Transnational & Subsidised Adoptions; Progress on new Childcare Legislation

Meeting report

WELFARE PORTFOLIO COMMITTEE
4 October 2000
TRANSNATIONAL AND SUBSIDISED ADOPTIONS; PROGRESS ON NEW CHILDCARE LEGISLATION

Documents handed out:
Project 110: Review of the Child Care Act - progress report [see Appendix 1]
Extract from Discussion Paper on new Child Care legislation: Parent Responsibility
Extract from Discussion Paper on new Child Care legislation: Draft Recommendations for a New Court Structure
Project 110: Review of the Child Care Act (Issue Paper No 13)

Chairperson: Mr E Saloojee

SUMMARY
The South African Law Commission sounded out the committee on two childcare issues that could received immediate attention in terms of regulations: transnational adoptions and subsidised adoptions.

On the one hand it was argued that subsidised adoptions would encourage adoptions which was a positive step as temporary foster care resulted in lack of stability and security for the child. On the other hand, adoption subsidies would be open to abuse just as foster care grants are already being abused. It was agreed that strict monitoring would be the solution for this concern. While some members held the view that transnational adoptions should not be encouraged, the majority agreed that it was a possible solution to the problem of the growing number of children orphaned by AIDS.

Certain documents, forming part of the Discussion Paper on new Child Care legislation, were also discussed. These documents focused firstly on the question of replacing parental rights of access, guardianship and custody with the concept of parental responsibilities. Secondly a new court structure was recommended. A more inexpensive and accessible court, namely the Children and Family Court, would replace the High Court. The role of the High Court would be limited to appeals and reviews. This represents a revolutionary step, as there will be a move towards replacing legally trained staff with child-oriented people who have multi-disciplinary training.

MINUTES
Progress report on Discussion Paper
Professor Zaal, on behalf of the SA Law Commission, stated that they are currently busy completing the Discussion Paper on new Child Care legislation. He said the documents before the Portfolio Committee were chunks of the Discussion Paper in their draft form. They have completed the consultation process, which has been very broad, making the process very democratic. Their last consultation meeting dealt with residential care, while the workshops dealing with adoption and foster care had also been completed.

It was obvious that fundamental changes were needed to existing legislation as the current system was clearly failing and children requiring additional or alternative care were not having their needs met. A children's code must be integrated into the new legislation. One of the problems with the existing legislation is its fragmented nature. This is evident in the existence of different courts for dealing with children, resulting in the child "bouncing between" the courts.

Professor Zaal stated that some issues mentioned in the Discussion Paper could be worked on immediately. In this way, they will be able to produce legislation, which is in line with the children's code. This, he argued, would enable them to deal with some of the concerns immediately.

Dr Harvey (Department of Social Development) stated that the department realised that they could not wait for revisions before drafting regulations. This was because the department was now forced to review and amend 1998 regulations for which there had not been extensive consultation. A Task Team consisting of the Departments of Welfare and Justice amongst others will meet before the end of October, and will have completed the revised regulations by early next year.

In answer to a query as to why a new Task Team was necessary, Dr Harvey replied that the Task Team was established merely to expedite matters. Members of the Department were also members of the Project Committee and they were therefore involved throughout the process.

Issues capable of being dealt with immediately
Trans-national adoptions
Professor Zaal stated that Section 18(4) of the Child Care Act was clearly deficient as it completely prohibited a non-citizen of South Africa from adopting a South African child. This provision was criticized in the Fitzpatrick case where it was declared to be unconstitutional. Professor Zaal stated that in terms of the enabling legislation, which is to be introduced, foreigners would be able to apply to adopt a South African child after an appropriate screening process has occurred.

Cultural differences is the criterion that has to be considered in these adoptions. Prof Zaal said that when removing a child from its cultural background, one must have regard for its best interests because if anything were to go wrong, the situation cannot be undone as easily as in the case of a normal adoption. It is thus necessary to implement a far stricter screening process than that in cases where the applicant is South African.

Discussion
A member enquired as to the possibility of a mechanism (such as a treaty with the foreign country) whereby the foreign country's welfare structures could deal with the child being adopted.

Professor Zaal observed that this was a good idea unless the adoptive parent then took the child to another country (other than the country in which the parent was a citizen).

Dr Harvey stated that the fact that South Africa was a member of International Social Services is such a mechanism.

The Chairperson asked if the Department has actively been involved in such cases.

Dr Harvey replied that there were not many such cases of which he was aware.

Mr Masutha (ANC) mentioned a case in which he was involved in Kwazulu-Natal. In this case a Canadian citizen wished to adopt a South African child. As there was not a provision made for this in legislation, his organisation advised them to rely on the constitutional principle that every child has a right to a family as a basis for arguing in favour of trans-national adoption. They therefore advised the applicant to approach the High Court. He suggested a plan in terms of which a social worker is appointed the curator personae of the child who can then retrieve the child, should the adoption fail.

Mr Masutha suggested that SA become a signatory to the Hague Convention for the purpose of trans-national adoptions.

Ms Gandhi (ANC) stated that the issue of trans-national adoptions was a minor one and the impression should not be created that laws were being written to encourage this practice.

The majority of committee members agreed that transnational adoptions were a possible solution to the problem of the growing number of children orphaned by AIDS.

Subsidised adoptions
Professor Zaal stated that subsidies are currently provided to foster parents but not to parents of adopted children. Many people cannot afford adoptions for financial reasons. Thus, artificial foster care situations are being created where adoption is being camouflaged as foster care in order to collect a grant to support the child. The problem is that because foster care is a temporary situation, the child is not provided with a sense of security. An immediate solution would be to apply the foster care grant and fit it into the adoption category.

Discussion
An (ANC) member argued that the problem with subsidised adoption is that people will adopt merely for the sake of the grant (as is the case with the foster care grant). Secondly, people who adopt should be able to afford it because unlike foster care, adoption is a legal and a permanent situation.

Mr Durand (NNP) described the insecurity that a child faces when in foster care. He agreed that it was possible that children would be adopted by people who did not wish to be parents, but merely wanted the grant as a means of income. He acknowledged that such children could face exploitation and other abuses. However he felt that, with appropriate monitoring mechanisms in place, this could be overcome.

Ms Chalmers (ANC) favoured a middle ground in terms of which regular monitoring continued after adoptions, as is the case with foster care.

Ms Cupido (DP) stated that people who could afford to adopt were reluctant to do so. She said that trans-national adoptions were part of the answer.

Mr Masutha (ANC) referred to the child support grant as being a possible solution. To qualify for this grant, one no longer required a legal relationship with the child.

Ms Rajbally (Minority Front) believed that financial status is an important criterion when deciding if a person qualifies to be an adoptive parent.

Professor Zaal stated that a system of hard-hitting monitoring was needed, that is, arriving unannounced to collect evidence. He also stated that officials who failed to perform such duties would be held accountable.

A member asked if the department has the capacity to implement this.

Professor Zaal responded that the resources were available but had to be used in an optimal way. For example, local government could take more responsibility and the Family Advocate could deal with issues other than divorce cases as well.

In conclusion, the Chairperson asked for time frames for effecting these changes.
Professor Zaal was not sure but said that these two issues would receive priority.

Parts of Discussion Paper on new Child Care legislation
Professor Zaal stated that these documents covered two aspects of the Discussion Paper: i) Parental responsibility and ii) Recommendations regarding a new court structure.

i) The introduction of parental responsibility meant that in future, there would be no rights of guardianship, custody or access over a child. Parental responsibility could be given to more than one person who was not necessarily a blood relation of the child. The main factor would be the best interest of the child.

ii) The High Court has been criticised as being inaccessible and expensive and did not specialise in child and family matters. It is thus recommended that the role for the High Court be limited to appeal and review. It would however be replaced by the Child and Family Court, which would consist of two levels i.e. the District and Regional levels.

This represents a revolutionary step, as there will be a move towards replacing legally trained staff with child-oriented people who have multi-disciplinary training.

Discussion
Ms Coetzee (ANC) suggested that lay people be used for such courts and that members of FAMSA were a particularly good option.

Professor Zaal stated that multi-disciplinary skills would be a prerequisite as it would cost the state less (it would have to pay one instead of many experts). Social workers could possibly do a course in the Law of Evidence and in this way be more useful than someone who only has a legal qualification.

Future Plans
Mr Hollenby (of the SALC Project Committee on Childcare Legislation) stated that they were working towards a first draft of the Discussion Paper, which will then be considered by the project committee. More drafts supported by well- reasoned recommendations would follow after which a Working Committee of the Law Commission must approve it. Further recommendations, consultations and reports will follow after which it will be presented to Cabinet. He was unable to say how long this process would take.

The meeting was concluded.