Child Care Grant to mitigate the risk. In the same month, the ECD sector did a massive survey to explore the effect of the closure of ECD centres on children and the sector. 

Also in April 2020, advocacy groups warned of an increase in violence against children during the lockdown and alerted government to the lack of state social workers available to remove children in danger, and the need for “visible social workers” to mitigate abuse. By the beginning of Level 4, baby homes and child and youth care centres were cautioning about an increase in abandonment during lockdown and a lack of available places in homes to care for abandoned, abused and neglected children, and those who would have to be left without family care because of Covid-19 related deaths.

Government can’t say it didn’t know. And yet, it only responded to one of these studies, the recommendation to increase the Child Support Grant, and then, only in part. After the R300 per child top-up in May 2020, a caveat which made the increase for the months of June to October R500 “per caregiver”, effectively diluted the relief impact of these measures on some of the most marginalised children. 

Given that research commissioned by the department established that children who received the grant “had better cognitive development, stayed at school longer, had better height in relation to age” compared to children that did not receive it, and were “less likely to partake in transactional sex”, the R230-million per month “saving” that this represents seems rather penny wise, pound foolish. 

Watering down the impact of grant relief, coupled with the closure of the NSNP, was a devastating blow to children’s food security.

No one in government took responsibility for ensuring that 9 million children did not go hungry during lockdown. In mid-March 2020, Motshekga stipulated that communities would be responsible for feeding children during lockdown. Nonetheless, one of the key defences presented by the education department during Equal Education and Section 27’s court case to get the NSNP reinstated was that it could not manage the logistics of the programme during lockdown, and had passed the responsibility for feeding to the social development department. In practice, both failed to act, compounding the violation of children’s rights. 

The least the education department could have done was to give social development the names and contact details of all learners in the NSNP, or they could have requested that it worked with school principals to get the content.  This was a strategy employed by some NPOs, including Symphonia for SA, who used their relationships with the principals of 1,300 schools to run a “food for hungry children” campaign for the approximately 1 million children in these schools.  

If the department of basic education (DBE) had provided such details, the department of social development (DSD) could have started lockdown with the details of 9 million learners in need (plus the children in ECDs receiving subsidies, whose details it should also have). It could have used its preferred “knock and drop” approach to feed children on that list instead of scrambling to identify people requiring food.  But that didn’t happen, at least not in any coordinated fashion.  

At the end of April 2020, Zulu said the two departments were still discussing how to “address the gap created by the suspension of the [school and ECD] feeding programmes” and in June 2020, the acting director-general for Social Development, Linton Mchunu admitted that distribution of food for school children and the ECD facilities was a challenge, and “food was just provided to households in need, but the households where children were at ECDs needed to be identified”. 

In other words, only weeks before the DBE asserted in court that social development was providing food for school children on its behalf, the DSD admitted that it had not been able to make a comprehensive plan to feed children while they were out of school and ECDs. Small wonder that court submissions included harrowing stories of child hunger.

In her 17 July judgment ordering the DBE to reopen the NSNP, Judge Potterill said that in response to unprecedented levels of hunger, what is needed is “the justice of eating”, a “benevolent state, prepared to do more, not less, to alleviate the hunger amongst each and every person living in this country. Anything else is shameful.” She continued that by keeping the programme closed, the minister and her MECs were in breach of their constitutional and statutory duties (a duty denied by the minister). Moreover, the judgment states that its suspension resulted in the removal of children’s “pre-existing” right to basic nutrition which was a “deliberate retrogressive measure”.  

Evidence of the outcome is already available. According to the recently released NIDS-CRAM study, hunger has doubled since lockdown began: “1-in-7 [families] reported that a child had gone hungry in the last seven days,” and only 18% of families “reported accessing support for food from government”.  To quote Potterill: “Hunger is not an issue of charity, but one of justice… a more undignified scenario than starvation of a child is unimaginable.” 

During her 13 July 2020 address, Zulu spoke about the need for the department to  react quickly to the storm. “We are in a rush to respond,” she said as she counselled her staff to “be agile”. Unfortunately, the timing of this speech, which, like the consultation with social scientists and planned deployment of social workers, is surely four months too late, and reveals just how slow and lumbering the department really is.     

It’s the DSD’s notoriously controlling top-down approach that has most hindered its success. As the custodian of social welfare in South Africa, it delegates services to non-governmental organisations (NGOs), who are reliant on it for registration and subsidies. So, although it devolved authority for tasks, there’s a huge power differential between the department and its service providers. Its relationship with NGOs is often adversarial, and it routinely uses registration and subsidies to ensure that NGOs don’t step out of line. Those out of favour are also excluded from the “inner circle”, where policy decisions are made.

The result of this bullying is that cooperation is on government’s terms, and NGOs are often unwilling to push back against poor policies for fear of reprisal (it’s a critical reason why DSD-accredited NGOs will seldom talk on the record). Nor are these fears unfounded as those labelled “troublemakers”, who do speak out against legislation and policy, frequently lose registration or funding, or both.

Caught between conviction about the rights of the vulnerable, and fear of retaliation, many NGOs feel obliged to use indirect means to solve problems, covertly going to the media or resorting in desperation to court proceedings. The sheer volume of court cases and SA Human Rights Commission cases involving the DSD is evidence of this ongoing problem. The most notorious example involving children is the perpetual foster care crisis. The department and former Minister Bathabile Dlamini’s disdain for the High Court ruling ordering it to fix the foster care system eventually resulted in her being compelled to admit that her actions were unconstitutional. Nine years and four court orders later, that crisis is still to be resolved.  

But litigation has resulted in the ultimate vicious cycle. It forces government to act, but also increases its distrust, belligerence and paranoia.

That the DSD doesn’t like to be told what to do is obvious. Speaking at the Social Development Portfolio Committee Meeting following a 22 May 2020 High Court interdict against DSD regulations attempting to control soup kitchens and the distribution of food to the poor, Zulu said that the department “would not tolerate being disrespected”. Its response was to proceed with slightly revised regulations resulting in a further interdict in June 2020 and a cost order against the department.  

Again, it’s a common trend. As recently as the beginning of July 2020, Zulu attempted to defy a court order ordering the immediate reopening of ECDs by specifying which type of organisations were covered and insisting on verification prior to reopening (ironically, in a Facebook post entitled: “Minister Zulu welcomes the Gauteng High Court judgment on reopening of Early Childhood Development Programmes”). Her defiance resulted in a follow-up letter from the attorneys who threatened to take further action and ask the court to order the minister to pay costs in her private capacity. 

The problem with the DSD’s oppositional approach is that it can so easily lose control when matters go to court. ECD is a classic example. Zulu, who seemed incensed by the judgment, complained that the department had been well on the way to reopening ECDs when the court order arrived. But while the department undoubtedly felt victimised by the ruling, and alarmed at the loss of power, it seemed incapable of acknowledging its role in the scathing judgment.  

Even cursory analysis shows that the department was far from agile with regards to ECD. Despite the importance of the sector and risk to some of SA’s most vulnerable children of inaction, it only began planning two months into lockdown, used the crisis to complete an audit of unregistered ECDs which it should have done years ago, put in place eye-watering complex processes for reopening, resisted any efforts from the sector to get its commitment about a date, and then, to stave off the court case, spontaneously announced a date on national TV (26 July 2020 – four months after the beginning of lockdown, two months after the reopening of the economy, and on a Sunday) rather than gazetting it or calling a press briefing.  

It also negligently failed to make a submission to the court and then tried to change the regulations (a rather transparent sleight of hand), to make the court case go away. The judge had cause to be critical. Moreover, its decision to ensure that all ECDs are vetted prior to reopening meant that by 13 July 2020, only 1,481 centres had been verified and judged to meet the requirements. Working at that pace, it could have been months before many centres reopened without the judgment.  

Another significant impact of government’s defensiveness is that it misses out on expert opinion from outside of its ranks. Ignoring the lockdown studies is only one example. Following the media attention about proposed amendments to the Children’s Act in 2019, the DSD took the unprecedented step of closing its Child Protection Forum meetings (they are now by invitation only), and prohibiting content from the meetings being shared with the media.  

In a press statement issued in June 2020, the department publicly berated NGOs who were sharing statistics showing an increase in abandonment over lockdown (an informal survey of just 24 baby homes recorded an intake of 59 abandoned babies from April to June 2020, and the media reported on 45 abandoned babies, of which 29 – two thirds – had passed away). 

Nonetheless, the department accused the sector of withholding information (a bewildering accusation given that none of the national social welfare officials who gather these statistics were working during lockdown), and of inflated numbers.  However, even a cursory glance at media reports shows that its own numbers (the department admitted to nine abandonments over March and April 2020) were incomplete and woefully inadequate.

Given the department’s limited budget for research, treating external studies as an ambush reinforces its reactiveness. Despite Zulu’s encouragement, no organisation can be agile if it’s incapable of anticipating challenges, or deaf to those who do. It also highlights a noticeable disconnect between decision-makers and those on the ground (both inside and outside the DSD). This ivory tower scenario means it routinely makes decisions without a full appreciation of the implications.  

During lockdown, DSD officials in Gauteng refused to renew the registration for baby homes and youth care centres in the province (the number affected has now grown to 59), unless they obtained a new health certificate. 

Organisations report that even prior to the pandemic, new health certificates (which prior to this debacle were only required when an organisation made structural changes, built a new building or extended or changed services), would take between 10 and 16 months to obtain. Nonetheless, shortly before lockdown, six months after the centres had submitted their re-registration papers, and just days before their registrations expired, the official prohibited re-registration without a new one.  

It has been disastrous. After four months of heroic efforts from some social development personnel interceding on behalf of the organisations, officials finally issued a three-month extension in mid-July 2020. But, it’s a temporary solution, and damage has already been done. Without re-registration, all children in the centres are technically illegal. No new children can be taken in. This has already forced the organisations to turn away large numbers of abused and abandoned children (leaving some with no safe care, and those  centres that were registered, overfull). Magistrates have refused to renew court orders or issue new ones, there is doubt if subsidies (more necessary than ever now that donor funds have diminished), will be paid, and if an accident or incident occurs with one of the children, the centre will not be covered.

The mass closure of administration services related to child protection during lockdown is a further example of the department’s lack of appreciation for the impact of its decisions. An adult seeking to care for a child must submit a “Form 30” to confirm that they are not on the National Child Protection Register (not a child abuser). This is required for placing a child in any form of family care and for hiring new staff to work with children. But the department has reportedly suspended this service until Covid-19 is over. 

The implications are dire. Without Form 30s, children cannot be admitted into care, and those in care cannot be reunified with extended family, placed in foster care or adopted. Instead, they are indefinitely stuck in institutions. Quite apart from violating children’s rights to family or parental care, this has contributed to homes being overfull and in failed placement of children. An informal survey conducted among 24 child and youth care centres indicated that they had to turn 124 children away during lockdown.  

Adverse High Court and SA Human Rights Commission rulings, cost and judicial supervision orders along with research findings on hunger, safety and services to children confirm that children’s needs have been denied during lockdown. Unless addressed, the DSD’s notorious lack of funds and resources, distrust of its own service providers, reactive stance and lack of accountability will mean it won’t be able to act in children’s best interests going forward either.  

To quote Judge Potterill, “the morality of a society is gauged by how it treats its children”. So no, Deputy Minister Bogopane-Zulu, the rights of children to nutrition, education, safety, family or alternative care and freedom from harm or neglect are not absolute in South Africa, and the consequences could be fatal. DM

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