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ABSTRACT
The South African Children’s Act accords the right to participate in all matters to every child of sufficient maturity. This article examines the Guidelines for the Alternative Care of Children to analyse the extent of the right in residential care and the degree that this right is realised in South Africa. South Africa’s laws and policies include detailed commitments to ensure that children and young people participate in professional assessments; judicial procedures; decisions about daily care and the governance of residential facilities. However, even the most perfectly crafted legal framework is no guarantee of the fulfilment of rights, therefore, it is critical to assess practice and outcomes.
The government of South Africa routinely collects administrative data on the number of children and young people in residential care but no data that measure participation or even the statutory decision-making processes. The only information available comes from two cross-sectional studies of child and youth care centres (residential facilities). A review of the results suggests that the critical decision-making processes are not happening, and consequently children and young people lack opportunities to comment on their care or influence what happens to them. The article concludes that the state needs to train professionals on children’s rights and the Children’s Act and include protection and participation indicators as part of monitoring instruments. Monitoring will not be sufficient to create the conditions for participation to happen; however, it will begin to shed light on where efforts need to be increased.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Lucy Jamieson is a senior researcher at the Children’s Institute, University of Cape Town.
Notes
1 Children’s Act (Act 38 of 2005), section 10.
2 A child and youth care centre is defined as ‘a facility for the provision of residential care to more than six children outside the family environment’. Children’s Act, section 191(1).
3 United Nations General Assembly, Guidelines for the Alternative Care of Children: Resolution/Adopted by the General Assembly, 24 February 2010, A/RES/64/142 (Geneva: United Nations, 2010).
4 S. Pendlebury, P. Henderson, and L. Jamieson, ‘Unsettling Notions of Participation: A View From South Africa’, in Children and Young People’s Participation and Its Transformative Potential: Learning from Across Countries, ed. E.K.M. Tisdall, A.M. Gadda, and U.M. Butler (Basingstoke: Palgrave Macmillan, 2014), 137–9.
5 L. Jamieson, S. Pendlebury, and R. Bray, ‘Conclusion: Children as Citizens’ Dialogue’, in South African Child Gauge 2010/2011, ed. L. Jamieson, R. Bray, A. Viviers, L. Lake, S. Pendlebury, and C. Smith (Cape Town: Children’s Institute, University of Cape Town, 2011), 72.
6 L. Artz, P. Burton, C.L. Ward, L. Leoschut, J. Phyfer, R. Kassanjee, and C. Le Mottee, Optimus Study South Africa: Technical Report. Sexual Victimisation of Children in South Africa. Final Report of the Optimus Foundation Study: South Africa. (Zurich: UBS Optimus Foundation, 2016), 31.
7 H. Meintjes, K. Hall, and W. Sambu, ‘Demography of South Africa’s Children’, in South African Child Gauge 2015, ed. A. De Lannoy, S. Swartz, L. Lake, and C. Smith (Cape Town: Children’s Institute, University of Cape Town, 2015), 102–6.
8 K. Hall and W. Sambu, ‘Income Poverty, Unemployment and Social Grants’, in South African Child Gauge 2015, ed. A. De Lannoy, S. Swartz, L. Lake, and C. Smith (Cape Town: Children’s Institute, University of Cape Town, 2015), 111.
9 K. Hall, ‘Social Assistance as a Strategy to Reduce Poverty and Inequality: Policy Options for Children’ (analysis of General Household Survey 2014 presented at joint government and civil society roundtable to discuss social assistance, November 2015).
10 UN Committee on the Rights of the Child (CRoC), Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Second Periodic Reports of States Parties Due in 2002: South Africa, 17 March 2016, CRC/C/ZAF/2, para. 188, http://www.refworld.org/docid/57aafaa74.html (accessed 11 August 2016) (hereafter Second Report to CRoC).
11 A.M. Skelton, ‘Child and Youth Care Centres’, in Commentary on the Children’s Act, ed. C.J. Davel and A.M. Skelton (Claremont: Juta, 2010) (Revision Service 2).
12 Community Agency for Social Enquiry (CASE), Baseline Study on Registered Child and Youth Care Centres (Pretoria: Department of Social Development & UNICEF, 2010), 6; CASE, Unregistered Child and Youth Care Centres and Temporary Safe Care (Pretoria: Department of Social Development & UNICEF, 2012).
13 Office of the High Commissioner of Human Rights, Convention on the Rights of the Child. UN General Assembly Resolution 44/25 (Geneva: United Nations, 1989).
14 Secretary General of the Organisation of the African Union, African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (Addis Ababa: OAU, 1990).
15 Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).
16 Constitution, section 28 (1)(b).
17 CRC, articles 5, 8, 9, 10, 18, 20, 21 and 22(2); African Charter, articles 18, 19, 20, 23(2), 24 and 25; Constitution, section 28 (1)(b); Children’s Act, sections 18, 19, 20, 21 and 32 (see section 1 for definitions of ‘care’ and ‘contact’).
18 Children’s Act, section 158(1).
19 Ibid., section 159.
20 P. Mahery, ‘The United Nations Convention on the Rights of the Child: Maintaining its Value in International and South African Child Law’, in Child Law in South Africa, ed. T. Boezaart (Claremont: Juta, 2009).
21 UN CRoC, General Comment No. 12 (2009): The Right of the Child to be Heard, 20 July 2009, CRC/C/GC/12, para. 73.
22 African Charter, article 4(2).
23 Children’s Act, section 10.
24 Ibid., section 8(1). The Children’s Act incorporates a number of rights from international law that are not enshrined in the constitution, inter alia the right to participate and the right to be protected from harmful cultural practices. ‘While children are afforded constitutional rights, the Commission considers it necessary to formulate for inclusion in the Children’s Bill certain additional rights for children. In this regard, the Commission took care not to repeat or duplicate the existing provisions of Chapter 2 of the Constitution, 1996, but to include only supplementary rights in the Children’s Bill.’ South African Law Commission Project 110, Review of the Child Care Act (Pretoria: South African Law Commission, December 2002), part 1, para. 3.4, p. 16. The use of the term supplement suggests that these provisions have the same standing as other rights in the Bill of Rights but this has never been tested in a court of law.
25 Ibid., section 6(1).
26 The definition of ‘organs of state’ is from the constitution, section 239.
27 Iain Currie and Johan De Waal, The Bill of Rights Handbook, 5th ed. (Wetton: Juta, 2005), 47–8.
28 The International Child and Youth Care Education Consortium defines child and youth care practice as follows: ‘Child and Youth Care practice includes skills in assessing client and program needs, designing and implementing programs and planned environments, integrating developmental, preventive and therapeutic requirements into the life space, contributing to the development of knowledge and professions, and participating in systems interventions through direct care, supervision, administration, teaching, research, consultation and advocacy’ (CYC-Net: The International Child & Youth Care Network).
29 Alison McLeod, ‘Respect or Empowerment? Alternative Understandings of “Listening” in Childcare Social Work’, Adoption & Fostering 30, no. 4 (December 2006), doi:10.1177/030857590603000407.
30 See further, E.K.M, Tisdall, R. Hinton, A.M. Gadda, and U.M. Butler, ‘Introduction: Children and Young People’s Participation in Collective Decision-Making’, in Children and Young People’s Participation and Its Transformative Potential: Learning from across Countries, ed. E.K.M. Tisdall, A.M. Gadda, and U.M. Butler (Basingstoke: Palgrave Macmillan, 2014), 8–16.
31 R. Bray, ‘Effective children’s participation in social dialogue’ in South African Child Gauge 2010/2011, ed. L. Jamieson, R. Bray, A. Viviers, L. Lake, S. Pendlebury and C. Smith (Cape Town: Children’s Institute, University of Cape Town 2011), 30.
32 United Nations General Assembly, Guidelines for the Alternative Care of Children.
33 Ibid., para. 6.
34 Ibid., paras 7, 40, 47 and 67.
35 Ibid., paras 57, 62, 65 and 66.
36 Ibid., para. 49.
37 CRC, article 9(1); and African Charter, article 19.
38 United Nations General Assembly, Guidelines for the Alternative Care of Children, para. 104(b).
39 Ibid., para. 98.
40 Ibid., para. 24.
41 Ibid., para. 126.
42 Ibid., para. 46.
43 Children’s Act, section 2.
44 Children’s Act (Act 38 of 2005): General Regulations Regarding Children. Government Gazette 33076, Notice 26, Regulation 9256 (1 April 2010) (hereafter the Children’s Act Regulations).
45 N. Mniki and S. Rosa, ‘Heroes in Action: A Case Study of Child Advocates in South Africa’, Children, Youth and Environments 17, no. 3 (2007): 179–97; Second Report to CRoC, Annexure 2 E.
46 Child Care Act (Act 74 of 1983).
47 South African Law Commission, Discussion Paper 103, Project 110 Review of the Child Care Act (Pretoria: South African Law Commission, 2002), 34–6.
48 UN CRoC, UN Committee on the Rights of the Child: Concluding Observations: South Africa, 22 February 2000, CRC/C/15/Add.122, para. 19.
49 Children’s Act, Chapter 2.
50 Ibid., section 61.
51 The Constitutional Court added the requirement for an automatic review to the Act as part of the judgment in C and Others v. Department of Health and Social Development, Gauteng, and Others 2012 (2) SA 208 (CC).
52 Children’s Act, section 42(8).
53 Ibid., section 60(2).
54 Ibid., section 55(1). The High Court judgments of Soller NO v. G 2003 (5) SA 430 (T) and Legal Aid Board v. R 2009 (2) SA 262(D) recognised the right of children to have separate lawyers in civil cases to present their views in a court.
55 Children’s Act, section 159.
56 Ibid., section 42(2).
57 Department of Justice and Constitutional Development, Children’s Act, 2005 Regulations Relating to Children’s Courts and International Child Abduction. Government Gazette 33067, Notice R. 250. 31 March 2010, regulation 3.
58 F.N. Zaal, Court Services for the Child in Need of Alternative Care: A Critical Evaluation of Selected Aspects of the South African System (PhD Dissertation, University of the Witwatersrand, 2008), Chapter 8.
59 Children’s Act Regulations, regulation 73.
60 Ibid., regulation 73(e) and (n).
61 Ibid., Norms and Standards, Part V, para. 8(d).
62 Ibid., Part III, para. 7.
63 Ibid.
64 A development plan should include an assessment of the child’s developmental needs and strengths and articulate the recommended programmes to meet those needs, whereas a care plan details which child and youth care workers will look after the child, and specifies his or her daily requirements, e.g. medication. A permanency plan is the long-term plan, including how long the child should stay in alternative care, and measures to ensure stability in the future through reunification with the biological family or adoption; it will also describe how the bonds with family members or the community will be maintained.
65 Children’s Act Regulations, Part V, paras 3(c), 4(b) and 5(c).
66 Ibid., para. 5(f).
67 Ibid., regulations 60 and 61.
68 Ibid., regulations 82 and 83. Developmental programmes are designed to ensure that children meet developmental milestones and include early childhood development, life skills programmes and independent living programmes; whereas therapeutic programmes aim to reduce the impact of trauma and include counselling, play therapy and other forms of psycho-social support. Every child and youth care centre is required to offer at least one specialist programme, for example a centre catering for young children must have an early childhood development programme.
69 Children’s Act Regulations, regulation 82.
70 Children’s Act, section 109.
71 Ibid., section 191(2).
72 Children’s Act Regulations, regulation 78.
73 Children’s Act, section 211(1).
74 Children’s Act Regulations, regulation 89.
75 The Developmental Quality Assurance (DQA) Policy was developed as part of the Draft Minimum Standards for Child and Youth Care of 1998. It has not been updated in line with the Children’s Act Regulations.
76 Children’s Act, section 304(1).
77 UN CRoC, UN Committee on the Rights of the Child: Concluding Observations: South Africa, para. 25.
78 Children’s Act Regulations, regulation 74(1).
79 Second Report to CRoC, para. 188, response to Concluding Observation 25.
80 Children’s Act, section 208(6).
81 Children’s Act Regulations, regulation 84.
82 Republic of South Africa, National Plan of Action for Children in South Africa (Pretoria: Department of Women, Children and People with Disabilities, 2012).
83 The African Child Policy Forum, ‘The African Report on Child Wellbeing 2015. Child Rights Implementation in Africa: Exploring Key Aspects of the Process. Concept Note’ (unpublished draft presented at Experts Roundtable Meeting on the African Report on Child Wellbeing 2015, African Child Policy Forum, 19–20 March 2015). Addis Ababa, Ethiopia.
84 Ibid.
85 S. Moses, ‘Children and Participation in South Africa: An Overview’, International Journal of Children’s Rights 16, no. 3 (2008): 327–42.
86 R. Bray, I. Gooskens, L. Kahn, S. Moses, and J. Seekings, Growing up in the New South Africa: Childhood and Adolescence in Post-Apartheid Cape Town (Cape Town: HSRC Press, 2010); Clacherty and Associates and D. Donald, Children’s Poll South African Child Rights Survey: Summary Report (Pretoria: Save the Children Sweden, 2002).
87 Youth Delegation, ‘Our Voices Are All We Have’ (presented at the NACCW 18th Biennial Conference 2011, Promoting Cultural Diversity in Circles of Care, Port Elizabeth, South Africa, 5–7 July 2011); the NACCW hosts a youth conference every two years, attended by approximately 150 children and young people in alternative care or child-headed households. The lack of respect for the right to participate is raised as a theme at every conference and in 2011 was voted the most serious issue. See L. Jacobs and L. Jamieson, ‘Umuntu ngumuntu ngabantu: Report on the 5th Biennial NACCW Youth Conference’, Journal of Child and Youth Care Work 29, no. 4 (2011): 26–9. Presentations from the 2013 and 2015 conferences are available online: https://www.facebook.com/NaccwYouthForum/
88 UN CRoC, General Comment No. 5 (2003): General Measures of Implementation of the Convention on the Rights of the Child, 27 November 2003, CRC/GC/2003/5, para. 48.
89 UN CRoC, UN Committee on the Rights of the Child: Concluding Observations: South Africa, para. 14.
90 South Africa submitted its initial report to the CRoC in 1997. A single report covering the second, third and fourth reporting periods was submitted in 2014 and will be considered by the CRoC in September 2016.
91 Second Report to the CRoC, 2013, para. 120.
92 Ibid., Annexure 1, Table 15.
93 Ibid., Annexure 1, Table 16.
94 Ibid., para. 188.
95 DSD, Provincial DSD Implementation Plan and Indicators for the Children’s Act Priority Areas for 2016–2017. Children’s Act Implementation Monitoring. Provincial Profile Tool and Guideline (Pretoria: DSD, 2016), indicator 7.
96 Ibid., indicator 9.
97 South Africa has three spheres of government: national, provincial and local. Provincial authorities are responsible for the delivery of social services.
98 The Western Cape Provincial Government has developed its own quarterly reporting template.
99 NPAC, Part E: Child Participation, D: National Indicators, 95.
100 CASE, Baseline Study on Registered Child and Youth Care Centres, 6.
101 Ibid., 7.
102 CASE, Unregistered Child and Youth Care Centres and Temporary Safe Care.
103 The authors define formal care as all residential care and other forms of alternative care such as foster care with relatives. The Better Care Network and UNICEF, Manual on the Measurement of Indicators for Children in Formal Care (2009), 1.
104 Ibid., 21.
105 Ibid., 22.
106 Ibid.
107 Ibid., 36–7.
108 CASE, Baseline Study on Registered Child and Youth Care Centres, 68.
109 Ibid., 61; and CASE, Unregistered Child and Youth Care Centres and Temporary Safe Care, 38.
110 Children’s Act, section 159.
111 CASE, Baseline Study on Registered Child and Youth Care Centres, 61.
112 Ibid., 65.
113 Ibid., annex 2, pp. 79–84, shows that 17 out of 306 centres had no complaints mechanism.
114 CASE, Baseline Study on Registered Child and Youth Care Centres, 53.
115 Ibid., 68.
116 Ibid., 53.
117 The National Association of Child Care Workers (NACCW) is the principle provider of auxiliary-level training for child and youth care workers. Between 2001 and 2012, 11,833 people attended one of their training courses, of which 2,341 had completed the Further Education and Training Certificate in Child and Youth Care. See L. Jamieson, Child and Youth Care Workers in South Africa, Technical Brief No. 5, March 2013 (Arlington: Aidstar-Two, 2013), 7.
118 Linda Naidoo and Crystal Theron, ‘Overview/Experiences of the GCBS Child Protection (Alternative Care) Workshops’ (report presented at the National Child Care and Protection Forum, Kempton Park, 17–19 August 2016).
119 L. Jamieson, L. Wakefield, and M. Briedé ‘Towards Effective Child Protection: Enduring Adequate Financial and Human Resources’, in South African Child Gauge 2014, ed. S. Mathews, L. Jamieson, L. Lake, and C. Smith (Cape Town: Children’s Institute, University of Cape Town, 2014), 54.
120 National Department of Social Development (DSD), Proposal for the National Roll-Out of Community Child and Youth Care Services through the Isibindi Model (unpublished report, 2011). Budget statements are not detailed enough to track if this has happened.
121 DSD, Social Service Professions Act, 1978 (Act No. 110 of 1978) Regulations for Child and Youth Care Workers, Auxiliary Child and Youth Care Workers, and Student Child and Youth Care Workers, Government Gazette 38135, regulation 838, 31 October 2014, Section 17.
122 Hlamalani Ngcobo file emailed to author ‘Learner Achievements for Qual 60209 and 49093’, 23 August 2016.
123 NPAC, Part E: Child Participation, D: National Indicators, 95.
124 T.M. Collins, ‘The Significance of Different Approaches to Monitoring: A Case Study of Child Rights’, The International Journal of Human Rights 12, no. 2 (2008): 168.