by Thandiwe Zulu, Ratula Beukman (Black Sash) and Paula Proudlock (Children’s Institute)
The Black Sash, a human rights organisation, the Children’s Institute (University of Cape Town), and the Centre for Child Law (University of Pretoria) are concerned that if the State does not urgently introduce appropriate income support for families caring for orphans, a judgment handed down this week by the South Gauteng High Court will eventually hamper grandparents accessing the Foster Child Grant.
The judgement arose from an appeal brought by the Centre for Child Law with respect to a refusal by a children’s court to grant a foster care order. The judgement seems to imply that while poverty stricken aunts and uncles caring for orphans can apply for the Foster Child Grant, poor grandparents or adult siblings caring for orphans will continue to struggle to qualify for the Foster Child Grant.
The Foster Child Grant (R770 per month) is bread and butter protection for grandparents who take on the responsibility for orphaned children in families which are mostly already desperately poor. We fear the judgement will mean that they will only be able to access the Child Support Grant (R280 per month) which is almost three times less than the Foster Child Grant.
It is a fact that the foster care system, social workers and courts, have been overburdened for a very long time, and are not the appropriate vehicle to support family care of orphans. We need to find a solution fast to ensure that all orphans and grandparents in need can get their grants timeously and it needs to be a solution that does not erode the rights of those grandparents already on the system.
According to the Bill of Rights, parents, families and the State are obliged to realise children’s rights recognised by the United Nation’s Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child as well as the Constitution of the Republic of South Africa. Where families cannot afford to do so, the State is obliged to provide support to enable them to secure an adequate standard of living for their children so that they may survive and develop.
This duty of care on the State increases where families are absent. Where children are orphaned or abandoned and have no family, the State acquires full responsibility for ensuring that children are protected from harm and that their material needs such as food, clothing, education, and health care are taken care of.
In South Africa the number of orphaned children in the care of extended family is larger than in many other countries because of, inter alia, the devastating impact of HIV and AIDS on parents. Mothers in particular have been at a higher risk of infection and death. This has left approximately 1.6 million maternal and double orphans extremely vulnerable. According to orphan statistics from the General Household Survey, 2011, if paternal orphans are included we reach a staggering 3, 9 million orphans in South Africa. More than two thirds of these orphans are living in poverty and are therefore in need of an adequate social grant.
Many of these orphans have been taken into the homes of their elderly grandparents – who themselves are made vulnerable by their high levels of poverty and reduced working capacity due to their advanced age. The State has recognised their vulnerability and pays many of them an Older Persons Grant (OPG). With the entry of these children into their homes the meagre OPG is diverted away from their needs to meet the needs of the children, thus escalating the cycle of poverty and vulnerability for the grandparents. The State has, since early 2000, sought to meet its obligations by making the Foster Child Grant (FCG) available to extended family members caring for orphaned and abandoned children. Unfortunately this solution was ad hoc, and was not well planned as a systemic response to a large scale social challenge. These vulnerable children were simply grafted onto an existing child protection system that was already grossly under resourced and not designed or able to accommodate the burgeoning numbers.
The foster care system has crashed under the weight of the numbers. It is a system that was designed to cope with approximately 50 000 children at risk of abuse, neglect or exploitation; not millions of children in need of income support. It is now labouring under the weight of 544 000 children who have managed to squeeze into the system (by end of April 2012). Approximately 350 000 of these are orphans living with relatives. Despite having squeezed 350 000 orphans through, there are still a further 750 000 maternal and double orphans who are unable to access the system. It is concerning that there are also many other children in dire need of protection from abuse who must be served by the same social workers and courts that are overwhelmed by ‘income support’ foster care cases. This state of affairs has been brewing for more than a decade. Civil society has repeatedly warned that ad hoc responses would result in a worsening of the situation for already highly vulnerable orphans, elderly caregivers, and the thousands of children in desperate need of protection from harm, abuse and/or neglect.
The State had an opportunity to remedy the situation through the recently enacted Children’s Act. It was urged to make provision for a special grant for “kin” (family) caring for orphans and abandoned children. It chose not to do so. Instead, the Act has compounded the inequities and introduced a greater degree of legal uncertainty. This recent challenge in the South Gauteng High Court raised the prospect of clarifying the legal uncertainty. While the case does this for aunts and uncles caring for orphan children in that it clarifies that they can be foster parents; it can be interpreted to minimise access and even exclude grandparents and adult siblings from being foster parents and hence from the FCG. If they are excluded, they will only have recourse to the Child Support Grant of R 280 per month, compared to the R 770 paid out for FCG. R 280 per month is not enough to enable these economically highly vulnerable caregivers to provide an adequate standard of living for the children in their care. In fact the very low CSG of R280 is not adequate for any poverty stricken caregiver be they an unemployed mother or the child’s non-working grandparent.
The State must find a systemic solution. It must provide this comparatively small, but highly vulnerable group of caregivers and children with adequate financial support through a simple administrative, rather than a social worker and court based system. It must do this in order to realise, protect and promote the rights of all children including their right to protection from abuse, and to ensure the rights of the elderly as guaranteed by international and regional laws and the Constitution of the Republic of South Africa. The other option is to increase the Child Support Grant amount to reflect the actual cost of raising a child and to use this grant as the grant of choice for all caregivers. This would ensure adequate social protection for all children in poverty irrespective of who their caregiver is.