The national hearings on the Children’s Amendment Bill provided a disturbing depiction of systemic problems within the Department of Social Development that are putting vulnerable children at risk, delaying their placement into secure and permanent family care, and resulting in them not being able to access safe, registered and subsidised early childhood development centres.
Moreover, civil society made it clear that the bill fell short of providing solutions to these problems, labelling it a missed opportunity.
Key omissions in the bill are the lack of provision for a simple one-stop registration process for early childhood development centres to keep children safe and ensure those in need receive the early childhood development subsidy. It also fails to streamline the government’s regulation of adoptions, which is slowing them down or stopping them completely, resulting in children languishing in institutions for far too long.
It doesn’t promote positive parenting programmes in keeping with the national plan to stop gender-based violence, or ensure that corporal punishment is not criminalised following the recent Constitutional Court judgment. In addition, it’s a missed opportunity for the government to implement safe-haven laws to curtail unsafe abandonment and minimise abandonment-related deaths.
Serious concerns were also raised about the use of the bill to turn mandatory requirements for the government to fund vulnerable children and the organisations that support them, into optional ones, and the Department of Social Development’s attempts to repurpose the bill to control processes that have traditionally been delegated to NGOs.
While all of this must have been sobering for the Portfolio Committee on Social Development, the most depressing moment in the hearings was probably learning that the 147-clause behemoth — the sole and stated goal of which should be to provide a comprehensive legal solution to the 10-year foster care crisis, and comply with the 2011 North Gauteng High Court order — could have been a one-clause amendment.
In its submission, the Children’s Institute explained that the key to providing the legal solution is the change to Section 150(1)(a) of the act, defining which children are in need of care and protection, to exclude orphaned or abandoned children in the safe care of relatives. This change would eliminate the need for these children to be in the foster care system.
When read with the Social Assistance Amendment Act, which was signed into law in December 2020, such children would be entitled to financial support in the form of a larger Child Support Grant (the Child Support Grant top-up) without the need for ongoing monitoring by social workers, oversight by the Children’s Court or the two-yearly renewal of their court order.
It’s a neat solution, which bewilderingly wasn’t identified by the Department of Social Development as the key to fixing the crisis. Instead, the department favours more problematic solutions, including an amendment to Clause 159 (2A). This would allow social workers a six-month grace period once a foster care order expires to get it renewed. It would not, however, as the Children’s Institute also pointed out, stop the child losing their foster care grant during the lag because the South African Social Security Agency cannot pay the grant if the court order has expired. Nor would it stop the mounting backlog of expired foster care orders, but merely delay the problem. It’s therefore not a change that civil society supports.
By contrast, the amendment to Clause 150 provides the fulcrum for solving the foster care crisis. Yet, the department’s proposed wording to Clause 150 is still problematic. As many presentations during the hearings noted, the current draft states that an abandoned or orphaned child is in need of care and protection if she or he “has no parent, guardian, family member or caregiver who is able and suitable to care for that child”. The department opted for it rather than the favoured “is not in the care of a… ”
Experts fear that unless amended, this clause will force social workers to find and place children with distant extended family to whom the child is not attached, without adequate supervision or support. This may not be in the child’s best interests, and could potentially delay children’s safe placement for months while overstretched social workers search for extended family.
Nevertheless, what is promising is that with a small amendment to the wording of Clause 150, the comprehensive legal solution for foster care could (after 10 years) be actionable. That is, if it weren’t for the plethora of other clauses, many of them disputed, that still need resolution before the bill can be passed.
The bill is crammed with complex and highly contested changes to adoption, early childhood development, privacy and unmarried fathers, clauses which have probably extended its approval process by two years. Further, the national hearings highlighted urgent omissions which will also need to be addressed, including preventing the criminalisation of parents who use corporal punishment, and stopping the death of abandoned babies by creating safe-haven laws.
So why did the department choose to ignore the direction of the state law advisers and the input of civil society, and make this targeted bill so broad? The department’s reply to this question from the portfolio committee was that it didn’t want to produce another amendment to the act at a later stage.
However, just three days before the national hearings began, the portfolio committee was forced to split the bill anyway when it became evident, following protests from the South African Local Government Association and the Department of Basic Education, that the Department of Social Development had failed to consult adequately about the early childhood development portion of the bill.
This is despite local government being responsible for many aspects of early childhood development, and early childhood development’s wholesale transition to the Basic Education Department in April 2022, a transition which also made state legal advisers question the efficacy of the early childhood development portion of the bill if the portfolio committee on social development vets and approves legislation that will be implemented by another department.
Had the Department of Social Development listened to advice, this could have been a two-bill process from the outset and the comprehensive legal solution for foster care could already be in place.
Moreover, the Children’s Institute had one more bombshell to deliver during its presentation, which was that even if the bill provides the promised comprehensive legal solution, it won’t fix the foster care crisis.
The problem is money.
Solving foster care is contingent on orphaned and abandoned children in safe family care getting the requisite financial support. But after budgeting for the Child Support Grant top-up, funds were inexplicably withdrawn from the Budget presented in February 2021. The government may argue that this is just part of an overall belt-tightening exercise (what most, except the finance minister, see as an austerity budget). However, there are some key reasons that argument is debatable.
First, in the February 2021 Budget, Treasury reduced the allocation of funds for the Foster Care Grant in anticipation of there being 50,000 fewer beneficiaries in this and the 2022/23 financial years. Troublingly, the Children’s Institute reports that even before the Children’s Act has been amended so that orphaned and abandoned children in the safe care of relatives can no longer apply for foster care, the number of children in the system is shrinking rapidly. It appears the government has not waited for the law to change, but is already constricting entry into the system.
The impact of this action is that the allocated budget for foster care has dropped from R4.8-billion to R4.3-billion in this year alone. Yet, although this budgetary “saving” of R500-million should have been allocated to the Child Support Grant top-up, it has disappeared from the social grant budget and been repurposed elsewhere.
Further, according to the Catholic Institute of Education and many presenters on early childhood development, the Children’s Amendment Bill is peppered with regressive measures which remove “rights that have been progressively realised”, including the government’s imperative to fund programmes supporting vulnerable children.
Proposed changes to sections 215(3A), 78(c)(4), 93(3A), 93(4)(a) and (4A) relating to the funding of drop-in centres, partial care programmes, early childhood development centres and early childhood development programmes, eliminate the legal requirement for MECs to finance and prioritise these projects in poverty-declared wards. Instead, they are made optional (the wording changes from must to may).
Explaining these proposed changes, Luyanda Mtshotshisa, the department’s legal adviser, argued that this change was simply precautionary, and that the government would fund and prioritise these programmes “wherever possible”. But given the government’s recent history with financial support, especially related to early childhood development, the absence of a legal imperative seems to be a way of avoiding liability for failing to fund South Africa’s most vulnerable children.
Moreover, this sleight of hand regarding money for our poorest children is evident elsewhere. The Centre for Child Law and the Children’s Institute contend that South Africa has persistently high levels of stunting and increasing malnutrition, where hunger levels are the highest in more than a decade. So, it is telling that the Child Support Grant of R460 per month remains persistently below the food poverty line (R585 in 2020), and that it has only increased by R10 this financial year (R10 less than projected in the 2020 Budget) with no further increase projected for October.
Read together, these three actions seem to be a move away from prioritising the funding of vulnerable children. This is despite President Cyril Ramaphosa declaring that childhood nutrition is central to the national project, and the social development minister committing to approach Treasury about the Child Support Grant more than a year ago, after she declared that the grant needed to be permanently increased.
We might hope that ethical and moral imperatives or even strategic commitments would guide the government’s allocation of funds to children. But if not, litigation and accountability may force it to rethink its approach.
The government’s most significant concern should be the impact of not achieving the comprehensive legal solution for foster care ordered by the North Gauteng High Court in 2011, on which the department will have to report to the court at the end of 2021. Quite apart from the effect of 10 years of failure on children, there could also be negative consequences for the minister of social development. The court-ordered solution not only requires the Children’s Amendment Bill to be passed (which in itself is quite a challenge), but for it to be actionable, which requires funds for the Child Support Grant top-up.
In the absence of a budget for the top-up, the court order will not have been met and the order of unconstitutionality against the minister of social development (made in 2017 and suspended until 27 November 2022 to allow the minister to solve the problem) could be invoked, something the minister should be doing everything in her power to avoid.
Nor is that the only legal action potentially in the offing. If, as it appears, the government is inhibiting access to the foster care system prior to the Children’s Amendment Bill being passed, but not providing eligible children with the Child Support Grant top-up instead, it could be a matter of time before affected families take the Department of Social Development to court to challenge the situation. This could put the entire legal solution in jeopardy.
There are other pressing concerns related to the lack of finance, too. According to the Centre for Child Law and the Children’s institute, in their May presentation to the Standing Committee on Appropriations, “South Africa is signatory to the United Nations Convention on the Rights of the Child (CRC). The UN Committee’s General Comment 19 on budgeting makes it clear that states should not take regressive measures in relation to children’s socioeconomic rights.”
Moreover, they cite the case of Equal Education and others v Minister of Basic Education and others where the high court concluded that even “in times of economic crisis, regressive measures may only be considered after assessing all other options, and ensuring that children are the last to be affected, especially those in vulnerable situations”.
The government would be hard pressed to argue that cutting funds to vulnerable children was its last available financial option, so if it does not remedy the situation, this could also open it up to litigation.
And that isn’t its only woe. The submission to the appropriations committee notes that the UN Committee on the Rights of the Child has specifically required the South African government to “provide information on the measures taken ‘to increase the Child Support Grant in view of growing unemployment and poverty and ensure that children without birth certificates can access it’”.
The state’s next report to the UN Committee on the Rights of the Child, which is due by February 2022, must therefore include feedback on the government’s progress, and “given the pressure to increase the value of the Child Support Grant” it will be difficult for the state to “justify to the [UN committee] a failure to do so, let alone a real decline in its value”.
It’s a disturbing picture, but critically, it isn’t too late to make substantive changes to the bill and the allocation of funds. The Portfolio Committee on Social Development has confirmed that it has the power to amend and redraft the bill, and it now has a significant opportunity to remove its regressive aspects, especially related to funding, and motivate for inclusion of those positive elements that the department neglected during drafting, such as fixing the adoption process, reforming early childhood development, including positive parenting, and facilitating safe abandonment.
Moreover, through lobbying Treasury and the department to ensure that the funds are available for the Child Support Grant top-up, the portfolio committee, in concert with the Standing Committee on Appropriations, can help rescue the comprehensive legal solution and guarantee that it is implementable.
Finally, the government needs to recognise the role of the Child Support Grant in staving off stunting and malnutrition and breaking the intergenerational cycle of poverty and inequality, include a further R10 increase in quantum in the October Budget and actively plan to close the gap between the grant and the food poverty line.
As evidenced through the hearings, the bill represents a threat to child rights, but also, with appropriate changes, an opportunity to protect and promote the rights of South Africa’s poorest and most vulnerable children. How it plays out is still to be seen, but the ball is now firmly in the social development portfolio committee’s court. DM