Children's Act Practice Note 2 of 2011 - LexisNexis South Africa

8. Who is an appropriately trained person?Legal positionSection 132 indicates that a child may only be tested for HIV after propercounseling, by an appropriately trained person. The Act does not indicate whatan appropriately trained person is.Practice positionFor the purpose of implementing the Children’s Act in a uniform manner anappropriately trained person will refer to a person who is familiar within the field ofHIV/AIDS, has completed an HWSETA accredited course in HIV/AIDS counselingand is familiar with the Health Policy on testing of persons for HIV/AIDS. In additionto the above for the purpose of implementing the Act an accredited course inHIV/AIDS counseling will refer to attendance of at least a 3 day training whichincluded four or more of the following topics and was issued a certificate ofattendance.• Introduction to HIV and AIDS• Counseling• Pre and Post test Counseling• Psychosexual issues in Counseling and Testing• Legal and Ethical issues• Mother to Child Transmission• Antiretroviral treatment• Condomisation• Post exposure prophylaxis“Appropriately trained” was meant for practitioners involved in children’s matters tobe acquainted with the necessary skills through training to ensure that the childconcern is receiving the highest quality of services without being exposed tosecondary trauma due to the lack of knowledge and understanding.Child Protection workers can request their HIV/AIDS Directorates to provide thistraining to them. If not available the Department of Health also provides similar6Children’s Act practice note 02 of 2011: Transitional matters

11. Removal of child to temporary safe care by court orderLegal positionSection 151 (Non-urgent removals) Regulation 53 and 54.The presiding officer can issue an order after listening to evidence given beforehim/her by any person on oath or affirmation that a child appears to be in need ofcare and protection. And further than that, the presiding officer must order that adesignated social worker investigate and compile a report on the circumstances ofthe child in terms of section 155(2) before issuing a court order.The issued court order may stipulate that the child be placed in temporary safecare if it is necessary for the safety and well being of the child, (section151(2)).A person authorised to remove the child may, either alone or accompanied by thepolice official:-enter any premises mentioned in the order;- remove the child from the premises; and-on those premises exercise any power mentioned in section 50(3)(a) to (d) whichis to remove the child, investigate the circumstances of the child, record anyinformation and carry out any specific instruction of the court.Section 151 (6) empowers the police official who may accompany the personauthorized to remove the child, to “use such force as may be reasonably necessaryto overcome any resistance against the entry of the premises contemplated insection 151 (5)(a), including the breaking of any door or window of such premises:Provided that the police official shall first audibly demand admission to thepremises and notify the purpose for which he or she seeks to enter suchpremises.”Section 151 (7) states that:“The person who has removed a child in terms of the court order must—(a) without delay but within 24 hours inform the parent, guardian or care-giver ofthe child of the removal of the child, if that person can readily be traced; and9Children’s Act practice note 02 of 2011: Transitional matters

13. Advertising of abandoned or orphaned childrenLegal positionRegulation 56 (1). If it appears to a designated social worker that a child has beenabandoned or orphaned, whether for purposes of determining if such child is inneed of care and protection or if such child can be made available for adoption,such social worker must cause an advertisement to be published in at least onelocal news paper circulating in the area where the child has been found callingupon any person to claim responsibility for the child.Practice positionTo advertise abandoned or orphaned children in a news paper kindly use theattached templates. Annexure R-Publication of abandoned or orphaned childwith identifying particulars which should be used in cases where there isinformation available about the concerned child and/or his/her family whereasAnnexure S-Publication of abandoned or orphaned child without identifyingparticulars which should be used if there are no identifying particulars of theconcerned child or his/her family.Provinces must customise these templates and circulate to your counterparts (Districts and NGOs)If the presiding officer decides to use section 45 and 46 there may not be a need toadvertise as regulation 56 makes reference to bringing the orphaned child beforethe court for purposes of finding the child in need of care and protection andsection 46 does not require that the child be found in need of care according tosection 156. However, if the presiding officer decides to use section 156 to presideover the case, then the advertisement must be done as it will contribute towardsdetermining that the child is need of care and protection.The Act does not make reference to an advertisement of foster children forpurposes of extending orders.Children’s Act practice note 02 of 2011: Transitional matters14

14. Determining factors for a child to be placed in alternative careLegal position: Section 45, 46, 150, 155 and 156A child can be placed in alternative care after being found to be in need of care andprotection in terms of section 150, or the children’s court could adjudicate theprotection and well being of a child in terms of section 45 and can make an order interms of section 46(1).Working with a child who should be placed in alternative care, a designated socialworker will have two options in how to approach the Children’s Court.• The first option will be to find the child in need of care and protectionaccording to section 150(1). The court will then follow procedures as set outin section 155 (including a social work report, Form 38) and make anappropriate order according to section 156.• The second option is for a social worker to approach the Children’s Court interms of section 53. The social worker will then give evidence in the formof a report according to section 60(1) (a). It is recommended that socialworkers will use Form 38, as used in terms of section 155(2).Section 45 state that, the court may adjudicate any matter involving:(a) the protection and well-being of a child(g) the temporary safe care of a child(h) alternative care of a childThe court may then make orders in terms of section 46, which includes analternative care order (section 46(1)(a)). When using these sections a child is notfound to be in need of care and protection, but it focuses on the protectionand well being concept of the child to make an appropriate order in terms ofsection 46. The best interest of child standard principle is also applicable in thissituation.Children’s Act practice note 02 of 2011: Transitional matters15

Practice positionWhen attending to a child, the social worker should do everything in her power toassist the child and make the best possible recommendation which will be in thechild’s best interest.Risk assessment is a critical component to the follow up of allegations of childabuse and neglect and it can be construed as an ongoing activity from thecommencement of the process of receiving reports of alleged abuse and decidingon action to be taken. It lays the foundation for proper investigation, follow up andultimate reporting to children’s courts, to enable the presiding officer to makesound decisions based on ecologically valid (the child within its family andenvironment setting), evidence based, criteria.Risk assessment is addressed in section 142(c) of the Act and in regulation 35,and it informs decision making and action. The aim of the broad risk assessmentframework is to provide guidelines for:• identification of children who are being abused or deliberately neglected• assessment of risk factors• investigation• appropriate protective measuresThe broad risk assessment framework includes the following guidelines:• the presence of indicators of physical abuse• the presence of indicators of sexual abuse• the presence of emotional and behavioural indicators of physical,psychological or sexual abuse• the presence of developmental indicators of physical, psychological orsexual abuse• the presence of indicators of deliberate neglect• a disclosure of abuse or deliberate neglect by the child; or• a statement relating to a pattern or history of abuse or deliberate neglectfrom a witness relating to the abuse of the child16Children’s Act practice note 02 of 2011: Transitional matters

It is difficult to find a balance between over reacting or under reacting whendeciding if a child’s behaviour is abuse reactive or just problematic due toenvironmental factors. For this reason it’s important that as a social worker youhave clear understanding of the signs and symptoms of all types of abuse, as wellas the normal developmental and behavioural responses of children.Risk assessments should be well planned as time is of the essence. Ignorance ofthe risk to the child due to high workload is inexcusable. Ensure that youinvestigated properly before any allegations are made.Bear in mind that many indicators may be non-specific to abuse or neglect. Acluster or pattern of indicators as opposed to a single isolated indicator will providesupport for a conclusion of abuse or neglect;While doing the risk assessment, consider the following:• information about specific times of any incidents, places where incidentshave taken place and the context within which incidents have taken place,which must be noted in writing, may provide support for a conclusion ofabuse or neglect;• abuse may be unintentional, but failure on the part of the parent or caregiverto prevent abuse of the child may amount to neglect;• abuse may be physical, psychological or sexual without any visibleindicators and is likely to exist if the child continuously reports threats ofharm or punishment;• a series of minor incidents, any of which may, when considered in isolation,not amount to abuse or neglect, may constitute abuse or neglect whenconsidered together;• the child’s age, personality and temperament should be taken into account;• discrepancies in the rendition of incidents by the child and his or her parentor care-giver may either provide or diminish support for a conclusion ofabuse or neglect; andChildren’s Act practice note 02 of 2011: Transitional matters17

• any unexplained delay in seeking medical treatment for a child who isseriously injured, should be examined as a possible indicator of abuse orneglect.Annexure B of the Children’s Act (National Norms and Standards as part of theChildren’s Act Part III), provides for the National Norms and Standards for childprotection. Point 2 also provides specifics when doing assessment of children whohave been abused or deliberately neglected.Additional service specific Norms and Standards in terms of the Children’s Actwere also developed (Norm 105, page 194), the following needs to be noted:• Risk assessment must be conducted for all children under the age of 18within the household and completed on a standardised form.• The risk assessment framework must guide decision-making in terms ofchild protection services.• Only designated social workers may conduct the risk assessment.• Each child must be assessed individually and within 48 hours uponreceipt of reports of abuse or deliberate neglect. Victims of rape should betaken to the doctor within 72 hours and be regarded as the highest priority.• The outcome of the risk assessment must indicate high, medium or low risk.• The outcome of the risk assessment must indicate the appropriateprotective measures of interventions.15. A child in need of care and protectionLegal positionSection 150 (1)(a) identifies a child who is in need of care if the child has beenabandoned or orphaned and is without visible means of support. The Child CareAct 83 of 1974 provided for an abandoned, orphaned child or a child without visiblemeans of support. Hence the interpretation of this clause by presiding officersmean that the child should be both abandoned/orphaned and without visible meansof support.Children’s Act practice note 02 of 2011: Transitional matters18

The Department of Justice sought for a legal opinion from the State Law Advisor inthis regard. The State Law Advisor’s opinion was that the presiding officers makeuse of section156 of the Children’s Act to determine if a child is in need of care andprotection, that is, availability of income of the prospective foster parent must notbe a determining factor for approval of foster care grant. However, presidingofficers may still use their own discretion. (See attached circular-Annexure T-Legal opinion on interpretation of s150).Practice positionThe legal opinion confirms that children, who live with someone who receives anold age grant, do have visible means and can therefore not be seen as a child inneed of care and protection. However the State Law Advisor suggested thatpresiding officers may exercise their wide adjudicative powers, that is, they canuse their own discretion to apply section 45 and 46 of the Children’s Act. An ordercan be made in terms of section 46(1)(a)(i), placing a child in the care of a persondesignated by the court to be the foster parent of the child.A person designated by the court to be the foster parent of the child would thusbe eligible for a foster child grant in respect of the foster child in terms of section 8of the Social Assistance Act.This opinion is also shared with other authors of the Training guidelines for theChildren’s Act “Advanced phase: Child Protection Manual”, when it is said “Itappears that child protection orders as described in section 46 can be made at anytime during a hearing (eg as interim orders), and are not dependant upon a findingthat a child is in need of care and protection”.Although section 46 (1)(a) allows a court to make an alternative care order, section46(1)(j) refers to the fact that the court may ask for an investigation in terms ofsection 50, which refers back to section 155(9). When one looks at section 155(9),it refers back to a child in need of care and protection. Therefore, it will be difficultto make an order for foster care, without finding the child in need of care andChildren’s Act practice note 02 of 2011: Transitional matters19

protection. Presiding officers might differ on this point and social workers will haveto negotiate this matter with their presiding officers in their area of operation.Another option is to consider other factors which might cause the child to be inneed of care and protection. Section 150(1)(h) refers to a child who is in a state ofphysical or mental neglect. When a family member does not have enough moneyto take care of a child, that child might be in a state of physical or mental neglect. Itis important to use as many sub-sections as possible to prove that a child is inneed of care and protection.For the purpose of implementing the Children’s Act in a uniform manner thedesignated social workers must compile comprehensive reports for finalisation ofthe children’s court inquiries. The reports must provide a clear distinction betweenthe visible means of support for the child and the visible means of support for theprospective foster parent. The report must support and provide clear evidence thatthe child has no visible means of support isolating these from the prospectivefoster parent’s.Please note that Presiding officers might also request a proof from the designatedsocial worker that she has caused an advertisement to be published in at least onelocal news paper circulating in the area where the child has been found callingupon any person to claim responsibility for the child. The designated social workercan make a statement under oath or an affidavit indicating the steps taken inlocating the child’s family. See point 11 above.16 Transfer of children placed in alternative careSection171 makes the following provisions for transfer of children in alternativecare:(a) Section 171(1) makes provision for the provincial HOD subject to subsection(5) to issue an order in writing, transferring a child in alternative care.(b) Section 171(6) makes provision for an HOD to transfer a child to a CYCC,which must be ratified (which means endorsing), by a Children’s Court.20Children’s Act practice note 02 of 2011: Transitional matters

Practice positionThe HOD is delegated to transfer a child placed in alternative care which includesplacements in temporary safe care, CYCC and foster care. Upon receipt of arequest for a transfer of a child in alternative care to a CYCC, the HOD must issuea transfer order in writing which must be endorsed by the Children’s Court beforethe child can be moved deeper into the system.17 Screening process for prospective foster parentsLegal positionSection 182 (1) stipulates the requirements that a prospective foster parent shouldcomply with.Practice positionDesignated social workers must thoroughly screen and assess the prospectivefoster parents for suitability to be foster parents. Refer to foster care guidelines.18. Duration of foster care placementsLegal positionSection 186(1) makes provision for purposes of creating stability in a child’s life byissuing orders for foster care placements to subsist until a child turns 18 years, forchildren who have been in unrelated foster care placements for more than twoyears. Section 186(2) makes provision for placement of children with a familymember for more than two years or until the child turns 18 years.Practice positionA designated social worker must take into consideration in her report’srecommendation, the principles of the child’s best interests and permanencyplanning. With these principles in mind a designated social worker mayrecommend that children be placed in the care of a related foster parent until thechild turns 18.Children’s Act practice note 02 of 2011: Transitional matters21

For purposes of reviewing foster care orders of children placed with unrelatedfoster parents, after establishing that there is stability in the child’s life a designatedsocial worker may recommend that the Children’s Court order that the child remainin that person’s care until the child turns 18 years.19. Foster care supervision servicesLegal positionSection 156 (3) (a) (i) makes provision for an order to be made by the court interms of section 156 (1) which is subject to such conditions that the court maydetermine which, in the case of the placement of a child in terms of section 1 (e)may include a condition rendering the placement of the child subject to supervisionservices by a designated social worker or authorised officer. The court may alsoorder that the foster care placement not be supervised in terms of (Section 186 (1).Section 186 (3) also states that despite the provisions of section 186 (1) and (2) asocial service professional rather than a social worker must visit at least onceevery two years.Practice positionA designated social worker must provide supervision services to foster children ona regular basis not unless an order is issued in terms of section 186 (1). Thefrequency of supervision must take into consideration the implementation andreview of a foster child’s care plan in addition to the required supervision stipulatedin the Act. The social worker can strengthen the foster care supervisoryservices by enlisting the services of a social service professional asprovided for in section 186 (3). Refer to foster care guidelines.20. Notification of movement of children in foster careLegal positionSection 44 indicates the Children’s Courts that has jurisdiction in a particular matteris a court of the area in which the child involved in the matter is ordinarily resident.Where it is unclear which court has jurisdiction in a particular matter, the children’scourt before which the child is brought has jurisdiction in that matter.22Children’s Act practice note 02 of 2011: Transitional matters

Practice positionA social worker has the responsibility to notify the relevant departments of themovement of a foster child using the form for notification of movement of afoster child Annexure U and the guidelines for notification of the movement of afoster child. Such notification will facilitate the transfer of files by SASSA and DoJ &CD to ensure that the child receives a foster child grant at a relevant pay point andDoJ&CD can have a file where the child is located to facilitate other courtprocesses that may include the extension of orders.21. Granting leave of absence to a foster child who is placed in a clusterfoster care schemeLegal positionSection 168 (1) states that if a child has been placed in alternative care under thesupervision of a designated social worker, leave of absence may only be grantedwith the approval of that social worker.Practice positionSection 168 refers to a child placed in alternative care and alternative care includesfoster care (Section 167) and cluster foster care (section 180 (3). A designatedsocial worker must grant permission for leave of absence stipulating the conditions.22. Registration of a cluster foster care scheme (CFC)Legal positionSection 183 (1) (a) states that, the organisation operating or managing the clusterfoster care scheme must be registered in terms of the Non Profit Organisations Act71 of 1997 and must comply with the prescribed requirements, be registered withprovincial DSD in the prescribed manner and they must be approved andmonitored by the Provincial Head of DSD.Regulations 67 and 68 stipulate the requirements for registration and approval ofan organisation to manage and provide cluster foster care.Children’s Act practice note 02 of 2011: Transitional matters23

Practice positionThe diagram below indicates the registration process for cluster foster careschemes.Registration requirementsNPO certificateDesignation as CPOBusiness planConstitutionWritten plan detailing (financial management,programmes, services to be delivered, assessment ofchildren, disputes management, transfer of children,behaviour management of the of children and record ofany complaint regarding abuse or exploitation.Obtain clearance certificates of all the people involved inthe scheme.Employ a social worker/formal agreement with a DCPOper 50 children in the scheme.Organisation submits an application to functionas a scheme using form 42 to the regional DSDoffice (Welfare planning section)Intake of application forms at a regionalDSD office.Assessment of applications by provincialDSDOnsite visits to the schemes by regional/provincial DSD office.Presentation of business/written plans by NGOto DSD assessment committee once a year.Disapproval ofapplication by HODusing form 44, statingreasons for rejection.Registration certificateissued by HOD usingform 43 to NGO fromthe date of application.Funding based on thefunding model,administered throughprovincial DSD.Registered and fundedscheme must be included inthe CFC scheme registerestablished and maintainedby DSD office.HOD issue a 90 days notice toa registered scheme of anintent to deregister the schemefor failure to comply withconditions for registration usingform 45.Notified schemesubmits an appealusing form 46 withinthe 90 days notice.Scheme notifiedof deregistrationusing form 47.23. Court orders issued for placement in cluster foster care schemeLegal PositionSection 156(1)(e)(ii) makes provision for the Children’s Court to issue a courtorder, placing a child in foster care with a group of persons or an organisationoperating a cluster foster care scheme. Section 180(3) (c) also makes provision forplacement of a child in foster care with a registered cluster foster care scheme.Practice positionAn NGO managing a registered CFC scheme may resolve to appoint a personadvisably a director, manager or a social worker of the scheme as arepresentative, who will be accountable for the children’s placements. This must beincluded as a clause in the organisation’s constitution. The social worker’srecommendation to court must clearly indicate that the recommended placement isChildren’s Act practice note 02 of 2011: Transitional matters24

a director, manager or social worker appointed by the cluster foster care scheme.The official’s title must be included in the court order issued to the CFC scheme,clearly stating that this person is an appointed representative of the CFC scheme.24. Registration of shelters that were registered in terms of the Child CareAct.Legal positionSection 198(3) provides for an existing shelter registered in terms of the Child CareAct must register as a child and youth care centre within a period of five years fromthe date on which this section takes effect.Practice positionExisting shelters are operating legitimately (as per section 314) because they havebeen given a transitional period of 5 years within which they are supposed toregister within the provisions of this Act. Provinces must assist shelters which wereregistered in terms of the Child Care Act to register as CYCC in terms of theChildren’s Act within the given period of five years.Requirements for registration are detailed in Regulation 78(2) (a) to (p).25 Inspection of Drop in centresLegal positionSection 221 (1) (b) and regulations 91-94 provides that a provincial head of socialdevelopment must conduct regular inspections of drop in centres in the province incollaboration with the Municipality where the drop in centres are situated to enforcethe provisions of this Act.Practice positionDrop in centres must be inspected and an Inspection report must be completed inthe attached form. (See Annexure V –Drop in centre inspection form).26. Permission to leave the country in respect of a prospective adoptive childLegal Position: Section 16925Children’s Act practice note 02 of 2011: Transitional matters

(1) A child in alternative care may not leave the Republic without the writtenapproval of the provincial head of social development.(2) In granting approval in terms of section 169 (1), the provincial head of socialdevelopment may determine terms and conditions to protect the best interest of thechild in alternative care.Practice position:If the child is in alternative care of the prospective adoptive parent/s who intend toadopt him/her, section 169 applies.If it is a foreign prospective adoptive parent/s still in the process to adopt the child,it may not be allowed. The child will only be allowed to leave the country once theadoption process is finalized.27 Register on Adoptable Children and Prospective Adoptive Parents(RACAP)Legal position: Section 232(1) The name and other identifying information of a child may be entered intoRACAP if the child is adoptable as contemplated in section 230(3).(2) A person may be registered as a prospective adoptive parent if he/she is aSouth African citizen and has complied with section 231(2).Practice position:• Adoption service providers must submit information of adoptable childrenand prospective adoptive parents (PAPs) to the National Department ofSocial Development for registration on RACAP.• The National Department will inform the adoption service providers of thedecision and a renewal date of such registration.• The National Department furthermore consolidates a list of adoptablechildren and prospective adoptive parents.• The list will be circulated amongst adoption service providers for theirinformation. Adoption service providers will assess the child against the listChildren’s Act practice note 02 of 2011: Transitional matters26

of PAPs on RACAP. If a possible match is found, the social workercommunicates with the social worker who registered the PAPs.• If the social workers agree and the PAPs support the match, they thenproceed with the adoption provided that a letter from the provincial head ofsocial development recommending the adoption is issued.• The children’s court may not proceed with an unrelated inter-countryadoption without the child being placed on RACAP for a period of 60 days ofmore.“NB” Designated CPOs not providing adoption services should submitinformation on adoptable children to the National Department for registration onRACAP.28. Format of letter to recommend Adoption by Provincial Head of SocialDevelopment (HOD)Legal position: Section 239(1) (d)An application for the adoption of a child must be accompanied by a letter by theprovincial head of social development recommending the adoption of the child.Practice position:The social worker submits a comprehensive report on the adoptable child and theprospective adoptive parent/s to the provincial head of social development to issuethe recommendation letter to proceed with adoption. The HOD issues therecommendation letter guided by the attached format Annexure W-Letter forrecommendation of Adoption by Provincial Head of Social Development.29. National Child Protection Register (CPR)The Child Protection Register (CPR) is divided into Part A and Part B in terms ofSection 111 of the Children’s Act. This register is managed by the Department ofSocial Development at regional or provincial levels. All cases reported are capturedelectronically and information on this is kept confidential hence the users of theelectronic system are allocated passwords in terms of levels of access.27Children’s Act practice note 02 of 2011: Transitional matters

29.1 Procedure for reporting to the RegisterLegal PositionReporting procedure in terms of section (110)(1),(2), regulation 33)a. Section 110(1) states that the following persons, any correctional official,dentist, homeopath, immigration official, labour inspector, legal practitioner,medical practitioner, midwife, minister of religion, nurse, occupationaltherapist, physiotherapist, psychologist, religious leader, social serviceprofessional, social worker, speech therapist, teacher, traditional healthpractitioner, traditional leader or member of staff or volunteer worker at apartial care facility, drop-in centre or child and youth care centre who onreasonable grounds conclude that a child has been abused in a mannercausing physical injury, sexually abused or deliberately neglected mustreport that conclusion in the prescribed form to a designated child protectionorganisation, the provincial department of social development or a policeofficial.b. Section 110(2) states that any person who on reasonable grounds believesthat a child is in need of care and protection may report that belief to theprovincial department of social development, a designated child protectionorganisation or a police official.c. Section 114, regulation 39. The CPR Part A keeps record of:• all reports of abuse or deliberate neglect of a child made to the Director-General in terms of this Act;• all convictions of all persons on charges involving the abuse or deliberateneglect of a child; and• all findings by a children’s court that a child is in need of care and protectionbecause of abuse or deliberate neglect of the child.d. Section 119: The CPR Part B keeps record of persons who are unsuitable towork with children.Children’s Act practice note 02 of 2011: Transitional matters28

Practice Position:a) Reporting of child abuse or deliberate neglect cases• The above sections imply that members of the public who on reasonableground conclude that a child has been abused must report such to theprovincial department of social development, a designated child protectionorganisation or a police official in terms of sectiontion110 (2) as outlinedabove.• The report can be verbal, written or through the online notification and itmust reach the provincial department of social development within 24 hours.• The official who receives a report of abuse from the child or the personreporting on behalf of a child must verify that the abuse has happened.• Complete Form 22 and submit it to the regional or provincial department ofsocial development, to be captured in the Register.• The manager or supervisor (social development) will then allocate the caseto the relevant social work office for investigation.• The investigating social worker must complete Form 23. This form includesnew information that was not available when the case was reported or whenForm 22 was completed. (Only the investigating social worker/casemanager can utilize this Form, as they are required to make follow-up visitson the case).b) Notification of convictions and outcomes of the children’s court• The clerk of the court must complete Form 25. The Form has twosections which include information on convictions and findings of thechildren’s court.• The Form must be forwarded to the Director-General of theDepartment of Social Development within 14 days of such convictionor finding.• It must be accompanied by a court order, court proceedings and asocial worker’s report (in relation to findings of the children’s court).• The clerk of the court submits the completed Form 25 electronicallyor in a sealed envelope marked confidential to the Director-General29Children’s Act practice note 02 of 2011: Transitional matters

of the Department of Social Development to be captured in theRegister.• If the court has made a finding of unsuitability on the offender, theclerk of the court must complete Form 28 and submit it togetherwith the form 25 to the Director-General of the Department ofSocial Development.29.2 Disclosure of information on the CPR29.2.1 Part A of CPRLegal positionSection 117 states that:(1) Anyone has the right, upon presentation of sufficient proof of his or heridentity, to establish whether or not his or her name appears in Part A ofRegister, and if so, the reasons why his or her name was entered in theRegister.(2) Inquiries in terms of section 117 (1) must be directed to the Director-General on a confidential basis in the form 26.(3) The Director-General must respond to such inquiries in writing within 21working days and indicate whether the relevant person’s name is in PartA of the Register.Practice PositionInquiries can be made by:• An affected child with sufficient maturity or with the help of a caregiver or anoffender accused of abuse against the child can make an inquiry toestablish if his or her name is on the Register.• The inquirer must complete Form 26 and submit it in a sealed envelopemarked confidential to the Director-General.Children’s Act practice note 02 of 2011: Transitional matters30

29.2.2 Part B of CPRLegal PositionSection 118 states that the purpose of Part B of the Register is to have a record ofpersons who are unsuitable to work with children and to use the information in theRegister in order to protect children in general against abuse from these persons.NB: This Register is maintained and managed by the National Department ofSocial DevelopmentSection 120 (1)A finding that a person is unsuitable to work with children may be made by:• a children's court;• any other court in any criminal or civil proceedings in which that person isinvolved; or• any forum established or recognised by law in any disciplinary proceedingsconcerning the conduct of that person relating to a child.Section 120 (2)A finding in terms of section 120 (1) may be made by a court or a forumcontemplated above of its own volition or on application by:• an organ of state involved in the implementation of this Act;• a prosecutor, if the finding is sought in criminal proceedings; or• a person having a sufficient interest in the protection of children.Practice positionA social worker, a victim of abuse or any person assisting a victim of abuse havinga sufficient interest in the protection of children may approach a court or forum tohave a person declared unsuitable to work with children.A forum refers to statutory bodies such as, South African Council of Educators(SACE); South African Council of Social Service Professionals (SACSSP) andHealth Professions Council of South Africa (HPCSA) etc.Children’s Act practice note 02 of 2011: Transitional matters31

All findings of unsuitability to work with children must be submitted to the Director-General of Department of Social Development on Form 28.29.3 Disclosing of information of personnel against part B of the CPRLegal PositionSection 126 (1) (a) to (e) and (2) (a) to (e)Before a person is allowed to work with or have access to children at an institutionproviding welfare services to children, including CYCC, partial care facility, ashelter and a drop in centre or school, the person managing or operating aninstitution, centre, facility, shelter or school must establish whether or not thatperson’s name appear in part B of the Register.The person managing or operating the institution, centre, facility, shelter or schoolcontemplated in section 126 (1) (b) must establish whether the name of any personwho works with or has access to children at the institution, centre, facility, shelter orschool appears in part B of the Register.Practice PositionTo establish whether a person’s name appears in part B of the child protectionregister or not can either be done by the employer or the person him/herself.i. Inquiry by employer, that is, a manager or a representative of a facility,state department, child and youth care centre, school, partial care facility,correctional facilities for young offenders, or any institution providing services tochildren. The above named persons must establish whether or not the name of anemployee including volunteers appears in Part B of the Register prior to or duringthe course of his or her employment.The employer must complete Form 29 and attach certified ID copies of themanager as well as, that of the employee. The form can only be completed by amanager or a representative of the employer.ii.Inquiry by an individual. Any person who works or intends to work with32Children’s Act practice note 02 of 2011: Transitional matters

children may establish if his or her name appears or does not appear on theRegister. Prospective foster parents, prospective adoptive parents, prospectivechild-headed household supervisors and owners of centres offering services tochildren can make individual inquiries if there is no management structure or boardof management to enquire on their behalf.The person must complete Form 30 and attach a certified copy of an I.D.NB All inquiries must be forwarded to Director-General of the Department of SocialDevelopment.29.4 Disclosing of information in Part B of the CPRLegal PositionSection 127 states that the Director-General must inform a person found unsuitableto work with children when that person’s name and particulars are entered in PartB of the CPR.Practice Position• The Director-General will issue a notification letter within 21 days uponreceipt of an inquiry.• If the person’s name appears in Part B of the CPR and s/he is dissatisfiedwith the outcome s/he can complete Form 31 and apply for clearance ofhis/her name to the Director-General in the National Department of SocialDevelopment.• The Director-General will issue a clearance certificate as proof that his/hername and any information relating to that person has been removed fromthe Register.NB: The Department of Social Development does not issue ClearanceCertificates relating to the register for Sex Offenders. Inquiries relating tothis register must be directed to the Department of Justice andConstitutional Development.33Children’s Act practice note 02 of 2011: Transitional matters

30. Distinction between National Child Protection Register (NCPR) andNational Register for Sex Offenders.NCPR is a requirement in terms of section 111 of the Children’s Act and it consistof part A and part B. Refer to section 113 to section 128 for details.If a person appeared before court or an accredited forum for an alleged offenceagainst a child (irrespective of the type of offence) that person’s name can beforwarded to the Director General (DG) of Social Development to register such aname on Part B of the NCPR. After receiving the finding, the DG will enter thename, in the NCPR where after the individual will be informed. Then, such aperson will be regarded to be unsuitable to work with children whether that personwas found guilty or not.The court or forum is not compelled to inform such a person of his/her appearancein the NCPR.The person has a right to appeal that his or her name be removed from theregister, but his/her name will remain active on the register until the appeal issuccessful. A person’s name may not be removed if s/he has committed anotheroffence to a child within a period of five years.The National Register for Sex Offenders (NRSO) is managed by the Department ofJustice and Constitutional Development. This register came into operation in 30June 2009.The NRSO provides for the following:A person is only unsuitable to work with children if s/he has committed orallegedly committed a sexual crime against a child or a person who ismentally disabled, whether it was done outside or within the Republic ofSouth Africa.Children’s Act practice note 02 of 2011: Transitional matters34

Employees whose names appear in the NRSO can be dismissed from workimmediately whereas the Children’s Act is silent on this matter.The Registrar of the High Court will inform the employer when a finding wasmade, whereas the Children’s Act is silent on this.The National Register for Sex Offenders does not keep records of findingsfrom forums.Enquiries on NRSO can be directed to:The Registrar for the National Register for Sex OffendersDepartment of Justice and Constitutional DevelopmentPrivate Bag X 81PRETORIAOOO1Contact person: Ms N ChiloaneTelephone number 012 – 315 1656Please note: All employees and prospective employees working or having accessto children MUST be screened against the two registers, that is, they must check iftheir names do not appear in the registers. For instance, this include earlychildhood development practitioners, educators, health practitioners, personstransporting children to and from school, persons assisting in managing schooltuck shops etc.31. Compilation and review of provincial profilesLegal position:The Children’s Act stipulates that the relevant MEC responsible for SocialDevelopment must compile a provincial profile in respect of sections 77, 92, 104,145, 192 and 214 of the Children’s Act.Regulation 2 of the Children’s Act states that within a year of the implementation ofthe Act, provinces must have provincial profiles which must be reviewed on anannual basis.35Children’s Act practice note 02 of 2011: Transitional matters

Practice positionProvinces are required to compile provincial profiles and submit to national DSD,Directorate Policy, Legislation, Monitoring and Evaluation by 31 March 2012.Provinces are expected to review provincial profiles on an annual basissubsequent to the initial submission.32. Training and capacity building of all relevant stakeholders responsible forthe implementation of the Children’s ActLegal position:Section 4 of the Act makes provision that the Act must be implemented by organsof state in the national, provincial and local spheres of government allocating rolesand responsibilities in an integrated, coordinated and uniform manner. Section 5further states that for such implementation to be achieved, all organs of state mustcooperate in the development of a uniform approach aimed at coordinating andintegrating services delivered to children. To achieve the stipulations of thesesections, capacity building and training on the content of the Act is important toensure uniform understanding and interpretation of the Act in order to achievemaximum results for care, protection and promotion of the best interest of the child.The following sections provide for specific and specialized capacity building andtraining required for staff working with children in the focus areas: regulation 5(d),regulation 6(i), regulation 19 (1), regulation 27, regulation 31 (1)(c), regulation 66(6), regulation 71 (c)(e), section 209 (2)(b), regulation 82, regulation 95 (1) & (4).Practice position:Provincial departments are expected to conduct capacity building and training onthe Children’s Act including all the relevant stakeholders in their provinces. Thetraining must comply with the approved training guidelines on the Children’s Act.Provinces must have a roll-out plan on training and capacity building on theChildren’s Act which must also include capacity building for communities, families,parents/ caregivers and children. Statistics and information on capacity building36Children’s Act practice note 02 of 2011: Transitional matters

and training conducted in the provinces including the information from the NGOsmust be forwarded to National DSD.In instances where service providers have been utilised to conduct training;provinces are expected to provide the following information to National DSD onquarterly basis:Names of service providers utilised to conduct training.The content of the training in terms of what the training entails.Categories in terms of the professional groups and other relevantstakeholders.Total number of people trained.Community outreach programmes on the Act.33. AnnexureAnnexure P- Letter of designation for national child protection organisationsAnnexure Q- Letter of designation for provincial child protection organisationsAnnexure R- Publication of abandoned or orphaned children with identifyingparticularsAnnexure S- Publication of abandoned or orphaned children without identifyingparticularsAnnexure T- Legal opinion on interpretation of section150Annexure U– Form for notification of movement of a foster childAnnexure V– Form for inspection of drop in centresAnnexure W–Letter for recommendation of Adoption by Provincial Head of SocialDevelopment34. Dissemination of informationProvincial Heads of Social Development are requested to bring the content of thispractice note to the attention of social workers, social auxiliary workers, child andyouth care workers, community development practitioners responsible for servicesto children in their provincial departments, as well as all child protectionorganizations in their provinces.37Children’s Act practice note 02 of 2011: Transitional matters

35. Contact personsPolicy, Legislation, Monitoring and EvaluationMs Agnes MullerTel: 012 312 7586E-mail: Agness.Muller@socdev.gov.zaMs Mahlatse MogoaneTel: 012 312 7014E-mail: Mahlatse.Mogoane@socdev.gov.zaMs Matlhogonolo SebopelaTel: 012 312 7399E-mail: Matlhogonolo.Sebopela@socdev.gov.zaMs Neliswa CekisoTel: 012 312 7989E-mail: Neliswa.Cekiso@socdev.gov.zaChild Protection, Foster Care and Child and Youth Care CentresMs Musa Ngcobo-MbereTel: 012 312 7948/7609E-mail: MusaM@dsd.gov.zaAdoption and International Social ServicesDr Tebogo MabeTel 012 312 7143/7144E-mail: TebogoMa@dsd.gov.zaECD and Partial CareMs Louise ErasmusTel: 012 312 7606E-mail: LouiseE@dsd.gov.za38Children’s Act practice note 02 of 2011: Transitional matters

Orphans and Vulnerable Children (OVC)Ms Tshidi MaagaTel: 012 312 7397E-mail: TshidiM@dsd.gov.za36. Effective DateThis practice note takes effect from 01 April 2010.39Children’s Act practice note 02 of 2011: Transitional matters