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DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 13 MARCH 2013

PRESENTATION TO THE PORTFOLIO AND SELECT COMMITTEES ON WOMEN, CHILDREN AND PEOPLE WITH DISABILITIES: UNITED NATION COUNTRY REPORT ON THE CONVENTION ON THE RIGHTS OF THE CHILD. DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 13 MARCH 2013. PRESENTATION AT A GLANCE.

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DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 13 MARCH 2013

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  1. PRESENTATION TO THE PORTFOLIO AND SELECT COMMITTEES ON WOMEN, CHILDREN AND PEOPLE WITH DISABILITIES: UNITED NATION COUNTRY REPORT ON THE CONVENTION ON THE RIGHTS OF THE CHILD DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT13 MARCH 2013

  2. PRESENTATION AT A GLANCE • Presentation outlines the following: • Background on the compilation of the UNCRC report • The Constitution • Relevant Articles of the CRC • Interventions, progressive achievements and limitations experienced by DoJ&CD; • Capacity Building • Public Education and Awareness • Institutional Mechanisms to protect and promote the rights of children within the JCPS Cluster • Challenges and Conclusion

  3. BACKGROUND: COMPILATION OF THE UNCRC REPORT • South Africa signed and ratified the United National Convention on the Rights of the Child (UNCRC) in June 1995. • Section 28 of the Constitution of the Republic of South Africa (the Constitution) enumerates and entrenches the rights of children. • The inputs of the Department to the UNCRC Report reflect the progressive measures put in place to achieve the incremental promotion and realisation of these rights. • Interim Task Team, chaired by Department of Women, Children and People with Disabilities (DWCPD) , finalised the drafting of the NCRC Report

  4. INTRODUCTION: COMPILATION OF THE UNCRC REPORT This submission highlights the Departmental approach to the protection and promotion of the rights of children in compliance with the Constitution and the UNCRC which include: Measures (legislation, policies and programmes/interventions) implemented to achieve the objectives of the section 28 of the Constitution and the UNCRC. On- going monitoring of the implementation of legislation (led by the Department) that relates to the protection of the rights of children. Intersectoral approach to strengthen measures implemented to protect and promote the rights of children.

  5. ENABLING LEGAL FRAMEWORK: The Constitution... In SA children enjoy the following constitutional protection: • Section 9: Equality; • Section 10: Human dignity; • Section 11: Life; • Section 12: Freedom and security of the person; • Section 28: Children; • Section 32: Access to information; • Section 33: Just administrative action; • Section 34: Access to courts; • Section 35: Arrested, detained and accused persons; • Section 38: Enforcement of rights.

  6. ENABLING LEGAL FRAMEWORK: INTERNATIONAL PROTOCOLS Relevant International Instruments: • Hague Convention on the Civil Aspects of International Child Abduction; • Hague Convention on the Protection of Children and Co operation in Respect of Inter-Country Adoption; • Optional Protocol to the Convention on the Rights of the Children on the Involvement of Children in Armed Conflict; • Convention on the Worst Forms of Child Labour; • Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography

  7. Relevant Articles of the UNCRC The mandate of the Department is limited to the implementation of the following articles: • Article 3: The best interest of the child; • Article 16: Protection of privacy and protection of the image; • Article 17: Access to information from a diversity of sources and protection from material harmful to the child’s wellbeing; • Article 21: Adoption, national and inter country; • Article 27: Recovery of maintenance for the child; • Article 29 and 39:Abuse and neglect, including physical & psychological recovery The Department provides a support to the other departments responsible for the implementation of other Articles of the UNCRC.

  8. ARTICLE 3: The best interests of a child • s28(2) of the Constitution emphasises the paramount importance of the child’s best interests in every matter involving a child; • s7 of Children’s Act 38 of 2005 amplifies the concept of the best interests of a child, and has received recognition and further interpretation from a number of court decisions, e.g. AD and Another v DW and Others 2008(3) SA 183 (CC), where the court confirmed that it was in the best interests of a child to follow proper judicial procedures. • Other court decisions that embraced the principle of child’s best interest include: • S v M 2008 (3) 183 (CC); • Matiso v Road Accident Fund 2001 (3) SA 1142, where the court recognized a customary adoption for the purposes of recognizing a dependant’s claim on the ground that this was in the best interests of the child.

  9. ARTICLE 3: The best interests of a child The Children’s Act, 2005, in promoting the best interests of a child, further gives powers and duties to Family Advocates to: • Conduct mandatory mediations in cases of fathers of children born out of wedlock; • Facilitate, draft, register, rescind and/ or amend parental plans; • Facilitate parental responsibilities and rights agreements; • Provide specified services to the Children’s Courts, which include the facilitation of family group conferences and lay fora.

  10. Family Advocates & Family Counsellors

  11. ARTICLE 16: Protection of privacy & protection of the image Children’s Act, 2005: • s12 protects the privacy of girls that have undergone virginity testing by preventing disclosure of results thereof without the consent of the child; • s13(1)(d): guarantees the privacy of a child’s health status, e.g. HIV/AIDS Child Justice Act, 2008 • S63(5) prohibits media or any other persons from attending court proceedings involving a child, unless application is granted by the court; Domestic Violence Act 116 of 2008 • s11: restricts attendance of proceedings and prohibits the disclosure of the identity of parties and the publication of certain information

  12. ARTICLE 16: Protection of privacy & protection of the image Criminal Procedure Act 51 of 1977 • s170 (A) protects the privacy of child witnesses by allowing them to testify in camera through the assistance of an intermediary. The child testifies in a private Testifying Room that is linked to the courtroom through CCTV/ One-Way Mirror. • Currently, our courts are capacitated by 92 ad hoc intermediaries; 156 contract intermediaries, and 210 social workers from DSD & NGO’s; • Established 220 Testifying Rooms

  13. ARTICLE 17: Access to information from a diversity of sources & protection from material harmful to the child • Films and Publications Act, 2004 prohibits & criminalizes the production or distribution of child pornography; • Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007: s19 creates a punishable offence of ‘Exposure or display of or causing exposure or display of child pornography or pornography to children’;

  14. ARTICLE 17: Access to information from a diversity of sources & protection from material harmful to the child To ensure access to information by children, the Department developed: • A Children’s Act webpage to communicate information in a child-friendly manner; • A Child’s FAQ’s Booklet on Children’s Act; • Brailed FAQ’s Booklet on Children’s Act, and launched it in 2012 at Zamokuhle Special School for the blind in the EC • A Child’s Information Booklet on Child Justice Act, 2008

  15. ARTICLE 21: Adoption, National & Intercountry Children’s Act, 2005 and its Regulations: • Detail procedures to be followed at all stages of adoption process; • Require specific accreditation of those involve in adoption process; • Establish a register on adoptable children and prospective adoptive parents for matching and placement purposes.

  16. ARTICLE 27: Recovery of Maintenance for the child Maintenance Act 99 of 1998: • S15 of the Act enforces the common law duty of the parents to support their children. This includes the provision of food, clothing, accommodation, medical care & education; • S26 provides for the enforcement of maintenance orders by: • Execution against property • Attachment of emoluments • Attachment of any debt; • S40 provides for the recovery of arrear maintenance with interest. Children’s Act, 2005 reinforces this obligation by allowing maintenance arrangements as a consideration in the development of parenting plans.

  17. ARTICLE 27: Recovery of Maintenance for the child Reciprocal Enforcement of Maintenance Orders Act, 1963 grants a children’s court power to issue a provisional contribution order against a respondent resident in any country. For countries in Africa, this order is issued in terms of the Reciprocal Enforcement of Maintenance Orders, 1989.

  18. ARTICLE 27: Recovery of Maintenance for the child Project Kha Ri Unde: In 2011, the Department initiated a 3 year project, mainly to reduce the turnaround times in maintenance services, & the following are the achievements recorded thus far at 9 pilot sites: • Introduced queue management that reduced waiting time to 2hrs in most pilot courts; • Introduced Mediation Services to cut down the process of issuing of maintenance orders to less than 90 days; • Introduced standardized Maintenance Signage System to avoid wrong queuing; • Developed brailed Maintenance Info Booklet to ensure access to justice to blind court users

  19. ARTICLE 27: Recovery of Maintenance for the child Project Kha Ri Unde Pilot Courts: The Department further increased human capacity for Maintenance to: • 10 x Maintenance Complaints Managers (MCM) to deal mainly with complaints, especially the ones received through Presidential Hotline (i.e. 1 x MCM in each region + 1 x based @ national office). These appointments were finalized in Dec 12; • 18 x data capturers to improve filing system & reduce file processing backlogs at pilot sites • 140 x permanent maintenance officers (MO’s); 32 x contract MO’s • 201 x permanent maintenance investigators (MI’s); 32 contract MI’s

  20. ARTICLE 27: Recovery of Maintenance for the child Project Kha Ri Unde Pilot Courts: • JHB Family Court, Gauteng • KwaMhlanga, Mpumalanga • East London, EC • Kimberly, NC • Botshabelo, FS • Emlazi, KZN • Philippi, WC • Thohoyandou, Limpopo • Moretele, NW

  21. ARTICLE 37: Abuse and neglect, including physical & psychological recovery Children’s Act, 2005 • Provides an expanded range of protective measures for children, including the mandatory reporting of physical and sexual abuse and deliberate neglect; • Establishes a Child Protection Register (CPR); Criminal Law (Criminal Law and Related Matters) Amendment Act (SORMAA), 2007 • Ch 3 creates punishable sexual offences against children; • Establishes a National Register for Sex Offenders (NRSO). From 01 April 12 to 31 Jan 13, the electronic registrations of convicted sex offenders showed a dramatic increase from 2 340 to 3100. This is a 72% increase achieved slightly over the 3rd quarter of financial year 2012/2013

  22. ARTICLE 37: Abuse and neglect, including physical & psychological recovery Criminal Law (Criminal Law and Related Matters) Amendment Act, 2007 • Introduces compulsory HIV testing of alleged sex offenders; • Provides services for victims relating to Post Exposure Prophylaxis (PEP) • Creates an offence of trafficking of persons (including children) for sexual purposes; Domestic Violence Act 116 of 1998 • Allows children to apply for Protection Order with or without assistance of parent or guardian; • Allows any child in the care of the complainant to apply for a protection order. Such child will be considered as (an indirect) complainant.

  23. ARTICLE 37: Abuse and neglect, including physical & psychological recovery Domestic Violence Act 116 of 1998 • Allows applications to be brought to court on behalf of a minor complainant by any person who has a material interest in the well-being of such a minor (incl. counsellor, health service provider, SAPS, social worker, teacher), without the written consent of such a minor.

  24. Capacity Building

  25. Capacity Building

  26. PUBLIC EDUCATION & AWARENESS CAMPAIGN • Held intersectoral radio talk shows on Child Justice Act and Children’s Act, and reached all provinces. • Held Ndabezitha Izimbizo campaign for rural men and boys on Domestic Violence in 8 provinces, and reached 3 200 people (2010-2012) • Developed brailed Domestic Violence Booklets, and circulated to all courts • Launched brailed FAQ’s on Children’s Act at Zamokuhle Special School, and reached about 500 blind children (2012). During the 2012 National Mandela Day, the Department staff went back to this school to donate 500 school shoes to learners. • Launched brailed Maintenance Info Booklet at Setotoawae Special School and Senwarwabane (Helen France Special School), Limpopo, and reached 558 children (2012) • Held ‘Stop Teenage Pregnancy Campaign’ at 262 rural schools of Limpopo where high rates of teenage pregnancies were previously reported, and reached 58 825 teenage-learners (2012)

  27. Education and Awareness Campaigns: • Information Booklets on the Children’s Act, 2005; the Child Justice Act, 2008; the Domestic Violence Act, 1998; Maintenance Act, 1998 are published in all the eleven official languages, and also in brail to increase access to justice • A Guide for Frontline Officers on the Management of Human Trafficking booklet was developed, including information on how children who are victims of trafficking in persons must be handled. • Research on the cellular phone-game to educate children about SORMAA was conducted during 2012 with the purpose of determining whether this is a viable option to use as an education and communication tool for children. The response is positive and the recommendations will be taken forward in the new financial year.

  28. Public Education and Awareness Campaigns (Continued): • Public Education Campaigns on Trafficking in Persons targeted communities in Mpumalanga where there are five borders which are high risk for trafficking including trafficking of children were from December and these are on-going activities. Target groups include schools and families which are reached through door-to-door campaigns.

  29. INTERSECTORAL APPROACH TO STRENGTHEN THE PROTECTION & PROMOTION OF RIGHTS OF CHILDREN The Department chairs various structures to ensure coordinated planning, implementation and monitoring of legislation, policies and interventions relating to the protection and promotion of the rights of children: These include the:- DG’s Intersectoral Committee on Child Justice (DG ISCCJ) which includes DG’s/ Heads of relevant Government Departments within the JCPS cluster (i.e. the National Prosecution Authority, South African Police Service, Legal Aid South Africa and the department of Correctional Services, Health, Social Development and Education), and the Department of Women, Children and People with Disabilities, etc National Operational ISCCJ which is responsible for the national operational implementation of the Child Justice. This structure also gives technical support to the DG’s ISSCJ.

  30. INTERSECTORAL APPROACH TO STRENGTHEN THE PROTECTION & PROMOTION OF RIGHTS OF CHILDREN Intersectoral Committee on the management of Sexual Offences (DG ISC): consisting of the heads of the various role player departments and responsible for the management of the implementation of the SORMAA, and assisting the Minister to report to Parliament on the interdepartmental performance annually. National Operational Intersectoral Committee on the management of sexual offences (National OISC): which is a structure responsible for coordinating the intersectoral implementation of the SORMAA and reporting to the DG-ISC. Domestic Violence Intersectoral Committee (DVIC) chaired by DoJ&CD to monitor the national implementation of the Domestic Violence Act, including abuse of children.

  31. INTERSECTORAL APPROACH TO STRENGTHEN THE PROTECTION & PROMOTION OF RIGHTS OF CHILDREN National Intersectoral Committee on Combating Trafficking in Persons (the NICC: TIP): consisting of the various departments / institutions whose roles and responsibilities includes the combating and prevention of trafficking, including trafficking of children. Inter-departmental Committee on the Services Charter for Victims of Crime (Victims Charter IDC): consists of various JCPS departments/institutions and whose mandate includes the promotion and protection of the rights of victims of crime, including child victims of crime. National Committee on Restorative Justice: which focuses on development and implementation of strategies and policies on alternative sentences including the diversion for child offenders.

  32. INSTITUTIONAL MECHANISMS RESPONSIBLE FOR THE PROTECTION AND PROMOTION OF RIGHTS OF CHILDREN Intra-departmental Committees The Department also established a number of intra-departmental structures which coordinates internal stakeholders to strengthen the implementation of legislation. In identifying the various needs of the beneficiaries of the legislation, children are always identified as a primary beneficiary with specific needs. The following forums are established for the effective implementation of legislation: National Children’s Act Working Group: chaired by the Department and consisting of various representatives from the Judiciary, Family Advocates, Legal Aid SA and Justice College. This forum shares information on the implementation of the Children’s Act, 2005 and the Children’s Courts.

  33. INSTITUTIONAL MECHANISMS RESPONSIBLE FOR THE PROTECTION AND PROMOTION OF RIGHTS OF CHILDREN Intra-departmental Committee on the Implementation of the SORMAA: consisting of the different internal role players whose responsibilities impacts on the effective implementation of the SORMAA and the Sexual Offences NPF including the representatives from the Regional Offices of the Department, Court Operations, Human Resources units, Facilities unit, National Operations Centre, International Relations etc.

  34. MEASURES (POLICIES AND PROGRAMMES AND INTERVENTIONS) TO PROTECT AND PROMOTE THE RIGHTS OF CHILDREN The Department participates in other Intersectoral and Multi-disciplinary forums including those outside of the JCPS cluster whose functions include the protection of the rights of children. • The Department participated in the Task Team which contributed in the compilation of this first Country Report co-ordinated by the DWCPD. • National Child Care and Protection Forum: chaired by the National Department of Social Development to promote the implementation and monitoring of the Children’s Act which also domesticates the CRC. • Child Labour Programme of Action for South Africa Committee: chaired by the Department of Labour whose mandate is to prevent commercial sexual, labour and trafficking exploitation of children. • Human Trafficking Task Teams (the HTT): which are coordinated and chaired by the National Prosecution Authority. In some of the provinces the Department co-chairs the HTTs or provides coordination support to the National Prosecution Authority.

  35. CHALLENGES • Reduction of the rate of diversion of children in terms of the Child Justice Act; • Non-funding or inadequate funding for NGO’s that were or are assisting courts with the execution of non-custodial sentencing programmes for children in conflict with law; • The need to merge the National Child Protection Register with the NRSO • The need to amend SORMAA to create an enabling provision for the re-establishment of Sexual Offences Courts (to improve response to sexual violence perpetrated against children) • Improper costing of legislation

  36. CONCLUSION: There is a need to bridge the gap between legislation and implementation so as to achieve significant and impactful outcomes in the protection and promotion of the rights of children. , However, without the intersectoral response and prevention, as well as the allocation of dedicated budget, this goal cannot be achieved

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