Children’s Amendment Bills: Ubuntu and the ongoing child protection debate

Recent public comment days for the Children’s Amendment Bills brought a stark reminder that many sectors of government still believe that ubuntu is the panacea for all of our orphans’ ills. Ubuntu, by definition, is about our humanity to others. In the context of child protection, it is epitomised by community-based care and the principle that no child is left behind. But, the argument for kinship care to the exclusion of all other policies breaks down when we recognise two important things: firstly, ubuntu has been marred by poverty, HIV/AIDS, urbanisation and the decimation of the family; and secondly, that recognising this, the government has been financially incentivising the practice for years.

For anyone willing to wade through multiple hours of mind-numbing audio, the public hearings held by the government portfolio committee tasked with assessing the Children’s Amendment Bills make for fascinating listening. They provide insight into why South Africa's approach to caring for orphaned and vulnerable children is so contested — and at times fraught — and an appreciation of the challenges involved in hammering out an agreed solution to some of the country’s greatest child protection problems. Given the rather tense build-up to the hearings, it is not surprising that there was some debate about specialisation (if it is needed, and how the government will be able to manage it impartially if the need is upheld), finance (why funding has not been forthcoming for child protection despite provisions in the Act, and if adoption social workers are profiting from adoption), and the current glacial pace of the adoption process. Despite this, the overall spirit of the proceedings was one of cautious optimism (perhaps as much an acknowledgement of the stakes, as a belief in an eventual meeting of minds).

To some extent, the optimism seems warranted. For one thing, the meetings brought a significant undertaking from the Department of Social Development that it will indeed require specialisation from its practitioners, along with an equally important injunction from the committee compelling the department to report on the cost and resource implications of the amendment. But, while there is no questioning the willingness to work together and the positive response to many of the presentations, the sessions also show some noteworthy and possibly intractable differences in philosophy between the nongovernmental organisations (NGOs) and the government. If these aren’t addressed, they may inadvertently sabotage any attempts to find common ground.

One of the most revealing points of divergence is around ubuntu. Across the government and civil society, people have ubuntu stories to tell: stories that are both personal and deeply formative. Ubuntu will always be integral to our national experience. But from a legislative perspective, problems arise when you go a step further — as the chairperson of the portfolio committee did — and contrast informal community-based care with legal adoption. During the hearings, she said of kinship care: "This is ubuntu — those with specialisation have no monopoly on what is essentially a societal matter.” The implication is clear, adoption with all of its formality, legality, and accreditation can never measure up to ubuntu — deemed to be the ideal — and it may even be superfluous. It is a worrying approach for those tasked with finding a comprehensive strategy for the care of our orphans.

The day after listening to the recordings, I was woken by kisses from my daughter. I found myself wondering if she considered adoption "unnecessary". Prior to her adoption, my daughter was part of a shocking and shameful statistic: she was one of this country’s approximately 3.5-million orphans, and the uncomfortable truth is that she was one of the children ubuntu forgot. There was no kindly aunty or long suffering granny to take her in, and she was not the beneficiary of a community’s benevolence. She was quite alone, until the court declared that she was "mine, as if born to me" (the wording of the adoption order). Her situation wasn't because of any malice aforethought, but because of circumstances: in her case and those of many others, poverty, death, and societal breakdown have left even the most willing people with no ability to extend humanity towards the weakest.

It seems my three-year-old knows what our government does not, which is that ubuntu is increasingly part of a utopian view of this country. For many children, it is a thing of the past. And despite the wonderful stories, even where it continues, it can no longer be a practical basis for policy.

Interestingly, despite the public declaration that ubuntu-driven community and kinship-based care is working; the government has been quietly, but very obviously, using the foster care system and related grant to financially incentivise the practice for years. The result is that a system designed for short-term crisis interventions for about 50,000 neglected and abused children is being used for the long-term care of about half a million orphans (which could potentially grow to about 1.5-million), about 90% of whom are in relatively safe kinship relationships.

There was always going to be a huge disconnect between the legal and policy requirements regulating foster care, the costs and resources necessary to administer it, and the needs of the country’s orphans. So how do we explain the government’s decision to use the foster care grant to fund their care? The government would, I’m certain, deny any allegations of impropriety, pointing to the twin facts that orphans are particularly poor, and that they are vulnerable to abuse, hence the need for them to be in the care of a social worker. Both arguments are valid and plausible (although even our government may find it hard to justify why orphans are deemed “two and a half times poorer” than biological children). But inadvertently, these claims confirm the very thing that our government is trying to ignore: poverty and vulnerability are indicators that community-based care as a plan for managing orphans is not working — at least not completely.

The department could also argue that it was forced by the courts to use the foster care grant to fund kinship care and again, it is partly correct. But, while the obligation to extend the grant to one family was a court ruling, the decision to roll it out to half a million orphans was the government’s own, one implemented against better advice from NGOs and even in defiance of a Constitutional Court ruling which required the department to design and execute a comprehensive solution to the foster care crisis by December 2014.

Now, in furtherance of this approach, the Children’s Amendment Bill contains a clause that will entrench foster care as the first-choice strategy for managing more than 1.5-million orphans. According to the NGOs presenting to the portfolio committee, the consequences of this 'at all costs' pursuit of policy will be:

• An enormous financial burden for the country: The Children’s Institute estimates that extending the foster care grant to an extra million plus orphans will result in additional expenditure of about R11-billion per annum (without the legal and administrative expense of managing this process) — this in a country where as far back as 2013, researchers and economists warned that the cost of our grants was already outstripping our tax base.


• Lack of resources: By the department’s own admission, finding resources to manage the number of children in foster care has been a long-term problem. NGOs now estimate that if a million more orphans are added to the system, the department would require an extra 11,000 social workers. Each would be expected to manage approximately 60 foster care cases at a time, complete adoptions, provide generic welfare services and take care of all other child protection issues.


• Crushing administrative requirements: These would include means testing over a million orphans plus instituting and renewing court orders for foster care. The estimate is that it would take about 20 years to incorporate these additional children into the foster care system.


• Risk to children in crisis: One of the biggest casualties will be children in immediate danger of abuse or neglect. The need for urgent care in a context in which too many children compete for time and attention from child protection officers has already proved tragically fatal for some. The situation can only worsen if another million children enter the system.

To avoid these outcomes and the potential collapse of the foster care system, the same NGOs are arguing for a cheaper, less resource intensive, risk-limiting tactic. First recommended in 1996, the key is a proposed 'extended child care grant', a poverty alleviation grant specifically designed for orphans in kinship care relationships. The NGOs maintain that decoupling the kinship grant from the foster care system will make funds more accessible and quicker to obtain. And since the amount is designed to be closer to that of the child care grant, it will be more affordable for-long term implementation. Perhaps more importantly, using the grant for orphans in kinship care will free social workers to take care of crisis situations, reinstate the foster care grant for emergency shorter-term interventions, and potentially save lives. The argument is compelling, which is probably why the department announced in late 2012 that it intended to implement the new grant. Yet, almost three years later, it has still not been ratified, and this 2015 Amendment Bill contains no reference to it at all.

The evidence is overwhelming. So, it may come as a surprise that the Department of Social Development is persisting; both with the use of the foster care system and grant to fund orphans in community care, and with attempts to embed this scheme into legislation. Negotiations are still under way but if the plan prevails, the government will find it hard to persuade detractors that it isn’t using the system, and specifically the large grant, to ensure that kinship care continues, regardless.

It brings us full circle. Denial on the part of our policy makers is counterproductive. It is also unnecessary. Child protection experts agree with the government that community-based care, built on the principle of ubuntu, is an integral part of any child-protection strategy. But they are also urging the department to recognise the shortfalls in the approach — both those related to endemic problems in our society, and the children that ubuntu cannot or has not reached. For those we need an additional plan.

The answer, a concise and practical one, lies in the many submissions made during these hearings: Foster care needs to be reserved for crisis interventions and short-term emergency care, kin taking care of orphans should have easy access to a poverty alleviation grant that is affordable and sustainable, and the government needs to acknowledge that adoption is neither unnecessary nor superfluous. Instead, it should be endorsed as an inexpensive and effectual solution to providing long-term care for orphans — particularly those without kin or communities — and an essential part of managing our child protection crisis.

As dialogue around the Children’s Amendment Bills continues, the many affected parties can only hope that cautious optimism is warranted, that the portfolio committee deliberations will result in the most contested clauses in the Bills being amended or rejected, and that together the government and interested parties will build a strategy for this country’s vulnerable that is both concrete and sustainable. The stakes could not be higher. DM

Photo: A woman carries her children as she walks past a shop in Nkaneng township, Marikana's informal settlement in Rustenburg, August 15, 2013. REUTERS/Siphiwe Sibeko