Select Committee on International Development Minutes of Evidence

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(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


  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".

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2001
Prepared 29 March 2001