Second supplementary memorandum submitted
by Francesca Simms, The European Children's Trust
1. Regarding legal difficulties facing children
affected by HIV/AIDS in Africa, (in common with other children
in need) I have three main areas of concern:
(i) in some countries widows are not legally
allowed to inherit and therefore can lose their house, property
and land leaving them in a difficult position regarding supporting
their children. Despite lack of legal entitlement, in practice,
in some countries, (eg Lesotho), widows generally are allowed
to keep their home and land provided it is farmed (as applies
to everyone—land being distributed by chief according to
the subsistence needs of each family).
However, where this is not the case, or not always
the case, legislation to protect the property rights of widows
and children may be required, particularly if their land is their
only source of subsistence;
(ii) legislation designed to protect children
in Africa has unfortunately sometimes been instrumental, in practice,
in their rights being violated and has fuelled the introduction
of institutional care systems. The reason is that the legislation
has been based on previous British legislation which was designed
for a country, which at that time, had an institutional care system
and a system of removing children in need to alternative care
rather than allocating adequate resources to solving the situation
within the family. For example The Children's Protection Act 1980
in Lesotho is very similar to the 1948 Children and Young Person
Act in Britain—as is The Children's Protection and Adoption
Act 1979 in Zimbabwe, which was under review in 1988. These Acts
give powers to courts to decide if children are "in need
of care" and if they are to remove them to "a place
of safety". Children "in need of care" may include
for example orphans, children who suffer from physical or mental
disability requiring treatment that their parents are unable to
provide, and destitute children or children who beg or engage
in street trading. Most of these problems are caused by poverty
and could be resolved by provision of adequate resources to the
family. The legislation was well intentioned. Children "in
need of care"—could be placed in an institution, foster
home or in a suitable placement with their family. However in
reality it has resulted in practices such as those reported in
Zimbabwe—where children caught informally vending on the
streets are removed to remand homes, which have some cell accommodation
for children. If they are found to be "in need of care"
when they eventually appear in court, probation officers in short
supply do not have the time to investigate and support care possibilities
in the family. Thus the legislation often results in children
being removed from the community to permanent institutional care
often in remand homes. For example, of children found to be "in
need of care" by courts in Zimbabwe between 1988 and 1992,
61 per cent were committed to an institution or "training
institute", 26 per cent were also removed from the family
to foster care with or without supervision, and only 13 per cent
were returned to their parent or guardian. Often however, the
vending activity had supported them and their families' essential
needs and represented a successful attempt by children to generate
income in adverse circumstances. Where children are left caring
for younger siblings on their parents' death, they have to seek
employment or other income generating activity. In doing so they
could be penalised by the child protection legislation which in
fact works to their disadvantage. In addition if the child street
vendor is caught and retained in an institution, this could result
in their younger siblings being left alone without food or care.
A further difficulty of this legislation is that legally families
of Aids orphans need to apply to courts to become legal guardians
of the child. Courts cannot possibly deal with the numbers, therefore
again laws could prevent the child being cared for in their family
as is the traditional practice (Powell, Morreira, Rudd, and Ngonyama
1994). Such laws based on outdated British legislation are clearly
culturally inappropriate. At the best these laws have not been
implemented due to lack of resources, at the worst they have fuelled
the introduction of institutional care to Africa and have actually
been instrumental in the violation of children's rights rather
than their protection;
(iii) The Convention of the Rights of the
Child 1989 and Convention on the Elimination of all forms of Discrimination
against women are violated every day in very many ways.
2. RECOMMENDATIONS
2(i) There needs to be a mechanism by which
inappropriate admission of children to institutional care is prevented
and there needs to be political commitment and resources to meet
the basic needs of all children—starting with the basic
needs for food, immunisations, safe sanitation and water, and
the right to live in a family and then to primary education.
2(ii) I would respectfully suggest that
any future legislation to protect children's rights is legislation
which enables resources to be allocated to enabling the needs
of every child to be met within a suitably caring placement in
their extended family. It would be very rare in Africa for no
suitable extended family carer to be available for a child, provided
they have the financial means to support this care. Only if there
is really no suitable extended family carer, after thorough investigation
of this within the extended family, should locally based foster
care be considered. Foster care is more appropriate than institutional
care. However caution should also be applied to using this method
of childcare. As with institutional care, there is a danger that
once foster placements are identified, children will be placed
in them as a quick fix solution, because there is not time to
fully investigate whether a placement in the extended family would
be possible, if needed funds were provided. There is also the
obvious risk of unsuitable or damaging foster care, as there are
likely to be inadequate resources to carefully select, train and
supervise this care to ensure that the child's needs are met and
their rights are not violated, and to work to enable the child
to eventually return to their family. Children are often important
contributors to rural households in Africa. For example, in Lesotho
boys from as young as six or seven years of age care for the family's
cattle on the hill sides as herd boys. Generally they are not
able to attend school until they have a younger relative to take
over this task. Girls from a young age contribute by doing household
tasks and caring for younger children or assisting elderly relatives,
so freeing older women to work on the land in subsistence farming.
These contributions, as well as the "social security safety
net" that the future reciprocal obligations from the child
represent, together provide economic reasons as well as intrinsic
ones for families being unlikely to reject caring for the children—unless
they simply do not have the immediate resources to feed them.
For the same reasons others may be eager to foster children for
the economic benefits that children provide. So there is potential
for children's rights being abused in a foster care system, particularly
without the safeguards of adequate staff to supervise this care.
The extended family, in contrast, to some extent provides its
own safeguards, as all family members have an interest in the
wellbeing and satisfactory development of each child.
2(iii) Caution should also particularly
be applied to basing African legislation on British legislation,
because of the different cultural context of Africa. A possible
exception is perhaps of Part III of the Children Act 1989 which
covers the provision of proactive services to children in need
in the community.
2(iv) The patterns of poverty that are passed
from one generation to the next can and will be broken when the
poor have the means and opportunity to be healthy and well nourished
enough and educated and skilled enough to participate actively
in their lives. Grant suggested that developing countries commit
20 per cent of their budget and donor countries 20 per cent of
their official development assistance (ODA) to build and buttress
these services. However ODA aid is decreasing (decreased 30 per
cent in industrialised countries 1992-97 (UNICEF 2000).
2(v) This needs to be reversed and aid targeted
to benefit the children and families most in need.
Francesca Simms
The European Children's Trust
July 2000
REFERENCES
Powell, Morreira, Rudd and Ngonyma 1994 "Child
Welfare Policy and Practice in Zimbabwe"—A Summary
Report based on a Study by the Department of Paediatrics and Child
Health, University of Zimbabwe in collaboration with the Department
of Social Welfare, Ministry of Public Service, Labour and Social
Welfare, December 1994.
UNICEF 2000 "The State of the World's Children
2000".
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