THE CHILDREN’S AMENDMENT BILL B ZITA HANSUNGULE CENTRE FOR CHILD LAW UNIVERSITY OF PRETORIA

Proposed amendments to sections relating to emergency removal of children from their parent or caregiver

Sections 151 & 152 Sections 151 & 152 must be read within the broader framework and context of Chapter 9 of the Children’s Act –This includes the principle of keeping the child as stable as possible and recognising the importance of keeping the family together S 151 – emergency removal with a court order S 152 – emergency removal without a court order Amendments to ss 151 & 152 result from decision of Constitutional Court in C v Department of Health and Social Development 2012

Section 151 Section 151(2) un-amended: “(2) A presiding officer issuing an order in terms of subsection (1) may also order that the child be placed in temporary safe care if it appears that it is necessary for the safety and well- being of the child.” Amended section 151(2) in clause 2 (a): “(2)A presiding officer issuing an order in terms of subsection (1) may also issue an interim order [that the child be placed in] for the temporary safe care of the child if it appears that it is necessary for the safety and well-being of the child.” Purpose of amendment CCL supports amendment

Clause 2 (b) proposes inclusion of new section after 151(2) as 151(2A): (2A) The court ordering the removal of the child must simultaneously refer the matter to a designated social worker and direct that social worker to ensure that the— (a) order in terms of subsection (2) is placed before the children’s court, for review before the expiry of the next court day following the removal; and (b) child concerned, and where reasonably possible the parent, guardian or care-giver, as the case may be, are present in the children’s court for the purposes of assisting the court in making a decision which is in the best interest of the child. CCL supports new section 151(2A). However proviso in 151(2A) (b) should be extended to include children.

Section 152 Section 152(2) – obligation on social worker to ensure matter is brought to the attention of the Children’s Court and DSD CCL supports minor amendments brought about by clause 3 Clause 3(e) proposes new section 152(2)(d): “(d) ensure that the— (i) matter is placed before the children’s court for review before the expiry of the next court day after placement of the child in temporary safe care; and CCL submission – ‘the removal and’ should be included before placement matter is placed before the children’s court for review before the expiry of the next court day after the removal and placement of the child in temporary safe care; and

152(2)(d)(ii) – proviso on the presence of the parent or caregiver being reasonably possible should be extended to the child Section 152(3) – removal of a child without a court order by police. Section 152(3) creates additional procedural step – police officer must refer matter to social worker who notifies children’s court and DSD Amended section 152(3) –  Ensures that police officer refers removal to social worker before end of the next court day following day of removal  Regulates the process social worker must follow after receiving police referral

Amended section 152(3): “(b)refer the matter before the end of the first court day after the day of removal of the child to a designated social worker, [for investigation contemplated in section 155(2); and] who must ensure that— (i)the matter is placed before the children’s court for review before the expiry of the next court day after placement of the child in temporary safe care; (ii)the child concerned, and where reasonably possible, the parent, guardian or care-giver, as the case may be, are present in the children’s court, unless this is impracticable; and (iii)the investigation contemplated in section 155(2) is conducted;

CCL submits that section 152(3)(b)(i) is unclear and will create confusion in respect of when social worker must place matter before the court:  “next court day after placement of the child” – makes it seem as if the social worker must ensure matter is reviewed by court on the same day that it is referred to the social worker from police  Seems intention was that police will not place child in temporary safe care and that this will be done by social worker on referral  This is not the practice – child not kept at police station, the child is taken to a place of safety by the police, i.e placement  Must change 152(3)(b)(i) – social worker must ensure ‘removal and placement’ is reviewed by court before the end of the next court day following the day of referral from police to social worker.  See paragraph 18 of CCL submissions

Proposed amendments to sections relating to adoption

Definition of adoption social worker Present: –Private social worker with a speciality and registered –Social worker in the employ of a child protection organisation, accredited to provide adoption services Amendment: “A social worker in the employ of the Department or a provincial department of social development, including a social worker employed as such on a part time basis or contract basis.”

Adoption specialisation Adoption has been designated as a speciality that has to be registered with the Council in terms of section 17C of the Social Service Professions Act Section 17C(2)(a)(ii) requires an adoption service provider to submit proof that he or she conforms to the prescribed minimum requirements CPOs and private social workers who provide adoption services are required to have a specialisation registered with the Social Services Professions Council before they can get accreditation in terms of section 251 of the Children’s Act

DSD argues there will be increased access to adoption services –It will be free of charge. They consider adoption services extremely expensive, especially private social workers. –They can service rural areas and areas where there are no accredited CPO’s or private social workers Council: –Specialisation that protects the child and ensures successful adoptions, less risk of breakdown of the adoption –Inequality in the provision of services to children and prospective adoptive parents –Overrides the power of the Council to prescribe a speciality

Centre for Child Law v Minister of Social Development 2014 (1) SA 468 (GNP) Section 230 – Adoptable child –(f) the child is the stepchild of the person intending to adopt Section 242 – Effect of adoption order –(2)(e) does not automatically terminate al parental responsibilities and rights of the parent of a child, when an adoption order is granted in favour of the spouse or permanent domestic life-partner of that parent Removes any confusion

Other amendments Section 230 – Adoptable child –(g) the child’s parent or guardian has consented to the adoption unless consent is not required –Would it be more helpful to include the consent sections i.e. –(g) the child’s parent or guardian has consented to the adoption in accordance with section 233, unless consent is not required in terms of section 236