South African Law Commission, Private Bag X 668, Pretoria, 0001

Fax 012 320 0936    Page 1 of 17

e-mail lawcom@salawcom.org.za

Submission to Project 110:  The Discussion Paper on the Review of the Child Care Act

Overview and Philosophy

We have no doubt that parts of the Child Care Act urgently need to be revised.  The AIDS pandemic, along with the family breakdown and decay of moral order in South Africa necessitate that adoption processes be streamlined (while continuing to protect the children involved).  The efforts the discussion paper contains to address this must be commended.  

However, we are deeply concerned about the social engineering implied by the discussion paper.  Children belong firstly to God, and He has delegated the responsibility for feeding, clothing and educating them (including building moral character) to the family.  The state’s role in the lives of children needs to be limited to prosecuting individuals if they commit crimes, and protecting citizens from those who commit crimes against them.  All other proposed interventions undermine the legitimate role of the family, usurping family authority and placing it on the state.  

We strongly oppose the attempt to establish a monolithic Child Care Act which covers every area of law relating to children.  

·                      Firstly, it is not necessary to have a single act that covers every area, since many of the areas are unrelated to each other. 

·                      Secondly, attempts to draw up a mega-act will delay and frustrate urgent and necessary changes e.g. to streamline adoption processes.  This review process has already taken years.  The impact that this delay has had on many young lives is very serious. 

·                      Thirdly, a mega-act cannot be properly considered and debated by Parliament.  It is anti-democratic to propose unnecessarily lengthy legislation. 

·                      Fourthly, a mega-act will not easily be analysed by the public, and laws which are contrary to society’s norms may be passed, causing unnecessary social stress

There are several specific proposals for the Child Care Act that we reject completely.  These include:

1.      Explicitly excluding pre-born children from protection

2.      Effectively outlawing reasonable corporal punishment as a form of chastisement

3.      Explicitly guaranteeing the rights of all children to confidentially access contraception

4.      Explicitly guaranteeing the rights of all pregnant girls to confidential abortion

5.      The recommended universal child care grant

6.      The easy access to parental rights (without any explanation of how relationship break-up between unmarried “parents” will be handled), and promotion of a wide variety of “families”, which provide little protection to children.

We acknowledge that because of the acute social breakdown South Africa is experiencing, intervention is required in many families.  However, we are concerned that laws designed to allow intervention in dysfunctional families can be used to persecute otherwise stable and functional families.  For example, while the intention of not allowing reasonable parental chastisement as a legal defence against an assault charge may be to reduce child abuse, the results would include use of this law by embittered divorcees to gain custody from responsible ex-spouses who were following Biblical patterns for reasonable discipline.  We need to avoid making laws that can be used to persecute families, since once the law is on the statute books, the intentions of its drafters is forgotten.

In addition, there is a limit to the good that can be achieved by making laws.  The state cannot expect to be able to build parents’ or children’s moral character – this is the role of the family and the church.  Families and churches need to have the freedom to build moral character without restriction by the state.  Although members of the Law Commission may have preferences on what they would like to see, changing laws will not necessarily result in a better society; in fact, in many cases additional laws will be detrimental.

Finally, it must be recognised that the state cannot provide the family environment needed by children.  State run shelters and orphanages need to be phased out.  Citizens who support private welfare initiatives need to be encouraged and rewarded by tax cuts.  Incentives need to be created for existing, stable families, including the extended family, to take in children in need.

Our detailed analysis follows.  If you have any questions, or if you would like us to make representations in person, or participate in workshops, please do not hesitate to contact us.

“A Father to the fatherless, a Defender of widows, is God in His holy dwelling.

God sets the lonely in families, He leads forth the prisoners with singing;

but the rebellious live in a sun-scorched land.”

Psalm 68:5-6

Yours faithfully

Jeanine McGill                                                 Charl van Wyk

National Co-ordinator                                      Director

Africa Christian Action, P O Box 36129, Glosderry, 7702, South Africa

Tel (021) 689 4481, Fax (021) 685 5884, e-mail acaction@intekom.co.za

Detailed Analysis of

the South African Law Commission’s Project 110

Review of the Child Care Act, Executive Summary

Chapter 1:   Introduction

Basis for Child Care Act

Christians take a Biblical view of children, the family, the state and their inter-relationship.  We believe that the Bible is authoritative in all areas where it speaks – and it speaks on all areas.  The Bible protects rights by prescribing laws, with sanctions for breaking the laws e.g. the Bible protects innocent life by requiring the life of a murderer to be taken, and protects property by requiring that thieves make restitution to the victim.  “Children’s rights” are not a Biblical concept.  Parental responsibility is recognised in the Bible, along with parental authority.

The SALC is looking at the South African Constitution as a basis for their proposals.  We believe that while it has positive aspects, the Constitution is a flawed, human document.  It is not the highest law of the land – God’s law, as given in His Word, the Bible, is the highest law of the land.  Although God’s law is not currently recognised by our courts, each of us will stand before God on judgement day and have to account for our actions according to His law.

Ratifying the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child reduced both state sovereignty and parental authority.  Rather than blindly following the “liberal” community, our leaders must do what is best for our people.  We strongly recommend that we withdraw from these two agreements and instead base our law on a solid foundation, the Bible.

“See, I have taught you decrees and laws as the LORD my God commanded me, so that you may follow them in the land you are entering to take possession of it.  Observe them carefully, for this will show your wisdom and understanding to the nations, who will hear about all these decrees and say, "Surely this great nation is a wise and understanding people."” Deuteronomy 4:5-6

Chapter 2:   The Scope of the Investigation

The summary document talks about “enabling a child’s growth and development within a family environment and protecting children in vulnerable situations”.  Biblically, the state government’s role is limited to protecting citizens against crime by prosecuting the criminals, applying God’s law to give the suitable punishment.  When the state takes on the role of an “enabler”, it ends up using parents’ funds, normally a lot less efficiently than they would, to do their job.

Secondly, the emphasis of the commission is on the “best interests of the child”.  However, we need to ask, who defines what is in the child’s best interests?  This is potentially a huge problem – if the state autonomously defines what is in the child’s best interests, it may well take authority away from parents onto itself – and who says that it has the right to do so?  As Christians, we know that the Bible will accurately define what is in the child’s best interests.

“There is a way that seems right to a man, but in the end it leads to death.”  Proverbs 14:12

Chapter 3:  The Constitutional Imperatives Relating to Children

The Law Commission concludes this chapter by saying “Protection of children’s rights leads to a corresponding improvement in the lives of other sections of the community, because it is neither desirable nor possible to protect children’s rights in isolation from their families and communities.”   However, the contents of this chapter do not indicate how other sections of the community benefit from the protection of children’s rights.  In contrast, many are concerned that children’s rights are detrimental to both children and parents, and only serve to strengthen the state.  Children’s rights cause the state to take the place of the family as the guardian of children’s interests.

In addition, the slant of this chapter is quite socialist, with the conclusion claiming that “these rights create a legitimate claim for children to benefit from an equal share in the state’s resources.”  Biblically, the state has no business confiscating resources from taxpayers so that it can appear benevolent as it distributes them, even if the recipients include children. 

“As for My people, children are their oppressors, and women rule over them. O My people! Those who lead you cause you to err, and destroy the way of your paths."  Isaiah 3:12

Chapter 4:  Childhood – its beginning and end

“The … new children’s statute will not apply to unborn children: childhood will begin at birth.” However, human life begins before birth, at conception, and must be protected from conception.  To fail to protect innocent, pre-born human life is to stir the anger of God against ourselves.

“For we know Him who said, "It is mine to avenge; I will repay," and again, "The Lord will judge His people."  It is a dreadful thing to fall into the hands of the living God.”   Hebrews 10:30-31

It is proposed that the age of majority be dropped from 21 to 18.  We do not have a problem with this per se, since we recognise that a general age of majority is an arbitrary convention.  However, we will strenuously object to any lowering of the ages for consent to sex and statutory rape.

Chapter 5:  The Principles Underpinning the New Children’s Statute, the Best Interests of Children-Standard, and the Rights and Responsibilities of Children

Principles underpinning the New Children’s Statute

The Law Commission recommends that principles be drawn from international law e.g. the African Charter on the Rights and Welfare of the Child.  “Children’s rights” charters effectively take parents’ God given rights away and give them to the state.  There is a better, higher law in the Bible. As we have said previously, ratifying the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child reduced both state sovereignty and parental authority.  Rather than blindly following the "liberal" community, our leaders must do what is best for our people.  We strongly recommend that we withdraw from these two agreements and instead base our law on a solid foundation, the Bible.

“Do not be yoked together with unbelievers. For what do righteousness and wickedness have in common? Or what fellowship can light have with darkness?” 2 Corinthians 6:14

The Law Commission proposals do not distinguish between abusive and normal families - the same recommendations will apply to both.  Consequently, if the recommendations are implemented, it is probable that the state will interfere in the lives of normal families.  Proposed objects of the new children’s statute include:  “(1) to make provision for structures, services and means for promoting the sound physical, mental, emotional and social development of children; (2)             to utilize, strengthen and develop community structures which provide care and protection for children;” and “(5) generally, to promote the well-being of children.” 

To their credit, the Law Commission recommends that “Children should, whenever possible, be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a family environment.”  However, as shown later in the proposals on co-adoption, we need to define a family as one man (husband), one woman (wife) and their natural or adopted children – rather than allow a free for all family, which effectively will not protect children.

The Law Commission proposes that “A child’s family must, whenever appropriate, be involved in any decision-making affecting the child.”  We completely agree with this.  However, this is later contradicted by proposing that both contraception and abortion be available to children without even their parents’ knowledge – let alone consent.  We appeal to the Law Commission to uphold not only parental responsibilities, but also their rights, including in sensitive areas like contraception and abortion.

It is proposed that “It is the duty of everyone who performs any function in respect of a child or takes any decision affecting a child … to protect the child’s fundamental human rights set out in the Constitution”.   As Christians, we do not believe that “sexual orientation” (i.e. perversion) and “reproductive rights” (i.e. sexual immorality and abortion) should be protected by the state for anyone, let alone children.

 The “Best Interests of the Child” Standard

We note that the Law Commission struggled to define a child’s best interests.  As Christians, the Bible guides not only our personal lives, but the Bible also defines what is right and wrong and gives us the standard of justice.  It is the answer.   We reject standards like “discrimination … is presumed to be unfair unless it is established that the discrimination is fair.”  According to the Bible, two or three witnesses are required to establish that a crime has been committed – no-one is guilty until proven innocent.

“Every matter must be established by the testimony of two or three witnesses."  2 Corinthians 13:1b

The Rights and Responsibilities of Children

Two responsibilities are defined.   Firstly, “Every child shall have responsibilities toward his or her family and society, the state and other legally recognised communities and the international community.”  Secondly, “The child, subject to his or her age and ability, and such limitations as may be contained in this Act and other legislation, shall have the duty to support family life.” 

The first responsibility is completely unacceptable. As wishful thinking, the Law Commission is welcome to its thoughts, but as law such responsibilities are dangerous.  How can children be assigned equal responsibilities towards their families, the state and even the international community?  Will children be obliged to spy on their parents for the state (or international community) as children in former communist countries were obliged to?

"Brother will betray brother to death, and a father his child. Children will rebel against their parents and have them put to death.”  Mark 13:12

The second responsibility is quite vague and fuzzy, but appears to be positive.

“Children, obey your parents in the Lord, for this is right. "Honour your father and mother" - which is the first commandment with a promise - "that it may go well with you and that you may enjoy long life on the earth." Ephesians 6:1-3

Chapter 6:   The Child Care Act of 1983

(b) With the limited resources, not to mention limited motivation, we would question the practicality of state legal representation for children.  We would not want this to be a barrier making trans-racial adoptions impossible.

(i) The definition of maltreatment includes emotional and psychological harm and abuse.  Our question is, who defines this?  Will religious freedom e.g. to tell a child that they are a sinner, and cut off from God unless they repent, be acceptable?  Biblically, the state is only mandated to protect from physical harm.   Society’s censure and the Church should deal with emotional and psychological harm and abuse.  Manipulative behaviour is by its very nature very hard to prove. Laws will not change people's hearts.

(j) Statutory rape – we support mandatory reporting, overriding TOP confidentiality.  It is heartless and criminal to “solve” a girl’s “problem” with an abortion and not investigate the abuse that caused her to be pregnant in the first place.

(k) Deadlines – we agree that it is particularly harmful to children when their cases drag on.  Given that for any set of cases, the majority are relatively straightforward, we would support a streamlined process (perhaps even partially privatised) for the relatively simple cases.  Complex and groundbreaking cases, e.g. Laurie Fraser’s, should be recognised as early as possible and can be dealt with separately.  We would support giving social workers and courts incentives.

Chapter 7:  Establishing parenthood and the status of children

Much of the South African law regarding artificial insemination and surrogate motherhood has already been made, and the proposals made here appear to be no worse that the law that already exists.

In the light of the relatively few surrogacy agreements that end up in court, we think that the legislature would be better occupied than by trying to regulate surrogacy.  If surrogacy is to be regulated, we believe that this would best be done in a separate piece of legislation, rather than unnecessarily further complicating the Child Care Act.

The underlying worldview rejecting God’s plan for the family certainly comes across – the chapter talks about how every commissioning family is equal, including a single man, homosexual “parents” etc.  In addition, contrary to the Law Commission’s assertion under section 7.5 “Surrogate Motherhood” there is clear evidence, (cited in “The Pink Agenda” by Christine Mc Cafferty with Peter Hammond), of “increased likelihood of psychiatric, gender-identity or other disorders in children raised by single persons or unmarried couples (even same-sex couples).” 

Chapter 8:   The parent-child relationship

(a)  The diversity of family forms

The Law Commission states that “South African law has no single definition of family”.  As Christians, we believe that a family consists of a male father (husband) married to a female mother (wife) and their natural and/or adopted children.  We accept that due to divorce, death or failure to marry single parent families also exist and may be acknowledged.  Even though the “traditional nuclear family form” does not reflect all of South African society, we will be abandoning the remaining vestiges of our moral heritage if we accept, and codify in law, that when it comes to family, “anything goes”.

“Has not [the LORD] made them one? In flesh and spirit they are His. And why one? Because He was seeking Godly offspring. So guard yourself in your spirit, and do not break faith with the wife of your youth.” Malachi 2:15

(c)    The components of parental rights and responsibilities

Three components are identified: care, contact and guardianship.  Under care, responsibilities include “to safeguard the child’s human rights and fundamental freedoms … to guide (discipline) the child’s behaviour in a humane manner”.  These are concerning, since the definitions of these is not included, but has a huge impact.  Does a child have human rights and fundamental freedoms to be rude to their parents (freedom of speech)or go in and out as he/she pleases (freedom of movement)?  Will corporal punishment be regarded as humane?  If these are defined Biblically, Christians will not object, although we fear that these will be defined by the zeitgeist.

“Fathers, do not exasperate your children; instead, bring them up in the training and instruction of the Lord.”  Ephesians 6:4

(e)     The acquisition of parental rights and responsibilities

The Commission proposes that a child’s father should acquire automatic parental rights if he is or was married to the mother at the time of the child’s conception.  We believe that this should be extended to include if the father was married to the mother at the time of the child’s birth. 

By specifying that marriages recognised for this purpose include civil, customary and religious marriages, civil marriages, with their provisions and protections for women and children, are discouraged.

The Commission makes provision for a variety of unmarried fathers to obtain parental responsibilities.  This is the thin edge of the wedge, and we reject this – for a child to have two people with parental responsibilities towards him/her, but with no legal bond to each other, is an inherently unstable situation, and should not be encouraged.   Similarly, to have one’s “same-sex partner” acquire parental rights and responsibilities either by agreement or on application to the court does not provide protection to the children.

(f)     The management of parental rights and responsibilities where several persons (parents or otherwise) simultaneously have parental rights and responsibilities or components thereof in respect of a child

We hold that a child should not have more than one parent, unless the parents are joined to one another by a legal bond i.e. marriage, or were joined by a legal bond and are now divorced.  Similarly, the privilege of co-adoption should be limited to people who are legally married to one another.

(h)   Termination of parental rights and responsibilities

The Law Commission rightly deals with termination of parental rights and responsibilities in the case of certain offences e.g. sexual trafficking of their children.  However, the Law Commission fails to deal with how to handle the inevitable results of the “anything goes” family, when one “partner” who has parenting rights and responsibilities decides he/she is terminating the relationship.  In this sense, children are not protected.

Chapter 9:  Prevention and early intervention services for children and their families

(b)                Going beyond prevention:  Promotion of the well-being of children

While this may sound like a noble concept, the government to “promote every child’s well-being and the realisation of his or her full potential” will use taxpayer (i.e. family) money.  We believe that families can better spend family money, and that limited (i.e. small) government must be encouraged.

(d)    The role of local government

The Law Commission recommends lengthening local government’s tentacles by requiring it to keep a register of children, undertake a needs analysis, and keep records on street and disabled children, ensuring that children have access to basic nutrition, shelter, health care and social services.   Children are primarily the family’s responsibility, NOT the local government’s.   If the family fails to care for the children, the Church (NOT the local government) needs to step in.  The requirements of this section will put a burden on local government, which will in turn impoverish families and churches through land taxes.   In addition, by assigning to the state the responsibility for children’s basic nutrition, shelter and health care, family responsibility will be broken down.

Further, it is recommended that the local government sets standards and does inspections of childcare facilities.   While we would support high standards in childcare facilities, it is better to let the market determine these rather than the local government.  If the standards are insufficient, parents will pull their children out of the care facility – or the sponsors of the care facility will withdraw.  The market will be far more responsive to the needs of parents, donors and children than the local government will be.  In addition, government standards tend to concentrate on expensive infrastructure, rather than day-to-day operating standards e.g. having expensive toilets is useless if these are constantly blocked. 

The local government is told to exempt registered non-profit organisations from property rates.   We support this – property rates are completely unjustified Biblically.  However, the attitude in this section is that the local government can choose to give non-profit organisations small exemptions, like from paying electricity and water.  We oppose this, since it will promote wastage.  Instead, donors to family services, including church-based family services, should be given property rate exemptions.  This will encourage charity.  Further, we do not believe that the local government has any business running shelters.  While a child’s physical environment is important, the child’s moral and character development is essential, and the state cannot fulfil this role – families and the Church must be encouraged to take up this responsibility. 

Chapter 10:   Child Protection

(a)                Circumstances in which protective intervention may be required

The Law Commission asserts that “Circumstances where protective measures may come into play generally fall into one or both of the following categories:  (a)  Neglect, which involves a failure to meet the child’s basic physical, intellectual, emotional, and social needs;  (b)  Abuse, which is generally understood to occur when some form of harm is actively perpetrated against a child.”  However, these are not defined, which is completely unacceptable, since they are both broad and subjective. 

(b)                Corporal punishment (physical punishment) of children by their parents or caregivers

“The Commission recommends that an educative and awareness-raising approach be followed, in order to influence public opinion on the issue of corporal punishment. However, the Commission is further of the opinion that the common law defence that a parent may raise that physical punishment was justified on the grounds of the rights of parents to impose reasonable chastisement upon their children is overly broad, and that the common law in this regard should be revisited in order to protect children from serious breaches of physical integrity.  Further, the Commission believes that amendments to the common law are required by section 28(1)(d) of the Constitution, in order to ensure that the State obligation to protect children from maltreatment and abuse is given effect in municipal legislation.

“The Commission therefore proposes that upon any criminal charge of assault or related offences (such as assault with intent to do grievous bodily harm), it shall not be a defence that the accused was a parent, or person designated by a parent to guide the child’s behaviour, who was exercising a right to impose reasonable chastisement upon his or her child."

The above two paragraphs basically outlaw reasonable corporal punishment (spanking, smacking, hidings) by parents.  Since the Bible explicitly COMMANDS the use of the rod to discipline children at least four times, by outlawing corporal punishment, the state is attempting to cause parents to obey it rather than God.   This recommendation is completely unacceptable to Christians.  Further, this recommendation is completely unnecessary – by its very definition, children are currently protected from unreasonable chastisement.  We do not believe that there is any real need for this proposal.  We reject with contempt this attempt by the state to usurp the family’s authority.  There is substantial anger in the Christian community that the government would attempt to restrict our freedom to obey God in this way – despite the good in the proposals, if the new Child Care Act retains this recommendation, it will be resisted at every point.

“He who spares the rod hates his son, but he who loves him is careful to discipline him.”  Proverbs 13:24

“Folly is bound up in the heart of a child, but the rod of discipline will drive it far from him.”  Proverbs 22:15

“Do not withhold discipline from a child; if you punish him with the rod, he will not die.  Punish him with the rod and save his soul from death.”  Proverbs 23:13-14

“The rod of correction imparts wisdom, but a child left to himself disgraces his mother."  Proverbs 29:15

 "We must obey God rather than men!” Acts 5:29b

(e)             Permanency planning

We wholeheartedly support the elements recommended for permanency planning.  Adoption is a beautiful Christian doctrine, and we support the efforts to make it more accessible.

“But you are a chosen people, a royal priesthood, a holy nation, a people belonging to God, that you may declare the praises of Him who called you out of darkness into His wonderful light.  Once you were not a people, but now you are the people of God; once you had not received mercy, but now you have received mercy.”  1 Peter 2:9-10

(e)    Reporting and registration of reported cases

We would not put child labour in the same category as sexual abuse and severe neglect, although we do recognise that some forms of child labour are abusive and exploitative.  We believe that working is part of building character – children should not unreasonably be denied this opportunity. 

The need for a register of child abusers is an acknowledgement that insufficient sanctions are being applied to child abusers.  As an interim measure it is useful, but we need to work towards a situation where the punishment fits the crime, including for child abuse.  The limitations on access to the register are unnecessarily severe – if the people on the register should not work with children, ALL organisations should be able to screen all their staff using this taxpayer financed register.

“When the sentence for a crime is not quickly carried out, the hearts of the people are filled with schemes to do wrong.” Ecclesiastes 8:11

Chapter 11:   The protection of the health rights of children

(a)             Accessing children’s health rights

Children must NOT be given confidential access to contraceptives regardless of age.  In Chapter 5, the Law Commission proposes that “A child’s family must, whenever appropriate, be involved in any decision-making affecting the child” – we see no reason why accessing contraception should be excluded from this provision.  To the contrary, the decision to be sexually active is a very significant one, with serious emotional, health, physical and spiritual consequences.   Even if condoms are used, a variety of sexually transmitted diseases (e.g. genital warts and herpes) can still be transmitted by skin-to-skin contact.  In addition, children under 16 seeking contraception must be protected by the law from early sexual activity (or abuse), rather than given licence.  As the Law Commission’s proposal stands, even children under 12 will be given contraception without any question – surely children under 12 requiring contraception are being abused and these situations must be investigated, rather than encouraged.  

We acknowledge that many clinics are currently following the Commission’s proposal and given contraceptives to all – however to put this in the statute books as a children’s right denies medical personnel freedom on conscience to refuse, or at least investigate.

“They became prostitutes in Egypt, engaging in prostitution from their youth. In that land their breasts were fondled and their virgin bosoms caressed.”  Ezekiel 23:3

(c)             Consent to medical treatment and consent to surgical intervention

“The Commission recommends that the age at which children may consent to medical treatment should be lowered to 12, whilst until they are 18 they cannot consent to an operation without the assistance of their parent or guardian. The following should, however, be exceptions to this general rule: (a) a child of any age should be entitled to obtain information on and access to contraceptives; and (b) any child should be able to obtain treatment for sexually transmitted diseases regardless of age.”

We do not agree that children as young as 12 should be allowed to consent to medical treatment.  Modern science has been a great blessing and for many conditions there are a variety of treatment options – we do not believe that children as young as 12 have the experience and maturity to consent to medical treatment.  In addition, unscrupulous medical personnel may abuse this situation to defraud medical funds.  Further, parents may have access to resources for medical treatment that children are unaware of.

As argued under (a) above, children must not be given the legal right of confidential access to contraception, regardless of age. 

On treating sexually transmitted diseases: once again, there are a variety of treatment options available for many sexually transmitted diseases.   We do not believe that children as young as 12 have the experience and maturity to select the best treatment.  The consequences of many sexually transmitted diseases are very serious e.g. infertility, dementia and death.  When informed, parents are able to monitor the child’s use of medication, and deal with the situation that caused the transmission of the disease.  HIV is a sexually transmitted disease that leads to death.  If children are involved in behaviour where HIV may be transmitted, it is crucial for their parents to know, so that they can protect them.  “A child’s family must, whenever appropriate, be involved in any decision-making affecting the child” – we see no reason why treatment for sexually transmitted diseases should be excluded from this provision.

“He said, "If you listen carefully to the voice of the LORD your God and do what is right in His eyes, if you pay attention to His commands and keep all His decrees, I will not bring on you any of the diseases I brought on the Egyptians, for I am the LORD, who heals you."” Exodus 15:26

(d)       HIV-testing in relation to placement of children in need of care

We agree with the Commission that making the PCR test available at state expense for babies requiring placement has economic and developmental benefits.   However, this kind of decision should be taken by the executive, rather than written into legislation.

(f)             Access to contraceptives

“The Commission recommends that confidential access to contraceptives should be provided to all sexually active persons regardless of age. The Commission further recommends that access to contraceptives and advice about contraceptives should be at state expense where necessary and should not be linked to medical treatment.”

As argued above, we completely reject this proposal, since it undermines family communication and authority.

(g)             Access to termination of pregnancy

“The Commission accepts that a woman, even a girl child, has a right of choice with respect to reproduction, including the right to choose to terminate a pregnancy.”

Abortion is not a trivial medical procedure.  Not only are the psychological consequences widespread and severe (and in fact even more serious for teenagers than for women, since teenagers are still developing psychologically), but potential physical consequences include (depending on the method used) ruptured uterus, perforated uterus, cervical damage, infections, bleeding and intense pain, shock, future miscarriages, infertility and ectopic pregnancies, breast cancer and even death.  “A child’s family must, whenever appropriate, be involved in any decision-making affecting the child” – abortion is not trivial, and should not be excluded from this provision.

“This day I call heaven and earth as witnesses against you that I have set before you life and death, blessings and curses. Now choose life, so that you and your children may live …” Deuteronomy 30:19

Chapter 12:   The protection of children as consumers

(a)             Protecting and informing children as consumers

We would disagree that additional taxpayer money should be used to educate and inform children as consumers, although we agree that this should form part of a good school syllabus.

(e)             Advertising

We would disagree that additional taxpayer money should be used to research the effects of advertising.  We have plenty of other legitimate demands on taxpayer money, and there is plenty of overseas research.   In addition, the market will find its level - if parents do not like the effect of advertising on their children, they will reduce their children’s exposure to such advertising.

“He will take a tenth of your flocks, and you yourselves will become his slaves.  When that day comes, you will cry out for relief from the king you have chosen, and the LORD will not answer you in that day." 1 Samuel 8:17-18

Chapter 13:   Children in need of special protection

We do not agree with the suggestion of a universal grant.  We are concerned that if this is implemented, as a result unscrupulous parents will have more children to get more grant, while having no concern or commitment to care for the children, resulting in further exploitation.  We are also concerned that this would be a gigantic opportunity for fraud and an administrative nightmare.  Restrictive labour practises must be abolished, to boost competition, productivity, the economy and create jobs.  If parents are unable to provide for their own children, they must be helped by the local community (who will know whether all the money goes to immoral purposes) rather than by the government with a “one-size-fits-all” approach.

We agree with the Commission’s view that children should not be removed from or forced to live away from the family home merely for reasons of poverty.

“Do not exploit the poor because they are poor and do not crush the needy in court …”  Proverbs 22:22

(a)             Children living in poverty

Providing supplementary nutrition for pregnant and lactating women will probably have the unintended consequence that additional children are conceived in order to access this subsidy, and so we do not recommend this.

(b)             Children infected with and affected by HIV/AIDS, including orphaned children

We recommend that tax rebates be offered to the individual and corporate supporters of AIDS care facilities, rather than state subsidies.  That way, the market (which is more responsive than the government) will decide which facilities are supported.

We agree that where the extended family has taken on the long-term care of a child, they should have access to a simple procedure whereby the necessary parental responsibilities can be conferred on them.

(c)             Children with disabilities

As far as children with disabilities go, we believe that giving vouchers to parents is more cost effective than establishing or subsidising public facilities.  By giving parents power to shop around, better standards and service result.  In addition, the market will create the number of facilities provided, rather than a situation where state facilities are oversubscribed.

We do not believe that it is necessary for the new statute to recognise sign language as deaf children’s first and natural language.  There are degrees of hearing impairment, and sign language is not appropriate for milder hearing impairment.

(d)         Child Labour

Prostitution is inherently abusive and not in the same league as commercial agriculture, street trading, domestic service etc.  We do not agree that 15 is the appropriate cut off date for denying part-time and holiday employment to children.  Work builds character, and we would hold that at very least children should be allowed paid part-time (after-school) and holiday employment from age 12 onwards.  It can further be argued that this is not a government, but a family matter – if his parents agree, an 8-year-old should be permitted to mow the neighbour’s lawn for reward (as our director did as a child).

We do not agree “that the Department of Education be required to identify schools where excessive use is being made of children as a source of labour for the purpose of cleaning and maintenance tasks, and to ensure that sufficient adults are employed to carry out these tasks.”  By participating in cleaning and maintaining their school, greater responsibility is inculcated in children – part of their development and education.  Children need to be taught to clean up their own mess.  The Department of Education can better spend resources on teachers and textbooks.  As a suggestion this may have merit in some cases, but as a one-size-fits-all law, this is ridiculous.

(e)                Children living or working on the streets

We disagree that the Department of Social Development must budget for the development and implementation of rehabilitative programmes to address the needs of street children – however, we would fully support tax cuts for individual and corporate supporters of private facilities.

Chapter 14: The protection of children caught up in the divorce / separation of their parents

(a)             Improving outcomes for children

(iii)             Parenting education

We support the idea of parenting education so that parents better handle their responsibilities after a divorce.  To be effective, we recommend that family organisations or churches run such programs privately.

(iv)               Joint custody

We maintain that it is necessary to retain the concept of sole custody.  A parent who had been found in a court of law to be too unreasonable or irresponsible to be granted joint custody must not be allowed to cause havoc in the family home by demanding access.

Chapter 15:  Early Childhood Development (ECD)

We completely disagree with the Commission’s opinion that “the view that ECD is the responsibility of parents and families and not the State is no longer tenable.”  Children belong to the parents, not to the state.  Biblically, only oppressors demanded the children – Godly men had the good sense to leave them in the family, where they belonged.

“The messengers came again and said, "This is what Ben-Hadad says: 'I sent to demand your silver and gold, your wives and your children.  But about this time tomorrow I am going to send my officials to search your palace and the houses of your officials. They will seize everything you value and carry it away.’”  The king of Israel summoned all the elders of the land and said to them, "See how this man is looking for trouble! When he sent for my wives and my children, my silver and my gold, I did not refuse him."  The elders and the people all answered, "Don't listen to him or agree to his demands."” I Kings 20:5-8

As a result, state interference in private ECD services is unwarranted if crimes are not being committed at such facilities.  It is unreasonable to give the Departments of Social Development and of Education to close down ECD services for which they are not paying.  Parents will buy their children the best care they can afford – empowering a bureaucracy will impoverish parents further and as a result not serve the best interests of the children.

Chapter 16:   Partial Care

(c)             Assistance to providers of partial care services

We do not agree with the commission’s recommendation that “the (provincial) Department of Social Development, or any local authority may support, financially and otherwise, any licenced partial care facility.”  This can easily become a gravy train.  Rather, if those in partial care really require subsidies, we recommend that vouchers be provided, so that the best value can be obtained.

Chapter 17:   Foster Care

(e)        Social and cultural issues when placing children in foster care

We support the Commission’s recommendation that “A child may only be placed with a family from a different background to that of the child, if no family with a similar background to that of the child is available, willing and suitable to foster the child” since the possibility is still open for cross-racial and cross-cultural fostering.  Given the demographics and economics of South Africa’s AIDS pandemic, it is impractical to exclude cross-cultural fostering

(f)             Parental rights and responsibilities for foster parents

We also support the Commission’s view that “foster parents should be given greater rights and responsibilities in respect of their foster children”.

(j)         Rights of non-South African children to foster care grants

We are concerned that foreign children will continue to be denied care and protection, since in the Law Commission’s recommendation, no-one is mandated to get the recommended children’s court order declaring the child in need of care.  We recommend that this oversight be corrected.

“For the LORD your God is God of gods and Lord of lords, the great God, mighty and awesome, Who shows no partiality and accepts no bribes.  He defends the cause of the fatherless and the widow, and loves the alien, giving him food and clothing.  And you are to love those who are aliens, for you yourselves were aliens in Egypt.”   Deuteronomy 10:17-19

Chapter 18:   Adoption as a form of substitute family care

(b)        Who may adopt a child?

We are surprised to see that “The Commission sees no reason to limit joint adoptions to married couples.”  If married people who have co-adopted divorce, one of the results of the divorce is to allocate rights and responsibilities regarding the children.  If children are co-adopted by people who have no legal bond to one another, they will not be protected in the case of a relationship failure.  We agree with the act as it stands – allowing co-adoption by “couples” who have no legal bond is potentially far more confusing and hurtful to the children in the case of a relationship break-up than in the case of a divorce.

We agree with the Commission’s sentiments “it wishes to state categorically that existing racial prejudices, as also applied to children placed trans-racially, should not be tolerated.  If racial prejudices are not eradicated, then all future South African generations will continue to live in a race-conscious society.  The Commission therefore does not exclude the possibility of trans-racial adoptions, provided it is in the best interests of the child concerned, and sees no need to tamper with the existing provisions of section 18(3) read with section 40 of the Child Care Act, 1983.”  Once again, given the demographics and economics of South Africa's AIDS pandemic, it is impractical to exclude cross-cultural adoption.  We were all formed from one father and mother, and are of one blood – skin colours and features should not be allowed to separate us.

“From one man He made every nation of men, that they should inhabit the whole earth; and He determined the times set for them and the exact places where they should live.  God did this so that men would seek Him and perhaps reach out for Him and find Him, though He is not far from each one of us.” Acts 17:26-27

Chapter 19:   Residential Care

(vii)              Administrative Transfers

We are concerned that having to refer a more restrictive placement to court could be unnecessarily restrictive, given the delays currently experienced.  We recommend rather that once again a team makes such a decision, with a written report.  The child can then be advised of his/her opportunity to appeal for a review and the court notified.

“Blessed are they who maintain justice, who constantly do what is right.”  Psalm 106:3

Chapter 20:  Religious laws affecting children

We are concerned about the definition of harmful in the recommended “general provision to prohibit harmful religious (and cultural) practices.”  As argued above, Christians believe that it would be harmful not to discipline their children using corporal punishment, or to fail to tell the children that they are in danger of eternal damnation if they do not repent.  We acknowledge that there are religious practices that are harmful to children e.g. child sacrifice.  However, Christianity has consistently improved children’s lives through literacy, discipline and moral character building.  We believe that if a practice is commanded by, or consistent with, the Bible, it should not be considered harmful.

“The law of the LORD is perfect, reviving the soul. The statutes of the LORD are trustworthy, making wise the simple.  The precepts of the LORD are right, giving joy to the heart. The commands of the LORD are radiant, giving light to the eyes.  The fear of the LORD is pure, enduring forever. The ordinances of the LORD are sure and altogether righteous.”  Psalm 19:7-9

Chapter 21:   Customary law affecting children

That children have an unlimited “right to privacy” is by no means established.  Good parents may have to breech their children’s privacy in order to protect them e.g. by requiring a drug test.  We do not believe that parents should be vulnerable to a charge of infringement of the right to privacy.

“Children, obey your parents in everything, for this pleases the Lord.  Fathers, do not embitter your children, or they will become discouraged.” Colossians 3:20-21

Chapter 22:   Children – The international dimensions

We do not agree that inter-country adoptions should be discouraged.  While they have their problems, an inter-country adoption is better than the child’s neglect, institutionalisation or even death.

“Anyone who is among the living has hope – even a live dog is better off than a dead lion!”  Ecclesiastes 9:4

Chapter 23:   A new court structure for serving the needs of children

We are not convinced that the more flexible system of parental responsibilities is superior to guardianship, custody and access.

We support the recommendations designed to improve the care and placement work of the children’s courts in the future, especially the personal accountability order, delictual damages on behalf of a child and that children’s courts are the forum for persons to bring applications against the state.

“In all cases of illegal possession of an ox, a donkey, a sheep, a garment, or any other lost property about which somebody says, 'This is mine,' both parties are to bring their cases before the judges. The one whom the judges declare guilty must pay back double to his neighbour.”  Exodus 22:

Chapter 24:  Monitoring the implementation of the new child care legislation

No comment.

Chapter 25:   Grants and social security for children

We wish to re-iterate that bold steps (i.e. removing restrictive labour requirements) to boost economic growth will be far better in the long term than basic income grants.