The Children's Amendment Bill [B18-2020]

On 31 August 2020, the Minister of Social Development introduced the Children’s Amendment Bill [B18-2020] in Parliament to amend the Children’s Act, 2005 to:

  • Strengthen protection of  vulnerable children through coordinated provision of care and protection services;
  • Address gaps and challenges in the child care and protection system and identify strategies to address these challenges
  • Respond to a High Court order relating to the foster care challenges and provide for a comprehensive legislative system. 

Why the Children’s Amendment Bill?

The Bill seeks to amend the Children’s Act, 2005 and through its objectives to provide for:

  • Children’s right to privacy and protection of information;
  • The rights of unmarried fathers;
  • Funding of early childhood development programmes;
  • The designation and functions for a Registrar of the National Child Protection Register;
  • The care of abandoned or orphaned children and additional matters that may be regulated;
  • Rules relating to care and protection proceedings;
  • Medical testing of children in need of care and protection or adoption;
  • Additional matters relating to children in alternative care;
  • Matters relating to adoption and inter-country adoption;
  • The hearing of child abduction matters;
  • Matters relating to surrogate motherhood; and in addition
  • The extension of the Children’s Court jurisdiction.

What is the purpose of the amendments to the principal (main) Act?

The amendments seek to:

  • Amend the Children’s Act to strengthen protective measures for children.
  • Address critical gaps and challenges in the underlying childcare and protection system and identify strategies to address these challenges efficiently and effectively.
  • Contribute towards the comprehensive legal solution as ordered by the Gauteng Division of the High Court in Pretoria, in the matter of Centre for Child Law v Minister of Social Development (Case No: 72513/2017) to deal with challenges relating to the provision and administration of foster care.

What are the most significant amendments proposed to the Act?

The most significant amendments relate to the following areas with policy implications:

Parental responsibilities

  • Section 21: Clarifies the parental responsibilities of unmarried fathers where the biological parents are not married. The father will automatically be able to fulfil his joint parental responsibilities and rights in respect of the child.
  • Section 22: Gives a child who is of sufficient maturity and mental capacity the right to express their views on the content of a parental responsibilities agreement 

Child marriages

  • Section 12:
    Forbids any marriage of a child
    Will be superior to the Marriage Act of the Department of Home Affairs which allows a Marriage Commissioner to grant permission for a child marriage

Unaccompanied migrant child

  • Section 150: Extends the definition of a vulnerable child in need of care and protection in so far as an unaccompanied migrant child from another country, a victim of trafficking or a child who has been sold by a parent, caregiver or guardian.

Early Childhood Development (ECD)

  • Section 91:
    Inclusion of children with developmental difficulties and disabilities in ECD programmes
    Development of a child-friendly curriculum for children with disabilities
    Migration from DSD to DBE needs to be settled

Foster care order

  • Section 159: Court issues an interim order with a duration of not more than six 6 months. This section initially required a court order to be renewed every 2 years.
  • Section 167: Replaces 6 months with 72 hours. This seeks to reduce the time a child may be in a temporary safe care without a court order.

Funding of partial care and alternative care centres

  • Amendments in sections 193, 215, and 78:
    Make it possible for child and youth care centres, drop-in centres, and conditionally registered partial care and alternative care centres to be funded.
    The amendments require the MEC of social development to prioritise funding of partial care centres located in rural areas or in poverty declared wards. The amendments speak to the department’s policy shift to assist centres that are struggling to comply with norms and standards, mainly due to a lack of resources and inappropriate infrastructure.

 Adoption Services

  • Amendment to Section 233: Requires a child-parent to be helped by either parents, guardians or a court in a decision to give the child up for adoption.
  • Amendments to sections 234 and 249: Inclusion of “a family member” to the current list which regulates post-adoption agreements to allow a family member to enter into a post-adoption agreement, when that family member has been formally recognized as a caregiver to the child to be adopted.
  • Clause 123 amends section 250: Allows for “a social worker in the employ of the Department or Provincial department of Social Development to provide adoption services"
  • Amendments to sections 260 and 262:Gives the South African Central Authority (Chief Family Advocate) the right to withdraw an accreditation to provide inter-country adoption services.
  • Amendment to section 111: Introduces a Registrar of the National Child Protection Register to manage the Register (previously done by the Director-General of the department)

 Role of municipalities

  • Amendments to Section 92: Obliges the Department of Social Development (DSD) to engage with the municipalities to address infrastructure issues and prioritize poor, rural and underserviced communities and prioritize allocation of resources to these communities.

Did you know?

  • Parliament comprises two Houses namely the National Assembly (NA) and the National Council of Provinces (NCOP)
  • Parliament is the national law-making body of South Africa
  • Bills are mainly introduced to Parliament by the Minister of the specific government department
  • For the bill to be passed into law, the President needs to sign it (assent to it)
  • Parliament is obliged by the Constitution to obtain views of the people before passing any bill

Source: Public Education Office, Core Business Support, Parliament of the Republic of South Africa