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A criticism of the present Child Care Act has been that it is narrowly focused, with a heavy emphasis on formal legal interventions in individual situations. This does not meet the basic needs of the broad mass of South African children. The Child Care Amendment Act 96 of 1996(51)includes some provisions designed to address this problem, but the need remains for legislation to take into account the broad spectrum of needs and rights of children. What follows is an outline of some major issues affecting children in South Africa, to which, as far as possible, legislation should address itself. Attention is paid in particular to issues relating to children who would be considered to be in 'especially difficult circumstances'.
The 1996 census showed that South Africa's population is estimated at 39.7 million people, of whom approximately 55.4% live in urban areas. 15% of the total population is aged 5 years or younger; a further 21% is aged from 6 to 14 years, and children under 18 form nearly half the population.(52) Income distribution is extremely unequal, with the poorest 40% of households earning less than 6% of the total national income, while the richest 10% earn more than half the national income. About 40% of all South African households live in poverty, with African households and rural households -especially those headed by women - being the most affected.(53)
It has been estimated that the average population growth rate is in the region of 1,9%, which is significantly lower than that for the rest of sub-Saharan Africa. The population growth rate has dropped in all population groups since 1986. The infant mortality rate shows a disparity between population groups, being highest for African children, and lowest for white children, and has been said to be comparatively high in relation to the country's economic status. Maternal mortality rates show the same trends.
Malnutrition amongst children remains endemic, and in 1990 an estimated 2.3 million South Africans were judged to be nutritionally compromised, with 87% being black children under 12 years, and most of the remainder being pregnant or lactating women.
The wellbeing of children is largely dependent upon the family environment. Family life is under a great deal of pressure in South Africa due to economic factors, the lack of household food security, unemployment, alcohol and drug abuse, communication and relationship problems, parenting problems, family violence, and a lack of support systems. All these factors, alone or in combination, can put families at risk and lead to family breakdown. Community violence and natural disasters are additional sources of stress and trauma. Most South African families and children live in unhealthy, unsafe communities where overcrowding, a lack of sanitation and recreation facilities and of public transport are features of daily life. Growing numbers live in informal settlements and on the streets.
In South Africa there is a lack of services for very young children. Early childhood is a time both of special potential and particular vulnerability. Most children have no access to ECD facilities. Although about 21% of all children under 6 years are in out-of-home care of some kind, only one in ten black children has access to formalised ECD programmes, compared with one in three white children. Access is particularly limited for children in rural areas, and those who are disabled. There is a lack of minimum standards for services in the ECD phase, such as formal day care centres and other alternatives. There are strong gender equality arguments to be made for child care provision for working parents, in particular mothers who take primary responsibility for child rearing.(54) At present the Department of Education does not have any projects involving children under five years of age, but there is a National Interdepartmental Committee and Provincial Interdepartmental Committees for ECD. An Interim Policy for ECD has been developed. The National ECD Pilot Project concerns the proposed reception year for 5 -6 year old children. The Department of Education is also not directly involved with day care.(55)
There are at present about 29 000 children in residential care in South Africa - including places of safety, schools of industry, reform schools and children's homes - and about 74 000 children in foster care. During 1997 about 3000 adoption orders were issued. An unknown but very large number of children live apart from their parents in informal arrangements with surrogate caregivers, having been displaced from their biological families by a range of socio-economic factors (especially the migrant labour system). Following on the investigations conducted by the Inter-Ministerial Committee on Young People at Risk (IMC) in 1995, new interim policy recommendations for the child and youth care system, affecting all children in out-of-home placements, have been developed (see chapter 5 below).
While the number of disabled children in South Africa is not known, it has been estimated that about 12% of the South African population is disabled, and that approximately 4 million children experience different forms of disability. The vast majority of disabled children are black, with those in the rural areas being particularly vulnerable. Many disabilities result from poverty and preventable diseases and from community violence.
Lobby groups who are concerned with disability issues have identified many defects in the present legislative environment, including the lack of appropriate interpreter services for children with disabilities in children's court proceedings; the inaccessibility for children with disabilities of the majority of children's homes, places of care, and places of safety (physical inaccessibility, lack of trained staff, shortage of assistive devices); various forms of discrimination against prospective adoptive parents with disabilities, as well as children with disabilities; the vulnerability of such children to sexual, physical and emotional abuse; and the lack of co-ordination of legislation affecting children with disabilities.(56) Parents or foster parents of disabled children only qualify for care-dependancy grants if the child in question (between the ages of 1 and 18 years) requires permanent home care due to his or her severe mental or physical disability.(57) Disability grants are payable only from age 18, and free medical care is at present limited to children aged 6 years or under.
Question 5: Should provisions to meet the needs of children with disabilities be incorporated in a general children's statute rather than being dealt with separately by other legislation?
4.2.7 Children affected by chronic diseases and HIV/Aids(58)
Increasing numbers of South African children are born with HIV infection, acquire it later due to sexual abuse, or are affected by AIDS and other chronic diseases which befall family members, particularly caregivers. According to one estimate, as many as 2,5 million children under the age of sixteen years in this country stand to be orphaned by AIDS by the year 2005.(59) Studies indicate that the period between HIV infection and developing AIDS is 5 - 7 years, and that the period between developing AIDS and death is seven months to two years. This gives some indication of the likely ages at which children might be orphaned by AIDS, based on possible life expectancy of HIV infected mothers.
It is estimated that the incidence of HIV/AIDS in South Africa will peak in the years 2010 -2015 (depending on the respective province), at which time approximately 25% of children (constituting 9 -12% of the total population) will be HIV positive, i.e. some 3.5 to 4.8 million children. The morbidity rate of children with HIV/AIDS is higher than that of adults. In addition, HIV/AIDS in adults will have extremely serious implications for children in causing the incapacitation and death of their caregivers and in the depletion of the ranks of educators, health care staff and other essential service-providers.
The present legal framework is ill-equipped to deal with the HIV/AIDS pandemic. Consent to medical care where children or caregivers are infected is a practical problem at present, as is the thorny question of HIV testing of children. Also, alternative forms of community and cluster care will have to be developed and provided for in legislation in order to ensure non- institutional placement options for children who have been abandoned or orphaned as a result of HIV/AIDS.
Question 6: What are appropriate forms of alternative community and cluster care options that will assist children who might be affected by HIV/AIDS?
Question 7: What legal issues would need to be addressed in developing these options?
Question 8: How should HIV testing, including testing of children in residential care, be approached in legislation?
Question 9: How should present rules on consent to medical treatment be adapted to suit practical reality?
Question 10: Are there any other issues relating to HIV/AIDS and children that should be considered for future legislation?
Child abuse and neglect are wide-ranging categories which include (i) all direct, non-accidental actions which are harmful to children, such as physical, sexual and emotional assaults, and exploitation, and (ii) failures to meet any of the essential needs of children. Child abandonment, which is rife in South Africa, is an extreme form of the latter. Much child neglect in South Africa is the result of poverty and lack of resources, rather than negligence by immediate caregivers. Lack of adequate provision for children may amount to abuse or neglect of children by the State.
In 1997 the SAPS Child Protection Units dealt with approximately 35 000 cases of child abuse. Statistics from other sectors responsible for intervening in child abuse are lacking at this stage. The real extent of child abuse is unknown due to under-reporting, lack of research, uncoordinated record-keeping and (until very recently) the lack of a central register.(60)
Two categories of street children are generally identified, those 'on the street' who are there to earn money but maintain family and community ties, and those 'of the street' who have for a range of reasons become alienated from their families and communities. Such children, unless assisted, are largely unsupervised and unprotected and depend on each other for survival. In 1993 the number of street children in South Africa was estimated to be about 10 000. Although the 1996 Child Care Amendment Act recognises (for the first time) the category of children living on the street, through new provisions governing the registration and inspection of shelters, many other problems faced by these children (such as access to appropriate educational and social services programmes) cannot be regarded as having been holistically addressed.
Question 11: How can legislation best provide for the situation of, and problems faced by, children living on the street? In particular, in what way can legislation protect the rights of street children to, for example, education and protection against exploitation?
In terms of the Basic Conditions of Employment Act 75 of 1997, the employment of children under the age of 15 years is prohibited.(61) It is also a criminal offence to employ a child in employment that is inappropriate for a person of that age or that places at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development.(62)According to data from the October Household Survey conducted by the Centre for Statistical Services in 1994, about 200 000 South African children aged 10-14 years and a similar number aged 15-17 years were working at that stage. Commercial agriculture appears to be the industry most affected. Children are, however, also working in a range of other sectors, formal and informal, urban and rural. Working children are vulnerable to many forms of abuse, and are, in addition, liable to be wholly or partially deprived of education and become trapped in a cycle of poverty and underdevelopment. The Child Labour Action Programme, developed by the Child Labour Intersectoral Group (CLIG), has proposed that detailed legislation regulating child labour should remain in dedicated labour legislation, but that protective mechanisms should, in addition, be incorporated in a comprehensive children's statute. The proposed ratification of important ILO Conventions in this sphere has been mentioned above.
Question 12: If detailed child labour provisions remain in dedicated labour legislation, what protective mechanisms should the proposed children's statute contain with regard to child labour?
Although a range of public health legislation affects children, it has been said that the law falls short of providing a legislative framework for addressing children's health issues in a holistic manner.(63) Child health issues already arise in a number of situations relevant to the present Child Care Act (such as consent to medical treatment) and, as previously stated, are particularly relevant to groups of children in especially difficult circumstances such as children with disabilities and children who are chronically ill. In addition, there are a number of obvious gaps where child health legislation needs to be investigated, such as issues relating to toy safety, medicine packaging, child restraint systems, health issues (sanitation etc) in day-care centres and so forth.
Question 13: Should children's health issues be protected through health legislation? Or is it more appropriate to locate them in this investigation? Alternatively, should somehealth matters continue to be regarded as part of a children's statute, whilst others are more appropriately dealt with in health legislation? If so, which issues/matters should fall where?
Although accurate statistics are not available, abuse of alcohol and other drugs is reported to be rising sharply among school children of increasingly young ages. Large numbers of street children abuse inhalants, which are uncontrolled by law and easily obtainable. Children are also severely affected by abuse of drugs and alcohol by their parents and other family members, as such behavior often leads to social dysfunction including child abuse and neglect, unemployment, the loss of housing and the loss of dignity and self-esteem. Children whose parents abuse substances are vulnerable to becoming involved in such behaviour themselves.
All children involved in disruptions of family relationships can be considered to be vulnerable and in need of special support. The introduction of an interim system of 'Family Courts' (initially in six pilot project areas) will see the Justice system building on the Office of the Family Advocate in order to provide some social work services in regard to children whose parents are divorcing.(64)
Legally, it would appear that children who are displaced or who require political asylum find themselves in a conceptual 'grey area'. Although it has been argued that the present Child Care Act extends not only to South African children, but also to foreign nationals, in practice little use has been made of the child and youth care system in addressing the problems of 'illegal aliens', prohibited persons or refugee children. Children who either themselves are suspected of being illegally in the country, or who are arrested with their parents, are incarcerated in police cells or in repatriation centres, often for long periods of time, and without access to schooling. Children have reportedly been refused access to hospitals if they are foreign and cannot prove ability to pay. It has been argued that unaccompanied children from foreign countries should be considered to be children in need of care, and thus subject to the jurisdiction of the Child Care Act.(65)
Question 14: Should displaced foreign children fall under a future children's statute or should immigration legislation apply to them? If they are to be included in this investigation, should all foreign children ('illegal aliens' and refugees) be included, or only those who are unaccompanied by parents?
Welfare programmes addressing all the issues mentioned above are in short supply, tend to be fragmented between a wide range of service providers and are of variable standard. The spread of the problems, and also the quality and accessibility of services, show substantial imbalances, many of them inherited from the past dispensation. Access to services is particularly poor for rural children and their families.
An unusual feature of the South African welfare system is the degree to which responsibility for the implementation of social legislation has been delegated to voluntary welfare organisations. This has resulted from a policy, dating back to the 1930's, to the effect that government's role in welfare should be limited, and that responsibility should rest in the first place with the individual and then with the family and the community.
In accordance with this policy, the South African Government has, where possible, subsidised community groups to undertake approved social services rather than providing them directly. Under apartheid, the subsidy structure was used to promote the racial separation of social services, and the division of such services according to religion and culture was also actively encouraged. Hence an extraordinarily fragmented social service system developed, as the availability of services was dependent upon community initiative from and for particular groups, and whether or not they could manage to obtain state and/or private sector support, rather than being based on any plan to ensure that everyone had access to the necessary services. Levels of state financing varied enormously according to the race of those served, and the result has been a proliferation of very unevenly spread and unequally resourced organisations, managed according to different principles and belief systems, which share with government and between themselves the responsibility for the implementation, inter alia, of the laws affecting children. Social services relating to child witnesses in the criminal courts, and to children coming before the children's courts, into substitute care, into the juvenile justice system, into statutory drug rehabilitation programmes, and into any form of statutory provision for the physically or mentally disabled, are split among a vast array of voluntary as well as state structures. In recent years, these bodies have by and large been striving to do away with racial divisions and to balance out inequalities. However, this process is very far from complete.
While the White Paper on Welfare contains an indication that the Government recognises its responsibility fully to fund statutory social services, this is at present not being implemented, and services are being delivered according to the resources, competency levels and philosophies of each of the many structures concerned. There has been discussion about the introduction of tenders and contracts to replace subsidies. This would radically change the nature of the relationship between the partners, and could provide a basis for the implementation of agreed standards of practice. Such a shift would, however, require a large injection of funds from the Treasury.
The National Department of Welfare and Population Development maintains overall responsibility for control of statutory social services. Each provincial Department has monitoring mechanisms for this purpose, including procedures for 'canalisation' of certain reports. The provincial Departments are responsible for e.g. receiving reports from welfare organisations concerning the progress of children in statutory care and their families. The Departments consider these organisations' recommendations as to whether the children in question should return home, remain in their placements, or be transferred elsewhere, and then issue the relevant orders in terms of the Child Care Act. Once the initial enquiry has been completed, the original function of the Children's Courts is thus for the most part taken over by officials of the Department of Welfare, and exercised in partnership with the relevant welfare organisations and the caregivers in question. There has been a call in some quarters for the court to be the authority which conducts periodic reviews and decides if and when care arrangements will change.(66) To be practicable, this would necessitate a major reorientation of and shift of resources into the children's courts.
Question 15: How far, and in what ways, can the following be improved by legislation:
(a) the fragmentation of legislation affecting children in especially difficult circumstances;
(b) the fragmentation, uneven nature and quality of social service delivery;
(c) the partnership and relationship between the state and subsidised and private welfare organisations;
(d) the fundamental relationship between social services and the children's court;
(e) the allocation of financial resources in the welfare sector, and particularly those that will be required to give practical meaning to new legislation;
(f) redressing the balance as regards the 'coverage' of previously disadvantaged children and families, especially in rural areas?
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