4 April 2007

Dear Dr Benjamin

CHILDREN’S AMENDMENT BILL:
PROPOSED ALTERNATIVE APPROACH TO THE CARE OF ORPHANS AND VULNERABLE CHILDREN, IN RESPONSE TO THE CRISIS WHICH HAS ARISEN IN FOSTER CARE PROVISION

The National Welfare, Social Service and Development Forum (The Forum) was established in1994 to provide a voice for the developmental social welfare sector, and to promote its transformation. It is comprised mainly of regional and provincial substructures which between them represent a large proportion of South Africa’s social welfare and development Non Profit Organisations (NPOs) and numerous Community Based Organisations (CBOs) as well as individuals.

The number of children in court-ordered foster care increased by more than 650% between April 2000 and October 2006. This upsurge is the result of the spiralling of the numbers of orphans in the country. We strongly support the intention behind this phenomenon, namely that of ensuring that orphans and other vulnerable children are provided with access to family care and financial support along with supportive and protective services. We are, however, suggesting that despite the best efforts of all role players, the huge challenge posed by the plight of orphans and vulnerable children in our country cannot be effectively managed via statutory foster care. A major crisis has arisen in the country’s child protection services and in broader developmental social welfare system as a result of the sheer numbers of children coming into statutory care. The escalation in these numbers is set to continue for the foreseeable future.

We urge you to consider this appeal in the spirit of a collaborative approach between civil society and the state to transform the nature of care, services and support to orphans and vulnerable children in South Africa.

Thank you for your consideration of these proposals.

Yours sincerely

(original signed)        (original signed)
_________________       _________________
Rajesh Latchman             Marilyn Setlalentoa
National Coordinator        National Chairperson

CC
The Honourable, Minister of Social Development, Dr. Z Skweyiya
The Director – General, Department of Social Development, Mr Vusimuzi Madonsela 
The Chairperson, NACOSS, Mr Solly Mokgata
 
In summary, the elements of the crisis are as follows:

• The deluge of foster care cases is paralysing the child protection system, particularly its social work component and the children’s courts.
• Children urgently needing financial assistance have to wait endlessly due to the resulting log-jam.
• Children needing protection from severe forms of active abuse such as rape, assault and worst forms of child labour are going unattended.
• It appears that the vast majority of those currently in foster care are receiving no meaningful social work services. The only benefit reaching them is the Foster Care Grant. This is a crucial form of support, but social security measures do not intrinsically require the attention of our limited children’s court and social work resources, which are urgently needed for the protection and healing of children affected by abuse, which is at epidemic levels in our country.
• Orphans and vulnerable children are being deprived of the types of services which they really need, which overlap with, but also differ in important respects from, those delivered to children who are in foster care due to a need for protection from abuse.
• Although social work has been designated as a scarce skill, social workers are in effect being deployed as social security clerks. There is no time for them to do anything other than process children through the courts and onto the Foster Care Grant rolls.
• Continual movement of NPO staff due to aggressive recruitment by government to address the foster care backlog is creating gaps all over the children’s service system and services to all other vulnerable groups served by the social development sector.

Essential children’s services, ironically, are among those most severely affected. The services ethos is being damaged and service users are being harmed in the process.

Please see the attached discussion paper for a more detailed analysis of the above issues. The document also proposes an alternative approach. In relation to the Children’s Act and the Children’s Amendment Bill this involves:

1. A legal distinction between foster care and informal kinship care,   as proposed by the SA Law Reform Commission.
2. Legal recognition for the position of extended family members who are caring for orphans, where there is no evidence of a need for services to protect children from maltreatment.
3. The strengthening of Chapter 8 of the Bill, which deals with prevention and early intervention services, so as to provide for a national roll-out, particularly in the poorest communities, of the support services needed by orphans and vulnerable children and their families, along with other children and families who are at risk. These could involve the full range of social service professionals, assisted by personnel in other categories and volunteers. The emerging cadre of community development workers could play an extensive role here. The roll-out should give priority to the poorest communities and those with the highest rates of orphan hood. It could incorporate the existing process of developing Child Care Forums for orphans and vulnerable children throughout the country. The activities should be built into the Integrated Development Plans of local authorities.

Annexure A lists proposed amendments to the Bill to provide for the above elements.

The measures suggested for the Bill need to be combined with a shift in the social security system. There are two possible routes currently being debated between organisations concerned with child rights, namely:

• Provision for an Informal Kinship Care Grant (IKCG),  as described in the draft Children’s Bill originally prepared by the SA Law Reform Commission, which would be available to children who are in the care of extended family members in cases where financial assistance is needed but protection against maltreatment is not required. The amount paid for such a grant would be at the discretion of government – it could be equal to the Foster Care Grant if this were affordable.
• Lifting of the age ceiling on the Child Support Grant (CSG) and reduction or elimination of the gap between this benefit and the Foster Care Grant (FCG). In addition there should be a substantial adjustment of the means test which has been in place since the inception of the CSG – if this cannot be done away with altogether. Such an approach would have the advantage of requiring only a change to the Regulations of the Social Assistance Act rather than the Act itself. The extension of the CSG is favoured by many organisations because of the perverse incentive which exists for children to be left in the care of relatives in order to gain access to the FCG, as this could also arise in relation to an IKCG. These organisation also point to an element of injustice in the present situation, which discriminates against extremely poor children who are in the care of their biological parents, in favour of those who are with relatives.

ANNEXURE A
PROPOSED INSERTIONS AND AMENDMENTS TO THE CHILDREN’S AMENDMENT BILL

A. The following insertions are suggested for the sections in Chapter 8 which describes the types of prevention and early intervention services which are to be provided:

Purposes of prevention and early intervention services or programmes

144(1) (describing prevention and early intervention services which are to be provided)…………………..

 (i) providing assistance with issues of trauma and grief in families affected by illness, death, separation, violence or natural disasters;
(j) providing practical assistance and guidance for older persons, children and young adults who are serving as caregivers for children;
(k) providing assistance to families with children with disabilities;
(l) providing assistance to families with children with chronic illnesses;
(m) providing assistance to children in families with sick or terminally ill caregivers and children living in child-headed households;
(n) providing assistance to children suffering from substance abuse or children living with caregivers suffering from substance abuse; and
(o) providing aftercare services and support to children when they leave residential care.

144(2) Prevention and early intervention services or programmes may must where necessary
  include –

(a) assisting families to obtain the basic necessities of life and to access essential services;
(b) empowering families to obtain such necessities and access essential services for themselves.
(c) providing families in desperate need with the basic necessities of life including food, clothing, and shelter

B. The following amendment is recommended to secure the position of the services in question in planning and budgeting processes:

146.  (1) The Minister must include in the departmental strategy a comprehensive national strategy aimed at securing the provision of prevention and early intervention services to families, parents, care-givers and children across the country ensure that a national network of prevention and early intervention services as described in s145 is in place and operating effectively throughout the country, based on data reflecting the numbers of vulnerable children and families in each province.

C. The following provisions, designed to enable kinship caregivers to properly carry out their care giving responsibilities, are drawn directly from ss 207-8 of the original draft Bill prepared by the SA Law Reform Commission:

Responsibilities and rights of relatives in terms of informal kinship care arrangements

(1) A relative caring for a child in terms of a an informal kinship care arrangement
(a) has the responsibilities and rights in respect of the child –
(i) as provided for in section ….. and any other provision of this Act; and
(ii) as a court may assign to that relative in terms of section …; and
(b) may on behalf of the child’s parent or guardian  -
(i) consent to medical treatment of or an operation on the child in terms of section …, or
(ii) assist the child in terms of section …. to consent to such operation;
(c) may on behalf of the child apply to any organ of state for any grant or other aid in
respect of which the child may qualify, including a social security grant;
(d) may consent to the child going on journeys, including educational, cultural, sports and holiday excursions; and
(e) may perform such other acts as may be prescribed by regulation.
(2) A relative caring for a child in terms of an informal kinship care arrangement may exercise the responsibilities and rights referred to in subsection (1) only to the extent that the care of the child is not provided by the parent, guardian or other person to whom parental rights and responsibilities in respect of the child have been assigned.
(3) Consent or assistance in terms of subsection (1) (b) may only be given with the written authority of the parent or guardian except if –
(a) the child –
(i) has been abandoned by the parent or guardian; or
(ii) is an orphan; or
(iii) the whereabouts of the parent or guardian are unknown.

Termination of informal kinship care arrangement
An informal kinship care arrangement may at any time be terminated by –
(a) the parent or guardian of the child reclaiming his or her right to care for the child, except when a children’s court orders otherwise;
(b) the relative caring for the child in terms of the arrangement;
(c) the children’s court on application by the child or any other person with an interest in the care of the child.

It is proposed that the feasibility of both the above approaches be fully investigated within a process running parallel to that relating to the Children’s Amendment Bill.

The NWSSDF regards the present deliberations regarding the Children’s Amendment Bill as an opportunity to address the present crisis and to create a system which will be able to make a real impact on the overwhelming problems faced by the orphans and vulnerable children of our country.

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