Implications of Children’s Amendment Bill: DHA briefing; Pre-introduction consultation process with stakeholders: DSD briefing; with Minister and Deputy Minister

Meeting report

DHA on implications of Children’s Amendment Bill

Deputy Minister’s opening remarks

Mr Njabulo Nzuza, Deputy Minister of Home Affairs, thanked the Committee for the opportunity to present the implications the Child Amendments Bill would have for the Department of Home Affairs (DHA). There had been misalignments regarding the publication of section 18(3) of the Children’s Act which had resulted in the DHA requiring unabridged birth certificates for parents who wanted to travel with children. This example showed how the challenges could have been minimised had the DHA been more involved.

The DHA recognised the Bill’s emphasis on the rights of privacy and protection of information, which was in accordance with the Access to Information Act. The Bill sought to address the rights of unmarried fathers, as well as issues involving abandoned children in care, adoption, marriage and surrogacy, and to expand the authority of the Children's Court.

The Bill was aligned with the Access to Information Act, and thus it protects the information of children. Fathers could register children without mothers being present. A matter was in court, where fathers were saying that they should be able to declare a child as their own simply by writing an affidavit. However, the Department believes that paternity results should be provided, as this would open many gaps where abandoned children could be registered as their own, as well as illegal children being registered as a father’s own child. The DHA awaited the Constitutional Court’s judgment on the matter. The Bill would make it clearer on how the DHA could determine the rights of an unmarried father, and what was needed for him to be declared as the father.

The DHA was in the process of taking the biometrics of children at birth to ensure the child was registered and avoid duplicate registrations in cases where a child was abandoned. When inter-country adoption occurs, the new parents notify the DHA and leave the country, using the court order declaring that they have adopted the child. On some occasions, the child faces challenges when arriving in the new country, which leads to the child being abandoned. The adoptive parents were not tied to the child. It needed to be made into law that before an international adoptive parent leaves South Africa with a child, the parental details must have been changed to reflect the adoptive parents. The child must be linked to the adoptive parents so that when the child leaves, the child leaves with the passport of the parents, and that the parents were registered on the child’s birth certificate. It was essential that children were adopted to parents who were from countries which were part of the Hague Convention.

Legislative changes

Adv. Tsietsi Sebelemetja, Acting Chief Director: Legal Services, DHA, said that the Department was currently in the process of developing a marriage policy, as the issue of the minimum age to enter a marriage had been identified as one of the crucial aspects that the policy had to address. The current Acts sets various minimum ages for a person to enter marriage, with the consent of parents in the case of persons below 18 years. The Minister shall give no consent/authorisation for immature persons below 18 years to marry, including traditional marriages. The draft policy was undergoing internal government consultation, leading to Cabinet consideration and approval to undertake public consultation. The main aim was to align the minimum age to the provisions of the Children’s Act.

One of the impending legislative changes within Home Affairs, which required the amendment of the Children’s Act, was that a person who was not married to the mother of a child born out of wedlock, could register the birth of the child, provided there was conclusive proof. This change in legislation gave the father an equal right and status to the registration of the child. Such a parent had parental rights and responsibilities in respect of the child. Only the courts could revoke such a right of registration if there was a legal basis for such a parent to be limited to register his child. In this case, the interests of the child would remain paramount.

Dr Aaron Ramodumo, Chief Director: Births, Marriages and Deaths, Civic Services Unit, DHA, said that the documentation of children remained an issue that the Department had addressed through various campaigns. There should be no child who was undocumented in this era. The DHA was moving towards a national identification system, which catered for the registration of all citizens and non-citizens. Paragraphs (t) and (y) were, in his view, problematic as they referred to a child as a “migrant,” and it was not clear if the child was a migrant, or his or her parents. He suggested that this definition be revisited.

The Department would continue processing adoptions in terms of the Hague conventions, as well as sections 27 of the Birth and Deaths Act, and 245(1 & 2) of the Children’s Act, recording of adoption in the birth register. There was non-compromising cooperation between the DHA and the Department of Social Development (DSD) in terms of the enforcement of the applicable requirements for the recoding of adoptions in the birth register.

Home Affairs was unable to deal with provision of documents of persons who were adopted, as it was not stated in the adoption papers whether such an adoption was either “open” or “closed.” The lack of clarification in the adoption order presented a challenge for the Department when adopted children were of age and needed to know who their real identity was. With Children’s Court orders, there appeared to be a lack of understanding of the procedures regulating the registration of births – there were some orders that required the registration of birth of children born of foreign parents as citizens, when the law did not allow such a process.

Discussion

Ms L Arries (EFF) said that according to the Basic Conditions of Employment Act, a child could not be employed under the age of 15. According to the South African Schools Act, children must attend school until the age of 15. The Marriage Act allowed for consent by parents for children under a certain age to get married. How would the Department create synergy between the various Acts? People who provided care for children with no birth certificates, struggled to enrol children at school. This deprived these children of their right to education. How was the Department dealing with this? She commended the Department for dealing with the rights of unmarried fathers and the rights of parents utilising surrogacy. There were 16 000 children that did not have birth certificates, and this denied parents access to the Child Support Grant. How was the Department dealing with this?

Ms Arries said she was dealing with a case where a child’s mother was Mozambican and the father was South African. The child’s surname was spelt wrongly on the birth certificate, and the family was now struggling to bring the child into South Africa despite proving via DNA that they were the parents.

She said teenage pregnancies happened with teenagers as young as 14. These young couples often split and when the young woman remarries, she changes the child’s surname to the stepfather's surname. How was the Department dealing with this, as the biological fathers' rights had been stripped?

Ms A Abrahams (DA) asked the DHA to state how many South African children had been abandoned in other countries. How long did it take the DHA to issue the necessary documentation for adopted children to leave South Africa? She had heard this process took years to complete, resulting in children leaving the country without the documentation. How did the DHA plan to resolve this?

Mr D Stock (ANC) said that stakeholders needed to work together to ensure that the interests of the child were at the core of their work. How could the DSD and the DHA use the Theory of Change as a scientific tool to ensure that a child’s best interest was at the core of the implementation of the Children’s Amendment Bill?

Ms K Bilankulu (ANC) said that children who were abandoned in foreign countries were usually young children. Was it possible to create an age restriction for inter-country adoption? She suggested it should apply to children older than 10 or 15 years. She asked if consequences may be added to the Child Marriages Act for parents who consented to children getting married.

Ms L van der Merwe (IFP) asked when the draft marriage policy would be complete. The Deputy Minister and the presenter had alluded to a project of collecting the biometrics of children, so if a child was abandoned or if a father wanted to register children, there was no double registration. There seemed to be massive delays with this project. When did the DHA anticipate its completion? The presentation stated that all children born form migrants were registered -- what type of documentation were these children issued with? How many migrant children were born in South African hospitals? How many were on the DHA database per category -- illegal, legal and undocumented migrant children?

From the presentation, it seemed that adoptive parents were abusing South African law by taking children from country to country. She commended the DHA for trying to close these loopholes. It was stated that a child should travel on an adoptive parent’s passport, as documents took long to be issued. How could a child travel on the passport of another parent? Surely a child should enter the country of the adoptive parents with their birth certificate, and obtain a new passport and identification there? She knew of a case that took three years for adoptive parents to change the child’s details. If this needed to be done before a child could be adopted in an inter-country case, the DHA would need to improve on the timeframes for registering adopted children.

She said the Committee would like to see a partnership between the DHA and the South African Social Security Agency (SASAA). Services such as registering a child’s birth and applying for a grant should be rolled out together so that vulnerable citizens did not stand in queues for hours at the DHA, and then again at SASSA.

DHA’s response

Adv Sebelemetja said that teenage pregnancies happen as early as 14, and children were able to work at 16, yet the marriage age was being set at 18. This did indeed require alignment. The Department sought to prevent parents giving permission for children to be married before they were ready for marriage.

There were other social issues that occurred and needed to be dealt with and considered. The Department sought to align legislation, namely the Marriages Act with the Children’s Act. It needed to look into the matter of caregivers that did not have birth certificates for children. When a child had to be placed into alternative care, social workers should investigate the matter to determine if the parents were present or not. If the child did not have parents, then, from a local level, someone should engage with the DHA to find out if the child had been registered. To find out if a child was registered, the date of birth and names were required. Departments needed to work in unison. Undocumented children were able to attend school, however, the Department needed to come up with procedures to determine if such children were registered or if details of parents were unknown.

Single fathers were assisted by the DHA. Laws need to be tightened to make sure that there were procedures that decreased the double registering of a child when a father registers the child. In a case where a mother gets remarried to someone else and chooses to change her children’s surname to the stepfather's surname, the biological father was registered to the child at birth, so the father’s consent was required when changing the child’s surname. The DHA faced challenges regarding this, as it could not infringe on both the mother’s and the father’s rights.

The Chairperson asked that in a case where a parent gets married and the child finds custody within that family, was it possible to find a law that accommodated the biological father while acknowledging the new custody in the new marital status?

Adv Sebelemetja said that this could be explored through new legislation. The Department would look into this. The DSD and DHA needed to engage with one another to prepare for provisions and realign procedures so that the amendments may be implemented with efficiency and without challenges.

The Department aimed to have the draft marriage policy with the Cabinet by the end of March so that it could be published in April 2021 for comments.

Dr Ramodumo said that the 16 000 children without birth certificates were welcome to provide all information to the DHA. In 2012, there had been a conference for African Ministers responsible for civil registration and vital statistics. African countries had agreed that the process of registering births would be looked into. Concepts such as ‘leaving nobody behind,’ ‘removing the scandal of invisibility’ and ‘documenting the undocumented,’ came about in this conference.

In 1994, South Africa had a high number of unregistered people, especially those coming from homelands. The DHA had made much progress, and the numbers showed this. The number of late registrations of births was low. The DHA was willing to look into the issue of unregistered children on a province to provinces basis.

Regarding the case Ms Arries had raised, where a father was South African and the mother was Mozambican, they were unable to register the child in South Africa. When a child was born, both parents were able to register the child at the DHA. Proof needed to be provided that the father was indeed the father of the child for the child to be registered as South African. Where a child’s last name was misspelled, the parents must follow a process of rectification to correct this.

Where a mother remarries and changes her child’s last name to her new husband’s last name, it was decided by the mother and the step farther. It must be noted that should the union be broken, it would be difficult for the mother to revert the child’s last name to the initial last name unless the mother engaged with a competent court.

The DHA contributed information to various platforms related to registration and vital statistics when African countries meet every second year. In these engagements, a case had been mentioned where two South African children were in Ghana with South African documents, but the process of inter-country adoption was not fully complete. The children had been abandoned in Ghana and used as sex slaves. Therefore, as much as inter-country adoption was promoted, in the best interests of the children, whoever was adopting the child must be accountable for his/her actions thereafter.

There was a bottleneck regarding documentation being issued for children being adopted. Once the order was provided by an individual, it usually took eight weeks for documents to be issued. However, in the case where parents were coming from outside of South Africa, it was expensive to stay in the country for those eight weeks, so the parents wanted the DHA to fast track the process. The parents would then resort to going through the courts to compel the DHA to fast track the process. The DHA, however, utilises the method of, ‘first in, first out.’ The Department was trying to remove the bottlenecks to ensure the documentation was issued more quickly.

The Theory of Change was a purposeful model of how an initiative such as policies, strategies or programmes, could lead to better outcomes. The reason the DHA was using infant identity management was due to the realisation that there were bottlenecks in the legislation. It was trying by all means to bring a theory of change to this situation while practising within international standards and human rights standards. The age of 18 for marriage was an example.

The DHA was working closely with the Council for Scientific and Industrial Research (CSIR) on identity management, and the biometrics associated with identity management. It was developing models which would ensure that the biometrics of a baby were taken. Research had shown that once a child was six hours old, a palm print and thumb print could be taken. The identity management policy, once finalised, would secure the identity of children as early as six hours old. By 2023, an approved policy would be complete.

Registration of birth was for South African children that conformed to section five of the Births and Deaths Registration Act. In the case of a non-South African child, a proof of birth from the hospital and a DHA 19 certificate would be provided to the parents. The parents would be advised that the DHA could not register the details of the child on the National Population Register, and would thus be advised that the child was registered at the relevant embassy.

Not all countries prescribed to a human rights culture, so in a case where a parent from a country that did not come from a country that promoted human rights, it must be clear in the Children’s Amendment Act that they could not adopt children in South Africa.

A French person had adopted a South African child and taken the child outside of South Africa, using the adoption documents. The person did not go directly to France, but went to a West African country. The person wanted to see if the child was able to adapt to the environment, which the child had not. The person then abandoned the child with the child’s South African passport. To close this loophole, where a parent from within the Hague convention must change the child’s birth certificate bearing the adaptive parents' details, the parents must get the child a French passport to leave South Africa.

Deputy Minister’s response

Deputy Minister Nzuza said that the DHA was aligning itself with the Children’s Act by making the legal age for marriage 18 years old.

There was a court judgment that ruled that children could not be denied education on the basis that they did not have birth certificates. If there was a case where this was happening, it was not allowed. The DHA had concluded a process of registering of grade 12s to ensure that by the end of the year, the children would have birth certificates and their matric certificates would include all their information. There were about 5 000 matriculants who were born of foreign nationals, but they were attending schools and were allowed to do so.

Surrogacy was recognised, and not only the mother who gave birth. It had been dealt with that it recognised both parents involved in the surrogacy process.

The DHA had prepared to discuss issues on the Amendment of the Children’s Act, so it did not have statistics and figures on hand. He asked to submit these answers in writing to the Committee in order for the information to be accurate.

The first time a father was entered on the population registry as a father, as well as the mother, should there be a change of the father, the DHA required the registered father to give consent for the change.

He said that setting an age restriction for children involved in inter-country adoption would be up to the Committee to introduce into the Amendment Bill. The DHA would respond by implementing what was decided and amending what needed to be amended.

As soon as the law had been changed regarding the Marriages Act, the DHA would not register the marriage of a minor. If the marriage occurred traditionally, the law would then have to take its course in respect of contravention of the Children’s Act.

The identity policy aimed to reduce the number of years at which people could receive their identity document. It aimed to reduce it from 16 years to 13 years old. However, the capturing of fingerprints and palms must be done as early as possible. There had been major delays, however, as the DHA had had to deal with a number of issues of irregularity that surrounded the project. These issues had been resolved and the Department was looking into saving the project. It was unable to respond with timelines of completion for now, but the Committee could be assured that it was one of the Department’s top priorities.

Deputy Minister Nzuza said that parents coming from European counties to adopt a South African child often took the order of the court stating that they had custody, as well as the child’s birth certificate, to leave the country. However, should they feel the child was not adapting, or for whatever reasons the circumstances become difficult, the adoptive parents would abandon children as there was no link between them and the child. The amendment bill must thus force parents to change the child’s details at the DHA to reflect the adoptive parents' details. This would enable the tracking of these parents and for consequences to be faced.

The DHA would remain committed to improving its systems to serve people better. He offered full cooperation with the Committee in any regard hereafter.

Follow-up discussion

Ms B Masango (DA) said that the 16 000 children who were unregistered were social grant recipients, so SASSA would have their details.

Deputy Minister Nzuza replied that SASSA gave space for certain children to get social grants for about three months while they did not hold birth certificates. This was for instances where there had been a delay in issuing birth certificates. The 16 000 may be a constant figure reported, but it may not be the same 16 000 people each time it was reported. For instance, a child may receive the birth certificate and no longer receive the grant, but a new child was born and was admitted. The DHA was now promoting a system where births were registered within 30 days. COVID19 had hampered the rollout of this, but there were DHA offices in hospitals so, by the time the children left the hospital, they had a birth certificate. Of the 16 000, the majority of the children were foreign nationals. People had identified a loophole in SASSA and had used that to their advantage by saying that they had not yet received a birth certificate in order to get the social grant.

To be a citizen of South Africa, a child must have a parent that was South African. If a child was born in South Africa by non-South African parents, the DHA would issue a notice of birth to the country of origin. However, the system would now change to capture the details of the child so that SASSA may clear the 16 000 grant recipients.

The Chairperson thanked the DM and DHA officials for presenting to the Committee. The Department was then excused.

DSD on implications of Children’s Amendment Bill

The Department of Social Development (DSD) presented on the pre-introduction consultation process with stakeholders, and more specifically with the South African Local Government Association (SALGA).

Mr Linton Mchunu, Acting Director-General, DSD, said that Cabinet had approved the submission of the Children’s Amendment Bill to Parliament in February 2019. He gave the Committee the background of the Bill.

Adv Luyanda Mtshotshisa, Specialist: Legislative Drafting and Review, DSD, said that the Bill had been consulted on in 2018 at the national Child Care and Protection Forum. In July 2018, there had been consolation on the draft Children’s Amendment Bill. In October 2018, the gazetted Bill was shared with stakeholders. November 2018 was when the Forum had met. Further consultations were done with national departments, provincial DSDs and civil society organisations.

Discussion

The Chairperson stated that in matters where there was a legal contestation, the presentation must not be made in a conversational manner. On Friday, the Committee required a written legal opinion in response to what SALGA had raised in the previous meeting. The letter had to include how the process was within the law before continuing. There was still time for clarity.

Adv Mtshotshisa asked what the legal question was.

The Chairperson replied that SALGA had said that it was supposed to have been consulted with before the Bill went to parliament. SALGA had said it was not involved, whereas the DSD said that it was. This could therefore be reduced to a written legal opinion. This would allow the Committee to safely move forward.

Adv Mtshotshisa said that SALGA had said it had not been consulted individually. Section 154(2) of the Constitution stipulated that the Bill was expected to be published for public comment in order for SALGA to have the opportunity to comment on the Bill. The Bill had been published for public comment in October 2018.

Mr Mchunu responded that between 21 and 22 November 2018, the National Child Protection Forum (NCPF) was held. SALGA was a member of the forum and the consultations were therefore conducted in this manner. The DSD had not gone to individual organisations and asked for comment. In this case, it had set up the forum to receive inputs from various stakeholders.
The Chairperson said that Mr Mchunu’s explanation must be stated in writing.

Ms Lindiwe Zulu, Minister of Social Development, requested that the Department return on Friday in order to allow the DSD to respond in the manner which the Chairperson had requested. If SALGA had stated that the forum had not been adequate as a means of consultation, then the Department had to return with a response to this.

The Chairperson said that chapter five of the Bill stated that it would assign functions. When assigning functions, there was an impression that it retained the principalship of the functions. It was understood that these functions were being removed from the DSD, so if it was being removed, was assignment the correct wording?

Ms Lisa Naidoo, Senior State Law Adviser, said that the Early Childhood Development (ECD) programme stipulated in chapter five of the Bill, would be moved from the DSD to the Minister of Basic Education. The delay in the process was finalising the proclamation. The Office of the Chief Law Advisor was working with the two ministries to finalise this.

Should the Bill be passed and made into law, then the transfer of functions would take place. The Minister of Basic Education would be liable to implement the provisions, even though she had not been consulted thoroughly in-terms of intergovernmental relations on these issues. She added that the comments raised by the Department of Basic Education were valid and needed to be considered when one looked at chapter five.

A few weeks before certification, chapter five was the new amendments that had come into the Bill. The Bill was important due to the Constitutional Court order. The Office of the Chief Law Advisor had indicated to the Department that these provisions had not been approved by the Cabinet. There had been no consultations on chapter five, and these were substantial amendments that required consultation. The wording “assignment’ was a problem.

Adv Mtshotshisa said that the issue to which Adv Naidoo referred to was actually regarding chapter six. This chapter referred to the amendment, and had come about as a result of the comments made by members of the public. In the presentation which the DSD had made to the Committee towards the end of 2020, it had alluded to the fact that this part of the bill was not part of the bill that was published for public comments. The draft published for public comments was different from the draft published for Parliament, as the latter draft was an incorporation of the comments received by the public. The wording in chapter six 103(A) to 103(N) was exactly the same as the wording that was in chapter five.

The Children’s Act had been crafted as chapter five, which referred to partial care facilities. These facilities needed to be registered as facilities. The wording of Chapter six 103(A) to 103(N) was the exact same wording that was in chapter five of the Act, which had been agreed to by SALGA and other stakeholders involved in the Children’s Act. When one looked at the part that refers to child and youth care facilities, drop-in facilities and so on, all the facilities needed to be registered in terms of the Children’s Act and required a registration process.

Chapter six 103(A) to 103(N) stipulated that the Member of the Executive Council (MEC) must assign to municipal managers certain functions. This already existed in chapter five of the Act and was being implemented in regard to the registration of drop-in centres, and child and youth care centres (CYCCs). Should the wording be amended for 103(A) to 103(N) it would change the registration of CYCCs, the assignment of MEC to municipality managers, and so on. The only thing that was missing in chapter six, was the word “centre,” as the other wording was already in the Children’s Act.

The Chairperson said that this grey area must be considered among all the lawyers involved, and a legal opinion had to be given to the Committee on whether it could proceed with the process of the Bill or not. The policy migration was a directive given by the President. He therefore thought that all functions regarding ECD would be migrating to the DBE. All the implications would be shifted to the DBE as well, and if a proclamation or law was required for this, this became the purview of the lawyers. Was the Department responding to public consultations or the Presidents directive in his State of the Nation Address (SONA)? What were the legal implications of who the Department responded to? What was the response supposed to include?

SALGA’s Response

Mr Mthobeli Kolisa, SALGA Chief Officer: Infrastructure Delivery, Spatial Transformation and Inclusivity, said that SALGA had not been a part of the National Child Protection Forum until it got the first invitation towards the end of 2020. At the time the Bill was processed, SALGA was not a part of those dialogues. The documents and minutes would show that SALGA was not a part of the process at that time.
Section 154(2) of the Constitution emphasised organised local governments and municipalities making representation on an Act that affected the functions of municipalities. It was different from issuing a public statement calling for comment. The constitution specifically said it must make representations. There was thus a directive for positive action. It therefore had to be explored to what extent representations were made.

The State Law Advisor was advising that the insertion of part two in the Bill had been done as a consequence of public comments which the DG had agreed to. It had not gone back to Cabinet or been subjected to further consultations. The affected spheres of government had not made representations following this.

All these things could be dealt with by implementing the Intergovernmental Relations (IGR) Framework Act. This Act stipulated that if an Act affects a sphere of government, organised local government should be a part of the Ministers and Members of Executive Councils Meeting (MINMEC). SALGA had written to the Minister to highlight this point, and had expressed that it was willing and wished to participate in the MINMEC of the DSD. As the process ensued, SALGA would be able to start the process of consulting municipalities so that it was in the position to make representations when the time arrived.

The assignment and delegation of the function, the main point raised by SALGA, was that the section that deals with the assignment of responsibilities to municipality managers did not deal with delegations of functions to a municipality. The act of assigning/delegating to a municipality, delegates to a municipal council which has executive and legislative authority with respect to functions that were functions of local government. The council of the municipality delegates particular responsibilities in its delegation framework to the executive mayor, and through the mayor, to the administration. Thus, another sphere of government does not delegate to the municipal council -- it was delegating responsibilities to the Municipal Manager. It did not assign with the delegation of functions to the municipality.

Closing remarks

The Minister said she did not want to create confusion in the meeting. SALGA was saying that it did not sit on the Forum when consultations were held regarding this matter. She had not been in the Department at the time of the forum, so the Department would have to consult with her in this regard. The letter that had been sent to her should not be mixed up with the events of the meeting, and what SALGA thought then versus what SALGA thinks now. When the Department comes back, it would give the state of how things were then, and look at the state now. It would look at whether it needed to be corrected in the future and what had to be done to do so.

The Chairperson emphasised that the process that was under way must be protected to ensure the Bill was concluded. That was the commitment the Committee had made.

The meeting was adjourned.