Article by Luke Gonçalves, OCAY legal intern, published in Probono.Org June 2016 Newsletter.
The National Child Care and Protection Forum Meeting, 7 – 9 March 2016
By virtue of ProBono.Org’s expanding One Child a Year (OCAY) project which launched in 2014, our presence was secured as a stakeholder at the National Child Care and Protection Forum hosted by the Department of Social Development in March this year.
Held in conjunction with USAID, the three-day conference provided updated information sessions by key speakers in the sector on various issues a ecting children. Attendees included the Centre for Child Law, Sophiatown Community Protection Services and the Commission for Gender Equality. These sessions were coupled with lively debate and solution-seeking discussions. At the forefront of the discussions were the challenges faced by many organisations and departments in securing the best interests of South African children on many levels.
Departmental officials at national and provincial level provided clarity as to the policy and framework in which the public and private sector should operate in providing assistance to children. A number of complex issues were covered, ranging from inter-country adoption and basic education to support grant applications. Concerns were raised, primarily from academics and civil society, with regard to the current White Paper on Social Welfare and the general principles of international conventions to which South Africa is a party.
ProBono.Org had an opportunity to inform participants of the practices and issues observed in the children’s cases we have dealt with as part of the OCAY project. These cases range from obtaining protection orders to securing education or other basic services. The matters often include a complexity of circumstances, entangled competing legal issues and systemic gaps in the child protection system, which make them difficult to process or to refer to private sector practitioners. Our cases seldom entail a single legal aspect, but despite this our office has become particularly adept at identifying the main issues in providing legal representation or support for children in need.
In securing legal representation for children, the needs of the child may coincide with the needs of the parents or the assistance required by them to secure the welfare of the child, but this is not always the case. Sometimes the welfare of the child is not the parents’ or caregiver’s priority and these needs or rights do not align. In these cases, children are at an increased risk of being neglected, exposed to secondary trauma or further abuse.
Children without formal documents are subject to various forms of discrimination. They face ongoing struggles in accessing basic and/or public services, ranging from education to health care. The forum members affirmed this, while raising concerns of capacity and resources within the child protection space to address this gap.
ProBono.Org’s effort to secure children’s rights was noted as making a significant impact in identifying systemic problems within the child protection system. This is significant because the OCAY project is aimed at ensuring long-term empowerment of children and realising important constitutional rights for them.
ProBono.Org is well positioned to identify, assist and secure the legal interests at hand for each child it assists, which is most likely to improve the overall welfare of the child in a particular matter. Through the pro bono contribution of private legal practitioners we attempt to give children a voice in legal proceedings.
In the OCAY project, we deal with many of the processes raised by those present at the meeting. These relate specifically to the functioning and registration of child and youth care centres (CYCCs); policies and associated gaps in ill-enforced partial care; child protection as a cumbersome and inter-sectional approach in the judicial system; declaratory orders and, lastly, issues relating to children in need of care and protection.
Our offices were able to provide input by way of our past and present cases. Our concerns with regard to practical failures in exceptional and challenging cases (which existing policy either does not cater for or where it is not up to ‘the best interest of the child’ standard) were aired. We were able to provide information on the noticeable gaps between policies and practices in our dealings with the Department of Home Affairs and orders granted by the Children’s Courts. It is of concern that many of the issues we raised were echoed by other stakeholders in attendance.
ProBono.Org was pleased to have been afforded an opportunity of high level engagement with the Department of Social Development and others, as it provided a platform where our services were made known to the sector. We have been approached to make a presentation at the next National Child Care and Protection Forum. We also wish to extend our appreciation to the various departments, including Basic Education and Health, who have subsequently made contact and provided guidance in resolving several of our children’s matters.