Update on the Progress of the Children’s Bill

By Paula Proudlock, Children’s Institute, UCT
11 March 2004


There has been much confusion over the past 6 months with regards to the fate of the Children's Bill, particularly with regards to whether the Bill was going to be discussed and passed by Parliament before or after the April 2004 elections.

During the second half of 2003, the Children's Bill Working Group conducted an advocacy campaign to ensure that the Bill comes to Parliament only after the April 2004 elections. This was to ensure that the Members of Parliament will have sufficient time to give the Bill the priority attention that it requires.

In February 2004, we received final confirmation from Parliament that the Bill will not be debated and passed by Parliament before the elections. This is a good news as it will allow for more discussion between civil society and the decision makers and more time for decision makers to apply their minds to the Bill.

It hopefully will also mean that the Department of Social Development and Cabinet will reconsider the drastic excisions that were made to the Bill during the inter-departmental negotiation process in 2003. We can predict that the new Parliament will prioritise the Bill when they start in May this year. However, this is not a given and will depend on the Minister and Department’s priorities after the elections. If we want the Bill to be prioritised after the elections we will need to ensure that the Minister, Department and Parliament are aware of our call and that we motivate strongly why the Bill needs to be prioritised. Public hearings could therefore take place in June or July. We have heard that the Department is currently reviewing all the submissions that were made to it in September in order to put together a briefing document for the new Parliamentary Portfolio Committee on Social Development. This Committee will be constituted in May when the new Parliament convenes. This is an indication that the Department intends to prioritise the passage of the Bill.

At the end of 2003 the Bill was split into two Bills for technical reasons. The State Law Advisors said that the Children’s Bill contained a mix of two different types of provisions – section 75 and section 76 provisions. A section 75 Bill is a Bill that deals with an issue over which the National Government has competence and that does not affect areas over which Provincial Governments also have competence. A section 76 Bill deals with issues that affect the Provinces and over which National and Provincial Government share competence. Each type of Bill has to follow a different procedure in Parliament and Parliament does not have a procedure for a Bill that contains both s.75 and s.76 provisions.

Therefore the Bill was split into two Bills: a s.75 Bill and a s.76 Bill. The first Bill that will be tabled and passed will be the s.75 Bill. The s.76 Bill will follow after the s.75 Bill has been passed by Parliament. The splitting of the Bill has caused more confusion and has not helped with keeping the holistic and comprehensive approach taken by the South African Law Reform Commission. However, one advantage is that it gives us more time to advocate for changes to the s.76 Bill which is where many of the excisions have been made.

The table below gives an idea of what issues fall into which Bill, and the timeframes within which we have to work on each issue:

Section 75 Bill Section 76 Bill
Issues which National Government must decide Issues that affect the provinces
Will probably be tabled in Parliament in June 2004 and passed by the end of 2004 Will follow after the s.75 Bill is passed – probably mid 2005
Chapter1 Interpretation, objects and application of the Bill Chapter 6 Partial care (crèches)
Chapter 2 General principles and the best interests standard Chapter 7 Early Childhood Development
Chapter 3 Children’s rights Chapter 8
Measures for the protection of children
Chapter 4
Parental responsibilities and rights Chapter 9 Prevention and early intervention services
Chapter 5
Children’s Courts Chapter 10 Identification of children in need of protection and actions to be taken to protect
Chapter 16
Adoption Chapter 11 Contribution orders
Chapter 17
Inter-country adoption Chapter 12 Alternative care of children in general
Chapter 18
International Child Abduction Chapter 13 Foster care and care by family members
Chapter 19
Trafficking in Children Chapter 14 Child and youth care centres
Chapter 20 Surrogate motherhood Chapter 15 Shelters and drop in centres (street children)
Chapter 21
Enforcement of the Bill    
Chapter 22 and 23 General administrative issues and transitional measures    

For those chapters or provisions that were excised, such as half of the child rights chapter, and the National Policy Framework chapter, we need to focus our attention on them in the next 3 months in order to get agreement in principle to their re-insertion before the section 75 Bill is tabled.

The Children's Bill will govern our child care and protection system for the next 20
years and it is therefore of vital importance that the Bill is prioritised in 2004 and that
decision makers make decisions that are based on children's needs and rights. To ensure that this happens, it is important that civil society organisations with
knowledge of the challenges facing children get involved in the process.

During 2004, the Children’s Bill Working Group and its various members have planned a number of content workshops in order to discuss the areas of the Bill that need further discussion. These areas include the following:

A final programme of workshops will be posted on the website by the end of March 2004.

If you would like to get more involved in the process or simply to be kept informed,
please fill out the attached subscription form and fax it back to us on 021 – 689 8330. You will receive regular e-mails and be kept informed of workshops, key events and opportunities to get more involved.

Please use the Children's Institute website for updated information and documents related to the Bill. www.uct.ac.za/depts/ci  The various drafts of the Bill keep on changing, so it’s important that you keep visiting the website to make sure you have the right version. We highlight the latest version in red on the website. Please also remember that you will need to look at the s.75 and s.76 Bills together to understand the flow of the Bill.

Please contact Elizabeth Myburgh on or 021 – 689 5404 if you have any queries. Together we can make 2004 the year we put the soul back into the Children’s Bill!