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In this chapter, a number of recent South African policy initiatives and documents are surveyed, with particular reference to their impact on children.
The White Paper on Social Welfare, developed through a consultative process, promotes a developmental approach to social welfare. The goal is a humane, peaceful, just and caring society which will uphold welfare rights, facilitate the meeting of basic human needs, release people's creative energies, help them to achieve their aspirations, build human capacity and self-reliance, and assist them to participate fully in all spheres of social, economic and political life. The challenge facing the welfare system is to devise appropriate and integrated strategies to address the alienation and the economic and social marginalisation of vast sectors of the population who are living in poverty, are vulnerable, and have special needs. An inter-sectoral response is needed within Government, and between Government and civil society, adequately to address welfare needs. The implementation strategy is to continue existing services whilst at the same time re-orientating such services towards developmental approaches.
The document is structured in two parts. The first part (chapters 2 to 6) provides the overall framework and the instruments needed to deliver effective and appropriate services. The substantive issues in the first part are: a national strategy; institutional arrangements; human resource development; legislation; and finance and budgeting.
The second part (chapters 7 and 8) focuses on the actual restructuring of the social service delivery system, that is, on social security and welfare services, to enhance social integration. These chapters set out the proposed programmes, guidelines and recommendations for future action. Section 1 in chapter 8 focuses on the family and the life cycle: families, children, youth and ageing. There are guidelines for strategies regarding families and children, pre-school and school-going children, adoption, foster care, children in residential care, children of divorcing parents, maintenance, child offenders, child labour, street children and substance abuse.
The implementation mechanism for CRC is the NPA, which provides a framework within which to monitor the profile of families and children in terms of their survival, development, protection and participation. In 1995 Government established a core Committee of seven Ministers with a mandate to develop and oversee a NPA for South Africa, review reports and ratify plans for implementation. A Steering Committee, comprising the Directors-General of the seven Ministries, the National Committee for Children's Rights (NCRC) and the United Nations Children's Fund (UNICEF) was established.
The policy priorities outlined in the NPA are nutrition, child health, water and sanitation, early childhood development and basic education, social welfare development, leisure and cultural activities, and child protection measures.
Provincial steering committees have also developed Provincial Plans of Action (PPA's).
The IMC was established in May 1995 in order to attempt to resolve problems that arose out of the uncoordinated release of awaiting trial children on 8 May 1995. It is chaired by the Minister of Welfare and Population Development and involves the Ministers of Justice, Education, Safety and Security, Public Works and Correctional Services. The mission of the IMC was to design and enable the implementation of an integrated child and youth care system based on a developmental and ecological perspective. The policy recommendations named above were released at the end of 1996, the Chairperson of the IMC indicating at that stage that those aspects not requiring legislative change should immediately be implemented as far as possible.
The vision for the transformation of the child and youth care system is described as follows: 'Children and youth are our most treasured asset: they and their families are valued and capable and contribute to a caring and healthy society'. This vision places children in the context of family and ultimately, of the community. The principles underpinning the transformation of the child and youth care system are: accountability, empowerment, participation, child and family centredness, continuity of care, normalisation, effectiveness and efficiency, appropriateness, family preservation and permanency planning.
The child and youth care system is defined as that system which provides residential and/or community care services to young people and to the families of young people who are at risk of placement away from home, who have been placed in any form of residential care or who may be in trouble with the law. Young people enter the process of service delivery through the processes of reception, engagement, assessment and referral, which should be rooted within the community, should involve the 'significant others' in the child's life, and ensure the child's participation. A framework for services within this system is described, and consists of four levels: Prevention, early intervention, statutory process and the continuum of care.
Prevention programmes are aimed at preventing the occurrence of problems which may negatively impact on the development of or place at risk the young person, family or community. Prevention could be achieved through a range of strategies including formal education, school-based child and youth development programmes which supplement formal education programmes, such as life-skills, sex-education, leadership training, mentor programmes, parenting, job training and preparation. Because prevention does not feature prominently in existing child care laws, it is recommended that a period of transition occurs to ensure that state departments and service providers move away from remedial modes of intervention to prevention and early intervention.
Early intervention strategies include school-based support services, diversion programmes, parent support programmes, intensive family preservation services, early childhood education, differentiated foster care programmes and programmes aimed at enhancing community participation in matters relating to protection and development of children.
As regards statutory process, the children's court is identified as central, but in need of reform, inter alia, with respect to training and capacity of personnel, more effective partnerships between justice and welfare, and possible community participation in children's court matters.
The continuum of care implies a managed strategy of care for children removed from their families and placed in residential care facilities, including group homes, correctional facilities, secure care facilities, shelters, places of safety, reform schools, children's homes and schools of industry. The IMC developed a number of basic principles of residential child and youth care, the following being especially relevant to this investigation:
Each young person should have a developmentally appropriate plan and programme of care, education and treatment (where necessary);
Each young person should have contact with family and friends unless such contact is deemed inappropriate;
Each young person shall be protected from abuse, exploitation and discrimination;
Each young person should be given the opportunity to participate in sport, cultural and recreational activities;
No young person should be refused admission to the facility on the basis of religion, race, or sexual orientation, and provision should be made for an appropriate staff team who can understand and communicate with each young person.(67)
Where a child has been removed from his/her family, a process of after-care and re-integration should be supported, rather than being be left to chance. It is proposed that the current term 'reconstruction' be replaced by the concept 'family reunification', which is a process of planned return of a child to the family or community of origin.(68)
Finally the IMC recommends that the transformation of the child and youth care system should be supported by appropriate human and financial resources, and quality assurance.
Question 16: How can legislation enable the transition from remedial modes of intervention towards prevention?
In mid-1995 the MINMEC (committee of ministers and provincial MEC's) for Welfare and Population Development was poised to do away with the State Maintenance Grant (SMG), due to a concern that this grant was in the long term not affordable. A final decision as to the fate of the SMG was deferred pending the report of an enquiry undertaken by the Lund Committee. This report was submitted in August 1996. Major recommendations of the Committee were accepted: the SMG will be phased out over a three year period, and a new Child Support Grant (CSG) was introduced on 1 April 1998.(69)
The SMG was previously mainly directed to mothers caring for children on their own. Under apartheid it was fairly readily available to white, coloured and Indian women who met certain criteria, but due to discriminatory means tests and the erection of other administrative barriers, it was virtually impossible for black women to gain access to it. The Lund Committee sought to design a benefit which would end racial discrepancies, be accessible and flexible, and reach as many children as possible. It was argued that the new measure should not be introduced to the detriment of other forms of support for children, specifically the foster care grant, and the care dependency grant for children with severe disabilities. Ultimately, Cabinet decided that the CSG would be payable for children under the age of seven years in an amount of R75 per month. After much lobbying from NGO's, this amount was increased to R100. The CSG will be means tested (the test being based on the household income of the household of which the primary care-giver is a member), will be payable to the primary care-giver, and will target children in rural areas and in informal settlements particularly.(70) The eventual intention is that the CSG will target some 3 million of South Africa's poorest children.
The Lund Committee also proposed extensive reforms to the present private maintenance system, the ineffectiveness of which has been one reason why many families have sought state support.
The CSG is widely recognised as having significant positive qualities, in particular in that it is designed to eliminate racial discrepancies and target the poorest of the country's children in their vulnerable earliest years. But critics of the new measures raise the point that state financial support will kick in only after serious problems have developed and the child has become the subject of expensive tertiary interventions. Whereas there is legal provision for state aid for the support of a child in a children's home or in foster care, there is no provision to assist parents to care for children of seven years and older (other than children who qualify for the care dependency grant, or who are for the time being beneficiaries of the SMG), unless new forms of assistance are developed. Another group of children at risk who are not provided for are those under the age of seven years whose caregivers do not qualify for the SMG in terms of the household means test, although such children may well be in dire need of state assistance. Critics warn that this pulls the rug out from under the many policy commitments towards prevention of family breakdown, towards care of children within their own families, and against child labour, including commercial sexual exploitation.
The National Strategy on Child Abuse and Neglect (NSCAN) was developed by the National Committee on Child Abuse and Neglect (NCCAN) - an inter-sectoral body including both government and NGO representatives, convened by the national Department of Welfare. The NSCAN seeks to address the current child protection crisis, in terms of which rates of reported child abuse and neglect are spiralling, while our child protection system is largely in disarray. Many children in critical circumstances are without access to help, and, of those who do enter the child protection system, many are at high risk of secondary abuse because of inadequacies and lack of coordination. The NSCAN consists of a series of tasks and processes which are designed to draw together the fragmented components of the child protection system and to put in place a coherent legal and policy framework and broad preventive strategies, together with properly designed and locally appropriate intervention measures to deal with reported cases of child abuse and neglect.
Work is already under way in all provinces, with financial backing from a private foundation, on a key component of the NSCAN - the development of inter-sectoral protocols for intervention in reported cases of child abuse.
The strategy document questions the suitability of the adversarial system in use in our criminal courts which generates much of the secondary abuse for child victims, and proposes investigating the adoption of a more inquisitorial approach. This would substantially change the nature and functioning of courts dealing with offences against children. Possibilities regarding types of cases which could be dealt with by family courts rather than criminal courts are also mentioned in the document.
The NSCAN includes a series of recommendations relating to policy and legislation,(71)prevention, child protective service management, and structural provisions. The recommendations relating to policy and legislation include a 'comprehensive process of reform of all legislation relevant to child rights and specifically to child protection', with specific attention to identified problem areas.(72)
The following objectives have been identified by the Department of Welfare as critical factors which need to be addressed with regard to the prevention and combatting of commercial sexual exploitation of children: the establishment of international and national co-operation; the development of prevention strategies and identification of children at high risk; provision of early intervention; enhancement of protection through policy, legislation and programmes, advocacy, community mobilisation and monitoring, as well as the creation of specialised units or personnel, and safe shelters for children. Recovery and reintegration of children should be enhanced through the provision of comprehensive counselling and support services and facilities to child victims and their families.
Question 17: How should this investigation approach the legislative issue of commercial sexual exploitation of children?
Levels of crime have been of dire concern to the Government of National Unity since 1994. In recognition of this, in 1995 the Cabinet initiated a process for the development of a National Crime Prevention Strategy (NCPS). This process has been managed by an inter-departmental committee consisting of the Ministers for Safety and Security, Justice, Correctional Services and Defence.
Crimes against children are of serious concern; child victims are often left with lasting physical and psychological injuries, which may entail a burden of dependency on households and/or the state. Frequently symptomatic of deep-rooted social problems, such crimes are barriers to human development. The NCPS addresses this through a national victim empowerment strategy.
Since 1995 it has been accepted that children should, as far as possible, not be imprisoned. Under the NCPS, one programme provides for secure care of children accused of committing serious and violent offences, and funding in the amount of R33 million for the construction of facilities has been allocated, to be managed by the IMC. Substantial progress towards acquiring the necessary resources and physical infrastructures has been made, although delays in construction and staffing issues have slowed progress in this regard.
The NCPS highlights the necessity for a national programme for school education regarding crime prevention with the aim of providing skills which reduce the incidence of crime, of creating viable alternatives to violence, contributing to the development of responsible citizenship and increasing respect for the rule of law and human rights.
Question 18: How can legislation provide for the 'tracking' of children under 18 years of age who have entered the criminal justice system in a manner that respects their right to privacy?
Some of the achievements of the advocacy programme of the Disability Rights Movement in South Africa are the express prohibition of discrimination against persons with disabilities in the Constitution and in other legislation such as the new Labour Relations Act 66 of 1995, the establishment of the Office of the Status of Disabled Persons in the Deputy President's Office and the development of the White Paper on an Integrated National Disability Strategy, published by the Deputy President in November 1997. The White Paper provides a new philosophical basis on which government policy on disability is based, namely, a shift from the out-moded 'medical model' to the new 'social model' of disability, and a shift from regarding disability as a predominantly health and welfare issue, to the view that the circumstances of people with disabilities and the discrimination they face are socially created phenomena that have little to do with the impairments of disabled people.(73) The social model therefore emphasises two things: the shortcomings of society in respect of disability, and the abilities and capabilities of people with disabilities. A human rights and development approach to disability focuses on the removal of barriers to equal participation and the elimination of discrimination based on disability.
The National Commission on Special Needs in Education and Training (NCSNET) and the National Committee for Education Support Services (NCESS) were appointed by the Minister and Department of Education, respectively, to investigate and make recommendations on all aspects of 'special needs and support services' in education and training in South Africa. Key strategies include: transforming all aspects of the education system; developing an integrated system of education; infusing 'special needs and support services' throughout the system; pursuing the holistic development of centres of learning to ensure a barrier-free physical environment and a supportive and inclusive psycho-social learning environment; developing a flexible curriculum to ensure access for all learners; promoting the rights and responsibilities of parents, teachers and learners; providing effective development programmes for educators, support personnel, and other relevant human resources; fostering holistic and integrated support (inter-sectoral collaboration); developing a community-based support system which includes a preventative and developmental approach to support; and developing funding strategies that ensure redress, sustainability, and - ultimately - access to education for all learners.
The law relating to refugees and matters of immigration is likely to change significantly in the near future: a recent Green Paper produced by the Department of Home Affairs proposes new legislation with regard to refugees. The Green Paper supports the Department of Home Affairs' view that there should be a separate, free standing piece of legislation on refugee law. The Green Paper makes no specific mention of children, however, and the particular needs of immigrant, migrant or refugee children do not appear to have been canvassed.(74)
The Prevention of Family Violence Act 133 of 1993 deals with the procedure by which interdicts in relation to family violence can be obtained and also contains a provision requiring persons in various positions of responsibility to report the ill-treatment of children.(75) This Act had been in existence for a period short of three years when further investigation into legislation on family violence was deemed warranted. The South African Law Commission released an issue paper in July 1996, followed by a discussion paper, the content of which has been extensively canvassed with women's rights organisations, legal practitioners, other NGO's and the public in general. A final report is at an advanced stage of preparation.
The discussion paper recommends an expanded definition of violence as 'including, but not limited to physical abuse or threat of physical abuse, sexual abuse or threat of sexual abuse, intimidation, harassment, or destruction of property.' Amendments are proposed in order to allow for the exclusion of the respondent from the family home, but with the proviso that orders of this nature 'may only be made if it appears likely that the applicant or any relevant child will suffer significant harm if an order is not made and that such harm will be greater than the harm which the respondent will suffer if the order is made'.
The discussion paper points out that economic dependence is the single most common reason why women remain with or return to abusers, and that 'children often become the contact point through which a batterer can retain control over women, by asserting his rights to custody and reasonable access'. The solutions advocated in the discussion paper include empowering the court to grant, together with the interdict, maintenance, custody, and access orders, but such orders should be temporary in nature. It appears that provisions regarding the reporting of ill-treatment of children will remain in legislation on domestic violence.
Question 19: Is it not more appropriate that provisions relating to mandatory reporting of child abuse and neglect be contained in a comprehensive children's statute?
Question 20: How can there be effective liaison between domestic violence courts, other courts dealing with maintenance, custody and access issues, and children's courts dealing with child abuse and neglect?
The National Department of Welfare and Population Development has drafted policy documents for discussion on adoption,(76) foster care(77) and street children.(78)
As regards adoption, the following needs have been identified: that services to prospective adoptive and adoptive parents, as well as to birth parents, be standardized and minimum norms and standards developed; that life skills programmes for prospective adoptive, adoptive and birth parents be developed, implemented and co-ordinated; that liaison between the Department, provincial departments and relevant non-governmental organizations be facilitated; that subsidized adoptions be considered; that awareness campaigns to promote adoption be promoted and launched; that the Hague Convention on the Protection of Children in Respect of Inter-country Adoption be ratified and a Central Authority to co-ordinate all inter-country adoptions be established together with procedures, minimum criteria, and standards of accreditation of agencies to deal with inter-country adoptions; and that mechanisms to monitor the transformation of the adoption system in South Africa be developed and implemented, as well as indicators for the collection of quantitative and qualitative statistical data on the transformed adoption system.
With respect to foster care policy, it is proposed that each foster child have a future plan of care within which the principle of permanency planning is taken into consideration;(79) that each foster child be reunited, where possible, with his or her parent within a limited period of time, failing which alternative arrangements for his or her permanent care should come into effect; and that any disputes between the natural parents and the foster parents be resolved in the Children's Court.
With respect to street children, the Department aims to ensure uniform national standards for services rendered to street children throughout South Africa (whilst recognising local and regional variations). Although the importance of shelters is recognised, these resources should be utilized selectively and in accordance with the emphasis on de-institutionalisation of children and moves towards community-based programmes. It is envisaged that the delivery of 'one stop services' within the communities of origin (whereby the empowerment and strengthening of families receive attention) will reduce the numbers of street children in need of shelters/children's homes.
The Department of Justice Draft Discussion Paper entitled `Gender Policy Considerations' was released for public consultation on 20 June 1997, and reflects a number of strategies aiming at making explicit the role of women and children as 'consumers of justice' and as fully-fledged participants in the legal profession and in the Department itself.(80) Of importance is the policy which `seeks to improve women's experiences in the justice system by creating a culture of service delivery and gender sensitivity' (such as improving court facilities by, for example, providing child care and areas for feeding and changing babies). The document address issues and contains recommendations that will affect the lives of South African children, touching on such matters as family violence, sexual offences, the enforcement of private maintenance obligations, the distribution of property after the breakdown of relationships or the death of the male partner in a manner better designed to meet the needs of women and dependent children, the harmonisation of religious and customary family law with the common law and family law reform in general.
In its report, the Hoexter Commission recommends the establishment in South Africa of a specialist Family Court of comprehensive jurisdiction having the status of a High Court. This Family Court will have concurrent jurisdiction with the High Court
(a) to hear those matters which are at present heard in the divorce court of the High Court and which, in addition to divorce itself, will include all matters ancilliary to divorce such as the division of matrimonial assets, maintenance for a spouse and minor children, custody of and access to minor children, guardianship of minor children, applications pendente lite for a contribution towards the costs of a divorce action, for interim maintenance and for interim custody of and access to children, applications for maintenance as between parent and child and grandparent and grandchild, and applications for interdicts in matrimonial matters;
(b) to hear the matters at present heard by the High Court under the Age of Majority Act, 1972;
(c) to grant consent to the marriage of a minor if such minor's parent or guardian refuses such consent, which power is at present exercised by a judge of the High Court under section 25(4) of the Marriage Act, 1961; and
(d) to hear cases in which paternity is sought to be determined and which affect the status of a woman or child.
A further recommendation is that the Family Court should have jurisdiction to hear matters involving disputes between a man and a woman arising from an existing or previous spousal union between them, where this union is recognised by their own customs or religious beliefs but not by the civil marriage laws.
The Hoexter Commission also recommends that the Family Court should also have concurrent jurisdiction with the Magistrates' Court to hear the matters at present heard by the Commissioner of Child Welfare under the Child Care Act, 1983; to hear the matters at present heard in the Maintenance Court under the Maintenance Act, 1963; to carry out the duties and exercise the powers assigned to magistrates in terms of Chapter 3 of the Mental Health Act, 1973; to investigate the accommodation or care of aged or debilitated persons under section 6 of the Aged Persons Act, 1967 and to carry out the duties under sections 5(3) and 5(4) of this Act; to hold enquiries under the Abuse of Dependence Producing Substances and Rehabilitation Centres Act, 1971, and to commit persons to rehabilitation centres. The Hoexter Commission Report does not assign any criminal jurisdiction to the Family Court.
The Report proposes the repeal of the Mediation in Certain Divorce Matters Act, 1987, and its replacement by a new statute to be called the 'Family Advocate and Family Counselling Service Act', grants the Family Advocate greater powers in all divorce matters, and gives the Family Advocate the power to inquire into and to report to the Family Court in connection with any child. It also proposes the establishment, as part of the Family Advocate's office, of a Family Counselling Service to provide experienced social welfare workers to the Family Advocate's office on a regular and reliable basis.
The Hoexter Commission further recommends housing the Family Court separately from other courts, and where this is not possible, that the Family Court should at least have its own separate entrance. The lay-out and appointments of the Family Court should be such as to create a relaxed and informal atmosphere with cheerful waiting rooms equipped with playthings for children, comfortable offices, and adequate child care facilities for infants.
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