A proposed comprehensive legal solution to the foster care crisis and its implications for orphaned children living with relatives

Abstract

To contextualise, the problem with foster care in South Africa dates back to the early 2000s. In 2002, the then Minister of Social Development publicly indicated that relatives caring for orphans could seek to regularise their care arrangements via the foster care system, and thereby could access the foster child grant (FCG). Indeed, this is reason for the exponential increase of children in foster care. As at September 2019, there are 416 441 children in foster care which far exceeds the Department of Social Development’s (hereafter “the DSD”) capacity for the provision of social services. This has created a foster care backlog which has resulted in what is now coined, the foster care crisis. The most recent dialogue, refers to the introduction of amending legislation to produce a comprehensive legal solution to the foster care crisis. Litigation previously brought to resolve the crisis has a looming deadline, as the matter is set down for hearing on the 26th of November 2019 in the North Gauteng High Court (NGHC). The DSD has positioned legislative amendments at the forefront of what constitutes an appropriate redress which progress has since then stagnated and, with less than a month before the hearing, it is unlikely that a comprehensive legal solution will materialise. However, further delay will see 150 000 foster care orders lapse at the end of 2019, and a further 97 000 in 2020, which could leave almost two-thirds of the children in the foster care system without a FCG. This study will propose a comprehensive legal solution to the foster care crisis in response to recent jurisprudence; systemic challenges and pending legislative and policy reform. It is forecast that a solution is premised on the amendment of section 150(1) of the Children’s Act 38 of 2005 discrediting the presumption that all orphans living with relatives are in need of protective services. In fact, it will argue in favour of monetary support in the form of a top-up grant as a plausible alternative to foster care. Indeed, this is subject to the recognition of kinship care as part of the solution to the foster care crisis.