THE CHILDREN’S AMENDMENT BILL AND ECD May 2019

GOVERNMENT PROPOSED AMENDMENTS

DE-PRIORITISING FUNDING IN POOR COMMUNITIES "(4) [The funding of partial care facilities must be prioritised] The MEC for social development may prioritise and fund partial care facilities and services—"; The proposed amendments to sections 78(4) and 93(4) turn the obligation to prioritise provision in poor communities into a discretionary power. Section 78(4) “

PROHIBITION ON FUNDING INFRASTRUCTURE IN PRIVATE HOMES "(5) The funding for infrastructure of partial care facilities does not apply to private homes of registered non-profit organisations, private homes in general, business properties or properties not owned by a non-profit organisation.". The 2014 DSD Audit suggests that among unregistered ECD centres about 40% are run from formally built private homes, with a further 15% run from ‘informally built shacks/huts’. About one- third of conditionally registered ECD centres are run from these types of premises. Unregistered and conditionally registered ECD centres are more likely to be attended by poor children. They are also most likely to be in need of infrastructure investment in order to support them towards full registration. Arguably, such exclusions will be constitutionally impermissible for the following reasons: o Any policy or law that excludes the majority of poor children from funding that helps to ensure their safety and wellbeing cannot be rational or reasonable. o Any law, policy or development plan must prioritise the most marginalised and place considerable weight to the best interests of children (Government of RSA and Others v Grootboom and Others [2000]). o The state must legislate in a manner that ensures the safety and protection of children. As many children attend ECD programmes in private facilities, it is incumbent upon the government to ensure that these facilities are safe. o The state must legislate in a manner that ensures the dignity of the child and promotes equality. The state may not therefore legislate in a way that has the potential to further marginalise the most vulnerable, by impeding their access to safe, quality ECD. o The state must legislate in a manner that considers the child’s “precise real-life situation” (S v M [2007] ZACC 18 para 24).

POWER TO ASSIST "(5) Notwithstanding section 78(3) a provincial head of social development may assist the owner or manager of a partial care facility where registration with conditions was granted, to comply with the prescribed national norms and standards contemplated in section 79 and such other requirements as may be prescribed.". This is a narrowing of the power. Recognising the gross inequality levels in South Africa, the Children’s Act provides for expansive powers that are progressive and pro-poor, including the ‘power to assist’ clauses in sections 82(5) and 97(5). These are broad powers that were considered necessary to assist partial care facilities and ECD programmes to comply with the applicable Norms and Standards.

CONDITIONAL REGISTRATION Conflation of two different things: Registration with conditions: Full registration with no areas of non- compliance but conditions attached (e.g. pertaining to the size or hours of the programme). This is ‘registration with conditions’ and not conditional registration. Programmes that have this type of registration receive full registration and do not have to make changes within a certain time-frame, because the conditions relate to the ongoing parameters of operation not to unmet quality standards. Conditional registration is given where there are areas of non-compliance with the norms and standards and other registration requirements, and therefore certain changes must be made within a specified time-frame. That this is already confusing in the current Act Now it is even more confusing

IN SHORT NO SIMPLIFICATION REGRESSIVE/ UNHELPFUL AMENDMENTS

LOST OPPORTUNITY

OVER TO YOU Does this brief analysis of the problems with the Children’s Amendment Bill accord with your understanding? Is there anything you would like to add or highlight?

MIGRATION TO DBE

ECD MIGRATION FROM DSD TO DBE What we know so far… Function shift includes the following: Migrate responsibility (leadership and coordination) of ECD Policy and ECD centres/programmes from DSD to DBE All children eligible for Grade R will move from DSD registered ECD centres to public or independent schools by 2030 All children eligible for Grade RR will move from DSD registered centres to public or independent schools within 15 years 1st 1000 days up to 4 years will remain with DSD (and DoH)

ECD MIGRATION FROM DSD TO DBE Status quo remains until a Presidential Proclamation Department’s view is that amendments to the Children’s Act are not necessary (?????) Implementation Protocols are supposed to have been signed by end of April and a “Joint Cabinet Memo with revised legislation/policy as well as a National Integrated Plan for approval by July 2019”

OVER TO YOU Are you excited or nervous about this proposed migration? Please share anything you would like to add or highlight?

REGISTERING AS INDEPENENT SCHOOLS *#?? - Add some concerns with what a proposed migration could mean for ECD centres

RIGHT TO ECD

CAMPAIGN ON A RIGHT TO ECD We would like to see a new national campaign on a child’s right to ECD (covering all aspects of young children’s health, wellbeing and development). SmartStart proposed an amendment to the Children’s Act that would make explicit a child’s right to ECD. The amendment is in line with the National Integrated Early Childhood Development Policy, the government’s commitment to universal access to ECD, the Constitution and international law (specifically the UN Convention on the Rights of the Child (UNCRC), to which South Africa is a signatory). Under international law, the right to education under the UNCRC has been confirmed to include early learning. Other clauses in the UNCRC (such as Articles 5, 6 and 31) are also understood to combine to create a right to early childhood development. Talk about the Constitution as a living document Some of the concerns include not seeing ECD as holistic

OVER TO YOU Do you think we should be spending more energy on pushing for acceptance of a right to ECD?

THANK YOU! Summary The proposed amendments are regressive Missed opportunity to streamline, simplify the regulatory system to ensure that more ECD providers enter the regulatory fold and access the subsidy The migration of ECD from DSD to DBE not currently accommodated for in the Bill, more complex regulatory environment likely to be imposed on ECD in the future THANK YOU!