Presentation on the Children’s Second Amendment Bill Presented by Lowina Fourie 23 September 2015

History and Purpose of JCW Jo’burg Child Welfare (“JCW”) is a non-profit organisation (“NPO”) founded in It is a Designated Child Protection Organisation in terms of section 107 of the Children’s Act 38 of It provides a range of direct services to abused, abandoned, neglected, orphaned and vulnerable children (including those who are infected or have been affected by HIV and AIDS) in the Greater Johannesburg area of South Africa. Through its work in advocacy JCW aims to influence decision making and give children a voice.

Focus of Commentary The commentary on the Children’s Second Amendment Bill (“CSAB”) will be focused on the proposed amendments to sections 1, 151, 152, 176 and 186.

Section 1 The current definition of “adoption social worker includes: – A social worker in private practice who has a speciality in adoption services and is registered in terms of the Social Services Professions Act as well as being accredited in terms of section 251 of the Children’s Act or – A social worker in the employ of a child protection organisation which is accredited in terms of section 251 of the Children’s Act.

Section 1 Continued The proposed amendment seeks to include: – A social worker in the employ of the Department of provincial department of social development JCW is concerned that there is neither a specialisation nor accreditation requirement for social workers working for a state department. This is because adoption services require special skills. It is therefore submitted that divisions of departments of social development rendering adoption services should have to seek accreditation in terms of section 251. This would also require an amendment of section 251 to include a division of the Department of Social Development or provincial department of social development with skills and experience in the field of adoption. Since it is the Director General of the Department of Social Development who accredits organisations in terms of section 251, it is submitted that, for the sake of transparency, that such accreditation process should be overseen by an independent third party.

Sections 151 and 152 Section 152(3)(b) deals with instances in which the child concerned is removed by a police officer. – This is to give effect to the judgment in the case of C and Others v Department of Health and Social Development and Others 2012 (2) SA 209 (CC) (“the C Case”) – The proposed amendment, however, differs from what the courts directed the amendment to be. – The distinction between the two creates the effect that a social worker has from the time the child is placed in temporary safe care until the next court day to ensure that the matter is brought to court. – It is submitted that this is inequitable as it may take some time for the child to be placed. – It is therefore asserted that the court’s original direction should be followed, affording the social worker the time from referral to the next court day to have the matter brought before court.

Sections 151 and 152 Continued It is important to examine practical challenges on the ground in emergency removals of children. Of note is that within only 24 hours, many different prescribed documents are required by the courts if the matter is to proceed. At times, it is not feasible to obtain all of these documents, resulting in matters being postponed. It is therefore submitted that if it is clearly in the best interests of the child concerned, that such matters be allowed to proceed in the absence of prescribed forms or other documents, if same cannot be compiled, received or obtained.

Section 176 The proposed amendment allows for a child to remain in alternative care beyond the age of 18 years to, inter alia, complete his or her grade 12, – It is submitted that this could have inequitable results as many children in alternative care have fallen behind in school. – In the Social Assistance Act, when discussing extension of the foster child grant, reference is made to secondary school. It is submitted that this is a more suitable choice of words. – It is therefore submitted that ”grade 12” be removed from this section and that “secondary school”be inserted and should also be entered into the definitions section of the Children’s Act as opposed to “grade 12”.

Section 176 Continued Given the constitutional right of access to information and the right to just administrative action, it is submitted that the outcome of an application to remain in foster care should be communicated to the child concerned within three months of the Department having made the application. Should the application be unsuccessful, the Act should state that the child concerned is entitled to reasons as to why this is the case.

Section 186 The proposed amendment seeks to change the phrasing “foster care with” to “care of”. This has the effect that if a child has been some kind of informal care arrangement with a person not related to them, that a court order can be granted indefinitely until the child turns 18 years in respect of the foster care of this child, as opposed to the mandatory two years of foster care currently required for such an indefinite order to be granted.

Section 186 Continued It is submitted that this is potentially risky for several reasons: – The indefinite order suspends the need for supervision by a social worker. Supervision prior to the granting of an indefinite order is currently a prerequisite because of the need to ensure stability in a placement. If a child is found in need of care and protection, it means that their current living arrangements are untenable. There thus exists a good chance that the informal care setting is unstable.

Section 186 Continued – Anecdotal evidence shows that foster care placements with non-family members are more likely to break down than related foster care placements. – If an indefinite order is granted without supervision, a child could therefore be placed in a perilous situation. – Children who are being cared for by people other than their families are prolifically vulnerable and often require the continuing intervention of a social worker. – Should an indefinite order be granted, such services may not be available to such a child. On this basis, it is submitted that the proposed amendment could well be dangerous for children and that the section should be left as it currently stands.

Questions and Comments