Proposed Amendments to the CHILDREN’S AMENDMENT BILL OF 2018

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

Opinion by Katinka Pieterse, Chairperson National Adoption Coalition of SA (NACSA)

The Department of Social Development (DSD) has drafted last minute changes to the proposed draft amendments that are aimed at excluding all private professionals from the adoption process in South Africa. The proposals include making it illegal for anyone working in the adoption sector to charge a fee for their services.

These specific amendments dealing with professional fees and adoptions were made by the DSD and hastily pushed through after the initial consultation processes with the NGO sector had already been completed in July and August 2018.  These changes were not part of the drafts that were consulted with the adoption sector and role players before, and in which NACSA participated in at both national and provincial levels.

The timing of the proposed amendments to section 249 & section 259 is hugely problematic – these were only included in the gazetted third amendment of 29 October 2018 – and the first dialogue around these changes took place during the National Child Protection Forum from 21-22 November 2018, providing the sector with just one week to make written submissions – very little time for a coordinated response from the adoption sector.  One can only conclude that it is DSD’s hope that these amendments can be pushed through without a coordinated challenge.

Despite the radical change of direction that the proposed fees amendment introduces, DSD did not consult or make an effort to meaningfully engage with the broader adoption community as to what the massive implications would be of such changes and the impact on adoptions and adoptable children as a whole.

The proposed changes include:

  • Section 249: No consideration in respect of adoptions

The Bill proposes to make it illegal for ANYONE to receive fees for professional services rendered or expenses incurred in respect of an adoption. This means 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 adoptable children and or adoptive families, not even for reimbursement of travelling expenses, medical care and so on.

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 making a decision.

This proposed amendment will NOT ensure that adoption services are more accessible to all, which has been provided as the rationale behind the proposed amendment.  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. In a radio interview on 7 January, the deputy director general of the DSD stated that adoption service providers should apply for accreditation in order to receive a subsidy from DSD – easier said than done!  Affected adoption service provider are already accredited and have been trying to access Government subsidies with little success.   The DDG also failed to mention that DSD will not accepted any new applications for accreditation as of July 2018.

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 experienced in the system and the decline in adoption numbers will in fact intensify.

Section 259:  Accreditation to provide inter-country adoption services

Inter-country Adoption services are currently provided for by a limited number of designated accredited DCPOs. These DCPOs 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 DCPO’s 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 this 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 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.

Adoption accredited Child Protection Organisations charge nominal professional prescribed fees for adoption services. The income derived from these fees enables 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. 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.

Other professionals such as, psychologists, lawyers, medical practitioners and many others also render support services in relation to adoptions for which professional fees may be charged. These services are very important and vital, especially in legally and or ethically complex cases. Support medical services are specifically important for the medical assessment process of adoptable children, since many potentially adoptable children present with special medical needs and are mandated by the Act.

Another very important factor is that adoption numbers remain relatively low when compared to other forms of alternative care and sadly the numbers shows 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.

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

The real intention with these drastic proposed amendments and the rationale behind it needs proper consultation and the potential far reaching implications for adoptions in SA needs to be very carefully considered. The late introduction of these amendments is lacking in transparency and it negates the spirit of partnership and trust needed between Government and civil society. It leaves room for a great deal of suspicion as to what the real agenda is behind these proposed draconian and ill-considered changes.