The proposed amendments to the Children’s Act, No 38 of 2005 (henceforth the “Children’s Act”), caused a general stir. Experts agree that these amendments will not result in larger numbers of adoptions but rather in a drastic drop in the number of adoptions.
In this report the proposed amendments to the Children’s Act are discussed extensively, with specific reference to the fees clause, and put in the context of South Africa’s current child protection landscape.
The objective of the study is to determine what impact the amendment of section 249 of the Children’s Act will have on a) private accredited social workers and non-profit organisations currently specialising in adoption and b) the child protection landscape of South Africa.
5
2. Contextualisation
Section 249 of the Children’s Act, No 38 of 2005: No consideration in respect of adoption
Current provisions (1) No person may—
(a) give or receive, or agree to give or receive, any consideration, in cash or in kind, for the adoption of a child in terms of Chapter 15 or Chapter 16; or
(b) induce a person to give up a child for adoption in terms of Chapter 15 or Chapter 16.
(2) Subsection (1) does not apply to—
(a) the biological mother of a child receiving compensation for—
(i) reasonable medical expenses incurred in connection with her pregnancy, birth of the child and follow-up treatment;
(ii) reasonable expenses incurred for counselling; or (iii) any other prescribed expenses;
(b) a lawyer, psychologist or other professional person receiving fees and expenses for services provided in connection with an adoption;
(c) the Central Authority of the Republic contemplated in section 257 receiving prescribed fees;
(d) a child protection organisation accredited in terms of section 251 to provide adoption services, receiving the prescribed fees;
(e) a child protection organisation accredited to provide inter-country adoption services receiving the prescribed fees;
(f) an organ of state; or
(g) any other prescribed persons.
Proposed amendment
Deletion of paragraphs (b), (c), (d), (e), (f) and (g) of section 249(2).
6
On 10 January 2019 the department of social development (henceforth “the department”) published a press release on the proposed abolishment of adoption fees (section 249) in the Children’s Amendment Bill.
In this press release the department argued that no fees should be payable for adoption services, like all other child protection services, because the facilitation of adoptions should not be a business. According to the press release the state already has assumed financial responsibility for all child protection services and this should include adoptions. The department also explained that there had been instances where the best interests of the child had not been taken into account because not enough had been done to consider alternative options (family care, foster care, guardianship, etc) provided for in the Children’s Act.
Furthermore, parents who are interested in adopting a child but cannot afford it, are prevented from doing so because of fees. Another reason for this amendment, according to the department, is the case where adoption fees amounted to R600 000, but according to Blackie (2019) and Wolfson Vorster (2019b) the department has not been able to produce evidence of the organisation or person who charged R600 000 for an adoption.
According to the press release, the consultation process regarding the amendments to the Children’s Act started as early as 2016. Discussions resumed in 2017, and in 2018 these amendments were discussed extensively at the national child protection forum (NCCPF).1 The department also argued that several provincial consultation processes had been conducted during August and September 2018 and that the combined inputs of these consultation processes had been published in the Government Gazette from 29 October to 29 November 2018. Furthermore, according to the department, a lot of time had been spent discussing the proposed amendments to the Children’s Act at the national child protection forum that took place on 20-22 November 2018.
The department stated on several platforms that thorough public participation and consultation processes had been followed, but several community organisations agree that this was not the case. According to Dee Blackie (2019), founder member of the national adoption coalition of South Africa, Albert Fritz (2019a), Western Cape minister of social development, Katinka Pietersen (Bashiera, 2018), director of ABBA specialist adoption and social services, and Robyn Wolfson Vorster (2019a), adoption activist, child protection organisations had not been properly consulted. Although the proposed amendments were published in the Government Gazette on 29 October 2018, the adoption community was informed of the amendment of section 249 (the fees clause) only late in November 2018 – one week before the close of the public participation process (Wolfson Vorster, 2019a).
Since the announcement of the amendments to section 249 of the Children’s Act, many community organisations and adoption specialists have turned to the media to express their concern should these amendments be approved by parliament in accordance with a notice that appeared in the Government Gazette on 25 February 2019 (South Africa, 2019).
2.1 Child protection statistics
According to the annual publication The South African Child Gauge (Hall & Sambu, 2017; Hall, Richter, Mokomane & Lake, 2018) of the Children’s Institute at the University of Cape Town, child protection statistics in South Africa present a bleak picture:
1 The national child protection forum comprises 23 community organisations, including the national adoption coalition of South Africa (NACSA).
7
• Every year, 1 million children are born in South Africa.
• At present, there are 19 579 000 children in South Africa, approximately 35% of the country’s population.
• According to Shozi (2018), 3 500 children are abandoned every year.2 Research shows that 65% of abandoned children are newborn babies and 90% are under the age of one year (Becoming a mom, 2019).
• It is said that many abandoned babies are never found.
• At present there are 2,8 million orphaned children in South Africa.3
• In 2016 there were about 12 million children receiving a child support grant4 and 470 000 children receiving a foster care grant.
• In 2018 the number of children receiving a foster grant dropped to 416 016 because of foster care grants lapsing.5
• It is estimated that there are currently 21 000 children living in 355 registered child and youth care centres in South Africa, while an estimated 2 000 children are living in 115 unregistered child and youth care centres.
• At any given time there are about 550 children recorded in the register for adoptable children and prospective parents (RACAP) waiting to be adopted.
From these statistics it is clear that South Africa is experiencing a child protection crisis.
Approximately 12 million children in South Africa are living in poor households.6 There are also a minimum of 2,8 million children in South Africa who have lost one or both parents or who have been abandoned by their parents. Only 416 016 of these 2,8 million were receiving a foster care grant in 2018, and about 23 000 were living in child and youth care centres.
Therefore, there are more than 2 million orphans who cannot be accounted for. It is true that some of these children are being cared for by family or community members, but research has shown that 1,8 million of these children could benefit from adoption. Yet only a fraction of these 1,8 million are in fact adopted.
The state argues that adoption is only one child protection option and that adoption specialists should also emphasise other options such as foster care and child and youth care centres.
Experts in this field, however, argue that adoption is the best option when the interests of the child are taken into account. According to Wolfson Vorster (2019a), most of the children who are adopted are in child and youth care centres prior to being placed with a family. Studies show that even the best of these centres could have a negative impact on a child’s neurological development. This makes it very difficult for the child to be integrated with a family at a later stage.
2 According to NACSA, 2 000 babies are abandoned in South Africa every year.
3 More than one million of these orphans have lost either a father (maternal orphans) or both parents (double orphans) (Wolfson Vorster, 2018).
UNICEF (2019) estimates there are 3,5 million orphans in South Africa at present.
4 A child grant amounts to R410 per child per month, while the amount of a foster care grant is R1 000 per child per month (Blackie, 2019).
5 In 2017 a court order dealing with the lapsing of foster care grants was given by the North Gauteng high court. The centre for child law had brought the case against the minister of social development. In terms of this order, the department is obliged to devise a comprehensive legal solution to deal with the backlog in foster care orders. Foster care orders lapse after periods of two years. The minister therefore must ensure that these foster care orders are renewed in time so as to avoid disruption for beneficiaries because of lapsed court orders (Mtshotshisa, 2019).
6 An unmarried caregiver whose annual income is less than R45 600 qualifies for a social grant, while married caregivers qualify if their combined annual income is less than R91 200.
8
The last-mentioned author also writes that it is very uncommon for older children to be adopted. The tendency is that the older one gets, the more difficult it is to be adopted.
Therefore, adoptions are time-sensitive.
If adoption is not addressed effectively, it will simply deepen the child protection crisis South Africa finds itself in.
The figure below is a graphic presentation of child protection statistics in South Africa.
Figure 1: Child protection statistics in South Africa
2.2 Current state of adoption in South Africa
Adoption in South Africa is highly complex and technical and is strictly regulated by the department and other state institutions to protect the best interests of the child (Wolfson Vorster, 2019a). Some experts are of the opinion that adoptions in South Africa are being overregulated by the department (Blackie, 2019).
The process entails a thorough interview with prospective parents by an accredited social worker during which full medical records are drawn, marriage and psychological evaluations are performed and house calls are made, as well as verification of the prospective parents’
situation by the police.
Prospective parents are then placed on a waiting list until there is a child that fits the parents’
situation. Following an extensive legal process that is facilitated by the children’s court, the child is temporarily placed with the designated adoptive parents. If the social worker finds that the placement is in the best interests of the child, the adoption is finalised.
According to the organisation Add-option (2019), social workers are fully accountable for making decisions regarding the child’s path of life, which means that they are extremely exposed, and the world of adoption is a specialist field.
Furthermore, South African social workers have extremely high case loads. Fritz (2019a) says the average accredited adoption specialist has about 100 cases at any given time, whereas international standards suggest a maximum of 60 cases.
Children in South Africa Children receiving state grants Orphans in South Africa Children receiving foster care grants Children in child and youth care
centres
Child protection statistics in South Africa
9 2.2.1 Decrease in adoptions
In spite of the urgent need for adoption (see 2.1 Child protection statistics) and high case loads confronting adoption specialists every day, adoptions per year have decreased drastically:
from 2 840 registered adoptions in 2004 to only 1 1867 in 2017, a decrease of 58%.
Figure 2: Registered adoptions in South Africa from 2004 to 2018
Blackie (2019) ascribes the decrease in registered adoptions to the department’s inability to effectively deal with the cases. While private accredited social workers and non-profit organisations largely facilitate the process at present, the department is involved in several stages of the adoption process, and according to Blackie (2019) it is precisely the stages where the department is involved that frustrate social workers. The stages where the department is involved are the following:
• Accreditation of social workers doing adoptions.
• Managing the national adoption register.
• Formal letters of reference required from provincial representatives of the department.
• Finalisation of an adoption when a formal court procedure has been completed.
From this it is clear that the department can intervene at various stages should any irregularities occur in an adoption (Blackie, 2019; Day, 2019).
Wolfson Vorster (2018) agrees with Blackie (2019), arguing that further delays occur in obtaining Form 308 from the department. In addition, the processes for declaring a child as abandoned and for withdrawing parental rights for the adoption of a child are highly cumbersome. Wolfson Vorster (2018) further says public servants take a very long time dealing with matters such as registration of births and finalising court dates. Even when an abandoned child finally is entered in the register for adoptable children and prospective parents, the time these children have to stay on the list has been increasing exponentially: in
7 1 033 of these adoptions were national adoptions and 153 were international adoptions (becomingamom.co.za, 2019).
8 An application form submitted to the department by prospective adoptive parents to declare that they do not abuse children or that their names are not listed on the national child protection register.
2840 2436
March 2004 1 April 2010 - 31
March 2011 1 April 2013 - 31
March 2014 1 April 2015 - 31
March 2016 1 April 2017 - 31 March 2018
REGISTERED ADOPTIONS IN SOUTH
AFRICA
10
2010 there were only three children who had to wait for more than 60 days on this list, but in 2017 there were 240 children who had to remain on the list for more than 60 days.
These delays with regard to the department’s involvement in the process of adoption could also be ascribed to the enormous number of cases of child protection services the department has to deal with (Van Loggerenberg, Ramapuputla, Hattingh, 2019). According to Wolfson Vorster (2019b), departmental social workers have 100 to 300 cases to attend to at any given time (these cases do not include adoptions), while the department also is experiencing an enormous staff shortage crisis. According to Nkosi (2018), 8 600 social workers graduated in 2018. The studies of these graduates were funded by the department, but because of budget limitations only 566 of these graduates could be employed by the department, thanks to an amount of R181 million made available by the National Treasury.
In a recent radio interview the department’s spokesperson said the department was providing training for 889 social workers to facilitate adoptions, but the department itself has not yet made regulations specifically regarding the qualifications social workers in the employ of the state should have to facilitate adoptions. Furthermore, social workers working for the state have been authorised to facilitate adoptions since the coming into operation of the Children’s Second Amendment Act of 2016 (Wolfson Vorster, 2019a en 2019b). Public servants therefore have had two years to facilitate adoptions, but according to indications the department has only finalised a few adoptions since 20179. This is ascribed to the department’s ignorance in the specialist field of adoptions (Van Loggerenberg, Ramapuputla, Hattingh, 2019).
In addition, the latest quarterly labour force survey (QLFS Q4: 2018) indicated that there was about 51 000 job losses in the field of social services during the last quarter of 2018.
2.2.2 Adoption fees
Adoption fees may vary from R0 to R15 000, according to a sliding scale that is used to determine what prospective adoptive parents can afford, so as to make adoptions as accessible as possible to all. According to Blackie (2019), Day (2019) and Van Loggerenberg, Ramapuputla and Hattingh (2019) this amount includes the following:
• Assessing the child.
• Searching for the child’s biological parents if the child has been abandoned.
• Medical examinations (not performed free of charge by the state).
• Assessing possible suitable parents.
• Lots of administrative work and fees.
• Supporting the family once the adoption has been finalised.
The fees per adoption usually do not cover all the expenses, and therefore non-profit organisations raise funds so as to make adoption more affordable.
It is important to state that adoption fees are regulated by the department itself; in other words, the department’s argument that there have been individuals charging exorbitant amounts for an adoption (see 2. Contextualisation), is invalid (Van Loggerenberg, Ramapuputla, Hattingh, 2019).
The department’s second argument is that the new legislation regarding fees would afford even women in rural areas an oppurtunity to adopt children, but Blackie (2019) argues that women in these areas are already caring for the children of their own blood relatives and that they are not really interested in legally adopting these children. Should they legally adopt these
9 New information came to light after the original publication of this report that the department has successfully facilitated a few adoptions since 2017.
11
children, they would forfeit a foster care grant of R1 000 per month, qualifying only for a child support grant of R410 per month. The department furthermore has not been able to produce any evidence of research conducted in black rural areas to determine whether the fees clause will be of any relevance (Van Loggerenberg, Ramapuputla, Hattingh, 2019).
3. Consequences of amending section 249 of the Children’s Act
The department contends that the clause on the removal of adoption fees will not prevent social workers, attorneys and psychologists from offering their services – they still are entitled to practise their profession (in terms of section 22 of the Constitution), but they will not be allowed to receive payment for these services.
According to Fritz (2019a) the department’s reasoning is absurd. Private accredited adoption specialists, attorneys, psychologists and non-profit adoption organisations have to be compensated one way or the other for services rendered, otherwise they simply will be unable to continue functioning. At present there are 59 registered social workers who facilitate adoptions and 93 accredited child protection organisations with a mandate to render adoption services (NACSA, 2019). Should the fees clause be revised, social workers at all these organisations will not be able to continue working in this specialist field.
Research conducted by the Shukumisa organisation shows that most child protection services are being rendered by non-profit organisations (Budlender, 2017), but in terms of the Children’s Act non-profit organisations are not allowed to receive private donations for rendering child protection services.
According to the department, child protection organisations may indeed apply for funding for rendering child protection services (in terms of section 105(1) of the Children’s Act), but the amounts are limited by the availability of funds.
Blackie (2019) says the department is already struggling to cover even a fraction of the costs of an adoption that is facilitated by private organisations. Wolfson Vorster (2019a) says it is well known that the department does not pay subsidies intended for accredited adoption agencies on time. Furthermore, research shows that the department has decreased the allocation of funds intended for non-profit organisations for social development by 3% since 2005, whereas salaries for social workers in the employ of the state have risen by more than the inflation rate. The department’s 2015/2016 budget also shows that 88% of the funds was allocated for social grants, while only 10% of the funds was earmarked for social development.
This is alarming, especially in view of the social crisis South Africa finds itself in at present (see 2.1 Child protection statistics).
4. Conclusion
In this report the proposed amendments to the Children’s Act were discussed extensively, with specific reference to the fees clause, and put in the context of South Africa’s current child protection landscape.
The department gives five reasons as rationale for amending section 249 of the Children’s Act. These reasons are as follows:
1. Adoptions should form part of the child protection services administered and facilitated by the department.
12
2. Adoptions should not be a business, and consequently adoptions should not involve any costs.
3. In the past, private social workers and non-profit child protection organisations did not consider other child protection options but were focusing mainly on adoptions.
4. Parents who are interested in adopting a child but cannot afford it, are prevented from doing so because of fees.
5. Private social workers and non-profit organisations charged exorbitant amounts for facilitating adoptions.
The department also contends that extensive consultations with all role-players have been held on the proposed amendments, but this is strongly denied by the adoption community. If
The department also contends that extensive consultations with all role-players have been held on the proposed amendments, but this is strongly denied by the adoption community. If