On 12 April 2013 the South Gauteng High Court ruled that Ms
M from Kagiso qualified to be a foster parent for her three orphaned
grandchildren. Ms M was assisted by the Black Sash, a human rights organisation
and represented by Legal Aid South Africa.
Ms M is appreciative
of the decision after waiting for over four years. She said ‘I will use the
Foster Child Grant to meet the children’s needs such as food, clothing and
education....I am now able to use my grant (her old age pension) to attend the
doctor, buy spectacles and meet my daily needs.’
This South Gauteng judgement helps solve one of the
challenges that has been preventing access to the foster child grant for
grandparents. The judgment will bind all magistrates in Gauteng and be of
persuasive value to magistrates in other provinces.
legal status of orphaned children
“We are confident that the ruling will strengthen the legal
status of orphaned children, benefitting thousands of other children out there
who have been deprived of similar rights,” says Legal Aid SA’s Civil Attorney,
He said the ruling had clarified the meaning of section
150(1)(a) of the Children’s Act 38 of 2005 and makes it clear that a caregiver
who bears a common law legal duty of support (like a grandparent) may still be appointed as a foster parent and
is entitled to receive a foster child grant. The Court furthermore provided
guidelines for Children’s Court’s to follow when interpreting s150(1)(a).
Ms M first approached a social worker for a Foster Child
Grant in November 2008 after the children’s mother passed away making them
“orphans” in terms of the Children’s Act. Due to the shortage of social workers
and the under-funding of Non Profit Organisations like Child Welfare, who
employ 50% of the social workers, Ms M waited two and a half years before the
social worker completed the investigation and wrote the report that is required
for the Children’s Court inquiry. This is despite the Children’s Act
prescribing that the report should be written within three months.
Court turned down
When Ms M eventually got to court in April 2011, the
Krugersdorp Children’s Court turned down her application to be a foster parent
because the Children’s Act was not clear as to whether or not family members
qualified to be foster parents. With the help of the Black Sash and Legal Aid
South Africa, Mrs M appealed to the South Gauteng High Court to review the
Children’s Court decision.
On Friday 12 April
2013 (more than four years since she first applied for state support) the High
Court eventually provided relief by ruling that grandparents do qualify to be
foster parents and ordered the Department of Social Development to pay the
three Foster Child Grants. The Court also ordered that the grants should beback
dated to April 2011 – the date of the Children’s Court order.
However the family
received no relief for the two and a half years of lost grant income for the
period of 2008 to 2011 that was caused by the delay at the social worker stage.
The same pattern can be observed in the facts of the case of
Child S, represented by the Centre for Child Law, which preceded this case.The
delay for most foster care applications is clearly lying at the door of the
Department of Social Development as they struggle to keep up with the demand.
The Centre for Child Law, Legal Aid SA, the Black Sash and
the Children’s Institute (University of Cape Town) are concerned that the
foster care system is failing to assist family members caring for orphaned
Applying for foster
This is not a new problem but has been occurring since 2002
when the numbers of orphans applying for foster care started to grow rapidly
due to the HIV/Aids pandemic. Besides failing orphans, the system is also
failing abused and neglected children who desperately need the services of the
overwhelmed social workers and children’s courts.
Black Sash Regional Manager Thandiwe Zulu said that “Courts
are not the appropriate place for grandparents and siblings caring for orphans.
It is a fact that the foster care system fails these relatives and that
overwhelmed social workers are unable to deliver services for many children in
real need of protection.We believe that a non-court based system is long
overdue and must be implemented to provide much needed appropriate income
support for kinship carers. “
These civil society organisations and many others such as
Childline and Child Welfare have been calling for reform for over ten years as
they have observed at the coal face how the system is unable to cope with the
demand. The foster care system was designed to accommodate 50 000 children yet
it now has over 500 000 children.
In 2011, after being approach by Childline and Child Welfare
for help, the Centre for Child Law approached the High Court to avoid a looming
crash of the foster care system. A court order was granted that temporarily
alleviated the pressure on the foster care system created by the backlogs of
foster child orders.
The high number of
backlogs in foster care system
The backlogs were created by a lack of resources to deal
with the high numbers of foster care orders, including overcrowded court rolls
and overburdened social workers. Due to the backlogs over 110 000 foster care
orders had lapsed and children had lost their income support. The court order
provided relief by “deeming” them not to have lapsed and placed a temporary
moratorium on further lapsing. This provided time to the Department to introduce
the necessary reform.
Prof Ann Skelton of the Centre stated that “the purpose of
granting the Department of Social Development breathing space was to allow them
to develop a solution to solve the systemic problems in the foster care system.
Unfortunately the M judgment does not solve the systemic problems that still
exist and may in all likelihood add to the pressure on the foster care system
as it opens the doors for more people to be placed on an already stretched
Prof Skelton also warns that “another lapsing crisis is
imminent as all foster care orders deemed to have been extended for two years
by the original court order of 2011, will expire on 22 June 2013. If these
orders lapse, then the South African Social Assistance Agency will discontinue
payment of the foster child grants and we will face the same crisis we did in
Research by UCT’s Children’s Institute shows that there are
over one million orphans living with relatives in poverty yet in 2011 only 460
000 were receiving the Foster Child Grant (Children’s Institute analysis of the
General Household Survey data).
The others are still in the queue while surviving on the
much lower Child Support Grant of R290/child/month. Senior researcher at the
Institute, Katharine Hall says that “it has taken the Department of Social
Development over ten years to reach these 460 000 orphans with a FCG. It is
likely to take a further ten years to reach the other 50% of orphans in dire
Programme Manager at the Children’s Institute, Paula
Proudlock said: “In September 2012 the Department announced its intention to
introduce reform aimed at introducing a grant that relatives could access
directly via application to SASSA.
This would cut out the need for a social worker report and a
court inquiry and ensure we reached all the orphans quickly. In November 2012
we attended a consultative workshop with the Department where they gave further
details on the proposal which would be implemented as an “Extended Child
Support Grant” which would give relatives caring for orphans a larger CSG than
the standard CSG amount.
If this proposal could be finalised and implemented in 2013
we would see great benefits for both orphans, child headed households and