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Childrens Act Amendments

Proposed amendments to CHILDREN’S AMENDMENT BILL OF 2018 will devastate rights of children to permanent alternative care through adoption

[13 June 2019]:  Proposed amendments to the Children’s Amendment Bill of 2018 which propose to make it illegal for anyone to receive fees for professional services rendered or expenses incurred in respect of an adoption have received widespread attention and strong criticism from all quarters of child protection civil society sectors.

The controversial changes were hastily pushed through by the Department of Social Development (DSD) without in-depth consultation with the adoption and child protection sectors and without due consideration of the impact on the vulnerable children the act is intended to protect.  The amendments in their current format will unequivocally scupper the already declining number of adoptable children who find their way to a loving, adoptive family, exacerbating South Africa’s ballooning crisis of abandoned and vulnerable children left to languish in adoption homes.

This is according to the National Adoption Coalition of SA (NACSA).

“The Bill proposes that accredited child Protection organisations and adoption social workers, lawyers, psychologists and all other professionals will no longer be able to charge for any expert or specialist service rendered to adoptive families, not even for reimbursement of travelling expenses, medical care, counselling and so on.  There will be massive negative implications if such changes go through and the impact on adoptions and adoptable children as a whole will be nothing short of catastrophic – it’s a fundamental human rights violation in the making,” says Katinka Pieterse, Chairperson of the National Adoption Coalition of SA (NACSA).

In making the amendments, the Department of Social Development (DSD) argued that no fees should be payable for adoption services, like all other child protection services, since there is no difference between adoptions and other child protection measures like foster care.

“This is a fundamentally flawed view.   DSD argues that the prescribed professional fees and cost recovery – which are legally allowed for and regulated by government – leads to fraud and potential trafficking.  Another flawed argument put forward is that the amendments are aimed at making ‘adoptions more accessible’ to allow poor people in rural areas to adopt. The Department has contended that adoptions are expensive and only available to the wealthy.  However, in absence of any clear factual evidence for the department to back these claims, it is important to respond to the motivation behind the amendments and address the realities,” adds Katinka.

“Firstly, adoption-accredited Child Protection Organisations charge nominal professional prescribed fees for adoption services. The income derived from these fees enables Designated Child Protection Organisations (DCPOs) to employ experienced social workers, since not all DCPOs receive Government subsidies for the rendering of child protection and adoption services. They often only receive partial and limited financial support. Where subsidies are received, these subsidies only cover approximately 50 % of the social work posts and programs. DCPOs do not make any profit through fees charged since fees mostly just cover expenses incurred. During the assessment process of the different parties to the adoption triad, expenses in respect of counselling and emotional assessments are also incurred since these are crucial for the courts to be able to make a finding that children are adoptable and parents are fit and proper,” explains Katinka.

DSD’s argument about making adoptions more accessible to the poor is also addressed by the fact that the majority of organisations also make use of an income-based sliding scale and often render services free of charge when applicants cannot afford to pay a fee for professional services.  The scale of fees is further strictly regulated by the Gazetted tariff (Regulation 107) and organisations are monitored by the DSD. They are also obligated to disclose all fees received in writing to the Children’s Court in terms of Section 249 for each adoption thus ensuring transparency.

NACSA highlights the key concerns if the amendments are passed in their current format: 

  • South Africa can ill-afford to lose any skills, expertise and human resources in this highly specialised and sensitive sector, yet this is exactly what the proposed amendments will achieve. South Africa will lose all its professional services and highly experienced, qualified people who are dedicated to the cause of child protection through adoptions in an already under-resourced area. Current adoption service providers will not be sustainable if they are unable to recover their costs.
  • There is a wide range of different types of adoptions and in certain instances there is the need for specialist adoption social worker service providers and allied professionals, which may include lawyers, psychologists and medical practitioners. This proposed amendment will prohibit those service providers from charging their fees, and in doing so it will not serve the interest of the children. It is in fact highly impractical as there will be a restriction on accessing these services which the court may need in ruling on an adoption.
  • According to relevant adoption policies, adoption services must be provided by competent and experienced adoption service providers. Adoption is described as a specialised area in the field of child protection and requires special skills and experience. The majority of social workers with the Department of Social Development (DSD) have limited or no experience whatsoever in adoptions and will need intensive supervision, support, training and mentoring. It will take time for the identified DSD social workers who will be rendering adoption services, under supervision, to obtain the required experience.  They will only be able to work independently in accordance with the proposed speciality requirements, after two to three years. The timing on this stipulation has the potential to throw the system into crisis, if the existing expertise are lost.
  • More children will be placed in or remain in foster care, putting more strain on an already overburdened area. This proposed amendment will dramatically limit the number of children that will find permanency through legal adoption placements and the competency, vast expertise and capacity that adoption service providers bring will also be lost to the sector.  This will have a negative impact and the current challenges and delays already experienced in the system and the decline in already low adoption numbers will intensify.
  • Significant numbers of children with special needs will be prevented from being placed into permanent family care through intercountry adoptions – a highly specialised area in adoption. Inter-country Adoption services are currently provided for by a limited number of DCPOs which have working agreements that are supported and approved of by the South African Central authority (SACA). These services are highly specialised and labor intensive and to date the regulated and capped fees charged have allowed DCPOs to continue to provide the service. The proposed changes, if implemented, mean that DCPOs will not be able to continue to render these services in absence of an income which currently is provided for by the professional regulated fees that are charged. Inter-country adoptions will potentially shut down as a result of the amendment, which would not be in the interest of children for which a permanent alternative family can only be provided for through inter-country adoptions, particularly special needs children who are increasingly becoming the children placed through inter-country adoptions.
  • The proposed amendments will NOT ensure that adoption services are more accessible to all, which has been provided as the rationale behind the proposed amendments. It is NACSA’s position that it will be even more restrictive and less accessible since the majority of adoption service providers will be dispositioned and cut off from rendering these services due to potential financial sustainability challenges. The issues of accessibility have everything to do with a lack of qualified social workers at

DSD and the lack of access to grants due to departmental inefficiencies – this has nothing to do with the regulated fees charged to recover costs in the adoption process.

  • There is no substantive evidence anywhere that adoptions are expensive as claimed by DSD – the reality is that these professional fees are regulated by government, so if there are alleged offenders who charge more as claimed by DSD, then it is within the ambit of DSD to identify, prosecute and shutdown such offenders and appropriately regulate all role players.

The reality is that adoption services are an area of specialty as provided for by the Social Service Professions Act, 1978. The Children’s Act also requires that adoption social workers have a registered specialty with the SA Council for Social Service Professions. Due to these provisions, adoption services have historically been rendered by social workers in the employ of Designated Child Protection organisations accredited to render adoption services and by accredited adoption social workers in private practice. They therefore currently possess the bulk of the expertise and experience in this highly specialised area of service delivery.

“Another very important factor is that adoption numbers remain relatively low when compared to other forms of alternative care and sadly the numbers show a consistent decline. During the 2010/11 financial year there were 2436 adoptions registered in SA, compared to the number of 1186 registered during the 2017/18 financial year. According to the Register on Adoptable Children and Adoptive Parents there is a serious disconnect between the numbers of children in need of adoptive parents and the number of children that are legally adoptable, where the latter mentioned by far exceeds the number of parents.  Service providers therefore need to actively recruit and screen more fit and proper adoptive parents,” explains Katinka.

Adoption Services are an area of specialty and adoption specialists and social workers should be able to practice their profession, however the proposed amendments devalue this area of specialty and constitutes a limitation on the right of adoption social workers to practice in their field.

“If the Department really has a position that no professional fees may be charged within adoption because it is part of child protection, then surely this will also apply to other areas of child protection where private professionals render services in relation to child protection such as lawyers, psychologists, therapists, medical personal and so on?  There is simply no substantial evidence based current proof in South Africa supporting the claims that adoption services are not accessible due to the charging of regulated fees,” she adds.

The real intention with these drastic proposed amendments and the rationale behind it need thorough and transparent consultation and the potential far-reaching implications for adoptions and vulnerable children in SA needs to be very carefully considered. When it comes to the protection of South Africa’s most vulnerable citizens, there must be a spirit of partnership and trust between Government and civil society – the consequences of these proposed ill-considered changes are simply too dire to contemplate of left unchallenged.

Ends….

About NACSA

The National Adoption Coalition of South Africa is an NGO that represents the child protection community, including social workers, crisis pregnancy homes, child and youth care centres, places of safety and adoption.  Its vision is to unify and empower our communities and society, to create positive and permanent change in the lives of our children.

Note to media: For any media interviews with NACSA, please contact Nadine van Tonder at Teresa Settas Communications on (011) 894 2767 or nadine@tscomms.co.za to coordinate.

Issued by:        Teresa Settas Communications

Nadine van Tonder – (011) 894 2767 or nadine@tscomms.co.za

On behalf of The National Adoption Coalition of South Africa (NACSA)

13 June 2019