More often than not, children who qualify for Foster Child Grants from the government are not receiving them. Over 1.5 million maternal orphans (children whose mothers have died) are living with relatives, according to analysis of General Household Survey data by the Children’s Institute at the University of Cape Town. Based on the current foster care system, they should be eligible for a Foster Child Grant.

In addition, many thousands of children under foster care for reasons such as abuse, neglect and abandonment are eligible.

Yet according to data from the South African Social Security Agency (SASSA) fewer than 550,000 receive the grants each year.

In 2011, the North Gauteng High Court called on the Department of Social Development to implement comprehensive legal reform in the foster care system by December 2014 to prevent childrens’ families from losing their grants. But as December approaches, the Department has not yet made public any possible solutions.

For decades, the Foster Child Grant was mainly used as child protection support for children placed in foster care by the courts because of abuse, neglect or abandonment. When the HIV/AIDS crisis caused death rates to rise, leaving many children orphaned, the role of the grant changed. In 2002, then-Minister of Social Development Zola Skweyiyia publically encouraged relatives caring for orphans to also apply for the Foster Child Grant.

This announcement effectively introduced orphans into the foster care system, which caused grant numbers to skyrocket.

The sheer number of cases, coupled with the lengthiness of the grant application process, has overloaded social workers and children’s courts ever since. Due to large backlogs with social worker investigations, required to obtain court orders for grant application, many qualifying families have never received their grants, or have lost them.

Applying for a Foster Child Grant requires a report from a social worker who has investigated the child’s situation, a court order confirming formal foster care status, and then an application to SASSA for the grant.

For social workers, the process involves home visits and interviews with the child’s family, writing a court report, obtaining approval by a supervisor, and getting a court date. Every two years, social workers must renew the court orders for each Foster Child Grant recipient by conducting new investigations and submitting new reports, or else the grant lapses.

The North Gauteng High Court acknowledged the need for comprehensive legal reform in the 2011 case Centre for Child Law v Minister of Social Development and Others. The case followed the lapse of numerous Foster Child Grants because of backlogs with social workers extending court orders.

In its ruling, the court set a moratorium on lapses until December 2014, a deadline it set for the Department of Social Development to find a policy solution. The court ruled that grants with expired court orders could continue to be paid in the meantime. But in spite of the moratorium, more than a million children are still without their grants.

For years, child rights NGOs and legal experts have been pushing for reform of the foster care system, which they believe is unable to serve both orphans, on one hand, and abused and neglected children, on the other.

According to Paula Proudlock, child rights programme manager of the Children’s Institute at the University of Cape Town, the Foster Child Grant process was designed specifically for children in need of protective services. “Abused, neglected, and abandoned children need monitoring and careful checks and balances for protection,” says Proudlock.

Many orphans, on the other hand, receive permanent, stable care from extended family. But in the current system, these cases require the same supervision as those of children in abusive or high-risk situations. This is inappropriate and unnecessary treatment of competent caregivers, says Proudlock. “We should save heavy machinery for risky situations and risky caregivers. At the moment, we’re treating all grannies as risky caregivers when the majority are not risky.”

Thandiwe Zulu of the Black Sash says they have encountered serious delays and lack of access to social assistance in their experience helping relatives caring for orphans.

Zulu says, “files of those who have applied have just been lost and other cases just sit for long periods of time with no progress being made. This puts a serious strain on families who themselves are living in poverty.”

In addition to orphans’ families not receiving grants, many children who have been abused, neglected, or abandoned are not receiving adequate protective services because social workers and courts are being diverted to processing many other applications, especially grants for orphans, according to Proudlock. Many children in need of foster care placements wait long periods of time in bad family situations or temporary safe care because the foster care system cannot keep up.

Children who are placed in foster care also may not get the follow up visits and support that they need from social workers who are tied up with other cases.

Sipho Sibanda, a social worker at Johannesburg Child Welfare, says: “Social workers under strain are forced into crisis intervention mode and end up running ambulance services instead of rendering proper developmental child protection and reunification services to children and their families.”

On 20 October of this year, the Minister of Social Development, Bathabile Dlamini, acknowledged the problems in the foster care system and announced the appointment of a Ministerial Committee on foster care and a National Integrated Plan. The plan will involve an 18-month review of the expired court order situation, extending current foster care orders, and an audit of the foster care system.

As the plan has an 18 month timeline, the Department’s review will conclude after the court’s December 2014 deadline for policy reform.

Proudlock is concerned that the review process, on top of implementation of needed reforms, will take too long, and will address issues that child rights experts have already extensively researched and presented to the Department.

In addition to the long review timeframe, the new committee does not include any civil society members. This excludes key players and expertise from the discussion, says Proudlock.

If no changes are made before December, grants will begin to lapse in 2015 as they did before the 2011 court case, meaning some children would begin to lose their grants again.