Government scrambles as court deadline on foster care looms

Social workers across the country are scrambling to clear a huge backlog of foster care grant cases as a court deadline, less than a month away, looms.

“Social workers are so focused on [foster care] court cases that they are unable to deal with other work like gender-based violence and substance abuse cases,” said Hendrina Samson, head of the Department of Social Development (DSD) in the Northern Cape.

Samson, along with several other provincial heads, told Parliament’s portfolio committee on social development last week that they would not be able to meet the November deadline.

All the provincial heads, except those for the Western Cape and Gauteng, gave brief progress reports on their challenges to resolve a countrywide backlog of foster care orders awaiting court extension.

According to Section 159 of the Children’s Act, foster care grants expire after two years, unless extended by order of a children’s court. Lapsed court orders have been costing tens of thousands of orphaned children their grants since 2010.

The Pretoria High Court has made the current outstanding foster care orders valid until 28 November. This will allow payments to continue until then. In the meantime, social workers are still applying to the children’s court to have these and new orders extended beyond the court’s protection period which ends on 28 November.

The Centre for Child Law’s initial urgent application was in 2011 in the Pretoria High Court against the Minister of Social Development. The court extended existing foster care grants for three years to give the department time to create a “comprehensive legal solution” to solve the crisis in the foster care system. But in 2014 when three years had passed, the Centre and the department found themselves in court once again and the department was given another three years grace.

Then in November 2017, the court granted an extension to the national and provincial departments of Social Development, as well as the South African Social Security Agency (SASSA), for 24 months to continue payment and management of over 200,000 foster care orders that were due to lapse. This deadline ends in five weeks, at the end of November.

In September, there were still 89,538 foster care court orders outstanding. At the time, Minister Lindiwe Zulu assured MPs that the Department was working with the different provinces to ensure that they met the deadline and avoided further legal action.

But after last week’s briefing, the Minister’s assurances had already fallen through, with provincial heads reporting that there were still over 51,000 cases outstanding or unresolved.

As of the second week of October, the provincial breakdown of cases to be dealt with by the 30 November deadline were: Northern Cape 904; Mpumalanga 510; Limpopo 2,717; Free State 4,780; Eastern Cape 5,067; Gauteng 5,405; North West 7,013; Western Cape 8,250; KZN 18,492.

The only provinces which said they would be able to meet their targets by the November deadline were the Eastern Cape and Mpumalanga.

Some of the common challenges reported by most of the provinces were delays from the magistrates’ courts and the requirement for an unabridged birth certificate which costs R75. In some provinces, requests are being made to Home Affairs to waive this fee.

Limpopo Social Development HOD Daphne Ramokgopa told MPs that a proposal to waive the required 30-day waiting period to advertise for the father to come forward had not been agreed to by the judiciary. “This is causing a backlog and they may not be able to meet the target by 30 November.”

Fezile Luthuli, Chief Director of Social Services at DSD in KwaZulu-Natal, acknowledged that her province had the highest number of outstanding cases. Luthuli added that they were also considering suspending suspected fraudulent grants.

She concluded: “Efforts by KZN include focusing on child welfare cases by all the social workers, including using officials from other programmes to assist with this. Regardless of all these efforts, we do not see ourselves meeting the targets by the end of November.”

Paula Proudlock, of the UCT Children’s Institute, has been working closely with the Centre to get government to resolve this matter. She said there was no quick fix to the problem. She believes that the only way to resolve the crisis in the foster care system is to comprehensive law reform.

The Social Assistance Amendment Bill (which was revived by Parliament on Wednesday, 29 October) will allow for the child support grant value to be boosted in order to support relatives caring for children without having to go through the foster care process. This grant value would be slightly higher than child support but less than the foster care grant but would not lapse every two years or require a court order.

Proudlock said they were not surprised that the Department would possibly again be approaching the court for an extension on its order. This would be the third time the Department has requested an extension.

“It’s an impossible task. It’s a waste of resources and time when other more important issues need those social workers to provide child protection services to abused children,” she said.

Proudlock added that the Children’s Amendment Bill — which has about 300 clauses — would take at least a year to be debated and passed by Parliament, whereas the Social Assistance Amendment Bill already had an approved budget from Treasury and was a short bill.

“Instead of just doing a short Bill to address the foster care problem, they did a full comprehensive Amendment Bill which ended up with 300 clauses and lots of controversial issues in it,” she said.

One of the issues with the Social Assistance Amendment Bill according to Proudlock is that the Bill did not provide specific criteria for magistrates and social workers to follow when determining which case should be awarded foster care and which qualified for the child support grant top-up.

“You have got to have criteria for how to distinguish these cases. If they’re left to the discretion of magistrates and social workers, you’re going to get inequality across the country. We see this as a big problem in that Bill,” she said.

“We have found that it is mostly older kids on foster care because it takes such a long time to get on this grant. We’ve seen that almost 70,000 drop off each year due to the age issue,” she said.

But Proudlock remains hopeful that through further discussions with the Minister and the Director General, a solution that works will be found.

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