Response to the Proposal Made by Civil Society Organisations During Public Hearings PORTFOLIO COMMITTEE 04 NOVEMBER

1. PURPOSE  To brief the Portfolio Committee on Social Development in response to the various proposals made during public hearings on the Children’s Amendment (B ) and Children’s Second Amendment (B ) held on 2 nd, 4 th and 23 rd of September respectively. 2

2. INTRODUCTION  On 20 May 2015 the Minister of Social Development tabled both the Children’s Amendment Bill (B ) Children’s Second Amendment (B ) in both Houses of parliament in terms of JR 159.  The Portfolio Committee on Social Development Department held public hearings on both Bills on the 2 nd, 4 th and 23 rd of September 2015 respectively  The Department has now been invited to brief the Committee in response to various proposals made during the said public hearings. 3

3. INTRODUCTION CONT…  The Department has prepared a matrix of responses to all individual submissions submitted to the Portfolio Committee.  This presentation will therefore focus on issues which are common in most of the submissions as opposed to addressing each individual submission. 4

4. DEPARTMENTS RESPONSE TO PROPOSALS ON THE CHILDREN’S AMENDMENT BILL B  Ad clause 1 amendment of the Act: Definition of Sexual Offence The issue raised is that the Bills as it stands only refers to statutory sexual offences which were introduced by when the Sexual Offences Act came into operation in It is suggested that the definition be formulated as follows: “sexual offence” means: (i) rape, indecent assault or any offence referred to in the Sexual Offences Act, 1957 (Act No. 23 of 1957), that has been committed against a child; or (ii) a sexual offence referred to in the Criminal Law (Sexual 5

5. Response relating to B cont.…. Offences and Related Matters) Amendment Act 2007 (Act No. 32 of 2007), that has been committed against a child;  Ad clause 2: Amendment of section 120: the main issues is that the Bill is not properly aligned to section 50 of the Sexual Offences Act. the suggestion in this regard is to import the provisions of section 50 as is into the Bill. Section 50 (2)(c) provides that the particulars of a person, who was a child at the time of the commission of the sexual offence concerned, may only be included in the National Register for Sex 6

6. Response relating to B cont.…. Offenders after- (a)The prosecutor has made an application to the court for such an order; (b)The court has considered the report by the probation officer referred to in section 71 of the Child Justice Act, 2008, which deals with the probability of A committing another sexual offence against a child or person [who is mentally disabled as the case may be] in the future; (C)A has been given an opportunity to address the court as to why his or her particulars should not be included in the Register, and (D) The court is satisfied that substantial and compelling circumstances exists which justify the making of an order as contemplated in paragraph (a), the court must enter such circumstances in the record of proceedings." 7

7. Response relating to B cont.….  Critical progressive steps introduced by section 50 (2) (c) and (d) the inclusion of a child offender into the register may only be consider on application by the Prosecutor; the order to include the particulars may only be made only if the court is satisfied that substantial and compelling circumstances exists based on the probation officer’s report and any other evidence which justifies the making of such an order. a child is also given an opportunity to address the court, which is a less formal approach compared to making representation as contemplated in Bill viewed in totality, the new additions to section 50 has shifted the onus away from the child, which is in the best interest of the child. 8

8. Response relating to B cont.…  Ad clause 2: adding addition offences to section 120 a persuasive proposal has been made to add addition offences to the ones already listed in section 120 (4), which are as follows: Offences in terms of sections 8,9 and 10 of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act No. 7 of 2013) Offences in terms of 24A(5) concerning the distribution or exhibition of classified materials to children. The crimes highlighted are serious crimes to which children are also very vulnerable. Including these offences in section 120 (4) is therefore worth considering. 9

9. Response relating to B cont.…  Is the National Child Protection Register Necessary? the concern was raised on the relevance of the NCPR in light of overlaps with the NSRO; the suggestion to do away with the register and use information from Criminal Record Centre is in our view too simplistic. this proposal does not take into consideration that the ambit of the Children’s Act reaches far wide than criminal convictions. The Children Act empowers the courts and tribunals to make findings of unsuitability in any other forums other than criminal proceedings. relying on the Criminal Records Centre will adversely limit the ambit and focus of the Act. the overlaps between NCPR and NSRO are being addressed separately; 10

10. Response relating to B cont.…  Possible amendment to section 120 The proposal is to exclude children from the operation of section 120 (1)(c) because children are generally not provided with legal representation at a forum. This is reasonable proposal to which the Department is open and same can possible be achieved by defining a “person” in section 1. This will ensure that any reference to a “person” excludes a “child”. We are proposing this amendment because it appears that it may not have been the intention of the legislature to include “children” where reference is made to “person(s) because the act specifically refers to a child or children in section concerning children. 11

11. Response relating to B cont.…  Consequential amendments erroneously omitted Amendment to section 122 (1) by the insertion of a new paragraph (aA) which will provide as follows: “(aA)of any criminal conviction contemplated in section 120 (4A)” This will ensure that the registrar of the court concerned also forwards particulars of persons convicted as contemplated in section 120 (4A) so that they can be included in the Register. Amendment to section 122 (2) by inserting the word “or deemed and the word “found” to empower the DG to also enter the particulars of persons who are “deemed” unsuitable to work with children. 12

12. Response relating to B cont.…  Possible amendment of section 121 in our view it is not necessary to amend section 121 because the appeal procedure provided for therein will cater for findings made in terms of section120(1) and not section 120(4A). The Department is of the view that it is not necessary to provide for an equivalent appeal procedure for section 120(4A). A person deemed unsuitable to work with children in terms of S120 (4A) will have to appeal against the conviction itself if they so wish, the outcome of such an appeal will determine whether the deeming remains or not. SECRET13

13. Response relating to B cont.…  Ad clause 5: amendment to section 150 The concern about amendments to section 150 is two fold namely (a) the use of the word “ostensibly” and (b) the desirability of the amendment as it stands. The use of the word “ostensibly” The issues is that the word “ostensibly” is vague and may lead to interpretational challenges. This word was the preference of the Executive as they felt that it will assist to easily achieve the purpose intended by the amendment. Are the amendments desirable? Organisations raised various issues legitimate issues about the foster care system most of which require policy reconsideration and formulation. The Department is currently addressing issues on foster care outside of these amendments. 14

14. Response relating to B cont.… the rationale behind has always been to simplify the provision so as to avoid a situation whereby different courts apply and interpret the provision differently resulting in unequal treatment of children who are in similar situation. 15

15.DEPARTMENTS RESPONSE TO PROPOSALS ON THE CHILDREN’S AMENDMENT BILL B  Ad clause 1: definition of “adoption social worker” the concern raised was to the effect that the proposed amendment seems to suggest that all social workers in the employ of the state will be allowed to do adoption irrespective of their training, skill and experience which is an unintended consequence. our view is that this concern may be addressed by extending the definition further as follows: “(c)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 or contract basis who-;"; 16

16. Response relating to B cont.… (i)has a speciality in adoption services and is registered in terms of the Social Service Professions Act, 1978 (Act No. 10 of 1978) and (ii)is accredited in terms of section 251 to provide adoption services”. Ad clause 3: removal without a court order the clause as it currently stands requires a police who has removed a child to refer the matter to the designated social worker before the end of the first court day after the day of the removal. the clause further places an obligation on the designated 17

17. Response relating to B cont.… social worker to place the matter before court for review before the expiry of the next court day after placement of the child in temporary safe care. The wording will lead to an unintended situation whereby in most cases social workers will be required to place the matter before court on the very same day it is referred to them if the time frames start running from the date of placement. A more fair situation would be to require social workers to place the matter before court before the expiry of the next court day after the referral  Ad clause 5: amendment to section 176 The critical proposal relating to this amendment is to also include learnerships and internships as other forms of training which will justify allowing a person to remain in an alternative care beyond the age of 18 years. 18

18. RECOMMENDATIONS  It is recommended that the various proposals made during public hearings on the Children’s Amendment (B ) and Children’s Second Amendment (B ) held on 2 nd, 4 th and 23 rd of September 2015 respectively. 19