Failing our children: Government misses the mark on ECD law reform

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"ECD programme providers are still required to register programmes and facilities separately." Photo: Getty Images
"ECD programme providers are still required to register programmes and facilities separately." Photo: Getty Images

The early childhood development sector in South Africa has been devastated by Covid-19. Four months after the national lockdown was declared, researchers estimated that just 13% of children aged 0-6 years old were attending ECD programmes.

This is a disaster.

But the crisis is not entirely new - challenges in the sector have been mounting for years. Even before the lockdown, the majority of South Africa’s children, most of whom live in poverty, did not have access to inclusive, subsidised, holistic and quality early childhood development services.

This is despite the government's recognition that early childhood development is not only crucial to reducing poverty and inequality but also a "fundamental and universal human right".

An incoherent and restrictive legal framework is one of the major obstacles to the realisation of this right in South Africa. High barriers to entry and onerous registration requirements have long held the ECD sector in a chokehold.

Consequently, almost two-thirds of ECD providers operate in the informal sector, unregulated, unregistered and unfunded. These are typically providers servicing the poorest areas across the country.

Calls to reform this restrictive legal framework have been made for over a decade. In that time, the government has itself identified the crucial need for "enabling policies, laws and programmes" to create and strengthen an integrated early childhood development system.

So when the Department of Social Development (DSD) introduced the Children's Amendment Bill (the Bill) in Parliament, it was hoped that progressive strides toward reform would be made.

Read: Court order offers reprieve for some childcare centres, but the struggle is not over yet

The Bill proposes wide-ranging amendments to the Children's Act, which is the main law providing for and regulating, amongst others, ECD services in South Africa. Yet, far from the real reform needed, the Bill not only fails to address the key issues facing the ECD sector but threatens to deepen some of the challenges.

First, instead of the streamlined registration process that the sector desperately needs, ECD programme providers are still required to register programmes and facilities separately.

Indeed, on the face of it, some providers may have to register three times (registration of the ECD programme, registration as a partial care facility, and registration as an ECD centre). This irrational approach may well not be intended, but that too signals a dire failure to take seriously the need for comprehensive and comprehensible revision of the legal framework.

Second, the Bill continues to adopt a "one-size-fits-all" approach to regulating ECD providers. But this fails to recognise that there are various modalities of ECD provisioning – ranging from small toy libraries and playgroups to large ECD centres. It is inappropriate and ineffective to regulate the sector without taking these differences into account.

Third, the Bill makes no effort to revise or streamline compliance standards. Currently, ECD providers have to navigate a morass of provincial and local government requirements, some of which are entirely divorced from the reality of how ECD is provided in South Africa.

By adopting a copy-paste approach in parts, the Bill does nothing to resolve this regulatory nightmare. Indeed, the Bill creates the further potential for inconsistent and overlapping compliance standards being imposed on ECD providers.

Fourth, the Bill is unclear as to whether providers who do not fully comply with all required standards are at least able to obtain conditional registration. Conditional registration is an important mechanism to enable ECD providers to access government support and to bring them under appropriate regulation.

Must read: Well-trained and educated ECD teachers crucial to child development

The current legislative framework does not optimise the progressive potential of such a mechanism, and the Bill’s proposed amendments only introduce more confusion on this score. These barriers to registration and compliance mean that most children who need and would benefit from the DSD early learning subsidy, cannot access it.

The early learning subsidy helps providers maintain their services as well as ensure that there is a nutritious meal available for children. There are also worrying indications in the Bill that provisions aimed at unlocking support to ECD providers, including infrastructure support, will be weakened rather than strengthened.

To make matters worse, there is no indication that the Bill has been drafted with any regard to the significant changes announced by President Ramaphosa in last year's state of the nation address. Along with the proposed introduction of two years of compulsory pre-school (Grade RR and Grade R), the President also declared that certain responsibilities to ECD would "migrate" from the DSD to the Department of Basic Education (DBE).

As it stands, the intersection between the roles and responsibilities of DSD and DBE concerning ECD has been the source of some confusion. As was remarked in a recent High Court judgment, even "trained legal professionals" find it a "challenge to wade through the complexities of the situation".

Yet the Bill reveals no effort to resolve or even properly engage these complexities. As the Bill now makes its way through the law-making process, parliament and the public must appreciate the significance of this moment.

Unfortunately, when the Portfolio Committee for Social Development (a parliamentary oversight committee composed of members of the National Assembly) was recently briefed by DSD on the Bill, it was clear that both the drafters of the Bill, as well as the members of the Committee, had not yet fully grappled with complex issues facing the ECD sector.

If Bill's proposals to ECD are passed in their current form then we will be turning back the dial on realising the rights of children to ECD services. We will be failing our children.

Also read: Unhappy ECD practitioners call on parliament for reform

In response, the Real ECD Reform campaign has been launched by a wide range of organisations to build awareness around the importance of an enabling legal framework for the ECD sector. The campaign is motivating for five key reforms:

1. A one-step registration process for ECD providers and recognition that different types of providers must be regulated differently.

2. All children attending any type of ECD programme should be able to access the early learning subsidy if they need it.

3. Simpler, adequate health, safety and programme standards must be in place.

4. It must be clear that conditional registration can be obtained before meeting all registration requirements and MEC’s must support providers to meet those requirements (as well as report on the support being provided)

5. The infrastructure needs of the sector must be supported.

This is an opportunity to engage around the real reforms that are needed to see all children in South Africa thriving.

Submitted to Parent24 by the Real Reform For Early Childhood Development Campaign.

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