OPINION: The foster care crisis in SA – we talk, but does government listen?

(Jasmin Merdan/Getty Images)
(Jasmin Merdan/Getty Images)

Nicole Breen is a freelance writer and human rights and current affairs commentator. 

Constructive engagement and public participation are hallmarks of constitutional democracy.

The state should be accessible and open to the views of its people and the interest groups that represent them.

One of our government’s highly favoured mechanisms in this regard is the proverbial creation of a platform: task teams, steering committees, machineries, working groups or forums where nongovernmental organisations, academics, faith-based organisations, other interested parties and government come together to discuss issues pertaining to a particular sector.

Among the kinds of issues typically discussed in this way are those surrounding law reform and what new legislation or policy should look like.

Input is given by the independent contributors who often walk away full of hope that positive change will be forthcoming.

Sadly this isn’t always the case, and often little to no action is taken to advance their cause. 

Sometimes it even feels like these platforms are mere acts of tokenism – with government dotting the i’s and crossing the t’s in attempt to assuage those who want to have their say and then doing whatever they want anyway.

A case in point is the foster care crisis and the National Child Care and Protection Forum.

Due largely to HIV and AIDS, the rate of orphaning rose exponentially in South Africa, leaving many children being cared for by relatives other than their parents. 

In 2002, the then Minister for Social Development encouraged the caregivers of such children to approach the children’s courts and have the children placed in foster care.

With a judicial placement of this kind comes a foster child grant the value of which is much higher than the child support grant that families of children are entitled to if they are simply poor. 

This made it obviously more "desirable" to family members for children to be placed in foster care than to receive the other, lesser grant, although doing so was far less onerous.

Difficulties arose

Since a foster care order requires court proceedings, generally every two years, it resulted in social workers becoming engulfed in a quagmire of paperwork, arguably taking time away from children who had been abused, neglected or were otherwise in need of care and protection under the Children’s Act. 

The system quickly became overwhelmed, with the crisis peaking in 2011 with over 120 000 court orders having lapsed due to resource constraints, the majority of which were for orphans living with relatives.

A slew of strategic litigation ensued, culminating in an order that the Minister of Social Development’s conduct with regards to this issue was unlawful and that a systemic solution to this problem be found, with the Department of Social Development having to report on its progress in doing so.

For a number of years, the National Child Care and Protection Forum was seized with finding a solution to this problem.

There was consensus that the situation would be remedied through an amendment of legislation.

But how would this work in practice?

Through discussions with interested parties including government, consensus emerged that such children would not be considered eligible for foster care but would still require special measures.

It was decided that orphaned children who were living with relatives should not be considered to be in need of care and protection and therefore not eligible for foster care.

Instead, their caregivers would be referred for social assistance (with a top-up amount to the child support grant), and community-based services would support this system.

This would shift social workers’ attention back to their proper focus and reduce the workload that the bloated foster care system had caused.

When the Children’s Amendment Bill, intended to incorporate the apparently agreed-upon changes went to Parliament, there was palpable anticipation among the child rights community.

Years of debate about how to unburden the system seemed at last to be over. 

The excitement was short-lived, however, when the Bill that emerged from the legislature did not contain the necessary amendment and continued to treat orphans living with relatives as children in need of care and protection and therefore needing to be brought into the foster care system. 

How, child rights advocates asked themselves, could all of these consultations have been so futile? 

Government seemed to be on board; there was literally no opposition. 

What had they all been doing there if their views were simply to be cast aside?

This was a grave disappointment, leading to a great deal of loss of trust in government and the forum as a whole.

This instance leads one to question whether any of these structures are worthwhile.

This was an integral initiative which really stood to make a difference to vulnerable children. 

It leads one to question whether government is listening at all and whether other platforms experience the same level of frustration.

From this example, at least it seems as though constructive engagement with government is failing, and the state must urgently address this.

We ought not to feel like a pack of baby birds dying for government to toss a worm our way. 

This is a democracy, and we deserve to have our say and for it to matter.

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