1. Patricia Martin Advocacy Aid Patricia.martin@firebreakstudios.com Cell: 27 73 0622241 Tel: 27 21 785 4506

2. A matter of law: ECD rights International and regional rights instruments, taking their lead from science, impose clear obligations on the state to prioritise comprehensive social services and support in the early years. Children’s rights to health, food and nutrition, water and sanitation, birth registration, education, protection from abuse, neglect and exploitation, social security and social assistance acquire an elevated status in the context of young children.

3. Rights depend on State responsibilities The UN Committee on the Rights of the Child requires all state parties to prioritise the recognition, protection and realisation of each of these rights for young children through integrated national ECD system of care and support that is: Rights-based; Multi-sectoral; Coordinated; Integrated; Adequately resourced; Pro-vulnerable child targeted ECD strategy that guarantees access to the full complement of ECD rights for all young children aged 0-6, especially those subject to multiple vulnerabilities.

4. What does this mean in practice? What is required when the Committee of Experts on Children’s Rights calls for a rights-based ECD framework? The courts have confirmed that a rights-based framework requires that the state must bear and fulfil responsibility for the realisation of services necessary to give effect to rights protected by the Constitution (and by extension, by international and regional legal instruments).

5. What is the State obliged to do and when? Most elements of the ECD package, such as health, nutrition, social services, protection, a name and nationality and education enjoy an elevated constitutional status. S28 and S29 of the Constitution do not make the realisation of these rights, as in the case of other socio-economic rights, subject to progressive realisation. This is generally understood to mean that they should be immediately available and accessible to all children in South Africa. However, the current approach to the provision of ECD, as articulated in the Children’s Act, is premised on the philosophy of progressive realisation. Section 4(2) provides that government must, in the implementation of the Act, take reasonable measures to the maximum extent of their available resources to achieve the realisation of the Act. Furthermore, provincial MECs for Social Development are not obliged, but “may” provide and fund early childhood development programmes (section 93(1)).

6. Immediate, not progressive realisation The rights position is that ECD services should be constitutionally compliant and not subject to progressive realisation. Even if they are made subject to progressive realisation, there are clear obligations on the state to take legislative and other supporting steps to ultimately ensure realisation of the right. Such steps must be reasonable. This means it is not enough to enact a law recognising the right(s) in question. The law must be supported by appropriate, well-developed policies and programmes that are implemented. The state must have a plan that is capable of realising the rights, and it must implement that plan. Most critically, it must make provision for securing the rights for the most vulnerable members of the targeted communities. As pointed out in the Grootboom judgment, it is not enough to show statistical advancement of the right. The plan must ensure that those whose needs are most urgent and whose ability to enjoy the right is most at peril must not be excluded or ignored by the measures aimed at realising the right. Special and additional measures by the state are necessary to secure their rights.

7. In summary The State must accept responsibility for ensuring universal availability and access for the most marginalised There must be a policy or law that obliges State action It must be supported by a reasonable implementation plan that is time-bound, that has an adequate budget and that is realistic and realisable So as to guarantee availability of and access for all children to the service in question The plan must make special provisions that must prioritise and guarantee access to the service for the most vulnerable – rural children, urban poor, children with disabilities etc

8. Health Policies and programmes are in place, but frustrated by poor implementation and lack of integration of services. Nutrition Health policies and programmes are in place, but frustrated by poor implementation and lack of integration of services. Food No health policy or programme in place to secure adequate daily food for young children, especially those aged 0-2. CSG is available, but poorly accessed in the first two years of life and no system in place to guarantee early registration. Water in households Insufficient policies and programmes to secure water in vulnerable households due to lack of prioritisation of young children and lack of resources. Water in ECD centres No policies or programmes in place to oblige and secure the provision of water in poor ECD centres. Sanitation in households and ECD centres No free basic sanitation policy or programme in place to secure sanitation in vulnerable households with young children or in ECD centres. Protection Protection policies and programmes are in place, but are hampered by inadequate resources, and they are reactive rather than preventive. Early childhood care and education Insufficient and inequitable policies and programmes exclude children in poverty and rural areas from ECCE services, with no obligation on the state to provide these services. Obligation rests in inadequately funded NPOs, and delivers poor quality ECCE to vulnerable children. Social assistance Policies and programmes in place, but poor implementation frustrates early access for the most vulnerable young children, especially those in rural areas and young children with disabilities. Birth registration Policies and programmes in place and innovative implementation have secured the registration of the majority of children, including marginalised children. Special measures to ensure ECD services for children with disabilities No special programmes in place to secure early identification and prevention of disabilities or early childhood care and education for young children (aged 0-4) with disabilities. Do we have the laws and policies in place?

9. Are the services in terms of policies reaching the marginalised children? No There is a consistent failure of access to all ECD services - from health, to food and nutrition, to social assistance, to early childhood care and education – by vulnerable young children living in poverty, those living in rural locations, in informal settlements and/or those with a disability. Not just access, but also the quality of all ECD services is poorer quality for children and mothers living in poverty, living in rural areas, living in informal urban areas and those with disabilities The reasons are linked to a failure by the State to comply with a number of its other ECD obligations, including the obligations to provide ECD services within a rights-based framework, to secure integrated and coordinated policy and programme development and implementation, and to adequately resource all ECD programmes.

10. What must change to make the national ECD system legally compliant? There must be an assumption of responsibility for realisation of all ECD rights by the State To realise the responsibilities requires a continuum of interventions – ranging from the funding and provision of services directly to merely the monitoring of the quality services Ideally, the State should cover the full continuum of services for all children, but the reality of resource constraints means that this is often not possible Thus it must have a reasonable plan in place to progressively realise universal access, but one that guarantees immediate and secure access to quality services for the most marginalised 20-40%

11. A continuum of responsibilities Regulation and monitoring Regulation and monitoring, communications and awareness- raising and parental education Training Financial support to caregivers (to pay for ECD services provided by state and others) Supplies ECD staff and services Provide funds, builds and maintains infrastructure

12. The current situation At present the ECD plan is at risk of not meeting the “reasonableness” requirement given its implicit exclusion of the most vulnerable young children living extreme poverty and those living with disabilities. In order to remedy this omission, it is necessary for the plan to create clear and enforceable obligations on the state – national, provincial and local government – that will secure ECD for the most vulnerable. T he current plan must be supplemented so as to oblige the state to, in addition to regulating and subsidising ECD services for children in registered facilities, to provide and fund ECD infrastructure and services for the 20-40% young children living poverty and/or with disabilities that have been shown, through this and other papers, to be consistently excluded. The plan should be expanded to include a more extensive continuum of obligations than it currently does. This is illustrated, using ECCE services as an example, in the diagram above. In moving forward the ECD plan must, from conception to implementation, include measures that will realise the as yet unrealised core obligations marked in red.

13. What does this require from a policy point of view? The amendment of the Children’s Act to provide that national and provincial government “must”, rather than “may” provide and fund ECD services and programmes. The creation of a legislated obligation on the state to provide the infrastructure and basic services necessary for provision of ECD services to all children, especially those in marginalised areas and subject to additional vulnerabilities (over and above their young age). The creation of an obligation to provide learning and support materials, training and personnel to provide quality ECD services to all children, with a specific focus on children living in under-serviced and under-resourced areas. The creation of an obligation to identify children experiencing hunger and at risk of malnutrition and the creation of an obligation to ensure at risk children receive daily adequate nutrition. The creation of an obligation for the provision of material, nutritional and related support to pregnant women, including pre-birth CSG registration for women living in poverty so as to ensure the CSG is paid out from the 1 st month of birth. The creation of an enforceable obligation on all employers (starting with the state) to provide paid maternity leave to employed mothers and to offer breastfeeding support for mothers returning to work. The creation of a costed and state-funded ECD policy and plan of action for children with disabilities. The revision of overarching core socio-economic national policies in relation to rights such as the water, sanitation and nutrition so as to recognise the heightened priority and prior obligations to realise these rights for pregnant women and young children.

14. Integration must become a reality The realisation of integrated ECD is legally prescribed. The necessary frameworks, mechanisms, institutions and service delivery models must be in place to realise this obligation. It is not only that integration is legally prescribed; it is also a proven service delivery strategy (as shown by programmes such as Home Affairs’ National Population Registration Campaign and others) for reaching children in under-serviced rural communities. The current national integrated ECD vision does not meaningfully include departments other than Social Development and Education. Notably, the Departments of Health, Human Settlement, Home Affairs, Water, Rural Development, Local Government and Traditional Affairs do not identify or locate themselves, or their policies and programmes, within the national integrated ECD framework. To remedy this, the new NIP for ECD should be developed with the prior and full cooperation and participation of all affected parties – and should be opened for public participation. It should specify the national vision, goals, targets and objectives for comprehensive ECD and document the negotiated role of each of the departments / stakeholders in realising this. The plan must constitute the framework for synergised planning and for subsequent reporting by the various departments within a common ECD framework. Each department should be required thereafter to develop a departmental ECD policy and plan of action for planning, budgeting and reporting purposes. The Nip must ensure accountability through a shared M&E framework

15. Thank you