TABLE OF CONTENTS
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Membership of the Commission ..
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Programme Officers
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Introduction
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Terms of Reference
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Work Methodology
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Draft Legislation
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Structure of the Report ..
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Overview of the Children and Young Persons Act
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Overview and Objective of the New Legislation
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SPECIFIC FINDINGS AND RECOMMENDATIONS
LONG TITLE
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PART I – PRELIMINARY
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NEW DEFINITIONS
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NEW PART – METHODS OF BRINGING A CHILD OFFENDER BEFORE
A COURT OR OTHER INQUIR
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NEW PROVISIONS – PRELIMINARY INQUIRY ..
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AGE OF CRIMINAL RESPONSIBILITY AND DETERMINATION OF AGE 32
NEW PROVISIONS – DIVERSION
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NEW PART LEGAL REPRESENTATION ..
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PART II – JUVENILES CHARGED WITH OFFENCES
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JURY TRIALS IN CHILDREN MATTERS ..
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PART III – JUVENILES IN NEED OF CARE, CONTROL OR
SUPERVISION
CHILD CARE AND PROTECTION BY THE FAMILY
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(a) Definition of “Parent”
(b) Parental Responsibilities
(c) Proof of parentage ..
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CHILDREN IN NEED OF CARE AND PROTECTION
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GUARDIANSHIP
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FOSTER CARE ..
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94
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(a)
(b)
(c)
(d)
(e)
(f)
(g)
Establishment, management of foster homes ..
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Placements of children in a foster home or with foster parents
Eligibility to be a foster parent
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Duration of foster care orders
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Monitoring
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Offences ..
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Definition
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SUPPORT FOR CHILDREN BY LOCAL AUTHORITIES
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ADOPTION OF CHILDREN
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111
Prohibition of inter-country adoption ..
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Devolution of property on adoption ..
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Disclosure of information to the adopted child ..
Jurisdiction in adoption matters
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(a)
(b)
(c)
(d)
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PROTECTION OF CHILDREN FROM UNDESIRABLE PRACTICES
(i) Child Labour
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(ii) Child Abduction ..
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(iii)Child Trafficking ..
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(iv) Child Sexual Abuse
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(v) Undesirable cultural practices
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PART IV – BOARD OF VISITORS
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126
PART V – DETENTION OF CHILDREN PENDING TRIAL ..
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133
PART VI - APPROVED SCHOOLS, AND APPROVED HOMES
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137
PART VII – EXPENSES AND CONTRIBUTIONS ..
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149
PART VIII – GENERAL ..
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151
CONSEQUENTIAL AMENDMENTS
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(i) The Courts Act (Cap 3:02) ..
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(ii) Births and Deaths Registration Act (Cap 24:01)
RE-ARRANGEMENTS OF PARTS
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157
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FIRST SCHEDULE
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SECOND SCHEDULE
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THIRD SCHEDULE
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FOURTH SCHEDULE
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FIFTH SCHEDULE
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CHILD JUSTICE COURT DESIGNATION NOTICE
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SIXTH SCHEDULE
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SEVENTH SCHEDULE ...
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EIGHTH SCHEDULE
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CHILD (CARE, PROTECTION AND JUSTICE) BILL, 2003 ..
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FIRST SCHEDULE
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348
SECOND SCHEDULE
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350
THIRD SCHEDULE
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FOURTH SCHEDULE
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FIFTH SCHEDULE
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354
CHILD JUSTICE COURT DESIGNATION NOTICE
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360
SIXTH SCHEDULE
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DRAFT LEGISLATION
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SEVENTH SCHEDULE ...
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EIGHTH SCHEDULE
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NINTH SCHEDULE
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371
iii
CHILDREN AND YOUNG PERSONS ACT
DRAFT REPORT
This is the first report of the special Law Commission which was appointed under
section 133 of the Constitution to review child rights related laws in Malawi. The Report
is on the review of the Children and Young Persons act.
The Commission hereby submits the Report pursuant to section 135 (d) of the
Constitution and commends the recommendations contained in this Report to the
Government, Parliament and people of Malawi.
MEMBERS
1.
JUSTICE R. MZIKAMANDA
-
Justice of the High Court of
Malawi - Chairperson
..............................................
2.
DR MRS A. PHOYA
-
Ministry of Health and Population
Deputy Chairperson
.............................................
3.
JUSTICE E.M. SINGINI
-
Law Commissioner
..............................................
4.
MRS M. NKAONJA
-
Independent Member
..............................................
5.
MR W.A. MANJOLO
-
Ministry of Gender and
Community Services
-
Malawi Police Services
..............................................
6.
MR W.A. CHINGARU
..............................................
1
7.
MR C. MATONGA
-
Youth Council of Malawi
-
Ministry of Justice
-
Malawi Law Society
-
Judiciary
-
Malawi Human Rights
Commission
..............................................
8.
MRS F. KALEMBA
.............................................
9.
MRS E. MAKUTA
..............................................
10.
MRS D. de GABRIEL
..............................................
11.
MR REDSON KAPINDU
.............................................
Dated: 17th October, 2003
Changes in the memberships of the Commission
Two Commissioners, Dr Garton Kamchedzera of Chancellor College, University
of Malawi and Mr Jarvis Matiya of who represented the Malawi Human rights
Commission resigned their appointments in the course of the progrmme.
Programme Officers
The Programme Officers for this programme were Mr Allison Mbang'ombe, as
the Principal Programme Officer, and was assisted by Mrs Fiona Mwale.
2
Acknowledgement
The Commission wishes to acknowledge the institutional support received from
the Law Commission. Funding for the programme was provided by the European Union
Rule of Law Programme.
3
INTRODUCTION
The special Law Commission on the Review of Child Rights Related Laws was
empanelled in September 2001. Its broad mandate is to review all child-related laws in
Malawi with a view to recommend a comprehensive reform of the laws from the child
rights and child development perspective.
Terms of Reference
The special Law Commission developed the following Terms of Reference for the
review of child-related laws –
•
•
•
•
•
•
•
•
To review all the child related laws of Malawi and make any appropriate
recommendations for reform
To conduct some research into the issues and /or gaps contained in the child
related laws.
To consult with any other person or organization on areas pertaining to the reform
of child related laws.
To invite and receive from any person or organization proposals or submissions
pertaining to the reform of child related laws
To undertake a comparative analysis of child related laws in Malawi with similar
laws from other countries as well as applicable international laws
To eliminate any defects whether of procedural, substantive or policy nature from
the child related laws in Malawi.
To improve awareness of the child related laws in Malawi among the members of
the public.
To develop a report containing the Commission’s findings and recommendations
for reform that will subsequently be submitted to Parliament and to the Minister
of Justice together with amendment Bills.
Work Methodology
The special law Commission adopted the following methodology in carrying out
the review process•
•
•
•
•
The work was divided into two thematic areas of child justice and child care and
protection;
The Commission started with the review of child justice laws;
Submissions were invited from members of the general public through notices in
the local papers and in the Gazette;
The Commission prepared an Issues Paper on child justice to elicit views from
stakeholders and the general public. This Issues Paper was discussed at a round
table meeting with major stakeholders;
The Commission met for five days once a month for a period of two years.
During these meetings, the Commission went through the Children and Young
4
•
•
•
•
•
Persons Act section by section. The special Law Commission also examined
other comparable foreign municipal statutes;
The Commission heard oral submissions from selected members of the public.
The Commission undertook study visits to South Africa, Ghana and Uganda.
A National Consultative Workshop was held during which participants subjected
the recommendations to scrutiny;
A meeting of the Commission was convened to review the deliberation of the
workshop and to incorporate the recommendations made at the workshop.
The Commission then proceeded to produce this Report.
Draft Legislation
In view of the extensive recommended changes to the existing Act, the
Commission recommends the repeal of the present Act on child justice and its
replacement with a new Act under the new title “Child (Care, Protection and Justice)
Act”. A draft Bill for the new Act is attached as part of the Report. The reader will
notice that in the narrative part of the Report, the Commission has not, assigned section
numbers for the new provisions since they will bear their proper number in the draft
legislation. Only subsections to the new provisions have been assigned numbers.
References to Part numbers and section numbers of the Children and Young Persons Act
is for readability purposes only since these numbers are bound to change in the draft
legislation.
Structure of the Report
The first part of the Report, which is the narrative, contains specific findings and
recommendations and all matters recommended to be brought into the Act as new
provisions or in substitution of some parts of the existing text have been shown in bold.
The second Part of the Report is the draft legislation, which incorporates the
recommendations of the Commission.
OVERVIEW OF THE CHILDREN AND YOUNG PERSONS ACT
(Cap: 26:03)
The Act was enacted in 1969 to consolidate the law relating to children and
young persons and matters connected therewith and relating thereto.
The Act consists of eight Parts. Part I consists of the short title of the Act and an
interpretation section that defines some terms used in the Act. Further, general principles
for the Act are provided for under this Part.
Part II makes provision for children charged with offences. Matters of
jurisdiction of children’s courts, places of sitting of children’s courts, persons who may
be allowed to attend proceedings of children’s court and the procedure of children’s
5
courts are also provided for under this Part. The Part further makes provision for
punishment of convicted children and restriction on newspaper reports of proceedings in
a children’s court.
Part III makes provision for children in need of care, control or supervision.
Detention of children pending trial is provided for under Part V. Issues under this
part include bail provisions, places of detention pending trial and separation of children
with adults.
Part VI makes provision for the establishment, inspection, closure procedure and
general management of approved schools and approved homes.
Part VII empowers courts to order parents, guardians or any other person having
the custody of a child offender at the time of the commission of the offence to make
contributions in respect of the maintenance of the child being detained at an approved
school or approved home.
General provisions are covered under Part VIII, which is also the last Part of the
Act. Under these general provisions, the Minister is empowered to remove a child
undergoing imprisonment to an approved school or home. The provisions also retain the
unlimited original jurisdiction of the High Court.
OVERVIEW AND OBJECTIVE OF THE NEW LEGISLATION
The proposed draft legislation seeks to modernize child justice system in Malawi
by putting emphasis on rehabilitation of child offenders and their reintegration back to
society. The proposed legislation further seeks to modernize the law by incorporating
provisions aimed at protecting and upholding the child’s best interests. To actualise this
objective, new provisions have been introduced in the draft legislation namely, the
following•
•
•
•
•
•
Provisions on preliminary inquiry;
Provisions on diversion;
Provisions on legal representation;
Provisions on the establishment of a separate court system for children;
Provisions on detention places for children pending trial.
Provisions on guidelines for the arrest of children.
In addition, provisions considered to be inconsistent with the above-mentioned
objectives have been removed from the Act or amended.
6
Further, the draft legislation seeks to improve the child care and protection system
in Malawi. To do this, Part 111 of the Children’s and Young Persons Act has been
abrogated and new provisions introduced covering the following matters•
•
•
•
•
•
•
•
Duties and responsibilities of parents towards their children;
Determination of children in need of care and protection;
Guardianship;
Fosterage;
Residential placements;
Powers and procedure of child justice courts in care and protection matters;
Duties and functions of local authorities relating to child care and protection;
Protection of children from undesirable practices.
SPECIFIC FINDINGS AND RECOMMENDATIONS
Long Title
The Commission considered the long title and observed that the word
“consolidate” which appears in the title was misleading because the Children and Young
Person’s Act does not provide for all matters relating to children. The Commission
however recommends that in view of the new proposal that all matters relating to children
should be under one Act, the word “ consolidate” will now become relevant. The
Commission further recommends that since the word “child” has been redefined (see the
recommendation on the definition of the word “child in this Report) as to include “young
persons”, the phrase “and young persons” appearing in the title should be deleted. The
long title therefore to read as follows:
An Act to consolidate the law relating to children by making provisions for
child justice and for child care and protection; and for matters of social
development of the child and for connected matters.
PART I
PRELIMINARY
7
SECTION 1
[Short title]
The Commission suggested several new titles1 for the Act and having discussed
the relative merits of each at length, recommends that the title be changed to “Child
(Care, Protection and Justice) Act” which was considered broad enough in scope to
encompass all the areas to be covered in the Act.
SECTION 2
[Interpretation]
This section defines several terms used in the Act. The Commission recommends
several amendments to the section. Further, the Commission recommends the
introduction of new definitions as follows-
“approved homes /approved schools”
The Commission discussed and observed that rehabilitation, which is the main
purpose of approved schools and approved homes, is not mentioned in the definition.
Commissioners noted that it would be very important to expressly mention rehabilitation
as the core function of these schools in the definition. They observed that vocational
training and education is indeed rehabilitation but argued that simply mentioning these
rehabilitative activities overlooks the other essential elements of rehabilitation, for
example, psychosocial therapy, which can be achieved through counselling. The
Commission therefore recommends that instead of mentioning the actual activities that
constitute rehabilitation, the definition should make reference to the term rehabilitation
itself.
The Commission further discussed whether the terminology “approved homes and
approved schools” should be retained. The Commission noted that in most countries,
these names are being replaced by other names like “remand homes or reformatory
centres”. The idea is to change peoples’ perceptions since Approved Schools and
Approved Homes are usually associated with criminals and as a result, children who are
sent to these institutions are perceived and treated as criminals.
Although it was noted that the word “approved” is indicative of the process under
sections 34 and 35 of the Act whereby the Minister issues a certificate of approval before
the institution begins to function, it was observed that the word “approved” does not
denote the function for which these institutions are established. The Commission
therefore recommends the use of the terminology that would reflect the functions
undertaken by the institutions.
After considering alternative terms such as “child care home”, “child care centre”
and “child development centre” the Commission observed that these terms are slightly
ambiguous. The Commission noted that in practice, these institutions are called
1The Commission suggested the following names: Child Criminal Justice Act, Children’s Act, Child Justice Act, Child
Offender’s Act, Juvenile Offenders Act, Juvenile Justice Act, Children’s Act, Children and Young Persons Act.
8
reformatory centres. In view of that, the Commission recommends that the law should
legitimise the practice by using similar terminology. The term “reformatory centre”
should therefore be used.
It was further noted that under sections 34 and 35, the only difference between an
approved school and an approved home is that the former is a publicly owned institution
and the later is a privately owned institution, albeit having similar functions. The
Commission therefore recommends that in order to reflect this difference, approved
schools should be referred to as “public reformatory centres” and approved homes should
be referred to as “private reformatory centres” wherever they appear in the Act. The new
definitions should therefore be redrafted as follows:
“reformatory centre” means a home or institution, or part thereof established for
purposes of:
(a)
(b)
reception, education and vocational training;
counselling,
of children in accordance with this Act.
“private reformatory centre” means a reformatory centre established under
section….
“public reformatory centre” means a reformatory centre established under
section….
“Board”
The term “Board” is defined as “Board of Visitors established under Part IV of
the Act”. The Commission observed that the phrase “Board of Visitors” is misleading in
light of the functions of the Board under section 27 of the Act. The Commission was
aware of similar expressions like “visiting justices” in other statutes. However, the
Commission noted that the functions of the Board under the Act are broad and the term
“visiting” does not reflect this scenario. Apart from visiting and inspection, the other
function of the Board is to review child cases. The Commission therefore recommends
that a name that would reflect the broadness of the functions be used. The term “ Child
Case Review Board” was therefore preferred. The Commission therefore recommends
that the phrase “Board of Visitors” be deleted and replaced with the phrase “Child Case
Review Board” wherever it appears in the Act. Accordingly the definition of “board”
should be deleted and replaced with the following“Board” means the Child Case Review Board established under Part.. of the Act
“child”
“Child” is defined as any person under the age of fourteen years . The Commission
discussed this definition and recommends that a child should be defined as any person
9
under the age of eighteen years . The Commission came to this conclusion after studying
provisions of the Constitution. For example, section 22 (6) – (8) make it clear that
persons under the age of eighteen years deserve special protection of the law by requiring
that such persons should seek the permission of their parents or guardians to enter into
marriage. The 1998 Report of the Law Commission on the Technical of the Constitution
recommends an amendment to section 42 (2) (g) to prescribe the age of eighteen years for
child offenders. The Commission also took note of section 77 (2) (b) of the Constitution,
which sets eighteen years as the voting age recognizing a certain degree of maturity at
that age. Further Commissioners drew their attention to the 1998 Report of the Law
Commission on the Technical Review of the Constitution, which recommends an
amendment to section 42 (2)(g), to prescribe the age of eighteen for child offenders. The
Commission also had occasion to study other foreign municipal laws as well as
international instruments which recognise the evolving capacities of children, who until
they are eighteen, are considered incapable of making important decisions2. The
Commission however noted that section 23 of the Constitution defines a child as a
person below the age of sixteen years of age. That notwithstanding, the Commission still
maintains that for purposes of this Act, a child should be any person below eighteen years
of age. The Commission noted that the provision in section 23 of the Constitution only
relates to the rights under that section and therefore cannot be construed as a
constitutional definition of “child”.
The Commission therefore recommends that the new definition of a child should
be as follows –
“child” means a person below eighteen years of age.
“guardian”
The term is defined as to mean any person who, in the opinion of the court having
cognisance of any case in relation to the juvenile or in which the juvenile is concerned
has for the time being the charge of or control over the juvenile. The Commission was
of the view that this definition is vague or not specific enough and recommends that it
should be redrafted as follows:
“guardian” means a person who has legitimate custody, care or control of a
child in place of a parent.
“juvenile”
Consultations with stakeholders revealed that the term “juvenile” carries criminal
connotations and therefore stigmatises children as criminals. The Commission also noted
that other jurisdictions that have consolidated their legislation on children such as Uganda
have moved away from the term “juvenile”. The Commission therefore recommends that
the term “child” be used in place of “juvenile” wherever it appears in the Act and that
2See for example the CRC, which defines a child as a person below the age of eighteen unless the age of majority is
attained earlier in any jurisdiction. Again in Uganda, the children statute defines a child as below 18 years.
10
since “child” has already been defined, the definition of
unnecessary.
“juvenile” becomes
“juvenile court”
In view of the recommendation on the term “juvenile” which has been replaced
by the term “child”, the Commission recommends that the phrase “juvenile court” be
changed to “child justice court” wherever it appears in the Act. The Commission further
recommends that this “child justice court” be established under the Act with its own
jurisdiction and structure different from the present juvenile court. The Commission has
therefore at an appropriate place established child justice courts. Accordingly, the
definition of “juvenile court” should be deleted and replaced with the definition of “ child
justice court” as follows“child justice court” means a subordinate court established under section.. of
the Act
“place of detention”
On this definition, the Commission considered whether the Act should maintain
the use of the term “ detention” in relation to children. At one point, Commissioners were
of the view that “detention” connotes detention as punishment and therefore not proper.
After some discussions it was noted that the term is not synonymous with punishment.
The Commission was also satisfied that this is the terminology being used internationally.
The Commission therefore recommends that the term be retained. However, since section
33 which is being referred to in the definition has been deleted3, the new definition of “
place of detention” should read as follows“place of detention” means a place of detention as provided under this Act
“probation officer”
The Commission recommends retention of the definition with slight modification
as follows:
“probation officer” means a person appointed as such under section 15 of the
Probation of Offenders Act or any other person in the public service whom
the Minister may appoint to perform probation duties for the purposes of
this Act.
“Traditional Court”
3
See the recommendation on section 33
11
The Commission recommends deletion of this definition in view of the fact that
no such courts exist at the moment. Although subsection 3 of section 110 of the
Constitution provides for the existence of traditional or local courts, the Commission took
cognisance of the fact that at the time of review, no enabling legislation has been enacted.
“vocational training”
The term is defined as “actual employment in agriculture or training in some
branch of useful industry”. The Commission appreciated the emphasis that was put on
agriculture especially in Malawian context. The Commission however recommends that
while maintaining the emphasis, the definition should be wide as follows“vocational training” means training in some branch of useful industry,
including agriculture.
“young person”
The term is used to refer to any person who is above the age of fourteen years but
below eighteen years. The Commission considered this definition and observed that in
view of the proposed extended definition of a child which has absorbed the phrase
“young person”, there is no need to have this definition.
On the same point, a question arose as to whether an exception should be made
for persons that come under the definition of children but have chosen an adult life. For
example, should children who are parents be considered as adults? On this, the
Commission recommends that the determining factor for the application of this Act
should remain age and not any other status.
NEW DEFINITIONS
The Commission recommends that the following new terms which have been
used in the proposed draft Bill be defined as follows“appropriate adult” means an adult relative of a child or any adult person
who knows the child or is known to the child or any person appointed by the
court but shall not include the following persons:
(i)
a police officer, investigator, prosecutor or any other person
working with the police in relation to the case;
(ii)
victim of the offence, or a witness in the case whether for or
against the child.
12
“child panel” means a child panel established under section…4 of the Act.
“court” in relation to proceedings relating to a child, includes any tribunal.
“diversion” means the referral of cases of child offenders away from formal
court procedures with or without conditions.
“diversion option” means a plan or a programme of diversion of a
prescribed order content and of specified duration.
“ parent” includes an adoptive parent, foster parent or any other person
acting in whatever way as a parent.
“parent, guardian or appropriate adult” used in relation to a child means
parent, guardian or appropriate adult of the child.
“place of safety” means an appropriate place where a child in need of care
and protection can be kept temporarily and may include a safety home or a
foster home.
“ medical officer” means any person duly authorized to perform duties of a
medical personnel and includes a health worker.
“restorative justice” means the promotion of reconciliation, restitution and
sense of responsibility in respect of an offence committed by a child.
“the Minister”
In terms of the General Interpretation Act reference in a statute to ‘the Minister”
is to the Minister for the time being charged with the matter in question5. It was therefore
considered unnecessary to define that term.
The Commission did however consider the need to ensure that the
responsibility for children’s affairs was placed under a particular ministry. Information
available to the Commission revealed that the responsibility for children’s affairs has
tended to move back and forth within the Ministry of Gender and Community Services.
The Commission considered this state of affairs unsatisfactory as it meant that children’s
affairs remained without fixed direction. The Commission was also reminded that at the
time of review, there was no fixed policy in place on children’s affairs. The Commission
however envisaged that with the passing of this law, provisions for children would
become more certain with a ministry specifically allocated the responsibility of children.
To that end, the Commission has at an appropriate part recommended that administrative
bodies be put in place for children affairs.
4
5
See provisions on establishment of child panel.
See section 2 of the General Interpretation Act (cap.1:01, Laws of Malawi)
13
“safety home” means a place or part thereof for the purposes of reception,
education, counselling and safety of children before conclusion of trial or in
circumstances requiring placement of a child for care and protection.
“serious offences” in relation to a child means offences listed in the …
Schedule .
“private safety home” means a safety home established under section…
“public safety home” means a safety home established under section….
SECTIONS 3 AND 4
The Commission observed that provisions of sections 3 and 4 are general
principles and not preliminary matters although they are under that Part. In view of this,
the Commission recommends that these provisions should be under a separate Part to be
referred to as “General Principles”. The Commission was satisfied that this would be the
most appropriate heading taking into account the provisions of the two sections.
The Commission then analysed the two sections in detail as followsSECTION 3
[Use etc of words “conviction and sentence]
This section provides that the words “conviction” and “sentence” shall not be
used in respect of any child in any criminal proceedings. The Commission noted that the
intention in this section was that any conviction or sentence on children should not have
any effect against him on his rights or privileges whatsoever for purposes of any other
law other than the offence he has committed. Despite this provision, it was noted that
courts in practice do use these words. The effect is that the intention of the section is
defeated. The Commission was of the view that this is the case mainly because the
intention does not come out clearly when you read the provision and as a result it is not
appreciated by the courts. Further, the Commission observed that the more appropriate
way of pronouncing a conviction is to relate the child’s act to the concept of
responsibility for the crime. On the effect of the finding of guilty, which is also being
provided for under the section, the Commission recommends that it should be under a
separate section.
Section 3 and the proposed section on the effect of a finding of guilty therefore to
read as follows:
SECTION 3
[Mode of pronouncing a finding against a child]
14
Mode of
pronouncing
a finding
against a
a child
The words “finding of guilty”, “conviction” and “sentence”
shall not be used in respect of any child in finding proceedings in
a child justice court or any other court but in pronouncing the
conviction against the child, the court shall record that the child
is found to be responsible for the offence charged and, instead of
sentencing the child, the court shall proceed to make an order upon
such a finding in accordance with this Act.
New provision
Non-effect
of a finding
against a
child
Save as provided in section …6,
(a)
a finding of responsibility for an offence against a child
shall have no effect whatsoever against the child for the
purposes of any law except in respect only of the offence for
which the child is found responsible and in respect of such
offence, the finding shall lapse upon the child serving the
order;
(b)
any document, communication or information, which is a
record of the child’s finding of responsibility, shall not be
admissible(a)
(b)
SECTION 4
in any future criminal or civil proceedings in any
court –
(i)
against the child while still a child or as an
adult; or
(ii)
involving any other person; or
for any other purpose.”
[General consideration]
The section deals with matters that should be taken into account when a child is
brought before a court. The provision states that a court, in dealing with a child brought
before it shall have due regard to the welfare of the child and shall, in special
circumstances remove him or her from undesirable circumstances. The Commission
noted that this provision should generally apply to all institutions dealing with children
and not to courts only. Further, in order to actualise the principle of “best interests of a
child,” which is the internationally recognised guiding principle in children matters, the
6
See section on “Evidentiary matters” under Preliminary Inquiry
15
Commission recommends the creation of a Schedule to the Act that clearly stipulates the
rights of a child as recognised by the United Nations Convention on the Rights for the
child. The Commission therefore recommends that section 4 should be redrafted as
followsA court , when dealing with a child who is brought before such court or
authority, either as an offender or in need of care or protection , shall(a)
in a proper case, take steps for removing him or her from
undesirable surroundings and for securing that proper provision is
made for his or her nutrition, education, and training; and
(b)
give primary consideration to the rights of the child as recognised
by the Convention on the Rights of the Child set out in the …
Schedule .
NEW PART
METHODS OF BRINGING A CHILD OFFENDER BEFORE
A COURT OR OTHER INQUIRY
The Commission noted that there is no law in Malawi that provides for proper
guidance on arrest when the arrested person is a child. The Constitution provides in
general terms principles and rights that should be accorded when the arrested person is a
child7. Empirical data has shown that it is at the time of arrest that most of the rights of
children are violated. In light of this, the Commission recommends that the Act should
have specific provisions on arrest of the child. The Commission was aware that being
matters of a criminal nature, the Criminal Procedure and Evidence Code will apply in all
respects but still maintained that the provisions of Criminal Procedure and Evidence
Code (CP&EC) should be supplemented by specific provisions under this Act. The
Commission therefore recommends the introduction of guidelines that should be followed
when the arrested is a person who appears to be a child.
The Commission then deliberated at length on whether to place these guidelines
in a Schedule to the Act or within the body of the Act. Placing the guidelines within the
body of the Act was considered more suitable as it would ensure that the guidelines were
entrenched and not subject to change by the executive since if placed in a Schedule, there
would be power conferred on the Minister to amend the Schedule.
The Commission also discussed whether the use of handcuffs in arresting
children should be prohibited in all circumstances. The Commission was however
mindful that there may be occasions when such a blanket prohibition could disable
policemen from effecting arrests. The Commission therefore recommends that handcuffs
7See section 42(2)(g) of the Constitution
16
should be allowed only if the child is handcuffed to the arresting officer or any other
person effecting the arrest. The Commission was advised by the Police Service that this
practice is internationally recognised and recommends that it should be tested in our
jurisdiction.
Further, the Commission recommends that in addition to matters of arrest, this
Part should also deal with all matters relating to methods of bringing a child offender
before a court or other inquiry. For example, matters of summoning a child and matters
of referring a child to a probation officer should be included under this Part.
Police powers to release and caution a child offender in minor offences should
also be under this Part. The Commission was aware of a similar proposal made by the
Commission on Criminal Justice on such police powers in the Criminal Procedure and
Evidence Code. The Commission recommends that this proposed provision should also
be brought under this Act with appropriate minor changes. The Commission did not see
any duplicity with this approach.
The Commission therefore recommends the adoption of the following provisions:
METHODS OF BRINGING A CHILD OFFENDER BEFORE A
COURT OR OTHER INQUIRY.
Interpretation
In this Part “child” include a person who appears to be a child
Arrest of a
child
(1)
In addition to the provisions of the Criminal
Procedure and Evidence Code or of any other law relating to the
arrest of a child, a police officer or any other person arresting the
child shall –
Guidelines
on arrest of
a child
(a)
have due regard to the observance of the principle of
the best interests of the child as well as the general
welfare of the child;
(b)
shall make the arrest in accordance with the guidelines
set out under this Part.
(1) A police officer or any person effecting the arrest of a
child shall ensure that(a)
(b)
(c)
the person has been informed of his or her rights in
relation to the arrest or detention and reasons for the
arrest in a manner appropriate to the age and
understanding of the person;
there is no harassment or physical abuse of the person;
the person is provided with medical attention where
necessary;
17
(d)
there is no use of handcuffs except if the person is
handcuffed to the arresting police officer or a person
effecting the arrest;
(e)
the person is not mixed with adults;
(f)
the person is provided with nutritious food;
(g)
Summons
the person is accompanied by a parent, guardian or
appropriate adult as far as it is practicable to do so;
(h)
a parent, guardian or appropriate adult is informed
immediately after the arrest, if such parent, guardian or
appropriate adult was not present at the time of the
arrest;
(i)
in serious offences, the person is provided with legal
representation;
(j)
the person has been provided with counselling services
where possible.
Where summons have been used for the purposes of bringing a
child before a court, the summons shall (a)
(b)
(c)
be issued by a court of competent jurisdiction;
be served on the child, or a parent, guardian or the
child’s next of kin; and
be served on a day and time that ensures due
consideration of the child’s best interests.
Where an arrest of a child or a person who appears to be a
child is made by a private person, that person shall present the private
child to a police officer or to the nearest police station or court as person
soon as it is practicable to do so, but no later than twenty-four
hours after the arrest.
Arrest of a
child by a
Reference
to a
probation
officer
(1)
Where a child or a person who appears to be a child
is arrested or summoned, the officer-in-charge of the police
station shall as soon as it is practicable, refer the child to a
probation officer.
(2)
Where a police officer has reason to believe that a
child suspected of having committed an offence is below the age of ten
years, he or she shall not arrest the child, but shall refer such child to
a probation officer for estimation of age.
18
(3)
Where a child or a person who appears to be a child
has been referred to a probation officer under subsection (1) the
probation officer shall assess the child for the purposes of(a)
(b)
(c)
(d)
establishing the possibility of diverting the case;
determining whether the child is in need of care and
protection;
age estimation, if the age is not known;
formulating recommendations regarding(i)
(ii)
(iii)
release of the child with or without bail;
release into the care of a parent, guardian
or an appropriate adult; or
detention pending a preliminary inquiry.
(4)
The probation officer shall submit the assessment
report containing the recommendations in respect of the child to the
prosecutor handling the matter.
(5)
The prosecutor may, upon consideration of the
recommendations(a)
(b)
(c)
release the child with or without bail,
release the child into the care of a parent,
guardian or an appropriate adult or
detain the child.
(6) Where the charges have not been withdrawn, the
prosecutor shall make arrangements for a preliminary inquiry.
(7) Where the Probation Officer estimates that the age of the
child is below ten years, he or she shall recommend that the child be
released for want of criminal responsibility.
(8) Where it is not possible to refer the child to a probation
officer or where the reference shall cause unnecessary delays, the
prosecutor handling the matter may(a)
Police
8
(b)
take the child to a safety home and arrange
preliminary inquiry within forty-eight hours;
release the child in accordance with section…8
(1)
A police officer of the rank of sub-inspector
for a
see provision on bail
19
powers to
caution and
release
and above may caution a child offender against the
repetition of the offence and release the child with or without
conditions if(a)
(b)
(c)
the offence alleged to have been committed is not a
serious offence;
there is enough evidence to warrant prosecution in the
case; and
the child voluntarily admits the responsibility for the
offence.
(2)
A police officer imposing a condition under this
section shall take into account the best interests of the child and the
condition shall not be penal in nature.
(3)
The caution and release of a child shall be
administered in the presence of a parent or guardian or an
appropriate adult or a probation officer, unless the police officer
considers it to be in the best interests of the child to dispense with this
requirement.
(4)
A police officer shall, when cautioning and releasing
a child, take into account(a)
(b)
(c)
(d)
the circumstances in which the offence was committed;
the views of the victim or complainant; and
personal conditions of the arrested child including age,
physical or mental infirmity, his or her general
character and family circumstances; and
the views of the parent, guardian or appropriate adult
of the child.
(5)
The Chief Justice may, unless satisfied that the rules
made under section 32 of the Criminal Procedure and Evidence Code
are sufficient for the purposes of this Act, make rules prescribing
guidelines for the police on the exercise of powers referred to in this
section.
The Commission, though mindful that under the Criminal Procedure and Evidence
Code the Minister has the same power of making such rules as in subsection (5) above,
recognized that children are a vulnerable group and as such merit special attention and
rules. It was for this reason that the Commission decided to grant this power to the Chief
Justice. In order to avoid duplicity, the section has been redrafted to make reference to the
Criminal Procedure and Evidence Code.
20
NEW PROVISIONS
PRELIMINARY INQUIRY
Preliminary Inquiries are a form of pre-trial hearing in which procedural steps
necessary for ensuring that the offence is ready to be tried at the specified time, are taken.
In terms of child offenders, preliminary inquiries are informal hearings in which the
probation officer presents his findings on the social background of the child and of the
circumstances of the offence and gives those present and concerned the opportunity to
have their views heard.
An efficient preliminary inquiry will determine whether the matter should proceed
to court, be withdrawn altogether or be diverted. Arrangements for securing the child
offender’s attendance at trial and decisions relating to the custody of the child offender
before trial as well as decisions on legal representation are also made during the
preliminary inquiry.
In view of the importance of this procedure, the Commission recommends that
new provisions devoted entirely to preliminary inquiries be developed as followsPRELIMINARY INQUIRY9
Nature
and
objectives
of a
preliminary
inquiry
(1)
A preliminary inquiry shall be held in respect of
a child suspected to be responsible for an offence prior to plea
unless the child has been released on caution or the charge has
been withdrawn.
(2) A magistrate of the second grade or above may preside
over a preliminary inquiry and while so presiding, shall be called an
“inquiry magistrate” for the purposes of this Act.
(3)
A child’s appearance before a preliminary inquiry shall
be regarded as his other first court appearance for the purposes of
this Act.
(4)
The objectives of a preliminary inquiry are to -
(a)
ascertain whether a probation officer has made a
social inquiry of the child and, if not, whether
compelling reasons exist for not making such an
inquiry;
establish whether the matter can be diverted before
(b)
9
The Commission had recourse to South African Child Justice Bill, Children’s Acts of Ghana and Uganda
as well as views of stakeholders during the round table discussion at Malawi Institute Of Management
when coming up with these recommendations.
21
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
plea;
identify a suitable diversion option if the matter is
to be diverted;
ensure that all available information relevant to the
child, his or her circumstances and the offence is
considered in order to make a decision on diversion and
placement of the child;
establish whether the matter should be referred to
a child justice court to be dealt with in accordance with
the provisions of this Act;
provide an opportunity for the prosecutor to assess
whether there are sufficient grounds for the matter to
proceed to trial;
encourage participation of the child and his or her
parent, guardian, or appropriate adult in decisions
concerning the child;
ensure that views of persons concerned and present
are considered before a decision is taken;
determine release or placement of the child in
accordance with the provisions of this Act pending
conclusion of the preliminary inquiry or appearance of
the child in a court;
take such other measures as may be necessary for the
final disposition of the case.
(5)
A preliminary inquiry shall be held in camera at any
suitable place that the inquiry magistrate shall deem fit.
(6)
The inquiry magistrate shall conduct the
proceedings in an informal manner.
Persons
who shall
attend
preliminary
inquiry
(1)
a preliminary
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Subject to subsection (2), persons who shall attend
inquiry are the inquiry magistrate;
the prosecutor;
the child;
the child’s parent or guardian if available;
the probation officer;
any other person served with a subpoena or requested
by the inquiry magistrate to attend the preliminary
inquiry;
an appropriate adult in the absence of a parent or
guardian.
22
(2)
In exceptional circumstances as determined by the
inquiry magistrate a preliminary inquiry may proceed in the absence
of any of the persons referred to in subsection (1) (d), (e) and (f) .
(3)
Where a preliminary inquiry proceeds in the absence of
a probation officer, the probation officer’s social report must be
available at the preliminary inquiry unless assessment has been
dispensed in accordance with subsection 3 of section ….10
(4)
An inquiry magistrate may, if he considers to be in the
best interests of the child, exclude the persons referred to in
subsections 1(d) from attending a preliminary inquiry.
Persons
who may
attend a
preliminary
inquiry
Procedure
relating to
holding a
preliminary
inquiry
Persons who may attend a preliminary inquiry are –
(a)
the child’s legal representative if one has been
appointed;
(b)
the arresting police officer, the investigating police
officer or any other police officer;
(c)
an appropriate adult whether a parent is present or not;
and
(d)
any other persons permitted to attend the preliminary
inquiry by the inquiry magistrate.
(1)
At the start of the preliminary inquiry, the inquiry
magistrate shall (a)
(b)
(c)
(d)
explain the purposes of the preliminary inquiry and the
role of each person present in an official capacity ;
inform the child the nature of the allegations;
inform the child of his or her rights in a manner
appropriate to the age and understanding of the child;
and
explain to the child the immediate procedures to be
followed in accordance with the provisions of this Act.
(2)
At the start of the preliminary inquiry, the prosecutor
shall ensure that the inquiry magistrate has the probation officer’s
social inquiry report and a completed age estimation form with all
relevant documents attached.
(3)
Where a child does not admit responsibility for the
alleged offence, no further questions regarding the offence shall be
put to the child and the inquiry magistrate shall set the matter down
10
See provision on general powers and duties of inquiry magistrate.
23
for plea and trial in a child justice court and the preliminary inquiry
shall be closed.
(4)
A record shall be kept of the proceedings of the
preliminary inquiry.
(5)
No decision taken at a preliminary inquiry is subject to
appeal, except for a decision by the inquiry magistrate to detain a
child in a safety home.
General
powers and
duties of
inquiry
magistrate
(1)
The inquiry magistrate may -
(a)
cause a subpoena to be served on any person whose
presence is necessary for the conclusion of the
preliminary inquiry;
request or permit the attendance of any other person
who may be able to contribute to the proceedings;
request any further documentation or information
which is relevant or necessary to the proceedings;
make a determination of age in accordance with
section …11;
after consideration of the information contained in
the social report, elicit any information from the
persons attending the inquiry to supplement or clarify
the information in the social report;
take necessary steps to establish the truth of any
statement or the correctness of any submission but the
steps shall not unduly influence the child to accept
responsibility of the alleged offence; and
perform any other duties necessary for the final
disposition of the case.
(b)
(c)
(d)
(e)
(f)
(g)
(2)
The inquiry magistrate may, where the conduct of the
proceedings of the preliminary inquiry or any aspect is in dispute,
rule on the conduct of the proceedings in a manner consistent with the
provisions of this Act.
(3)
If it is ascertained that a social inquiry has not yet been
conducted, the inquiry magistrate may adjourn the preliminary
inquiry in accordance with section …12. pending the social inquiry or
may dispense with the social inquiry if it is in the best interests of the
child to do so.
11
12
See provisions on “Age determination by inquiry magistrate”
See provisions “Adjourning a preliminary inquiry”
24
(4)
The inquiry magistrate shall ensure that the persons
present at the inquiry know of the recommendations in the probation
officers social inquiry report.
(5)
Where the probation officer is present at a preliminary
inquiry, the inquiry magistrate may request the probation officer to
explain, elaborate upon or justify any recommendation or statement
made in the social inquiry report, or provide additional information.
(6)
The inquiry magistrate shall permit any person present
to challenge the correctness of any statement made in the probation
officer’s social inquiry report.
(7)
The inquiry magistrate shall ensure that the persons
present at a preliminary inquiry are informed of diversion options
available in the District or area.
(8)
The inquiry magistrate shall consider reports regarding
the arrest or detention of the child.
Release or
detention
of a child
by inquiry
Magistrate
Evidentiary
matters
Separation
and joinder
of
proceedings
of a n inquiry
13
The inquiry magistrate may make an order regarding the
release or detention of the child pending further appearance of
the child at a preliminary inquiry or court where(a)
(b)
the preliminary inquiry is adjourned ;
the matter is to be set down for plea and trial in a child
justice court or in any other court.
(1)
Where a child has admitted responsibility for the
offence, information regarding a previous diversion or a previous
finding of responsibility may be furnished at the preliminary inquiry by
any person for the purpose only of assisting the inquiry magistrate to
reach a proper decision regarding diversion.
(2)
No self-incriminating information furnished at a
preliminary inquiry by the child shall be admissible in any subsequent
court proceedings.
(1)
Subject to section…,13 if a child in respect of whom
a preliminary inquiry is held, is co-accused with an adult, the case
of the adult shall be excluded from the preliminary inquiry.
(2)
If a child in respect of whom the holding of a
preliminary inquiry is contemplated is a co-accused with one or more
other children, a joint preliminary inquiry may be held.
See provision on “persons who shall attend a preliminary inquiry”
25
(3)
Where a joint preliminary inquiry is held, different
decisions may be made in respect of each accused child.
Adjourning
a
preliminary
inquiry
(1)
The inquiry magistrate may, on his own motion
or upon request, adjourn the proceedings of a preliminary
inquiry for a period not exceeding seven days for the purposes
of (a)
securing the attendance of a person necessary for the
conclusion of the inquiry;
(b)
obtaining information necessary for the conclusion
of the inquiry;
(c)
establishing the attitude of the victim to
diversion or a diversion option;
(d)
planning a diversion option;
(e)
finding alternatives to pre-trial residential detention;
(f)
conducting a social inquiry of the child, where no such
inquiry has previously been undertaken and it is found
that such inquiry should not be dispensed with;
(g)
conducting a further social inquiry of the child;
(h)
holding an identification parade14;
(i)
any other reason considered to be necessary by the
inquiry magistrate.
(2)
Where the preliminary inquiry is adjourned for the
purposes of holding an identification parade, the inquiry magistrate
shall inform the child of the need to have a parent, or a guardian or
an appropriate adult or legal representation during such proceedings.
(3) If the matter upon which the adjournment was granted has
not been concluded upon the expiry of the period of seven days, the
preliminary inquiry shall be re- convened and section …15 shall
apply.
Failure to
comply
with
conditions
pursuant to
adjournment
A child or his parent, guardian or appropriate adult who
fails to comply with the conditions of the release of the child
pursuant to an adjournment of a preliminary inquiry shall be
arrested upon a warrant issued by the court for such person
such person to be brought before the court to show cause
for the failure to comply with the conditions and the court shall
make a necessary order .
14
The Commission considered the issue of identification parade at a preliminary inquiry and at one point
felt that this is more of a criminal procedure. It was observed however that this procedure might be needed
in certain circumstances in the best interest of the child especially where the child has admitted the charge
in case, for example, the identification parade proves otherwise.
15
See provisions on “Adjourning the preliminary inquiry for detailed assessment”.
26
Failure to
appear at a
preliminary
inquiry
Decisions
regarding
diversion,
prosecution,
withdrawal
of charges
or transfer to
a child justice
court
Where a child or his parent, guardian, or appropriate
adult has been notified to appear at a preliminary inquiry by
a police officer or by a probation officer and the child, parent,
guardian or the appropriate adult fails to attend, such person, shall
be compelled to attend as if he had been summoned by the inquiry
magistrate.
(1)
After consideration of -
(a)
the social inquiry report, unless the report has
been dispensed with;
the views of the persons at the preliminary inquiry;
any further information provided by any person
present at the preliminary inquiry;
any further information requested or elicited;
the willingness of the child to admit responsibility
for the offence,
(b)
(c)
(d)
(e)
the inquiry magistrate shall ascertain from the prosecutor whether
the matter can be diverted.
(2)
Where the prosecutor decides that the matter should be
diverted, the prosecutor shall withdraw the charge or charges against
the child, with or without conditions.
(3) Where the prosecutor decides that the matter be
diverted, the inquiry magistrate shall(a)
(b)
make an order regarding(i) an appropriate diversion option or options as set out
in the … Schedule ; and
(ii)implementation of the diversion option or options, or
refer the matter to a child panel.
(4)
In addition to the diversion options set out in the
..... Schedule, the inquiry magistrate may, after consultation with the
persons present at the preliminary inquiry, develop an individual
diversion option, taking into account the purpose and standards of
diversion as set out under … 16 and the implementation thereof.
(5)
Where the inquiry magistrate has reason to believe that
the child is in need of care and protection, he may order that the
preliminary inquiry be closed and the matter be dealt with in
accordance with the provisions on care and protection under this Act.
16
See the Part on diversion
27
(6)
Where the prosecutor decides to proceed with the
prosecution of the child, he shall inform the inquiry magistrate and
the preliminary inquiry shall be closed and the matter shall be set
down for plea and trial in a child justice court, or any other court of
competent jurisdiction, within fourteen days after conclusion of the
preliminary inquiry.
(7)
The prosecutor may withdraw the charge at any time
during the preliminary inquiry.
Procedure
upon referral
of matter
to court
(1) Where the matter has been referred to court and the
child has no legal representation, the inquiry magistrate shall
explain to the child, parent, guardian or an appropriate adult the
provisions on legal representation under
this Act.
(2) Where the child, or any of the persons referred to in
subsection (1) indicates an intention to apply for legal representation
at State expense in accordance with section ---17, the inquiry
magistrate shall assist the child, as far as is reasonably possible to
make an application for legal aid at State expense.
(3) Where the child is in a safety home, the inquiry magistrate(a)
(b)
shall(i)
inform the child, his parent, guardian,
or appropriate adult to attend such proceedings
at the time and place as advised by the court or
the prosecutor; and
(ii)
direct the person in charge of the safety home to
bring the child to court at the specified time and
place;
may –
(i)
(ii)
17
direct the release of the child on bail;
make any other order in accordance with the
provision of this Act.
See provision on legal representation at state expense
28
(4)
Where the child is not in detention, the inquiry
magistrate shall warn the child, his parent, guardian or the
appropriate adult to appear in court at a specified place and time and
may,
(a)
alter or extend any conditions imposed before or
during the preliminary inquiry ;
(b)
where necessary, order that the child be detained.
(5)
Where the matter has been set down for plea and
trial, the prosecutor shall inform the child, his parent, guardian or
appropriate adult of the place and time.
(6)
The inquiry magistrate who presides over a preliminary
inquiry, shall not preside over any subsequent trial emanating from
that inquiry.”
AGE OF CRIMINAL RESPONSIBILITY AND
DETERMINATION OF AGE
The Commission noted that as far as determination of age is concerned, the Act
does not provide for adequate guidance. The Act, under section 15, only provides that a
juvenile court shall presume the age of any juvenile brought before it on the basis of
appearance. The situation was made worse by the provision which states that a mistake
as to the age will not affect the order or any action that is taken on the basis of the
mistake.
Although it is provided further that the court might use a medical certificate
where it is in doubt as to the correct age, in practice, this is rarely used. The Commission
therefore recommends that a procedure on age determination be introduced in the Act.
Related to age determination is the question of the age of criminal responsibility.
The Commission considered the provision under the Penal Code where it is provided that
a person under the age of seven years is not criminally responsible for any act or
omission and that anybody between the ages of seven and twelve can only be criminally
responsible if it is proved that at the time of doing the act or making the omission, he or
she had the capability of knowing that he aught not have done the act or made the
omission.18 The Commission recommends that based on international developments,
children that should not be criminally liable should be those below the age of ten and
children that are between the ages of ten and fourteen should only be liable if it is shown
that they new that the act or the omission was wrong.
18
section 14 of the Penal Code
29
The Commission deliberated at length on whether to include the Penal Code
provision in the body of this Act. Eminent practitioners in juvenile justice informed the
Commission that often the want of criminal responsibility on account of age was
overlooked by policemen due to the absence of this provision in the Children and Young
Persons Act. The Commission also had recourse to legislation from other jurisdictions
such as South Africa, Uganda and Ghana where their legislation on children includes the
age of criminal responsibility. The Commission further considered other advantages of
incorporating the Penal Code provision in that this approach allows the law to develop
wholesale and not in parallel. In other words, when the Penal Code is developed, the
development will extend to this Act on children so that the law on children is not
secondary to the general law.
The Commission also observed that the Penal Code lays down a special rule to the
effect that a male child aged below the age of twelve is presumed incapable of having
carnal knowledge and therefore cannot be charged with sexual offences.
In the end however, the Commission accepted the fact that the age of criminal
responsibility was indeed part of the general principles of criminal law albeit that it
touches on children. The Commission was therefore content to leave the issue to the
Penal Code, but with reference in the Act to the Penal Code provision. The Commission
was also aware that the special Law Commission on Criminal Justice has coincidentally
made identical recommendations on the age of criminal responsibility to those made by
this Commission, i.e. that, in the best interests of children, the age of criminal
responsibility be raised from seven to ten and that children aged between ten and fourteen
should not be prosecuted unless it is proved that they had capacity to know that they
aught not to have done the act or made the omission.19
The Commission however expressed concern that the process of enacting the
proposed amendment to the Penal Code has taken too long for reasons not known to the
public which is regrettable considering that issues dealing with children require a prompt
action.20
The Commission recommends that the following new provisions be introduced in
the Act respecting procedure for determining the age of the child –
DETERMINATION OF AGE OF A CHILD
Application
The provisions of this Part shall apply to the determination
19
The Commission agreed that there should be no special rules for sexual offences as is currently the case
under the Penal Code.
20 The amendment Bill has been pending before Parliament since the year 2001
30
of this Part
of age for the purposes of criminal responsibility under section 14 of
the Penal Code and for the purposes of the Act21.
Age
estimation
by a probation
officer
(1)
If the age of a person brought before a probation
officer under section…..22 is not known, the probation officer
shall make an estimation of that person’s age.
(2)
For the purposes of subsection (1), a probation officer
shall obtain any relevant information as regards the age of the person
concerned and complete an age estimation form.
(3)
In making such an estimation, information available
shall be considered in the following order of cogency(a)
(b)
(c)
(d)
(e)
(f)
a birth certificate;
a previous determination of age under this Act;
statements from a parent, guardian, or person likely to
have direct knowledge of the age of the child;
a baptismal certificate or other religious records, school
registration forms, school reports, under five clinic
cards, and other information or document of a similar
nature if relevant to establishing a probable age;
an estimation of age by a medical practitioner; and
a statement by the person who claims to be a child.
(4)
The form referred to in subsection (2) shall be
available at the person’s appearance at a preliminary inquiry for the
purposes of age determination
by the inquiry magistrate in
23
accordance with section.......
Age
(1)
An inquiry magistrate shall, on all the available
information and with due regard to the provision of section24
at
........,make a determination of the age of the person, which shall preliminary
be recorded as the age of the person.
determination
inquiry
(2)
For the purposes of age determination, an inquiry
magistrate may require any documentation, information or
statements relevant to age determination from any person, body or
institution to be furnished.
21
The Commission proceeded on the assumption that the proposed amendments to section 14 of the Penal
Code shall have been passed by Parliament by the time this Report is published.
22
See provision on reference to a probation officer upon the arrest of a child
23
See age determination by inquiry magistrate
24
See provisions on age estimation by a probation officer especially subsection (3) thereof
31
(3)
If an inquiry magistrate determines that a person was,
at the time of the alleged commission of the offence with which the
person is being charged, over the age of eighteen years, he shall close
the preliminary inquiry and direct that the matter be transferred to
another court other than a child justice court
(4)
The age determined by the inquiry magistrate under
this section shall be considered as the age of the person unless
contrary information is placed before the inquiry magistrate or
court.
(1)
Where a person appearing in a criminal court other
than a child justice court alleges, at any stage before sentence, that
he or she was, at the time of the alleged commission of the determination
offence with which he or she is being charged, below the age
by an officer
of eighteen years, or where it appears to the court that the person
presiding in
may be below the age of eighteen years, the person shall be
a criminal
referred to a probation officer for estimation of age under
court other
section25...... which age estimation shall be submitted to the
than a child
presiding officer of the court.
Age
assessment
and
justice court
(2)
A presiding officer referred to in subsection (1)
shall make a determination of age on the same basis as an inquiry
magistrate under section26........
(3)
If the age of the person referred to in subsection (1) is
found to be below eighteen years and the trial has not yet
commenced, the presiding officer shall transfer the matter to a child
justice court.
(4)
If the age of the person referred to in subsection (1) is
found to be below the age of eighteen years and the trial has
commenced, the proceedings shall continue to be conducted before the
presiding officer, but the remainder of the proceedings shall be
conducted in accordance with the provisions of this Act.
(5)
The presiding officer concluding a trial in accordance
with subsection (4) may, after a finding of responsibility, refer the
matter to a child justice court for an order, if to do so is in the best
interests of the child.
25
26
See provisions on age estimation by a probation officer
See provision on age determination by inquiry magistrate
32
(6)
Where proceedings have started in accordance with the
provisions of this Act in respect of a person who is alleged to have
been below the age of eighteen years at the time of the alleged
commission of the offence with which the person is being charged, and
evidence is produced proving that the person was eighteen years of
age or older at such time, the inquiry magistrate or court shall(a)
(b)
(c)
(d)
(e)
if such person is appearing at a preliminary inquiry,
close the inquiry and refer the matter to the prosecutor
for arrangements to be made for that person to be tried
as an adult;
if a trial has not yet commenced, refer the matter to the
prosecutor for arrangements to be made for that person
to be tried as an adult;
if a trial has commenced, adjourn the trial and proceed
in an open court or transfer the matter to an
appropriate court.
if the trial has commenced and the offence is
otherwise triable by jury, terminate the trial and refer
the matter to an appropriate court.
if the person has been convicted, transfer the matter
to an appropriate court for that person to be sentenced
as an adult.
NEW PROVISIONS
DIVERSION
Diversion is a process of diverting an offender away from the normal criminal
justice system procedures. The notion is founded on the basis that the effects of
subjecting a child offender to a fully fledged criminal justice system are far more
devastating than diverting the offender from the system. The approach prevents
reinforcement of criminal experiences in child offenders. Once children are exposed to
the formal criminal justice system by appearing in court and being sentenced to custody,
they think of themselves as criminals and are likely to continue behaving like criminals.
Diversion is one of the fundamental principles of child justice system that the United
Nations instruments advocate. The Commission therefore recommends the introduction
of this principle in our child justice system.
The Commission noted that diversion is currently being practised although not
legitimised by legislation. As such, the innovation will not be wholly alien to the society.
The Commission therefore recommends that a new Part be incorporated in the Act that
will provide for diversionary procedures and programmes.
The Commission observed that there must be certain minimum requirements that
diversion must meet if the objectives are to be fulfilled. Firstly, the rights of the child
33
must be protected at all times. Therefore diversion must only occur when the available
evidence is sufficient to support prosecution. Secondly, the child, parent, guardian or
appropriate adult must consent to the diversionary programme after the child has
admitted, without undue influence having committed the offence . Further any
diversionary programme must always take into account the age of the offender and
sometimes the needs of the victim.
In order to achieve diversion in an orderly manner, the Commission recommends
the introduction of child panels at local level that will be responsible for the
administration of the diversionary programmes. Further to that, the Commission
recommends that diversion options should be clearly set out and categorised in a
Schedule to the Act. The Commission has therefore introduced such a Schedule at an
appropriate place in this Report .
Not all offences can be subject to diversion. There are some that are very serious
in nature and diverting such offenders is to defeat justice itself. The Commission
therefore recommends that a list of these serious offences should again be spelt out in a
Schedule to the Act and the Commission has at an appropriate place introduced such a
schedule.
In coming up with the list of serious offences, the Commission took into account
the fact that children, as vulnerable as they are, can be used in the commission of some
serious offences, where, in all probability, such children cannot be expected to have their
own premeditated guilty mind. Thus, such offences as treason, misprision of treason,
promoting war, inciting mutiny and piracy among others have not been included in that
list notwithstanding that the law treats them as serious offences. Children may therefore
be diverted in cases of these offences.
A question arose as to whether the Minister should be given power to amend this
Schedule. The Commission took the view that this is a matter of high principle and the
power to amend these Schedules should only be left to Parliament.
The provisions on the diversion scheme are to be as follows-27DIVERSION
Diversion to
occur in
certain
circumstances
A child suspected of being responsible for an offence
shall be considered for diversion if(a)
(b)
(c)
(d)
27
such child admits responsibility for
the alleged offence without undue influence;
the child understands his or her right to remain silent;
there is sufficient evidence to prosecute the child;
the diversion process and options have been explained
to the child, parent, guardian or appropriate adult and
The Commission had recourse to South African Child Justice Bill
34
(e)
Diversion
options
the child, parent, guardian or appropriate adult, if
such person is available, consents to the diversion
process; and
the offence is not one of the offences specified in the
…… Schedule 28.
(1)
For the purposes of this Chapter categories and the
range of diversion options are set out in the …… Schedule29.
(2)
In selecting a specific diversion option for a particular
child at a preliminary inquiry or in a court, consideration shall be
given to(a)
the selection of a diversion option from an appropriate
category in accordance with the …….Schedule ;30
(b)
the child’s cultural, religious and linguistic background;
(c)
the child’s educational level, cognitive ability, domestic
and environmental circumstances;
(d)
(e)
the proportionality to offence of the option
recommended or selected ;
the interests of society;
(f)
the child’s age and developmental needs;
(g)
whether the child is a repeat offender; and
(h)
any other peculiar circumstances relating to the child
(3) The Minister may, on the recommendation of the Board,
prescribe additional diversion options consistent with the provisions
of this Chapter.
Minimum
standards
applicable to
diversion
(1)
No child shall be excluded from a diversion
option on account of inability to pay a fee or charge
required for such programme.
(2) A child below the age of fourteen years shall not be
required to perform community service or any other service other
than service done in homes, vocational schools or other training
institutions, as an element of diversion.
(3)
Diversion options shall -
See the Schedule on offences that can not be diverted
See the Schedule on diversion options
30
Ibid
28
29
35
Registration
diversion
programmes
(a)
promote the dignity and well-being of the child, and the
development of his or her sense of self-worth and ability
to contribute to society;
(b)
not be exploitative, harmful or hazardous to the
physical, mental, spiritual and social development of the
child;31
(c)
be appropriate to the age and maturity of the child; and
(d)
not interfere with the education of the child.
(4)
Diversion options shall, where reasonably possible-
(a)
impart useful skills;
(b)
include restorative justice element which aims to heal
relationships, including the relationship with the victim;
(c)
include an element which seeks to ensure that the child
understands the impact of his behaviour on others,
including the victims of the offence, and may include
compensation or restoration; and
(d)
be provided in a location reasonably accessible to the
child, and a child who cannot afford transport in order
to attend a selected diversion programme should, as far
as is reasonably possible, be provided with the means to
do so by an authority or person identified at a
preliminary inquiry or identified by a child panel
(1) Every institution that provides diversion options in a of
predetermined and regular basis shall be registered with the
Minister.
(2) For the purposes of subsection (1), every such institution
shall specify the particulars of the diversion options provided at the
institution and any variations of the options or any additional options
shall be notified to the Minister for registration.
31
The Commission however noted the difficulties in measuring spiritualism but finally recommended to
include it after observing that it is also provided for under section 23 of the Constitution.
36
Establishment
of
child panels
(1)
each second
for(a)
(b)
There shall be a child panel within the jurisdiction of
grade magistrate court which shall be responsible
devising diversion options or diversion plans; and
implementing the diversion option or diversion plan,
for child offenders in that area.
(2) A child panel shall be composed of persons
nominated by the probation officer from amongst individuals in
the community representing the following:
(a)
(b)
(c)
(d)
(e)
the faith community;
Local Government;
chiefs;
teachers; and
health workers.
(3) If an area is served by a chief, the probation officer
shall consult the chief before nominating members of the child
panel.
(4) Members of the child panel shall perform the
functions on voluntary basis and shall hold the position for a period
of three years subject to re-nomination.
(5) A person nominated to fill a vacancy on a child panel
shall serve for the remainder of the term and shall be eligible for renomination.
(6) The probation officer shall act as secretary during the
proceedings of a child panel.
(7) A child panel may co-opt any reputable person to assist
in the proceedings.
Procedure of
child panels
(1) Subject to this section, a child panel shall regulate
its own procedure and shall make diversionary plans as it deems fit.
(2) Where a child has been referred to a child panel,
a probation officer shall be notified in writing of such referral by the
inquiry magistrate or court responsible for the referral of the child.
37
(3) Upon receipt of the notice, the probation officer or a
person designated by him shall convene a child panel within
fourteen days after receipt of the notice by(a)
(b)
setting the time and place of the child panel; and
notifying all members of the child panel.
(4) Failure to notify any person under subsection
(3) (b) shall not affect the validity of the proceedings of the child
panel unless the failure has materially affected the outcome of the
proceedings.
(5)
Where proceedings of a child panel fail to take place,
the probation officer shall arrange for an alternative date and shall
notify all members of the child panel.
(6)
The plan made by the child panel may include-
(a)
the application of any diversion option contained in the
….. Schedule ;32 and
any other resolution appropriate to the child, his family
and to the local circumstances which is consistent with
the principles contained in this Act.
(b)
(7)
(a)
(b)
(c)
(d)
(e)
A plan made by a child panel shallspecify the objectives of the plan and the period within
which they are to be delivered;
contain details of the services and assistance to be
provided for the child and for a parent or a guardian;
specify the persons or organizations to be provided with
such services and assistance;
state the responsibilities of the child and of the child’s
parent or guardian;
include such other matters relating to education,
employment, recreation and welfare of the child, as may
be relevant.
(8)
The probation officer shall record, with reasons, any
plan formulated at a child panel and shall furnish a copy of the
record to(a)
(b)
32
the child, parent, guardian or appropriate adult; and
a person entrusted to monitor the implementation of the
selected diversion option.
See the on Schedule on diversion options.
38
(9)
The probation officer shall, within seven days, submit a
record of the child panel proceedings to the inquiry magistrate or the
court which referred the child to the child panel.
(10) If no agreement on the plan is reached, the proceedings
shall be closed and the probation officer shall, within forty-eight
hours, refer the matter back to the inquiry magistrate or the court for
further consideration.
(11) The proceedings of a child panel shall be confidential
and statements made by any person shall not be used as evidence in
any subsequent proceedings before any court.
Victim-offender
mediation
or other
restorative
justice
(1)
Where a victim-offender mediation or restorative
justice process has been selected as a diversion option, a probation
officer shall convene the mediation and shall regulate its
procedure as he deems fit.
(2)
If the process fails whether for the reason that
the victim has not accepted the mediation or for any other reason, the
probation officer shall refer the matter back to the inquiry
magistrate, the court or the child panel as the case may be, for an
alternative diversion option.
Failure to
comply with
diversion
orders
(1)
If a child, who has been referred to diversion
fails to comply with any order relating to the diversion, the
inquiry magistrate may, upon being notified in writing of the
failure by the person entrusted to monitor the child or by a probation
officer, issue a warrant of arrest or a written notice in respect of the
child to appear before the inquiry magistrate or the court.
(2)
When a child appears before an inquiry magistrate or
court pursuant to a warrant of arrest or a written notice issued
under subsection (1), the inquiry magistrate or the court shall inquire
as to the reasons for the child’s failure to comply with the diversion
order.
(3)
The inquiry magistrate or the court may, after
consideration of the views of any person present at the inquiry -
(a)
apply the same option with altered conditions;
39
(b)
(c)
(d)
apply any other diversion option as described in the ….
Schedule ;33
make an appropriate order which shall assist the child
or his or her parents, guardian or appropriate adult to
comply with the diversion option initially applied;
recommend to the prosecutor that the matter be taken
to trial, in which case the matter shall be set down for
plea.
(4)
The execution of a warrant of arrest under this
section may be suspended by the inquiry magistrate or the court, and
the police officer required to execute the warrant may, instead of
arresting a child, invite him or her with a written notice to appear
before him or her for an assessment.
Monitoring
programmes
of diversion
Upon the selection of a diversion option in accordance
with this Chapter, an inquiry magistrate, a court or a child
panel shall identify a probation officer or any suitable person to
monitor the implementation of the selected diversion option.
Keeping
of records
The Board shall keep and maintain a register of children
diverted from prosecution.
LEGAL REPRESENTATION
One fundamental principles of criminal justice, is the right to legal representation.
The Malawi Constitution recognizes this by providing that every person has the right to
consult confidentially with a legal practitioner of his/her choice, to be informed of this
right promptly, and where the interests of justice so require, to be provided with the
services of a legal practitioner by the State34. Further, and as far as children are
concerned, the Children and Young Persons Act provides that a juvenile court may allow
a juvenile who is not represented by a legal practitioner to be assisted by his parents,
guardian or any relation or other responsible person in conducting his defence35.
33
See the Schedule on diversion option
Section 42(1) (c)
35
Section 14 (4)
34
40
Complementing the constitutional provisions, the Legal Aid Act makes provisions
for the granting of legal aid, at the expense of the State, to persons who cannot afford to
hire a private legal practitioner and, if the interests of justice require that the accused be
provided with legal aid36.
Internationally, the right to legal representation is recognized in several treaties.
The United Nations Universal Declaration on Human Rights declares that everyone
charged with a penal offence has the right to a public trial at which he or she must have
all the guarantees necessary for his or her defence37. Impliedly, this means that every
person charged with a penal offence has the right to a public trial at which he/she must be
afforded, inter alia, legal representation for the conduct of his defence. Further, Beijing
Rules provide for the right of a child offender to be represented by a legal practitioner or
to apply for legal aid if necessary38.
The Commission observed that despite these provisions, legal representation is
not readily available to children. There are several explanations to this deplorable
situation but the Commission noted that one of the reasons, is the lack of comprehensive
legislation on legal representation for children in Malawi. The Commission therefore
recommends that detailed provision on legal representation be developed and
incorporated in our juvenile justice system. To that effect, the Commission recommends
the introduction of new provisions in the Act that will specifically deal with legal
representation for children.
The new provisions are to be as follows-39
LEGAL REPRESENTATION
Access to
legal
representation
(1)
A child has the right to legal representation.
(2)
A child, parent, guardian or appropriate adult may
appoint a legal representative of their choice to provide legal
representation to the child.
(3) A person providing legal representation for a child
shall be a person who is qualified to practice as a legal practitioner or
any other person lawfully allowed to provide legal
representation under any written law.
(4)
Where a legal representative for a child is appointed in
accordance with subsection (2), liability for payment of fees for the
legal representation rests with the parents, guardian, or appropriate
adult or where the interests of justice so require, on the State.
36
Section 4 as read with section 5
Article 11
38
Article 15
39
The Commission had recourse to South African Child Justice Bill in order to come up with these
provisions
37
41
(5)
A child, parent, guardian, or appropriate adult has
the right to give instructions to a legal representative in the language of
their choice and, where necessary, with the assistance of an interpreter
Child to be
provided
with legal
representation
at certain
instances
(1)
Where a child is subject to criminal proceedings under
this Act and no legal representative has been appointed, legal
representation shall, upon conclusion of a preliminary inquiry, be
provided at State expense in accordance with the Legal Aid Act
if(a)
the child is remanded in detention pending a plea
and trial in court;
(b)
it is likely that an order involving a residential
requirement may be imposed;
(c)
in the opinion of the inquiry magistrate, it is in the best
interests of the child,
and the child , parent, guardian or the appropriate adult cannot
afford to engage the services of a legal representative.
(2) Where a child is subjected to care and protection
proceedings under this Act, and no legal representative has been
appointed, legal representation shall be provided at State
expense in accordance with the Legal Aid Act if in the opinion of
the magistrate, it is in the best interests of the child, and the child,
parent, guardian or appropriate adult cannot afford to engage the
services of a legal representative.
(3)
Where a child is charged with an offence contemplated
in subsection (1) (b), a plea may not be taken until a legal
representative has been appointed.
(4)
If the parent or guardian of a child who is granted
legal representation at State expense under this Act is ineligible for
legal representation at State expense due to the fact that the income of
such parent or guardian exceeds the means test applied by the Legal
Aid Act, the legal aid office may recover from the parent or guardian
the whole or part of the costs of the legal representation afforded to
the child.
Requirements
to be complied
(1)
A legal representative representing a child shall42
with by legal
(a)
representatives
(b)
Mode of
seeking legal
representation at state
expense
explain the rights and responsibilities of the child in
relation to any proceedings under this Act in a
manner appropriate to the age and intellectual
development of the child;
allow the child, if capable of doing so, to give the legal
representative independent instructions concerning the
case;
(c)
in matters of criminal proceedings, promote diversion
where appropriate, whilst ensuring that the child is not
unduly influenced to admits responsibility of the crime;
(d)
ensure that all proceedings are concluded speedily.
(1) Where a child requires legal representation at State
expense, the inquiry magistrate or the court shall request the
legal aid office to appoint a legal practitioner to represent the
child.
(2) Where a child is remanded in detention, the legal
representative shall, before the next court date, consult with the child
at the place where the child is being detained.
Child may
not waive
legal
representation
in some
circumstances
(1) A child in need of legal representation in accordance
with the provisions of section ...40shall not waive the right to
legal representation.
(2) Where a child referred to in section ....41declines
to give instructions to the legal representative, the probation officer
shall bring this fact to the attention of the inquiry magistrate or the
court, and the inquiry magistrate or the court, shall question the child
to ascertain the reasons for so declining and the inquiry magistrate or
the court shall note the reasons on the record of the proceedings.
(3)
If, after questioning the child under subsection (2),
the inquiry magistrate or court is of the opinion that the reason for
declining relates to the legal representative, the court or the inquiry
magistrate may request the legal aid office to appoint another legal
representative.
40
41
See provision of State expense for legal representation
See State expense for legal representation
43
Legal
assistance
(1)
If after questioning the child under subsection (2)
the child continues to decline the legal representation, the inquiry
magistrate or court may request the legal aid office to assist the child
at State expense.
(2)
A person legally assisting the child shall -
(a)
attend all hearings pertaining to the case;
(b)
address the court on the merits of the case;
(c)
give notice of intention to appeal against a finding of the
court or against an order following such finding; and
(d)
have access to the affidavits, statements or any other
materials of evidence relating to the case.
(3)
A person assisting a child may –
(a)
cross-examine any witness;
(b)
raise objections to the introduction of evidence .
PART II OF THE ACT
JUVENILES CHARGED WITH OFFENCES
The Commission noted that this Part deals mainly with procedural and
jurisdictional matters of a juvenile court. The Commission observed that in principle,
this Part should have established the court itself before coming to jurisdiction and
procedure provisions. The Commission therefore recommends that new provisions for the
establishment of a separate court system for children be introduced. The Commission
recommends that such court should be called “child justice court” and should be
established under a new Part, replacing Part 11 of the present Act, with the following
headingCHILD
JUSTICE
COURT:
ESTABLISHMENT,
JURISDICTION,COMPOSITION, PROCEDURE AND POWERS
With regard to this matter of child justice courts a number of points were raised
regarding the competence of officers both presiding over and assisting during child
justice proceedings. The Commission observed that although professional magistrates
have undergone legal training, they too would need some specialised training on how to
handle, most importantly, child witnesses in the courtroom before being designated by
the Chief Justice to preside over child justice courts.
44
The importance of specialised training for officers of child justice courts cannot
be over-emphasized. Indeed, as the Australian Law Reform Commission points out,
paediatric workers in the medical profession for example, undergo special training for
appropriate skills in dealing with children, and so too should those working in the legal
profession. The Australian Law Commission’s findings went further to reveal that most
lawyers, magistrates and judges are not trained in talking to children and lack the
necessary skills to elicit a coherent account from the child in court room interrogations42.
These observations are equally true in Malawi. Further, Beijing Rules provide that
professional education and refresher courses should be used to ensure that all personnel
dealing with juvenile justice cases maintain the necessary competence43.
Here in Malawi, the National Juvenile Justice Forum is already looking into
developing specialised training for officers of the juvenile justice system and it is
envisaged that eventually all professional magistrates and all magistrates of the first grade
would undergo such training so that the Chief Justice designates all of them as being
competent to preside over child justice courts.
The Commission however observed that the realities on the ground require lower
grade magistrates to preside over children matters in minor cases. In light of that, the
Commission recommends that in those cases, the Chief Justice should be able to
designate other lower courts to preside over the cases if satisfied with the competence of
the presiding officer.
The Commission further recommends that probation officers should similarly be
competent in handling children.
The recommendations are incorporated in the following provisions:
CHILD JUSTICE COURT: ESTABLISHMENT, JURISDICTION,
COMPOSITION, PROCEDURE AND POWERS
Establishment
of child
justice court
There shall be established child justice court which shall
be subordinate to the High Court and shall exercise jurisdiction
conferred on it by this Act or any other written law.
Composition
of child
justice court
(1)
A child justice court shall be presided over by a
professional magistrate or a magistrate of the first grade.
(2)
The Chief Justice, having been satisfied as to the
competence of the presiding officer, may designate a magistrate court
of any grade to be a child justice court and shall publish a notice of
the designation in the Gazette
42
Australian Law Reform Commission, Report No 84, Seen and Heard: Priority for Children in the Legal
Process. Human Rights and Equal Opportunity Commission p. 345.
43
Rule 22.1
45
(3)
A presiding magistrate shall, before commencement of
proceedings in a child justice court, ensure that a probation officer of
sufficient competence relevant to the requirements of this Act is
present throughout the proceedings.
SECTION 5
[Parent or guardian maybe required to attend court]
This section provides that where a child has been charged with an offence or is for
any reason brought before a juvenile court, his parent or guardian may be required to
attend the proceedings unless it is unreasonable so to do taking into account the
circumstances of the case. The Commission recommends retention of the provision
subject to a few textual changes to the effect that the ground for non-attendance need
not only be unreasonableness but also lack of necessity for such attendance as the
Commission envisaged some minor cases that could quickly be dealt with in the best
interests of the child without the presence of the parents or guardian. The Commission
also noted that where the presence of a guardian will not be possible for other reasons or
where the presence of a parent or guardian will be detrimental to the fair disposal of the
case, the court should be given power to appoint an appropriate adult in place of the
parent or the guardian or a specially court appointed guardian. The Commission therefore
recommends a new provision to that effect, as follows –
(1)
Where a child is brought before a child justice
guardian
court, as an accused person or for care and protection proceedings,
may be
his parent or guardian may in any case, and
shall, if they can be
required
found and resides within a reasonable distance, be required to
to attend attend all stages of the proceedings, unless the child justice
court
court is satisfied thatParent,
(a)
it is unreasonable or unnecessary to require the
attendance of such parent or guardian; or
(b)
it is in the best interest of the child that the parent
or guardian should not attend the proceedings.
(2)
Where it is unreasonable or unnecessary to require the
attendance of a parent or guardian or where the attendance of parent
or guardian will be prejudicial to the fair disposal of the case, taking
into account all preliminary findings of the case, the court shall
appoint an appropriate adult for purposes of subsection (1) to attend
the proceedings in place of the parent or guardian
SECTION 6
[Jurisdiction of juvenile courts]
The section provides that no charge against a juvenile shall be heard before any
court other than a juvenile court unless the offence is triable by the High Court or the
child is jointly charged with an adult. The Commission recommends that , unless the
46
offence is triable by the High Court, children should be tried separately from adult
offenders to ensure compliance with procedures under the Act. The Commission
conceded however that sometimes could be problems involved in separate trials such as
consistency in the hearing of witnesses, the preservation of real evidence, and other
similar logistical matters. Consequently, the Commission recommends that in such cases
the court should have power to sanction joint trials upon an application by the prosecutor.
The Commission therefore recommends that section 6 should be retained subject to
redrafting it but that a new provision on joint trials be introduced.
The two provisions are to read as follows:
Jurisdiction
of a child
justice court
(1)
Subject to subsection (2), a child justice court shall
have jurisdiction over children matters.
(2)
Where a matter involving a child is otherwise
supposed to be heard by the High Court, it shall be heard by the High
Court, but the High Court shall comply with the requirements of this
Act in respect of the child.
Separation
and joinder
of trials
involving
children
and adults
(1) Where a child and an adult are jointly charged
with an offence, the child shall be tried separately from the
adult, unless there are compelling reasons for
joinder of the trials.
(2)
An application for such joinder shall be directed to
the court after notice to the child, parent, guardian or the appropriate
adult and the legal representative of the child if available.
(3)
If the court grants an application for joinder of trials,
the matter shall be transferred to the court, in which the adult is to
appear.
(4)
The court to which the matter is transferred shall
afford the child concerned all the benefits conferred upon a child by
this Act.
JURY TRIALS IN CHILDREN MATTERS
The Commission deliberated on the issue of jury trials in children matters, which
is automatic in trials of homicide and aggravated robbery tried by the High Court. The
Commission was especially uncomfortable with jury trials for children particularly in
view of the ongoing debate which focuses on the undesirability of jury trials within the
Malawian context where illiteracy is very high. Apart from problems of illiteracy, the
Commission further observed that trial by jury defeats the internationally recognised
principle, which states that children should be tried in camera to avoid intimidation.
47
Additionally, the principle that in the best interests of children, only specialised
professionals should deal with their cases is compromised by jury trials whose
competence and comprehension level may be low.
The Commission further observed that internationally jury trials in children cases
is also being criticised. On that note, the Commission drew its attention to a United
Kingdom case of R v Thomas and Venables where eleven year old boys were convicted
after being tried by a jury for murdering a two year old child. On appeal, the European
Court of Human Rights condemned the whole process as unfair. In its judgement the
court said:
“Although special measures were taken in view of the applicants’ youth. For
example, the trial procedure was explained to them and they were taken to see the
courtroom in advance, and the hearing times were shortened so as not to tire them
excessively. Nonetheless, the formality and the ritual of the crown court must at
times have seemed incomprehensible and intimidating for an 11-year-old. There
was evidence that both applicants were suffering from post-traumatic stress
disorder as a result of what they had done to the two-year-old, and that they found
it impossible to discuss the offence with their lawyers. They had found the jury
trial distressing and frightening and had not been able to concentrate.”44
Following that ruling, the Law Reform Commission of England recommended
that children committing the offence of murder should no longer have to endure jury
trials, but should be dealt with by special hearings in the Youth Court with a Crown
Court (Criminal High Court ) Judge sitting with two Youth Court Magistrates.
The Commission however noted that jury trials have got their own advantages.
For instance, such trials speedily dispose off cases because a judge does not have to retire
after hearing the evidence in order to come up with a judgement. In light of this
advantage, the Commission at one point considered to maintain it with proper safeguards
in place. After a lengthy discussion, however, the Commission was not satisfied with any
set of safeguards that would allay the disadvantages cited earlier on.
In conclusion, the Commission noted that the disadvantages cited above outweigh
any advantages of jury trials in children cases. This process cannot be said to be in the
best interests of children, more especially those below fourteen years of age. The
Commission therefore recommends that jury trials in children matters below the age of
fourteen be abolished and instead these cases should be tried by a High Court judge
sitting alone in camera.45 To that extent, the Commission recommends that a new section
be inserted in the Act as follows:
NEW PROVISION
44
“Judgement ends children’s ordeal of adult jury trial” by Clare Dyer. Reported in the Guardian
Newspaper of Friday December 17, 1999 http://www.guardian.co.uk/Print/0,3858,3942712,00.html
45
The issue of assessors in place of a jury was considered but the Commission thought that in the end it
will defeat the same principle of favourable environment
48
Jury trials
in children
matters adult.
(1)
A child below the age of fourteen years shall not be
tried by jury except where the child is jointly charged with an
(2) The Court may, on application or on its own motion, order
trial by jury if it considers that trial by jury is necessary taking into
account the circumstances and facts of the case, and shall institute all
measures necessary to protect the best interests of the child.
(3) Where a child who is below the age of fourteen years is
charged with an offence which is otherwise triable by jury and that
he shall be tried without a jury in accordance with subsection (1), the
child shall be tried in camera by a High Court Judge sitting without a
jury.
SECTION 7
[Places of sitting of juvenile courts and persons who may attend]
This section provides for places of sitting of juvenile courts and persons who may
attend these court proceedings. The Commission noted that although the section provides
for a list of persons that should be allowed to attend the court proceedings, some
interested persons such as probation officers, teachers and community leaders ought to be
included in the list of those allowed to attend the proceedings. The Commission therefore
recommends that these groups of people should expressly be stated in the section. On
media practitioners, the Commission recommends that they should be allowed to attend
the proceedings only if they have been authorized by the court with or without conditions
Further to that , the Commission recommends that a provision should be made
under this section that would expressly require that where the juvenile court sits in the
same room and on the same day as the other ordinary courts, cases involving juveniles
should take precedence. This recommendation was made after realizing that most
juveniles are kept in detention places for longer periods than necessary due to huge
workload of cases against a limited number of court rooms. Section 7 therefore to read as
follows:
Subsection(1)
Retained
(2) A child justice court shall, save as otherwise provided in this
section, sit either in a different building or room from that in which sittings
of courts other than child justice courts are held, or on different days from
those which sittings of such other courts are held.
(3)
Where a child justice court sits in the same room, and on
the same day as other courts, child cases shall take precedence.
49
(4)
No person shall be present at any sitting of a child justice
court except (a)
(b)
(c)
(d)
(e)
SECTION 8
members and officers of the court;
parties to the case, their legal representatives and witnesses;
probation officers, teachers and community leaders that are
directly concerned in the matter;
properly accredited reporters of newspapers and other media
agencies as authorized by the court with or without conditions;
and
such other persons as the court may specially authorize to be
present.
[Restriction on newspaper reports of proceedings in a juvenile court].
The section makes provision for the restriction on newspaper reports of
proceedings in a juvenile court. The Commission discussed over this section and
recommends that in subsection (1) the word “newspaper” should be replaced with the
word “media” to extend its application to other forms of media channels.
Further, the Commission recommends that the power to dispense with the
requirements of this section should be in the exclusive hands of the court and not the
minister. The phrase “or the minister” which appears immediately after the word “court”
in the proviso to subsection (1) should therefore be deleted. Additionally the proviso
should be drafted as a subsection.
Under subsection (2), a fine of two hundred Kwacha will be imposed on any
person in contravention of the section. The Commission recommends that the fine be
increased to K100,000 for a publisher and K20,000 and imprisonment for six months in
the case of a reporter.
Further, the Commission recommends that in the best interests of children, the
courts should be given additional power to order payment of compensation to the child
who has been injured by the publication and that such complaint should be laid by the
injured child or any person or organisation acting in the best interests of the child. The
Commission therefore recommends insertion of subsections (4) and (5) to the section.
The section therefore to read as followsSubsection (1)
Retained subject to the changes as narrated and to separate the proviso su to
become subsection (2) as follows-
50
(2) A court may, if satisfied that it is in the interest of justice so to do, make
an order to dispense with the requirements of this section to the extent as may
specified in the order.
Subsection (3)
A person who publishes any matter in contravention of this section commits
an offence and is liable to;
(a)
(b)
if the person is a publisher, a fine of K100,000 ;and
if the person is a reporter, a fine of K20,000 and
imprisonment for six months.
New subsections
(4)
A court may in addition to ordering the publisher to pay a fine,
order payment of compensation to the child who has been injured by the
publication.
(5)
A complaint under this section may be lodged with the police
or directly with the court by the injured child, or his parents, guardian,
community representatives or any other person or organisation on behalf of
the child.
SECTION 9
[Removal of disqualification or disability on conviction]
The section provides that any finding of guilty of a child shall be disregarded for
the purposes of any written law by or under which any disqualification is imposed upon
convicted persons. The Commission recalled that a similar provision was proposed under
section 3 and therefore recommends that this one be deleted affirming that the provision
suites better in that earlier section.
SECTION 10 [Restrictions on punishment of juveniles]
The section provides for restrictions on punishment of juveniles. It provides
that a child (according to the current definition meaning a person below the age of
fourteen years) cannot be sentenced to imprisonment for any offence or in default of
payment of any fine, compensation, damages or costs. The section goes further and
provides that a young person can be imprisoned if it is proved that he is of an unruly
character that he cant be detained in an approved school.
The Commission recalled that during consultation, stakeholders bemoaned the
practice of sending children to prisons. They questioned whether this practice is in the
best interests of children. The Commission saw sense in this argument and therefore
51
recommends that under no circumstances should a child be imprisoned. Further, since
the proposed definition of “child” includes the current definition of “young person” the
Commission thought that there is no need of having this distinction as envisaged under
this section.
The Commission was aware of section 42 (2) (g) of the Constitution which
impliedly allows for imprisonment of a child but for the shortest period of time. It was,
however, the view of the Commission that that its recommendation that children should
not be imprisoned would be within the intention of this constitutional provision. In any
event, in view of this constitutional provision, there was need to prescribe by an Act of
Parliament the periods of imprisonment of children relative to categories of offences. On
this point, the Commission doubted if there could be consensus as to what periods could
be so prescribed.
Section 10 therefore to read as follows No child shall be imprisoned for any offence.
SECTION 11 [Punishment of certain grave crime]
This section provides for punishment of children who have been found guilty of
certain grave crimes like murder, manslaughter or offences under section 235 or 238 of
the Penal Code. It is provided that if so convicted, the child will be detained in a
detention place during the pleasure of the President. The Commission noted that this
provision has several procedural as well as administrative flaws. First, the Commission
was of the view that it is not appropriate for a child to be detained at the pleasure of the
President for the reason that it is possible to detain a child for longer a period than
necessary in such circumstances. The Commission recommends that instead of
detaining a child at the pleasure of the president, the child should be detained under such
conditions as the Board may generally or specifically direct.
Further, the Commission recommends that it will be for the best interests of a
child if these detention places are specifically mentioned in the provision. It was also
noted that the section does not give directions as to what would happen if a child so
detained has reached the age of eighteen. To that effect, the Commission recommends
that a subsection should be created stating that on reaching majority age while in custody
under this section, the child should be separated from the other children but under no
circumstances should the child be sent to prison.
The Commission further recommends that instead of making reference to the
Penal Code, a Schedule to the Act should be created that will specify the offences under
this section.
The section is therefore to be redrafted as follows Punishment
of certain
grave crimes
(1)
Where a child is found to be responsible for an
offence punishable by death, the court shall order him to be
detained at a reformatory centre under such conditions as the
52
Board shall generally or specially determine.
(2)
Where a child is found to be responsible for any of the
offences listed the ….. Schedule and the court is of the opinion that
none of the other methods by which the case may legally be dealt with
is suitable, the court may order that the child be detained for such
period as may be specified in the order.
(3) Where the court makes an order under subsection (2), the
child shall, during that period, notwithstanding any other provisions
of this Act, be liable to be detained in a place of detention other than a
prison and on such conditions as the Board may generally and
specially determine.”
(4)
Retain what is subsection (3)
(5)
A child detained in accordance with this section may
be discharged by the order of the President unconditionally or on
such conditions as the President, upon recommendations of the
Board, may direct.
(6) Where the child is discharged with conditions, the order
of discharge may, upon recommendations of the Board, be varied or
revoked by the President if the child is in breach of the conditions.
(7)
Where an order of discharge has been revoked by the
President , the person to whom the order related shall proceed to such
place as the Board my direct and if he fails to do so, may be
apprehended without warrant and taken to that place.
(8)
Where a child detained under this section attains the
age of eighteen years while in detention, he shall be separated from
the rest of the children or sent to another place of detention other
than a prison until the expiry of the remaining period of his or her
detention.
SECTION 12 [Power to order parent or guardian to pay fine etc instead of child]
Subsection (1)
The Commission recommends that this provision be retained. However, the
Commission observed that the provision was premised on the distinction between a
“child” and a “young person”, which appears in the current Act. In light of the proposed
definition of the child which includes a young person, the Commission recommends that
the subsection be revised to reflect this proposed change. The phrase “in such cases, and
shall, if the offender is a child” which appears immediately after the phrase “juvenile
court may” should therefore be deleted.
53
The Commission further observed that legally as well morally, parents should be
made responsible for the acts of their children whether or not they conduced to the
commission of the act in question. The Commission therefore did not see any justification
in connecting the payment of compensation by parents on behalf of a child, with the
parent’s contribution to the commission of the crime. The Commission therefore
recommends that the last sentence after the word “found” be replaced with the phrase “
or does not have the means to meet the award”.
Additionally, the section appears to be incomplete as to the consequences of the
parent not being found or not having the means to meet the award. In such case, the
Commission recommends insertion of the additional phrase “in which case the court
may make an alternative order” at the end of the sentence.
Subsection (2)
The Commission recommends that this subsection should be retained
Subsection (3)
The Commission recommends that this subsection should be retained .
Subsection (4)
The Commission recommends that this subsection should be retained .
Subsection (5)
The Commission recommends that this subsection should be retained .
SECTION 13 [Power of other courts to remit juvenile offenders to a juvenile court]
The Commission considered whether this provision would not be a repetition of
what has already been provided for under the new provisions on age assessment. The
Commission however observed that this is different from the proposed provisions on age
assessment in that it is providing for procedural and other incidental matters on
remittance of a case from other courts to a juvenile court for sentencing purposes. The
Commission therefore recommends that the provision be retained subject to redrafting as
followsPower of
other courts
to remit child
offenders to
a child
justice court
(1)
Any court other than the High Court before which
a child offender is found to be responsible for an offence shall,
unless the best interests of the child require otherwise, remit the
case to a child justice court.
(2) The child justice court to which the case of a child is
remitted under subsection(1) shall deal with the child as if he had
54
been tried and found to be responsible for the offence by that child
justice court.
Subsection (3)
Retain subsection (2)
Subsection (4)
Redraft subsection (3) as followsA court making an order remitting a case to a child justice court
under this section may (a)
direct that the child be detained in a reformatory centre or be
released on bail until he or she can be brought before a child
justice court;
(b)
transmit to the child justice court to which the case has been
remitted, a certificate setting out the nature of the offence and
stating that the case has been remitted for the purpose of being
dealt with under this section; or
(c)
make an order as the child justice court may make under
section…46
SECTION 14 [Procedure in a juvenile court]
This section provides for a detailed procedure to be followed in juvenile courts
(now child justice courts) .The Commission recommends that in addition to what is
provided for, the provision should also provide for the court environment, which should
be as informal as possible in order to remove the air of intimidation. In addition, the
Commission recommends that children with disabilities should be provided with their
special needs if necessary. To that extent, the Commission recommends that(a)
(b)
(c)
(d)
no person should appear in uniform or professional robes unless it is
necessary for the child to make an identification .
the proceedings should be in a form of round table discussion;
technical language should not be used during the hearing;
the court should ensure that there are regular breaks.
Further, the Commission recommends that subsection 15 should be deleted in
view of the proposed section 5(2).Section 14 therefore is to read as followsSubsection (1)
The Commission recommends retention of this subsection.
46
See provision under “ power to order parent guardian to pay fine.”
55
Subsection (2)
Add the words “or does not admit” immediately after the word “admits.”
Subsection 3 up to 14
Retained subject to re-numbering.
Subsection 15
Deleted
New section
The proceedings of a child justice court shall be informal and in particular,
the court shall ensure that(a)
(b)
(c)
(d)
(e)
technical language is not used during hearing;
no person puts on official uniform or professional robes or dress save
only if it is strictly required for the child to make an identification or
for purposes of evidence as the court may authorise;
the proceedings are conducted in a form of round table discussion;
there are regular breaks with necessary provisions for the child, as
the Minister may prescribe by regulations;
children with disabilities are accorded assistance to meet their special
needs where necessary.
SECTION 15 [Presumption as to age]
The section provides that the court shall, based on appearance, presume the age of
a person brought before it. The Commission recommends that the provision be deleted in
view of the new provisions on age determination.
SECTION 16 [Powers of Juvenile court on proof of offence]
The section provides for powers of a juvenile court once it is satisfied that an
offence has been proved. The Commission recommends that the provision be retained
subject to minor changes as followsSubsection(1)
To start with the admission aspect and to add the phrase “in so far as it is
consistent with this Act” immediately after the word “force’ as follows-
56
“Where a child admits the facts constituting the offence or where a child
justice court is satisfied that an offence has been proved, the court shall, in
addition to any other powers exercisable by virtue of this Act or any other
written law for the time being in force, in so far as it is consistent with this
Act, have power …..
Paragraph (a)
The Commission recommends that the word “acquit” be deleted since this word
is only used when the case has not been proved. This provision should be redrafted as
followsto discharge the offender unconditionally
Paragraph(b)
Retained
Paragraph (c)
Retained
Paragraph (d)
Retained
Paragraph (e)
This provision empowers courts to make probation orders placing the offender
under supervision of a probation officer or some person for a period of not less than one
year and not more than three years from the date of the order. In terms of the
requirements of the Act, such order is supposed to be reviewed periodically by the court
that made the order. The Commission, however, expressed its concern that in practice
these orders are not reviewed as required as required by the Act.
The Commission agonized on whether in order to avoid this practice, the
minimum period should be reduced. The Commission was however advised by social
workers that any period of less than one year is not enough for a child to change and
internalise behaviour and a probation officer cannot observe and determine behavioural
change in any period of less than one year. The Commission therefore recommends that
the solution is to create a provision requiring probation officers or the appointed persons,
as the case may be, to submit regular reports to the court on the developments of the
child’s behaviour.
The Commission therefore recommends the addition of the following sentence
immediately after the word “therein in (e) “and to require the probation officer or the
appointed person as the case may be to be submitting regular reports to the court on
the development of the child’s behaviour”.
57
Paragraph(g)
The Commission recommends that the phrase “where the court is of the
opinion that corporal punishment is appropriate” be deleted since corporal punishment is
now unconstitutional, and to add the phrase “where appropriate” immediately after the
word “sentence”. Further, the word sentence should be replaced with the word “order”.
Paragraph(h)
Retained.
Paragraph(i)
This provision empowers the court to order imprisonment for children who are
above fourteen years if they are of so unruly a character. The Commission recommends
that the provision be deleted in order to emphasize its earlier position that children should
never be sent to prison.
The Commission further recommends that in view of the proposed provision on
diversion, the court should be conferred with powers of committing a child to a diversion
programme.
A new provision therefore is to be created as follows;
New provision
to commit the offender to a diversion programme
Subsection (2)
The Commission recommends retention of this provision but to substitute the
phrase “ ten years” with “fourteen years” so that the provision is in line with the earlier
recommendation on age of criminal responsibility.
Subsection (3)
The Commission recommends that the subsection be retained but that the phrase
“under this section” be added immediately after the word “decision” so that the
provision should not be construed as being of general application.
SECTION 17. [Approved school orders and other orders for detention.]
This section, provides for approved school orders as sufficient authority for the
detention of a child offender in an approved school or approved home or otherwise.
58
The section however, does not require courts to specify the period for the
detention except that for children aged sixteen years and above, the period shall not
exceed 2 years.
The power to determine the duration is given to the Board under section 28 of the
Act. The Commission discussed this provision especially in light of the constitutional
provision that a child should be detained for the shortest period of time as possible. The
Commission saw sense in leaving this power to the Board because the Board is better
placed to observe the child’s behavioural change. However, the Commission noted that
there can be possibilities of abuse or oversight and a child might be detained for a longer
period than necessary contrary to the requirements of the Constitution. At one point, the
Commission was of the view that the provision should require courts to impose time
limits in the order and that the power of the Board should be limited to extending the
order with leave of the court. However, the matter was left to be decided after further
consultations with other relevant people including the chairman of the Board47.
On his part, the Chairman said that the current position of indefinite terms is, in
practice, not totally inconsistent with the principle of “best interests of the child” due to
the fact that a child may be detained a bit longer in order to further his educational or
vocational skills at these places of detention. He said this would not be possible if courts
were to specify period for the detention. The Commission recommends that for that
reason, and in order to avoid unwarranted long detentions, a new provision should be
added that will make the assessment of the child’s development more frequent and
practicable as follows:
The manager of a reformatory centre shall assess the progress of each child
under his or her control and shall submit the monthly assessment reports for each
child to the Board for the purposes of section…48
Further , the Commission noted that if indeed the release of children from
detention places is dependent upon the child’s rehabilitation progress, then the phrase “
until he attains the age of 18” that appears in subsection(1) of the section is superfluous
and should be deleted. Similarly, paragraph (a) of the section should be deleted.
Additionally, the Commission recommends that the power to amend the approved
school order (now reformatory centre and safety home order), which is currently
conferred on the Minister, should be conferred on the Chief Justice. A new provision to
that effect to be drafted as follows:
The Chief Justice may by notice published in the Gazette amend the …
Schedule49
47
Justice E. Twea was the chairman of the Board of visitors at the time of the review.
See provisions on “powers of the Board”
49
See the Schedule on reformatory and safety home orders
48
59
The rest of the section is to be retained subject to the recommended changes as
follows Subsection(1)
To add the word “and rehabilitation” after the word “detention and to delete the
phrase “ until he attains the age of 18” and paragraph (a)
Subsection (2)
The Commissions recommends deletion of the last sentence starting with “or
such other form…”
Subsection(3)
The Commission reiterated its earlier position that children should never be
imprisoned. This subsection therefore is to be deleted.
Subsection (4)
The Commission recommends that this subsection should be retained.
SECTION 18. [Escape from custody and breach of condition]
The Commission recommends that this provision be retained but emphasized that
escaping from custody should not be treated as an offence as far as children matters are
concerned but only as a mere deviant behaviour, which can be treated through
rehabilitation programmes. To that effect, the phrase “ but the escape shall not
constitute a criminal offence” be added at the end of subsection (1).
SECTION 19. [Appeals and review]
The Commission recommends that subsection (1) be retained subject to deleting
the word “sentence” immediately after the word “judgement” so that the section is in line
with the earlier recommendation that the word “sentence” should not be used in child
cases. The Commission further recommends that the phrase “prefer an” immediately
after the word “may” be deleted. The Commission also noted that subsection (2) was
dealing with matters in a situation where a child offender has been sent to prison. In view
of the Commission’s earlier proposal that children should not be sent to prison, this
section becomes redundant and therefore should be deleted.
PART III
JUVENILES IN NEED OF CARE, CONTROL OR SUPERVISION
60
This Part makes provisions for the general supervision and care of children. By
definition, child care and protection entails the duty owed by parents, the community and
the State to provide basic necessities for the care and protection of children, which would
guarantee a reasonably secure development of the child.
The duty to care and to protect children has different but inter-related settings.
There is the family setting which involves the duty owed by parents, relatives and other
family members towards their children. The Commission observed that, naturally,
children are supposed to be raised by their families. It is important that any legislation
emphasizes this position. However, situations might arise where it is not possible, for
various reasons, that children should be raised by their families. In those situations, the
law should make provisions for substitute care and protection. Substitute care and
protection entails among other things fosterage, residential placement, placement with a
guardian and adoption. Further, governments have a duty to assist parents in providing
child care and protection.
The Commission observed that Part 111 of the Children and Young Persons Act
is not comprehensive in that it does not cover all matters associated with child care and
protection. The Commission therefore recommends that this Part be expanded.
In addition to the provisions of the Children and Young Persons Act, laws relating
to child care and protection are scattered over several statutes. The Affiliation Act50
makes provision for the maintenance of children born out of wedlock. The Married
Women (Maintenance) Act51 makes provision for the maintenance of married women
together with their children. The Commission observed that none of these provisions is
comprehensive enough for the purposes of child care and protection. The Commission
therefore recommends the development of provisions that will comprehensively address
all matters that are related to child care and protection. The Commission recommends
that such laws should as much as possible cover the following issues:
•
•
•
•
•
•
•
•
Care and protection of children by the family
Children in need of care and protection
Guardianship
Fosterage
Residential placement
Powers and procedure of child justice courts in care and protection matters
Duties and functions of local authorities in child care and protection
Protection of children from undesirable practices.
Adoption of a child is provided for under the Adoption of Children Act52. The
Commission recommends that although adoption is part of child care, the status quo be
maintained since the area is very wide. However, it was observed that there is need to
50
Cap 26: 02 Laws of Malawi
Cap 25:05 Laws of Malawi
52
Cap 26: 01 Laws of Malawi.
51
61
improve the Act in some areas. To that effect, the Commission has, at an appropriate
place in the Report, recommended some amendments to the Adoption of Children Act53.
CHILD CARE AND PROTECTION BY THE FAMILY
The general duty of care and protection of children in a family is that of parents
or guardians. The Malawi Constitution provides that each member of the family shall
enjoy full and equal respect and shall be protected by law against all forms of neglect,
cruelty or exploitation 54. The Constitution further provides that children are entitled to
know and be raised by their parents and to be protected from economic exploitation or
any treatment, work or punishment that is or is likely to be hazardous or harmful to their
health or to their physical, mental, spiritual or social development 55.
The Commission observed that child care and protection by the family is not
provided for by the Children and Young Persons Act which, of course predates the
constitutional provision referred to. . The Commission therefore recommends the
introduction of provisions on care and protection by the family. The Commission,
however, realised that care and protection by the family cannot be fully realized unless
the following terms and concepts are properly defined or provided for•
•
•
•
•
(a)
parent
parental responsibilities
children’s responsibilities and rights
proof of parentage
application for maintenance where there is neglect or refusal of parental
responsibilities.
Definition of “parent”
The Commission observed that parent has been defined by statute according to the
purpose of each legislative scheme. For example, the Education Act defines “parent” to
include “a guardian whether by customary law or otherwise and every person who has the
actual custody of the pupil or child”56 . The Public Health Act defines “parent” to
include “ a father and mother of a child whether legitimate or not”57. Instead of defining
“parent”, the Children and Young Persons Act has defined “guardian” as “any person
who, in the opinion of the court having cognizance of any case in relation to the juvenile
or in which the juvenile is concerned, has for the time being charge of or control over the
juvenile”58. The Commission noted that this definition impliedly includes “parent”.
However, the Commission recalled its earlier recommendation that the term “guardian”
53
The Married Women (Maintenance) Act is being reviewed by the Gender Commission.
section 22 (2)
55 section 22
56 section2
57 section 2
58 section 2
54
62
should be redefined as “any person who for the time being has legitimate custody, care or
control of a child in place of a parent” 59.
The Commission was of the view that the current definition of “guardian” which,
makes reference to court cases does not cover children in need of care and protection .
Further, the Commission observed that the difference between “guardian” and “parent”
should be highlighted in the definitions of the two terms. The Commission however did
not attempt to define “parent” at that time. The Commission therefore recommends that
“parent” be defined for purposes of determining parental responsibilities towards their
children. The definition should take into account the fact that in its common and ordinary
usage the term” parent” comprehends much more than the mere fact of who was
responsible for child’s conception and birth. The term “parent” may refer to person or
persons who share mutual love and affection with a child and who supply child support
and maintenance, instruction, discipline and guidance. In view of this the Commission
recommends that for the purposes of child care and protection, the term “parent” should
have a wide definition. The Commission has therefore defined “parent” at an appropriate
place in this Report.
(b)
Parental Responsibilities
The concept of parental responsibility entails all the incidents whether rights,
claims, duties, powers or authority, which should be conferred upon parents for the
purposes of ensuring the moral and material welfare of children. The Commission was of
the view that recognizing parental responsibilities in the statute is indispensable to the
full realization of child care and protection by parents. The Commission was however
aware of the practical difficulties of listing down parental responsibilities in a statute
book. First, the Commission observed that it is almost impossible to have an exhaustive
list of such responsibilities and, secondly, these responsibilities must change with time to
meet differing needs and circumstances. Nevertheless, the Commission maintains that
was very important that some of the basic responsibilities be listed down. The
Commission therefore recommends that a provision be drafted that will stipulate basic
parental responsibilities and duties.
The Commission then discussed at length as to what would be the basic
responsibilities and duties of parents towards their children. At the end, it was agreed
that for the purposes of ensuring the moral and material welfare of the child, a parent
should at all cost be able to –
•
•
•
protect the child from neglect, discrimination, violence, abuse, exploitation,
moral hazards and oppression
provide proper guidance, care, assistance and maintenance for the child to
ensure his or her survival and development
register births of their children.
The Commission was also aware that the overall objects of laws relating to
59
see the recommendations on child justice
63
children is to ensure that children become productive adults, able to take their place in the
community. This cannot be attained unless the law is clear on the duties and
responsibilities owed by children towards their parents and the community. The
Commission recognized the importance of teaching children the sense of responsibility
at an early age. The Commission therefore recommends that apart from the provision on
parental responsibilities, another provision be drafted on duties and responsibilities of
children.
(c)
Proof of parentage
In order to assign parental responsibilities, it is necessary to determine parentage
where the parentage is not known or disputed. This becomes necessary more often when
the child is illegitimate. In Malawi, there are no general provisions for proof of
parentage. Nevertheless, proof of parentage is required under affiliation proceedings.
Affiliation proceedings are provided for by the Affiliation Act. The Act was promulgated
to make provisions for the maintenance of illegitimate children. The following matters
are covered under the Act•
•
•
•
•
Summoning of the putative father
Maintenance orders
Enforcement of maintenance orders
Duration of maintenance orders and
Custody of illegitimate children
It is noteworthy that, in totality, the Affiliation Act makes provisions for
illegitimate children, which are less favourable than the provisions applicable to
legitimate children. The Commission was of the view that making special provisions
which are less favourable for illegitimate children is to discriminate children on the basis
of status. Other writers have defended this position by arguing that naturally, people are
not supposed to have illegitimate children in the first place, but when they do, an
emergency machinery should be set into operation to give the child a status and to define
the positions of the parents. They argue that since the child was born out of marriage,
this status should in all circumstances be an inferior one. The Commission did not give
much credence to this argument. The Commission’s counter- argument was that giving
an inferior status for illegitimate children is to punish children for the sins of their
parents. More importantly, the Commission was guided by the constitutional provision,
which states that all children, regardless of the circumstances of their birth are entitled to
equal treatment before the law 60.
In other words, for purposes of parental responsibility, the circumstances of the
child’s birth should be irrelevant. A child whether born out of marriage is entitled to
equal treatment in all matters affecting him or her. It is in light of this position that the
Commission recommends the repeal of the Affiliation Act.
60
Section 23(1)
64
The Commission was, however’ aware that situations will still arise whereby
parentage will have to be determined regardless of the existence or non-existence of
marriage. Similarly, applications for maintenance will always be necessary regardless of
the existence or non-existence of marriage. In view of this observation, the Commission
recommends that detailed provisions on determination of parentage and on application
for maintenance be drafted. Among other things, the provisions should ensure that(a)
(b)
applications for determination of parentage are extended to children,
guardians and other relevant people;
applications for maintenance should be entertained regardless of the
existence or non-existence of marriage.
The Commission therefore recommends that provisions on parental
responsibilities, child responsibilities, determination of parentage and applications for
maintenance should be under one chapter as follows –
CHILD CARE AND PROTECTION BY THE FAMILY
Parental duties
and
responsibilities
(1)
welfare.
A parent or guardian shall not deprive a child of his
(2)
A parent or guardian have responsibilities
whether imposed by law or otherwise towards the child which include
the responsibility to (a)
(b)
(c)
(d)
protect the child from neglect, discrimination, violence,
abuse, exploitation, oppression and exposure to
physical, mental, social and moral hazards;
provide proper guidance, care, assistance and
maintenance for the child to ensure his or her survival
and development, including in particular adequate diet,
clothing, shelter and medical attention;
ensure that during their temporary absence, the child
shall be cared for by a competent person;
exercise joint primary responsibility for raising their
children,
except where the parent or guardian has forfeited or surrendered his
rights and responsibilities in accordance with the law.
(3)
A parent or guardian shall be responsible for the
registration of the birth of his children.
(4)
The fact that a parent or guardian has parental
responsibility for a child shall not entitle him to act in any way which
would be incompatible with any court order made in respect of the
child.
65
(5)
Subject to this Act, a person who does not have parental
responsibility for a particular child but has care of the child may do
what is reasonable in all the circumstances of the case for the
purposes of safeguarding or promoting the child’s welfare.
(6)
Where it is more than one person that have parental
responsibility for a child, each of them may act alone and without the
other (or others) in meeting that responsibility, but nothing in this
Chapter shall affect the operation of any law which requires the
consent of more than one person in a matter affecting the child.
Child duties
and
responsibilities
In the application of the provisions of this Act, and in
any matter concerning a child, due regard shall be had to the
duties and responsibilities of the child to –
(a)
(b)
(c)
(d)
(e)
respect the parents, guardians, superiors and elders at
all times and depending on the age of the child assist
them in cases of need;
serve the community by placing his or her physical and
intellectual abilities at its service;
preserve and strengthen social and national unity and
character of Malawi;
uphold the positive values of the community; and
contribute towards the child’s own development into
being a useful member of the society,
but due regard shall be paid to the age and ability of the
child and to such limitations as are contained in this Act”61.
Parentage
(1)
Where parents are not known or where parentage is
disputed, the following persons may apply to a child justice court for
an order to determine the parentage of a child(a)
(b)
(c)
(d)
(e)
the child;
the parent of the child;
the guardian of the child;
a probation officer;
a Social Welfare Officer,
or any other interested person as the child justice court may deem fit.
(2)
The application for parentage may be made(a)
before the child is born; or
61 The Commission had recourse to the Children’s Protection and Welfare Act 2004 of Lesotho and the
Children Act of England.
66
(b)
before a child is eighteen years of age or after the
child has attained that age but with special leave of a
child justice court or High Court.
(3)
For the purposes of succession and inheritance, the
application for parentage shall be made within three years after the
death of the father or mother of a child.
Evidence
of
parentage
(1)
The following shall be considered by a child justice
court as evidence of parentage(a)
(b)
(c)
(d)
(e)
the name of the parent entered in the register of
births;
performance of a customary ceremony towards the
child by the purported father of the child;
refusal by the purported father to submit to medical
test;
public knowledge of parentage; and
any other matter that the child justice court may
consider relevant.
(2)
The child justice court may order the putative father to
submit to a medical test.
Determination
of parentage
The child justice court shall, on the basis of the evidence
under section62 …..determine whether or not the alleged parent is the
parent of the child.
Custody and
access
(1)
A parent, a family member or any other appropriate
person may apply to a child justice court for custody of a child.
(2)
A family member or any other appropriate person may
apply to a child justice court for periodic access to the child.
(3)
The child justice court shall consider the best interests
of the child and the importance of the child, on account of age, being
with his mother when making an order for custody or access.
(4)
In addition to the matters under subsection (3), a child
justice court shall consider (a)
(b)
(c)
62
the views of the child;
that it is desirable to keep siblings together; and
any other matter the child justice court may consider
relevant.
See provision on evidence on parentage
67
(5)
Upon application for custody or access under this
section, the child justice court may make an order granting the
applicant custody or the access to the child and may attach such
conditions as the court may consider appropriate.
Application
for
maintenance
(1)
Where a parent or any other person who is legally
liable to maintain a child or to contribute towards the maintenance
of the child, neglects to maintain the child or to make the
contribution, the following persons may apply against such person to
the child justice court for a maintenance order of the child(a)
the child;
(b)
the parent of the child;
(c)
the guardian of the child;
(d)
relatives of the child;
(e)
a Social Welfare Officer;
(f)
a police officer;
(g)
a teacher;
(h)
a health officer; and
(i)
any other appropriate person.
Consideration
for
maintenance
A child justice court shall consider the following when
making a maintenance order(a)
(b)
(c)
(d)
(e)
(f)
the income and wealth of both parents of the child or of
the person legally liable to maintain the child;
any impairment in the earning capacity of the person
with a duty to maintain the child;
the financial responsibility of the person with respect to
the maintenance of other children;
the cost of living in the area where the child resides;
the rights of the child under this Act; and
any other matter, which the child justice court may
consider relevant.
Request for
social
inquiry
report
A child justice court may request that a social welfare
officer prepare a social inquiry report on the issue of maintenance
and submit the report to the child justice court for consideration
before the child justice court makes the maintenance order.
Maintenance
order
A child justice court may award maintenance to the child
and the maintenance order may include the following(a)
(b)
periodic expenses for the child;
a periodic allowance for the maintenance of the child,
and
68
(c)
Attachment
order
the payment of a reasonable sum to be determined by
the child justice court for the education of the child.
(1) Where periodic payment or lump sum payment for the
maintenance of a child has been ordered, the child justice court
may order that the earnings, salary or property of the person liable,
be attached.
(2)
The attachment order shall be applicable in all cases of
failure to pay maintenance.
(3)
The attachment order may be directed to the employer
to deduct the sum of the maintenance funds every time payment of the
salary is made.
(4)
If the maintenance order is made before the birth of the
child or within two months after the birth of the child, such payment
may, if the court thinks fit, be calculated from the birth of the child.
Persons
entitled to
receive
maintenance
funds
(1)
A person who has custody of a child who is the subject
of a maintenance order, under the Act is under a duty to receive
and administer the funds on behalf of the child.
(2)
A copy of the maintenance order shall be served on the
public officer or the local government officer responsible for children
welfare in the area.
(3)
The public officer or the local government officer shall
make quarterly reports to the child justice court that made the order
on the way funds are being administered.
Duration of
maintenance
order
(1)
A maintenance order made in pursuance of this Act,
shall, except for purposes only of recovering money previously
due under such order cease to be of any force or validity(a)
(b)
(c)
Continuation
of
63
after the death of the child;
after the marriage of the child;
after the child has attained the age of eighteen years.
(2)
A maintenance order may lapse before the child
attains the age of eighteen years if before that age the child is gainfully
and permanently employed.
(1)
Notwithstanding the provisions of section …..63 a
child justice court may continue or order a resumption of
See provisions on duration of maintenance orders.
69
maintenance
orders
a maintenance order after the child has attained the age
eighteen years if the child is engaged in education or training
after that age, up to obtaining his or her first university qualification
where applicable.
(2)
An application under this section may be brought by
the chid, a parent or guardian, or any other person who has custody
of the child.
Variation
or discharge
orders vary
Enforcement
of
maintenance
orders
A child justice court may, if satisfied that the interests of
the child will be better protected or will not be adversely affected, of
or discharge, as the case may be, a maintenance order on the
application of the child, a parent, guardian, the person having
custody of the child or any other person legally liable to maintain the
child.
Maintenance orders shall be enforced thirty days after
the order is made, but a child justice court may in appropriate
circumstances, make an order for a longer period.
Unless the child justice court orders otherwise, the responsibility
responsibility to maintain a child as between parents and guardians
to maintain
shall be joint and several.
Joint
a child
Maintenance
during
matrimonial
proceedings
The child justice court shall have power to make a
maintenance order against either parent or both parents where
proceedings for nullity, judicial separation, divorce or any other
matrimonial proceedings are filed by either parent and such
order may be made during proceedings or after a final decree is made
in such proceedings.
Whenever a maintenance order is made under this Act, make
the child justice court may, at the time of making the order, or maintenance
from time to time thereafter, on being satisfied that the person funds to be
having custody of the child-
Power to
paid to a
person other
than the
applicant
(a)
is not or has ceased to be a fit and proper person to
receive any maintenance funds specified in the order
in respect of the child;
(b)
has left the jurisdiction of the child justice court for an
indefinite period;
70
(c)
is dead or is incapacitated or has become of unsound
mind;
(d)
has been imprisoned or has been declared insolvent;
(e)
has misappropriated, misapplied or mismanaged any
maintenance funds paid to him or her for the benefit of
the child;
(f)
has otherwise committed an offence under this Act,
appoint any other person it considers fit and responsible to receive
and administer any maintenance funds required to be paid under a
maintenance order, or order the person required to make a payment
of the maintenance funds to invest the funds in whole or in part in
trust for the benefit of the child.
(1)
A person who, being liable to maintain a child under a
maintenance order, fails to maintain the child in respect of food,
clothing, health, basic education and reasonable shelter, commits an
offence and –
Offences
(a)
(b)
on first conviction, shall be liable to pay the
maintenance order;
on the second or every subsequent conviction for
continuous failure to maintain the child, shall be liable
to imprisonment for one year.
(2)
A person who misapplies funds paid under a
maintenance order commits an offence and shall be liable to a fine of
Fifty Thousand Kwacha and to imprisonment for one year.
CHILDREN IN NEED OF CARE AND PROTECTION
A child is considered to be in need of care and protection where it is believed that
the child is at risk because he/she is experiencing or likely to experience such things as •
•
•
•
•
physical or sexual abuse;
violence or conflict between parents or guardians;
emotional or physical neglect;
behaviour which is beyond the control of the child, parents or guardians;
general lack of stable or adequate care and protection.
The law on child care and protection should aim at allowing the State, the
71
courts, community members, social workers and the police to intervene in the lives of
families if a child is or is likely to experience such harmful acts or omissions.
Under the current legislative regime, the Children and Young Persons Act makes
provision that a child is considered to be in need of care and protection whenever the
child, having no parent or guardian or a parent unfit or unable to exercise proper care and
guardianship, or not exercising proper care and guardianship, is either falling into bad
associations, or exposed to moral or physical danger or is beyond control.64 Exposure to
moral danger is assumed whenever a child is found destitute, or is found wondering
without any settled place of abode and without visible means of subsistence, or is found
begging or receiving alms, or is found loitering for the purpose.65 Any administrative
officer, police officers of or above the rank of sub-inspector, Social Welfare Officer or
any other person appointed by the Minister for the purpose, may apprehend and bring
before a juvenile court any person whom he has reason to believe to be a juvenile in need
of care, control and supervision.66 Parents, guardians may also bring a juvenile before a
court if they are unable to control the juvenile.67
The Commission observed that looking at the scope and purpose of the proposed
legislation, the current provisions fall short of the required standards. The Commission
recommends that while maintaining the spirit of the current provisions, the new Act
should be as broad as possible and should cover the following•
detailed provisions on determination of children in need of care and protection
based on the following grounds(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
evidence or substantial risk of sexual abuse and physical, psychological or
emotional injury;
neglect, unwillingness or inability by the parent or guardian of the child to
take proper care and control of the child;
if the child has no parents or guardians or has been abandoned by the
parents or guardians;
if the child is in need of the medical attention and the parents or the
guardians are unable , unwilling or neglects to take the child for such
medical attention;
if the child behaves in a manner that is, or is likely to be, harmful to the
child or to any other person and the parents or guardians is unable or
unwilling to control the child;
if the child is living in an unstable family environment;
if the child is in contact with undesirable people or places;
if the child is found loitering in the streets with the purpose of carrying out
undesirable practices; and
if the child cannot generally be controlled by the parents or the guardians.
64
Section 20(1)
Ibid
66
section 23,
67
section 21,
65
72
•
detailed provisions on(a)
(b)
(c)
(d)
the functions and powers of child justice courts over children in need of
care and protection;
medical treatment where there is evidence that the child is in need of such
medical attention;
duties of health workers, family members, child care providers and
community members towards children in need of care and protection;
methods of bringing a child in need of care and protection before child
justice courts or places of safety.
The Commission therefore recommends the following provisionsCHILDREN IN NEED OF CARE AND PROTECTION
Determination of
children in need
of care and
protection
(1)
A child is in need of care and protection if-
(a)
the child has been or there is substantial risk that
the child will be physically, psychologically or
emotionally injured or sexually abused by the parent or
guardian or a member of the family or any other
person;
(b)
the child has been or there is substantial risk that the
child will be physically injured or emotionally injured
or sexually abused and the parent or guardian or any
other person, knowing of such injury , abuse or risk,
has not protected or is unlikely to protect the child from
such injury, abuse or risk;
(c)
the parent or guardian of the child is unfit,
or has neglected, or is unable, to exercise proper
supervision and control over the child and the child is
falling into undesirable association;
(d)
the parent or guardian of the child has neglected or
is unwilling to provide for the child’s adequate care,
food, clothing, shelter, education and health;
(e)
the child(i)
has no parent or guardian; or
(ii)
has been abandoned by the parents or guardians
and after reasonable inquiries the parents or
guardians cannot be found, and no other suitable
person is willing and able to care for the child;
73
(f)
the child needs to be examined, investigated or
treated for the purposes of restoring or preserving the
child’s health and if the parents or guardians neglects
or refuse to have the child so examined, investigated or
treated;
(g)
the child behaves in a manner that is, or is
likely to be, harmful to the child or to any other person
and the parents or guardians are unable or unwilling to
take necessary measures to remedy the situation or the
remedial measures taken by the parents or guardians
have failed and as a result the child cannot be
controlled by his parents or guardians;
(h)
there is such a conflict between the child and the
parents or guardians, or between the parents or
between guardians, that family relationships are
seriously disrupted, thereby causing the child emotional
injury;
(i)
the child is in the custody of a person who has
been convicted of committing an offence in connection
with that child;
(j)
the child frequents the company of immoral, vicious,
or otherwise undesirable person or persons or is living in
circumstances calculated to cause or induce the child’s
seduction, corruption or prostitution;
(k)
the child is allowed to be on a street, premises or
any place for the purpose of-
(l)
(i)
begging or receiving alms, whether or not
there is any pretence of singing, playing,
performing or offering anything for sale and as a
result the child becomes a habitual beggar;
(ii)
carrying out illegal hawking, illegal lotteries,
gambling or other illegal activities detrimental to
the health and welfare or retard the educational
advancement of the child,
the child cannot be controlled by his or her parent
or guardian or the person in custody of the child.
74
(m)
if the child is assessed by the Social Welfare Officer
to be in need of care and protection.
(2)
For the purposes of this Chapter, a child is-
(a)
physically injured if there is injury to any part of the
child’s body as a result of the non-accidental
application of force or agent to the child’s body that is
evidenced by, among other things, a laceration, a
concussion, an abrasion, a scar, a fracture or other bone
injury, a dislocation, a sprain, a haemorrhaging, a
rupture, a burn, a scald, loss or alteration of
consciousness or loss of hair or teeth;
(b)
emotionally and psychologically injured if there is
impairment of the child’s mental or emotional
functioning that is evidenced by, amongst other things,
a mental or behavioural disorder, including anxiety,
depression, withdrawal, aggression or delayed
development;
(c)
sexually abused if the child’s has taken part, whether
as a participant or an observer, in any activity which is
sexual in nature for the purposes of(i)
(ii)
any pornographic or indecent material,
photograph, recording, film, videotape
performance; or
or
sexual exploitation by any person for that
person’s or other person’s sexual gratification or
for commercial gain.
Taking a child
into place
of safety
A police officer, social welfare officer, a chief or any
member of the community, if satisfied on reasonable grounds
that a child is in need of care and protection, may take the child and
place him into his temporary custody or a place of safety.
Presentation
before
child justice
court
(1)
Subject to section …68, a child who is taken into a
place of safety under section … shall be brought before a
child justice court within forty-eight hours.
68
See provisions on child in need of medical examination or treatment
75
(2)
If it is not possible to bring a child before a child justice
court within the time specified under subsection (1), the child shall be
brought before any magistrate who may direct that the child be
placed in (a)
a place of safety; or
(b)
the care of a fit and proper person,
until such time as the child can be brought before a child justice court.
(3)
If a child is in a place of safety or in the care of a fit and
proper person under subsection (2)(a)
the person in charge of the place of safety or such fit
and proper person shall have the like control over, and
responsibility for the maintenance of, the child as the
parent or guardian of the child would have had; and
(b)
the child shall continue to be in the care of the
person referred to in paragraph (a) notwithstanding
that the child is claimed by the parent or guardian or
any other person.
(4)
A social welfare officer, police officer, chief or any
member of the community who takes a child to a place of safety under
this section shall, immediately upon such taking, cause the parent or
guardian of the child to be notified of such taking if the parents are
known and if it is practicable to do so.
(5)
A police officer, chief or any member of the community
who takes a child into temporary custody under this section shall,
immediately upon such taking, notify the social welfare officer of such
taking.
Child in need
of medical
examination
(1)
If a social welfare officer, police officer, chief or any
member of the community is of the opinion that a child is in need
of medical examination or treatment he may, instead
of bringing the child before a child justice court present the child for
medical care.
(2)
If a social welfare officer, police officer or chief is
satisfied on reasonable grounds that the child is in need of medical
examination or treatment, he may direct either in writing or orally
that the person keeping the child for the time being immediately
present the child for medical care.
76
(3)
If the person referred to under subsection (2) fails to
comply within forty-eight hours with a direction made under that
subsection, the social welfare officer, police officer or chief may take
the child into temporary custody for the purpose of taking the child
for the medical care.
Medical
examination
and treatment
(1)
A medical officer before whom a child is presented
under section ………69 shall provide or cause to be provided such
examination or treatment as the medical officer thinks necessary.
(2)
The child who is presented before a medical officer
under subsection (1) shall be exempted from medical fees with the
authority of a District Social welfare Officer.
(3)
The medical officer shall upon completing the
treatment present a report to the person who brought the child for
the medical care.
Hospitalization
(1)
If the medical officer is of the opinion that
hospitalization of the child is necessary, he shall cause the child to be so
hospitalized.
If a child is hospitalized under section …70, the social hospitalized
welfare officer shall have the same control over, and responsibility
children
over the maintenance of, the child as the person in charge of a
place of safety would have had if the child had been placed in a place
of safety.
Control over
Authorization
of medical
treatment
(1)
If, in the opinion of the medical officer, the child
referred to under section. …71 suffering from a minor illness,
injury or condition the treatment may be authorised by a social
welfare officer.
(2)
If, in the opinion of the medical officer, the child referred
to in section…72 is suffering from a serious illness, injury or condition
or requires surgery or psychiatric treatment, a social welfare officer or
police officer (a)
shall immediately notify or take reasonable steps to notify
and consult the parent or guardian of the child or any
person having authority to consent to such treatment;
and
69
see provisions on child in need of medical examination or treatment
See provisions on “Hospitalisation”
71
Ibid
72 Ibid
70
77
(b)
may, with the written consent of the parents or
guardians or such other appropriate person, authorize
such medical or surgical or psychiatric treatment as
may be considered necessary by the health worker.
(3)
If a medical officer has certified in writing that there is
immediate risk to the health of a child, a social welfare officer or
police officer may authorize, without obtaining the consent referred to
in subsection (2), such medical or surgical or psychiatric treatment as
may be considered necessary by the medical officer but only under
any of the following circumstances-
Steps to be
taken after
medical
examination
or treatment
(a)
that the parent or guardian of the child or any person
having authority to consent to such examination or
treatment has unreasonably refused to give, or
abstained from giving, consent to such treatment;
(b)
that the parent or guardian or the person having
authority to consent to such examination or treatment is
not available or cannot be found within a reasonable
time; or
(c)
the social welfare officer or the police officer believes
on reasonable grounds that the parent or guardian or
the person having authority to consent to such
examination or treatment has ill-treated, neglected,
abandoned, exposed, or sexually abused, the child.
(1)
A child who is placed in a place of safety and is
medically examined or treated shall be brought before a child
justice court within forty-eight hours(a)
of the completion of such examination or treatment;
or
(b)
if the child is hospitalized, of his discharge from the
hospital
(2)
If it is not possible to bring the child before
the child justice court within the time specified in subsection (1), the
child shall be brought before any magistrate who may direct that the
child be placed in (a)
a place of safety; or
(b)
the care of a fit and proper person,
78
until such time as the child can be brought before child justice court.
(3)
A child who-
(a)
(b)
is taken into custody under section ….73; and
subsequently undergoes medical examination
treatment,
or
may be returned to the person from whose care the child was taken
upon the completion of such examination or treatment or, if the child
is hospitalized, upon discharge from the hospital.
No liability
incurred for
giving
authorization
(1)
If a child is examined or treated pursuant to
sections…74 (a)
(b)
(c)
the social welfare officer or police officer who
authorizes such examination or treatment;
the medical officer who examines or treats the child;
and
all persons acting in aid of the medical officer,
shall not incur any civil or criminal liability at law by reason only that
a child is examined or treated pursuant to that section.
(2)
Nothing contained in subsection (1) relieves a medical
officer from liability in respect of any negligent medical examination
or treatment of a child.
Duty of a
medical
officer
(1)
A medical officer shall, if he believes on reasonable
grounds that a child being examined or treated is physically,
psychologically or emotionally injured as a result of being ill-treated,
neglected, abandoned or exposed, or is sexually abused, immediately
inform a social welfare officer or police officer.
(2)
A medical officer who fails to comply with subsection
(1) commits an office and shall be liable to a fine of Twenty Thousand
Kwacha and to imprisonment for six months.
Duty of
members of
the family
73
74
(1)
If any member of the family of a child believes on
reasonable grounds that the child is physically, psychologically
or emotionally injured as a result of being ill-treated, neglected,
abandoned or exposed, or is sexually abused, he shall immediately
inform a social welfare officer or a police officer.
see provisions on “child in need of medical examination or treatment.”
See provisions on “medical examination and treatment and provision on hospitalization”
79
(2)
A member of the family who fails to comply with
subsection (1) commits an offence and shall be released on a binding
agreement on conditions to be determined by the court.
Duty of child
care provider
Duty of
members of
the
community
(1)
If a child care provider believes on reasonable
grounds that a child is physically, psychologically or emotionally
injured as a result of being ill-treated, neglected, abandoned or
exposed, or is sexually abused, he shall inform a social welfare officer
or a police officer.
(2)
If a child care provider fails to comply with subsection
(1) commits an offence and shall be liable to a fine Ten Thousand
Kwacha or to imprisonment for three months.
(1)
If a member of the community believes on
reasonable grounds that a child is physically, psychologically or
emotionally injured as a result of being ill-treated, neglected,
abandoned, or exposed, or is sexually abused, he shall immediately
inform a chief, a police officer or a social welfare officer.
(2)
A member of the community who fails to comply with
subsection (1) commits an offence and shall be liable to a fine of Ten
Thousand Kwacha and to imprisonment for three months.
Functions of
child justice
courts in cases
of children in
need of care
(1)
If a child justice court is satisfied that any child
brought before it under this Chapter is a child in need of care
and protection, the court may(a)
order the parents or guardians to enter into a
binding agreement to exercise proper care and
guardianship for a period specified by a child justice
court.;
(b)
make an order placing the child in the custody of a fit
and proper person for a period specified by the child
justice court.
(c)
without any other order or in addition to an order made
under paragraph (a) or (b), make an order placing the
child under the supervision of (i)
a social welfare officer; or
(ii)
some other person appointed for the purpose by
the child justice court,
for a period specified by the child justice court.”
80
GUARDIANSHIP
Guardianship is a system whereby a person assumes or is appointed to take, care
and protection of a child. This arrangement might be with or without the custody of the
child. For example a guardian can be appointed only for the purposes of looking after
the property of a child.
The Commission noted that the Children and Young Persons Act, although it
makes reference to guardians, does not have comprehensive provisions relating to
guardianship. The Commission therefore recommends that comprehensive provisions
should be inserted in the proposed statute, which should inter alia cover the following
matters•
•
•
•
•
appointment of guardians;
revocation of guardianship;
duration of guardianship;
powers of a child justice court on guardianship matters; and
offences by guardians
The Commission therefore recommends the following provisions:
GUARDIANSHIP
Appointment
of guardian
(1)
A guardian may be appointed by-
(a)
(b)
(c)
the testamentary will or choice of a parent;
an order of the court;
the family of the child.
(2)
A guardian may be appointed in respect of
any child who is resident in Malawi.
(3)
A guardian appointed under this Act shall be
a person resident in Malawi.
(4)
Where a guardian is appointed only in respect of
the estate of the child, he need not have actual custody of the child but
shall, with the authority of the child justice court and with the
assistance of a legal representative as the court may provide for the
child, have –
(a)
power and responsibility to administer the estate of the
child, and in particular to receive or recover and invest
the property of the child in his own name for the
benefit of the child;
(b)
the duty to take all reasonable steps to safeguard the
estate of the child from loss or damage;
81
(c)
Appointment
of a
testamentary
guardian
Application
for the
appointment
of a guardian
by a child or
family member
the duty to produce and avail accounts or a written
report to the child justice court in the prescribed
format.
(1)
A parent of a child may by will or deed appoint any
person to be a guardian of the child after that parent’s death.
(2)
A guardian of a child may by will appoint another
individual to take his place as the guardian of the child in the event of
his death.
(1)
If a child or any member of the family , considers
that a surviving parent is unfit to have legal custody of the child,
he may apply to the child justice court for the appointment of a
guardian.
(2)
The court, after considering the application, may-
(a)
(b)
appoint the guardian;
make an order that the guardian shall act jointly with
the parent; or
make any other order which the court considers
appropriate in the circumstances.
(c)
(3)
Where the child justice court makes an order that the
guardian is the only guardian of the child, it may order the parent to
pay the guardian a financial provision towards the maintenance of the
child, having regard to the means of the parent as the court may
consider reasonable.
(4)
A guardian who has been appointed to act jointly with
the surviving parent under subsection (2), shall continue to act as a
guardian after the death of the parent, but if the parent appointed a
guardian by will before his death, the guardian appointed by the child
justice court shall act jointly with the guardian appointed by the
parent.
Application
(1)
A child justice court may, in the best interest of
for the a child, appoint a guardian on the application made by any
appointment
person where –
of a guardian
by other
(a)
the child’s parents are no longer living,
persons other
(b)
the parents cannot be found ; and
than a child
or a family
(c)
the child has no guardian and there is no other
member
person having parental responsibility for the child; or
82
(d)
Extension of
guardianship
beyond a
child’s
eighteenth
birthday
where the parents of the child are no longer living
together and it is necessary in the best interest of the
child that a guardian be appointed for the child.
(1)
An appointment for guardianship shall determine
upon the child attaining the age of eighteen years, unless
exceptional circumstances exist that require a child justice court
to grant an order that the appointment be extended.
(2)
An application for extension of guardianship shall be
made within six months before or after the child’s eighteenth
birthday.
(3)
A child justice court making an order under this
section shall specify the duration of the order and the order may
contain such conditions and directions as the court may see fit.
Power to
revoke,
modify or
vary a
guardianship
order
(1)
A child justice court may, on application by the child,
parent, guardian, a family member or a social welfare officer, vary,
modify or revoke a guardianship order.
Disputes
between
guardians
Where two or more persons act as joint guardians to a
child or where the surviving parent and a guardian act jointly
and are unable to agree on any question affecting the welfare of the
child, any of them may apply to a child justice court for its direction,
and the child justice court may make orders regarding the differences
as it may think proper.
Offences by
Guardians
A guardian of the estate of a child who(a)
(b)
(c)
(d)
refuses or neglects to provide sufficient food,
clothes and other necessaries for the child;
or
misapplies, misplaces, neglects to recover or to
safeguard any asset forming part of the estate of the
child, resulting in the loss or damage of such estate; or
fails to produce to the child justice court or the
parent or guardian of the child any account or
inventory required by the child justice court; or
produces any such inventory or account which is
false,
83
commits an offence and shall be liable to a fine of One Hundred
Thousand Kwacha and to imprisonment for two years and in
addition shall on that account be liable to make good any loss or
damage occasioned to the estate.
FOSTER CARE
The Commission observed that community participation in child care and
protection has always been an essential ingredient in the upbringing of children. Families
on their own cannot provide all the services necessary for the upbringing of children. It
is imperative that central government, local governments non-governmental
organizations and local communities do participate in providing care and protection to
children by either complementing family efforts or where families have failed or
neglected to do so. The Commission observed that foster care is one form of community
participation in child care and protection. The philosophy of foster care and protection is
to maintain family unity and ensure that all children grow up in a safe and stable homes.
Foster care and protection is intended to be a temporary response, not a long-term
solution, to family problems. It can be done either through placement of a child in need
of the foster care in a residential foster home or through foster parents. The Commission
noted that the current Children’s and Young Persons Act lacks comprehensive legislation
on foster care and protection. It is therefore recommended that the proposed statute
should make comprehensive provisions on foster care. The Commission recommends
that the following issues be covered under this proposed statute:
•
•
•
•
•
•
(a)
establishment, and management of foster homes;
eligibility to be a foster parent;
duration of foster care placements;
placement of children in foster homes or with foster parents;
monitoring of foster care placements; and
definitions.
Establishment and management of foster homes.
The Commission recommends that foster homes should be established only with
the approval of the Minister. All institutions or homes currently performing functions of
foster homes shall be deemed to have been established under the proposed statute only if
they comply with the standards prescribed by the Minister.
On management of
foster homes, the Commission recommends that the provisions on reformatory centers
and safety homes proposed earlier in this Report should also apply to foster homes with
minor changes.
(b)
Placements of children in a foster home or with foster parents
The Commission recommends that several issues need to be considered before
placing a child in a foster home or with a foster parent. Firstly, social, cultural and
religious issues. The Commission noted that the Constitution recognizes the right of
every person to use the language and to participate in the cultural life of his or her
84
choice75. Further, the Constitution recognizes the right of every person to freedom of
conscience, religion, belief and thought76. The Commission also observed that the
Convention on the Rights of the Child states that when considering alternatives for
substitute care and protection [foster care included], due regard should be paid to the
desirability of continuity in the child’s upbringing and to the child’s ethnic cultural,
religious and linguistic background77. The Commission therefore recommends that in
order to actualise these principles, social , cultural and religious background of the child
must be taken into account when placing the child with a foster parent or in a foster
home.
Secondly, is the issue of responsibilities of foster parents and those responsible
for the running of foster homes. Common practice reveals that responsibilities of foster
parents and foster home managers are limited. However as the majority of foster
placements in many jurisdictions last until the child reaches the age of eighteen, the
Commission recommends that responsibilities similar to parental responsibilities be
placed upon foster parents and foster home managers.
(c)
Eligibility to be a foster parent.
The Commission recommends that a person should be eligible to foster a child
only if that person(i)
is an adult of twenty-five years or more;
(ii)
has a stable home/family;
(iii) is able to provide a foster child with an environment that is conducive to
his or her development;
(iv)
is of sound mind;
(v)
has no criminal record involving violence, assault, sexual abuse,
dishonesty or molestation
(vi)
is a person resident in Malawi and has sufficient means of livelihood;
(vii) resides and intends to foster the child in an environment that is not
prejudicial to the welfare of the child.
Further, the Commission recommends that in cases of single applicants, they
should not be eligible to foster a child of the opposite sex unless the granting authority is
satisfied that there are exceptional circumstances justifying the grant of foster care to
such persons. Additionally, the Commission recommends that if an applicant is already a
foster parent, he or she should not have more than four foster children under his or her
care.
(e)
Duration of foster care orders
The Commission observed that ideally, foster care is a temporary solution to
family problems. Courts should therefore have this in mind when making foster care
75
Section 26
Section 33
77
Article 20
76
85
orders. Circumstances however may dictate otherwise. For instance, where a child has
been abandoned or his or her parents are deceased. In view of this, the Commission
recommends that duration of foster care orders should very much depend on the social
inquiry report.
(f)
Monitoring
The Commission observed that it is imperative that foster care placements are
thoroughly monitored in order to protect the fostered children. It is therefore
recommended that the District Social Welfare Officer should be responsible for the
monitoring of foster care placements. The Commission noted that this recommendation
is in line with the decentralisation policy, which is currently being implemented by the
government.
(g)
Offences
The Commission further recommends that offences be created under this theme.
These offences should include(a)
(b)
(c)
(d)
(g)
refusal by a foster parent or any person to allow authorized officers to visit
the child;
running a foster home without ministerial approval;
accommodating a foster child in undesirable premises; or
any other failure to comply with the requirements of foster care as
stipulated by the proposed statute.
Definitions
The Commission recommends that the following terms be defined in the proposed
statute(i)
(ii)
(iii)
(iv)
foster care;
foster child;
foster home; and
foster parent.
The Commission has therefore defined these terms at an appropriate place in the
Report.
The Commission therefore recommends that the new statute should make
provisions on foster-care as follows –
FOSTERAGE
Interpretation
In this Chapter, unless the context otherwise requires-
86
“foster care” means the placement of a child in a foster home or with
a foster parent;
“foster child” means a child placed in a foster home or with a foster
parent;
“foster parent” means a person with whom a child is placed for foster
care and protection under this Act;
“foster home” means a home approved by the Minister under section
….. or….
Public foster
homes
(1)
The Minister shall establish places or institutions as
public foster homes for the purposes of foster-care placement.
(2)
All institutions which at the commencement of this Act
are operating as public foster homes shall be deemed to have been
established under this Act.
(3)
Public foster homes shall be managed by a person
appointed by the Minister.
(4)
The establishment of public foster homes under this
section shall be published in the Gazette.
(5)
The publication shall state whether the foster home is
for female or male children or for both and shall specify the number
of children to be kept in that home.
Private foster
homes
(1)
A person or an organization may apply to the
Minister to appoint a home or a place of that person or organization
to be a foster home.
(2)
The Minister, upon being satisfied that the application
meets the necessary requirements in accordance with this Act, may
designate the home or place as a private foster home for the purposes
of foster-care placement.
(3)
The establishment of a private foster home under this
section shall be published in the Gazette.
(4)
The publication shall state whether the home is for
female or male children or for both and shall specify the number of
children to be kept in that home.
87
Management
The provisions of this Act on management, inspection
foster and closure of reformatory centers and safety homes shall apply to
homes
foster homes mutatis mutandis.
of
Foster home
placement
A child justice court may, if satisfied that a child before it
is in need of foster-care and protection, commit the child to a foster
home for a period of time as the court sees fit.
Responsibilities
of a Manager
of
a foster home.
A manager of a foster home in whose care a child is
placed shall have the same rights and responsibilities in
respect of the child as the parent of the child while the child
remains in the foster home.
Commitment
child to under
a foster parent
(1)
Where a child has been committed to a foster home of a
this Act, the District Social Welfare Officer, in
conjunction with the manager of the foster home may place
the child with a foster parent who is willing and has applied to take
the care and maintenance of the child for a period not exceeding five
years.
(2)
A foster parent may, at the expiry of the period
specified in subsection (1), apply to the District Social Welfare Officer
for the extension of the period.
Application
to foster a
child
An application to foster a child shall be made to the
District Social Welfare Officer by completing the prescribed form
I in the …Schedule except that a relative of a child
without a parent or guardian may foster the child without first
applying to the District Social Welfare Officer.
Responsibilities
of foster while
parents
A foster parent in whose care a child is committed shall,
the child remains in his care, have the same responsibilities
in respect of the maintenance of the child as if such foster parent
were the parent of the child.
Persons
qualified
to foster
children
(1)
The following persons may apply to be foster
parents(a)
a husband and wife but if a man has more than one
wife, the name of the wife who is to be the foster
mother shall be clearly stated;
(b)
a single person not below the age of twenty-five years.
(2)
A single person shall not foster a child of the
88
opposite sex unless a District Social Welfare Officer certifies to the
court that it is in the best interest of the child that the person fosters
the child.
(3)
A non-Malawian citizen residing in Malawi is
qualified to apply to be a foster parent subject to subsections (1) and
(2).
Procedure
before
placement
(1)
A child shall not be placed with a foster parent who
is not a relative of the child, unless(a)
a social welfare officer has interviewed the prospective
foster parent and assessed that he or she is a suitable
person to foster a child;
(b)
a social welfare officer has visited the home of the
prospective foster parent and has confirmed in writing
that it is likely to meet the requirements of the
particular child and that the conditions in it are
satisfactory;
(c)
two reputable persons who know the prospective foster
parent have confirmed on his or her good character and
suitability to care for the child;
(d)
it has been established by a social welfare officer that no
person in the household of the prospective foster parent
is suffering from any physical or mental illness likely to
affect the child adversely;
(e)
it has been established from the officer in charge of a
police station in the area that no person in the home has
been convicted of a serious criminal offence rendering it
undesirable for the child to associate with that person;
and
(f)
the wishes of the child so far as can be ascertained
concerning the proposed fostering have been
ascertained and have, so far as practicable, been taken
into account.
(2)
The social welfare officer concerned with the
fostering shall make a written report which shall contain the
following89
(a)
(b)
(c)
(3)
Religion
the information required in section (1);
details of the name, approximate age, religion and
employment of the prospective foster parents; and
the number and approximate ages of other persons
living in the household of the prospective foster parent.
The report shall be in Form 3 in the …. Schedule.
(1)
Where the religion of the child is known, the child
shall be placed with a foster parent who is of the same religion as the
foster child but where that is not possible, the foster parent shall
undertake to bring up the child in accordance with the religious
denomination of the child.
(2)
Where a child’s religion is not known, the child shall be
placed with a foster parent who shall undertake to bring up the child
in accordance with the religious denomination of the foster parent but
the child’s choice of any established religion shall be respected
Cultural
background
Wherever possible, a child shall be placed with a foster
parent who has the same cultural background as the child’s parents
and who originates from the same area in Malawi as the parents of
the child.
Undertaking
(1)
Each foster parent shall, on the day on which the
by foster
child is placed with him or her, sign the undertaking specified in
parents Form 2 in the … Schedule in the presence of a witness.
(2)
Where the prospective foster parent cannot read the
English language sufficiently to understand the nature of the
undertaking, the social welfare officer concerned shall cause the
undertaking to be explained to the prospective foster parent in a
language which he or she understands and shall certify to that effect
as prescribed in Form 2 in the ……Schedule.
(3)
Each foster parent shall be given a copy of the
undertaking signed by him or her.
(4)
A copy of the undertaking shall be sent to the District
Social Welfare Officer and to the District Commissioner.
Medical
arrangements
(1)
Except in the case of an emergency, a child shall not
be placed with a foster parent unless the child has been examined
90
by a medical officer, and the medical officer has reported to the
District Social Welfare Officer in writing on the physical and mental
condition of the child.
(2)
In the case of an emergency, the examination report
required under subsection (1) shall be made within four weeks after
the placement.
(3)
A District Social Welfare Officer shall submit to the
foster parent a list of immunizations carried out in respect of the child
and indicate to the foster parent the list of other immunizations
required to be effected in respect of the child in accordance with the
Ministry of Health rules of immunizations and the foster parent shall
ensure that those immunizations are carried out.
(4)
The foster parent and the District Social Welfare
Officer shall at all times keep a record of the immunizations in respect
of the child.
(5)
Where a child placed with a foster parent is under five
years of age, the child shall be medically examined by a medical
officer -
(a)
(b)
within one month after the date of placement;
thereafter once every six months until the child attains
the age of five years,
and the District Social Welfare Officer shall, so far as possible, assist
the foster parent in ensuring the carrying out of the requirements of
this provision.
(6)
Where a child placed with a foster parent is above the
age of five years, the child shall be medically examined by a medical
officer once in every year.
(7)
The medical officer who examines a child under
subsection (5) or (6), shall report in writing to the District Social
Welfare Officer by whom the child was placed, on the physical,
mental and emotional condition of the child as found by the medical
officer.
Supervising
officer
The District Social Welfare Officer shall be responsible for
overseeing all aspects of the fostering and for ensuring that the
provisions of this Act are complied with.
91
Visits during
placement
(1)
The District Social Welfare Officer shall visit the
foster family and see the child(a)
(b)
(c)
(d)
within two weeks after the date of placement of the
child with the foster family where the child is under two
years of age, and thereafter once every three months;
within one month after the date of placement of the
child with the foster family, where the child is above
two years of age, and thereafter once every three
months;
within one month after receiving notification from a
foster parent that he or she has changed his or her
residence.
Immediately, and in any case not later than one week,
after receipt of any information from the child, a foster
parent or any other person which indicates the need for
the District Social Welfare Officer to visit the child.
(2)
The District Social Welfare Officer shall, after carrying
out the visit under subsection (1) make a written report to be placed
in the child’s case record stating in detail his observations as to the
child’s welfare, progress and conduct or any changes which have
occurred in the circumstances of the foster family.
(3)
The report made under subsection (2) shall also include
the child’s views and feelings concerning placement and where there
are any problems, they shall be discussed and resolved openly within
the foster family.
Marriages
No foster parent shall marry a child he or she is fostering and
any such purported marriage shall be void.
Termination
of placement
(1)
A child shall not be allowed to remain with a
foster parent where it appears that the placement is no longer
in the best interests of the child, except that(a)
the foster parent may appeal to the District Social
Welfare Officer if it is sought to remove a child who has
been in the care of the foster parent for more than
twelve months; and
(b)
the District Social Welfare Officer on any such appeal
may prohibit or authorize the removal subject to such
conditions as he thinks fit.
(2)
A child shall not be required to remain in the care of a
foster parent after the child has attained the age of eighteen years.
92
Surrendering
a foster
child
If at any time a foster parent intends to return a foster child,
he or she shall bring the child before the District Social Welfare
Officer and the District Social Welfare Officer shall place the
child in a foster home.
Illness
If a foster child is seriously ill, the foster parent shall as
soon as possible give notice to the District Social Welfare Officer who
shall in turn notify the parents or guardian of the illness.
Death
(1)
If the foster child dies, the foster parent shall make
every effort to obtain a medical certificate of death and post-mortem
report and shall, within forty-eight hours, after the death notify the
social welfare officer who shall, in turn notify the parents of the death.
(2)
If the foster parent dies, in the case where a child is
placed with a single foster parent, the child shall be returned to the
Social Welfare Office or to the manger of the foster home from which
the child was received.
Records
(1)
The District Social Welfare Officer shall maintain a
register of foster parents, in which shall be stated a record set out in
Form 3 in the …Schedule.
(2)
The register referred to in subsection (1) shall, in
addition, contain(a)
(b)
a statement of the name, sex, age, religion and address
of each parent of the foster child if known; and
the date of placement, the date of termination and the
reason for termination.
(3)
The District Social Welfare Officer shall also, in
respect of each child placed by him in a foster home, maintain a foster
child case record in the form set out in Form 4 in the …. Schedule.
(4)
The District Social Welfare Officer shall also keep with
the foster child case record the following(a)
(b)
78
a copy of the application form completed by the foster
parent and a copy of the undertaking required by
section …78; and
reports made under section ….79
See provision on “Undertaking by Foster Parents”.
93
(5)
The register prescribed by subsection (1) and the
foster child case record made under subsection (3) may be inspected
at any reasonable time by the Board.
(6)
Every foster child case record made under this section
shall be preserved for at least seven years after the child to whom it
relates has attained the age of eighteen years or has died or has
returned to the care of his or her parents.
(7)
The District Social Welfare Officer shall report to the
Board, within one month after each fostering effected by him, the fact
of the fostering and stating the information in Form 3 in the
…Schedule.
(8)
The District Social Welfare Officer shall also notify the
Board within twenty-one days after its occurrence of any change in
the information referred to in subsection (7).
Application
for adoption
A foster parent may at any time apply to adopt a foster
child in accordance with the Adoption of Children Act.
Offences
A person who(a)
(b)
(c)
(d)
refuses to allow a foster child to be visited by a persons
authorized by either the District Social Welfare Office
or the child justice court;
fails, without reasonable excuse, to comply with any
requirement under the Act;
accommodates a foster child in undesirable premises.
runs a foster home without the approval of the Minister,
commits an offence and shall be liable to a fine of Fifty Thousand
Kwacha and to imprisonment for one year.
SUPPORT FOR CHILDREN BY LOCAL AUTHORITIES
The Commission observed that local authorities are strategically position to play a
role in the provision of child care and protection services. It is therefore recommended
that the new statute should make provision for local authorities to provide specified child
care and protection services. More specifically, local authorities should be obliged, under
the proposed statute to –
79
See provision on “Visits during placement”
94
•
•
•
•
•
•
•
•
•
•
•
safeguard and promote the welfare of children within their jurisdiction;
ensure development planning in respect of child care facilities within that
jurisdiction;
keep a register of children suffering from HIV/AIDS or orphaned by AIDS;
keep a register of child-headed families within the areas of their jurisdiction and
assist them;
keep a register of lost and abandoned children, children in the street and disabled
children within their area of jurisdiction and provide assistance to them. The local
authorities must see that such children have access to basic nutrition and basic
health care services. Local authorities must also provide family tracing and reunification services for children;
assist in the establishment of residential care and protection facilities;
assist in foster care programmes;
provide and maintain sufficient and appropriate recreational facilities for
children;
conduct inspection of child care facilities to ensure maintenance of standards;
investigate potential or actual harm to children; and
provide day care facilities.
The Commission discussed at length on children suffering from HIV/AIDS or
orphaned by AIDS. It was observed that HIV/AIDS places enormous stress on infected
individuals and on their families, who are confronted with the demands of caring for the
seriously ill and loss of breadwinners. Many children are themselves contracting HIV
and although many die within two years of birth, a significant number can survive even
into their teenage years before developing AIDS if proper assistance and health care
services are provided.
The Commission further observed that the plight of children orphaned by AIDS
may begin long before the death of their parents. If a parent is rendered unproductive due
to the disease, children are often pushed into roles that would be extremely stressful even
for most adults. After, and often before, becoming orphaned, they lack the resources for
school fees, books or clothes. They may be caught up in child labour, delinquency,
homelessness and prostitution. In view of this, the Commission recommends that the
term “children suffering from HIV/AIDS” should have a wider meaning and should
include children who are not infected by HIV but who are facing social problems due to
the HIV/AIDS pandemic.
On child-headed families, the Commission observed that as the HIV/AIDS
pandemic spreads, child-headed families will become a familiar phenomenon. Despite
other drawbacks, the Commission opined that these arrangements have the advantage of
enabling siblings to remain together for mutual support. The Commission therefore
recommends that child-headed families be given a legal recognition. It is for this reason
that the Commission proposes that, among other functions, local authorities should keep a
register of child-headed families and provide them with the necessary support.
95
The Commission therefore recommends that the new statute should have
provisions on the role of local authorities in providing child care and protection services.
The provisions are to be as followsSUPPORT FOR CHILDREN BY LOCAL AUTHORITIES
General
functions
of local
government
authority
(1)
It is the general duty of every local
government authority within its area of jurisdiction to(a)
safeguard and promote the welfare of children
(b)
mediate in any situation where the rights of a child are
infringed, especially the child’s right to succeed to
property of his parents and all the rights accorded to
the child by this Act;
provide and maintain sufficient and appropriate
recreational facilities;
conduct inspection of child care facilities to ensure
maintenance of standards;
inspect structures, places and activities that impose
potential or actual harm to children.
(c)
(d)
(e)
;
(2)
The duty conferred by subsection(1) on a local
government authority to protect the right of a child to succeed to
property of his parents shall not be construed to authorize the
authority to distribute such property.
Secretary
for children
affairs
(1)
A local government authority shall designate one of
its officers to be the person responsible for the welfare of
children and such officer shall be referred to as the Secretary for
Children’s Affairs.
(2)
The Secretary for Children’s Affairs shall, in the
exercise of his functions in relation to the welfare of children, be
assisted by such other officers of the local government authority as
the local government authority may determine.
Registration
of children
with
disabilities
A local government authority shall keep a register of
disabled children within its area of jurisdiction and give
assistance to them whenever possible in order to enable those
children grow up with dignity among other children and to develop
their potential and self-reliance.
Duty to
provide
A local government authority shall provide accommodation
for children within its area of jurisdiction who appear to the
96
accommodation to
children in
need
authority to be in need of the accommodation as a result of their
being lost or abandoned or seeking refuge.
A local government authority shall make every effort,
including publication through the mass media, to trace the guardians
parents or guardians of any lost or abandoned child or to return
the child to the place where the child ordinarily resides; and, where
the authority does not succeed, it shall refer the matter to a Probation
Officer or Social Welfare Officer or to the police.
Tracing of
parents or
Duty to report
infringement
of a child’s
rights
(1)
It shall be the duty of any member of the community
who has evidence that a child’s rights are being infringed or
that a parent, guardian or any person having custody of a
child, who is able to but refuses or neglects to provide the child
with adequate food, shelter, clothing, medical care or education, to
report the matter to the local government authority of the area.
(2)
The Secretary for Children’s Affairs may, upon
receiving the report, summon the person against whom the report was
made under subsection (1) to discuss the matter; and a decision shall
be made by the Secretary for Children’s Affairs in the best interests of
the child.
(3)
Where the person against whom the report was made
refuses to comply with the decision made under subsection (2), the
Secretary for Children’s Affairs shall refer the matter to child justice
court which may make such orders as it may see fit.
Registration
of births and
deaths of
children in the
(1)
Unless the duty to do so has been conferred on
another authority, a local government authority shall keep
and maintain a register of the births and deaths of children
area of its jurisdiction.
(2)
The registration of the birth or death of a child under
this section shall be with sufficient particulars including in particular(a)
(b)
(c)
(d)
Registration
the name and sex of the child;
the name of the parents;
place of birth and the home of origin of the child; and
in the case of death, the place of death and, where
possible, the cause of the death.
A local government authority shall keep a register of
97
of children
suffering from
HIV/AIDS
children suffering from HIV/AIDS for the purposes of ensuring
that(a)
they are not discriminated against on the basis of
their status.
(b)
they have equal access to health care services regardless
of their status;
(c)
they are provided with the necessary material
support if required; and
(d)
in conjunction with the District Social Welfare
Officer, they are provided with substitute care in the
form of –
(i)
(ii)
(iii)
care by relatives;
foster-care; or
adoption
(2)
For the purposes of this section, children suffering
from HIV/AIDS means children who are(a)
(b)
(c)
(d)
infected by HIV;
orphaned by AIDS
vulnerable to HIV infection; or
from infected families and facing increased financial,
physical and emotional burdens
ADOPTION OF CHILDREN
Adoption is a legal process through which legal rights and duties of a child
towards its natural parents are terminated and similar rights and duties towards its
adoptive parents are substituted80. The concept is recognized by the Convention on the
Rights of the child, which makes provision that a child who is temporarily or
permanently deprived of its family environment, or who cannot be allowed to remain in
that environment, shall be entitled to special protection and assistance by the State.
States Parties should ensure that there is alternative care and protection for such children
including adoption81.
In Malawi, adoption is regulated by the Adoption of Children Act82. The
Commission observed that to a larger extent, the Act is compatible with the provision of
the Convention on the Rights of the Child. As such, the Commission recommends that
80
Blacks Law Dictionary, p.49
Article 20(1)
82
Cap. 26:01, Laws of Malawi
81
98
this status quo be maintained, i.e, that adoption should be under a separate statute. The
Commission however noted the following shortcomings about the Act-
(a)
Prohibition of Inter-country adoption
The Commission noted that inter-country adoption is prohibited under the Act83 .
The rationale for this general prohibition is that the best interests of the child require that
after a child has been adopted, he or she should be within the jurisdiction of the
authorities to ensure that the child is accorded with basic services necessary for his or her
welfare. This monitoring would be difficult if the adopting parents do not reside within
the jurisdiction. However, the Commission argues that the same principle of “best
interests for the child”, would require some exceptions where adoption may offer the
advantage of a permanent family to a child for whom a suitable family cannot be found
within his or her country of origin. The Convention on the Rights of a Child confirms
this principle by making provision that State Parties that recognize the system of adoption
shall ensure that the best interests of the child is of paramount consideration and they
shall recognize that inter-country adoption may be considered as an alternative means of
the child’s care if the child cannot be placed in an adoptive family or cannot in any
suitable manner be cared for in the child’s country of origin.84
Further, the United Nations adopted a convention on inter-country adoption in
Hague in 1993.85 The Convention seeks to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or
her fundamental rights; to establish a system of cooperation amongst contracting States to
ensure that those safeguards are respected and thereby prevent the abduction, sale, or
trafficking of children; and to ensure the recognition in contracting States of adoption
made in accordance with the Convention86.
In view of these developments, the Commission recommends that rather than
having a blanket prohibition on inter-country adoptions, the Adoption of Children’s Act
in Malawi should make exceptions. Thus, if the country where the prospective adopter
parents reside is a signatory to the Hague Convention and has already implemented the
provisions of the Convention, inter-country adoption should be allowed, if to do so is in
the best interests of the child.
The Commission therefore recommends that section 3(5) of the Adoption Act be
deleted and the following section be inserted in the ActInter-country
3A
(1)
Subject to the provisions of this Act, a court may
83
Section 3(5) an adoption order shall not be made in favour of any applicant who is not a resident in
Malawi or in respect of any infant who is not so resident
84
Article 21(6)
85 Convention on Protection of Children and Cooperation in respect of Inter-country Adoption
86
Article 1
99
adoption
grant an inter-country adoption order as an alternative means of care
and protection of a child who cannot be placed under foster care or in
an adoptive family or who cannot in any suitable manner be cared for
in Malawi.
(2)
A court shall not grant an inter-country adoption order
unless the Minister, after consultation with the competent authorities
of the receiving country, determines that (a)
(b)
(c)
(d)
(e)
the applicants are eligible to adopt the child;
the applicants have been counselled as may be
necessary;
the child is or will be authorized to enter and reside
permanently in the receiving country;
the applicants or one of the applicants, if not a relative
of the child, has, while in Malawi, fostered the child for
a continuance period of three years; and
the receiving country is a signatory to and has
implemented the United Nations Convention on
Protection of Children and Co-operation in Respect of
Inter-county Adoption.
(4)
For the purposes of this section, inter-country
adoption means an adoption in which the applicant intends to take the
adopted child outside Malawi within a period of one year from the
date of the application.
(b)
Devolution of property on adoption
The Adoption Act makes provision to the effect that an adoption order shall not
deprive the adopted child of any right or interest in property to which, but for the order,
the child would have been entitled under any intestacy or disposition. Further, the Act
provides that an adoption order shall not confer on the adopted child any right to or
interest in property as a child of the adopter and the expressions “child”, “children” and
“issue”, where used in any disposition whether made before or after the making of an
adoption order shall not, unless the contrary intention appears, include an adopted child
or children or the issue of the adopted child87.
In short, the Act says that if the adopter dies interstate, the adopted child has no
right over the property of the adopter. If the adopter made a disposition, the adopted
child has no right to the property unless it is expressly stated in the disposition.
The Commission agonized over this provision and concluded that for all intents
and purposes, it is against the principle of best interests for the child. It has already been
stated elsewhere that adoption is a process through which the legal rights and duties of a
87
Section 6(2)
100
child towards its natural parents are terminated and similar rights and duties towards its
adoptive parents are substituted.88 This definition suggests that an adopted child must
enjoy all the rights any child is entitled to over the property of the adoptive parents. In
view of this, the Commission recommends that section 6 of the Adoption Act should be
amended by redrafting subsection (2) and by inserting a new subsection. The provision is
to read as follows(2)
An adoption order shall not deprive the adopted child or person of
any right to or interest in property to which he is entitled under any
intestacy occurring before the adoption order or under a disposition,
whether made before or after the making of the adoption order.89
NEW SECTION
Where an adopter dies interstate, the property of such adopter where
devolve in all respects as if the adopted child or person was adopter
the natural child of the adopter..
Devolution
shall
an
dies
intestate
(c)
Disclosure of information to the adopted child
The Adoption Act does not make provision requiring adoptive parents to disclose
to their adopted children about their status. Modern research has however shown that
adopted children suffer from detrimental psychological problems once they discover the
truth when older if they have been deceived over their adoptive status by those who
brought them up and whom they have always trusted.90
A contrary argument is that children sometimes develop a withdrawal behaviour
once they discover that the people they have been referring to as parents are in true sense
not their natural parents.
In realizing this dilemma, the Commission’s view is that the new statute should
take a middle position, that adopted children should be told of their true status when they
are mature enough to understand and only if it is in the best interests of the child to do so.
The Commission therefore recommends that the Adoption of Children Act be
further amended by inserting the following provision immediately after section 11 as
follows“Disclosure
adoptive
11A (1) An adopter may inform the adopted child or person of of
the fact that the child or person is adopted and of his parentage status
88
Black Law Dictionary IP Cit
the provision means that as far as intestacy is concerned adopted children will only be entitled to property
if it occurs before the adoption order. But when there is a disposition .e.g a Will it does not matter whether
it was made before or after the adoption order, adopted children should be entitled.
90
I Tiseliotis in search of origin (1973) 20
89
101
but this disclosure shall only be made if it is in the best interests to adoptive
of the child or person after considering his age and mental
children
maturity.
(2)
No person other than the adopter shall disclose
adoption to the adopted child person.
(3)
Any person who contravenes this section commits an
offence and is liable to a fine of Fifty Thousand Kwacha and to
imprisonment for one year.”
On a similar note, the Commission discussed the issue of post-adoption contacts.
This came out upon the realization that several older children with pre-existing
relationships with biological family members and others are being adopted. The
Adoption of Children Act is silent on this issue and yet the maximum age limit for a
person that can be adopted is twenty-one years.91 This presupposes that children who are
well over fifteen years of age can in practice be adopted under the Act. The Commission
observed that it would not be in the best interest for the child to totally cut ties with his or
her family members. The Commission therefore recommends introducing a provision as
followsPost adoption
contacts
with natural
family
members
(d)
11B. Where an adopted child or person knows of his adoptive
status the adopter shall not refuse or obstruct contacts by the
child or person with the his natural parents or with other
members of the child’s natural family unless it can be shown on
reasonable grounds that such contacts will not be in the best interest
of the child or person.
Jurisdiction in adoption matters.
The Adoption of Children Act makes provision that the High Court has
jurisdiction over matters of adoption. However, at the option of the applicant, and
subject to any rules under the Act, a court of a Resident Magistrate or of a magistrate of
the first grade can also entertain an adoption application92. Where the application is
made to a subordinate court of the first grade, the hearing of the matter is under the
jurisdiction of a juvenile court as defined by the Children and Young Persons Act93.
The Commission discussed at length over this position and, at the end,
recommended that adoption matters should be under the purview of the child justice
court, unless there are special circumstances that would require the matter to be heard by
the High Court. The Commission made this recommendation after recalling that all
matters concerning children are under the child justice court, and therefore the
91
Section 2(2)
section 9
93 Ibid.
92
102
Commission did not find any valid reasons of making adoption an exception to this
recommendation.
The Commission therefore recommends that the Adoption of Children Act should
further be amended by redrafting section 9 as follows –
9.
(1) Subject to subsections (2) and (3), the court having
jurisdiction to make an adoption order under this Act is a child
justice court established under the Child (Care, Protection and
Justice) Act.
Jurisdiction
(2) Where the application is for an inter-country adoption,
order, the Court having jurisdiction to make the order is the High
Court.
(3) If owing to special circumstances, an application appears
to a child justice court to be more fit to be dealt with by the High
Court, the court may order that the matter be transferred to the High
Court.
(4) For the purposes of any application under this Act,
the court shall appoint some person or body to act as a guardian ad
litem of the infant upon the hearing of the application to safeguard
the interests of the infant before the court.
PROTECTION OF CHILDREN FROM UNDESIRABLE PRACTICES
(a)
Child labour
Child labour means work or employment situation where children are engaged on
a more or less regular basis to earn a livelihood for themselves or their families. The
Commission noted that in the Malawian society, child labour is considered as an
important element in maturation of the child, securing the transition from childhood to
adulthood or is essential for family survival. Although child labour has adverse effects
on the child, this is rarely considered, mainly because the effects are not evident on the
spot. There is however international general consensus that childhood is a period of life
which should be consecrated not to work, but to education and development; that child
labour, by its nature or because of the conditions in which it is undertaken, often
jeopardizes children’s possibilities of becoming productive adults, able to take their
places in the community.
During its deliberations, the Commission was guided by the Minimum Age
Convention (No. 132) adopted by the International Labour Organisation. The
Convention requires member States to pursue a national policy designed to ensure the
effective abolition of child labour, to set a minimum age for admission to employment or
work and to raise this progressively to a level consistent with the fullest physical and
103
mental development of young people94. The Convention states that this minimum age
must not be less than the age of completion of compulsory schooling and, in any case, not
less than fifteen years95. If however the type of employment or work, which by its nature
or the circumstances in which it is carried out is likely to jeopardize the health, safety or
morals of young persons, the minimum age shall not be less than eighteen years, unless
the children concerned are fully protected, in which case the minimum age should be
sixteen years.96
In Malawi child labour is regulated by the Constitution and the Employment
Act. The Constitution protects children from economic exploitation or any treatment,
work or punishment that is, or is likely to –
97
(a)
(b)
(c)
be hazardous;
interfere with their education; or
be harmful to their health or to their physical, mental, spiritual or social
development.98
The Employment Act makes provision that no person under the age of
fourteen years shall be employed or work in any public or private agricultural, industrial
or non-industrial undertaking or any branch thereof except work done in homes,
vocational technical schools or other training institutions99.
The Act further provides that no person between the ages of fourteen and eighteen
years shall work or be employed in any occupation or activity that is likely to be harmful
to the health, safety, education, morals or development of such person; or prejudicial to
his or her attendance at school or any other vocational or training programme100. Every
person shall keep a register of any person under the age of eighteen years employed by or
working for him101.
The Commission is of the view that largely, the Constitution and the Employment
Act fall within the scope of the International Labour Organisation Convention. The
Commission however observed that section 22 of the Employment Act is inconsistent
with the Constitution to the extent that the section only protects children who are between
the ages of fourteen and eighteen in as far as hazardous work or employment is
concerned. On the other hand, the Constitution protects all children who are below the
age of sixteen years. The Commission observed that this could not have been the
intention of the legislators not to extend the protection to even younger children of below
the age of fourteen years given that the Act does not prohibit employment of children
below the age of fourteen years. The Commission therefore recommends that the
94
Article 86
Article 2
96
Article 3(1) and 3(3)
97
Cap. 55:02
98
Section 23
99
Section 21
100
Section 22
101
Section 23
95
104
Employment Act be amended by replacing “between the age of fourteen and eighteen
years” with “below the age of eighteen years.” in section 22(1) of the Act.
Further, the Commission recommends that a provision be inserted in the
Employment Act prohibiting employers or any person from engaging a child under the
age of fourteen years in night work. Although this might indirectly fall within the
purview of section 22, the Commission recommends that this must be specially
prohibited. The following new provision should therefore be inserted immediately after
section 22 Prohibition
of child
labour at
night
(b)
23A (1)
No person shall engage a person under the age
of fourteen years in night work.
(2)
For the purposes of this section, night work constitutes
work between the hours of eight o’clock in the evening and six o’clock
in the morning.
Child abduction
From information made available to the Commission it was observed that
post-divorce parental child abduction has been on the increase in recent times, paralleling
the rising divorce rate and the escalating litigation over child custody. The term “child
abduction” encompasses the taking, retention or concealment of a child by a parent, other
family member, or their agent, in derogation of the custody rights, including visitation
rights, of another parent or family member102.
The abductor usually moves from one place to another resulting into abuse of the
child with each move. Or, the abductor may flee to another country completely shutting
down any hopes of involvement by child care and protection service providers in the
country of origin. This leaves the child completely vulnerable to the dictates of the
abductor, who, may view the child’s need as secondary to his or her agenda, which
sometimes is to provoke, agitate, control, attack or psychologically torture the other
person who has lawful custody over the child.
The Convention on the Rights of the Child, which makes provision that State
Parties shall take all appropriate national, bilateral and multilateral measures to prevent
the abduction of children for any purpose or in any form103. Further, the Commission
was guided by the Convention on the Civil Aspects of International Child
Abduction104, which states that it is considered as a wrongful removal or a wrongful
retention of a child where –
(a)
it is in breach of the rights of custody attributed to a person, an institution
or any other body, either jointly or alone, under the law of the State in
102
Hoff 1997 Legal Director for the Parent abduction Training and Dissemination Project, American Bar
Association on Children and the Law
103
Article 41
104
Concluded in Hague in 1980
105
(b)
which the child was habitually resident immediately before the removal or
retention; and
at the time of removal or retention, those rights were actually exercised,
either jointly or would have been so exercised but for the removal or the
retention.105
The Commission therefore recommends that child abduction being of serious
psychological consequences as it is, calls for statutory provisions prohibiting the practice.
(c)
Child trafficking
The Commission observed that trafficking in children is of late a global problem
affecting large numbers of children. There is a demand for trafficked children for cheap
labour or for sexual exploitation. Children and their families are often unaware of the
dangers of the trafficking, believing that better employment and lives lie in other
countries. The Commission noted that trafficking in children always violates the child’s
right to grow up in a family environment and, as indicated earlier, these children do face
several problems including violence and sexual abuse. Third world countries are worst
hit by the problem. Because of this, trafficking in persons and children in particular is
receiving renewed attention.
While the scale of this practice has not been fully determined, the Commission
received information regarding prevalence of the problem in the country. In considering
possible measures to address the problem the Commission was guided by the United
Nations Protocol to Prevent Suppress and Punish Trafficking in Persons, especially
Women and Children, supplementing the United Nations Convention against Transnational Organised Crime. The primary objectives of this protocol are –
•
•
•
to prevent and combat trafficking in persons, paying particular attention to women
and children;
to protect and assist the victims of such trafficking, with full respect for their
human rights; and
to promote cooperation among State Parties in order to meet these objectives106
Under the protocol, trafficking in persons has been defined as to mean the
recruitment, transportation, transfer, habouring or receipt of persons, by means of
threat or use of force or other forms of coercion, or by means of fraud, deception,
abuse of power or by means of giving or receiving of payments or benefits to achieve
the consent of a person having control over another person, for the purpose of
exploitation. The consent of the victim of the trafficking is irrelevant where any of
those means have been used.
105
106
Article 3
Article 2
106
Taking this protocol into account and narrowing down to child trafficking, the
Commission recommends that the new statute should make provisions protecting children
from the scourge of trafficking.
(d)
Child sexual abuse
Child sexual abuse includes a wide range of sexual behaviour that takes place
between a child and an adult. The behaviour is intended to erotically arouse the adult,
generally, without consideration for the reactions or choices of the child and without
consideration for the effects of the behaviour upon the child. There is no universal
definition of child sexual abuse. However, a central characteristic of any child abuse is
the dominant position of an adult that allows such adult to force or coerce a child into
sexual activity107.
Child abuse is not sorely restricted to physical contact; it includes non contact
abuse, such as exposure to sexual activity or child pornography. Accurate statistics on
the prevalence of child sexual abuse are difficult to collect because of problems of under
reporting and the lack of a legal definition of what constitutes the term. The
Commission however acknowledged that child sexual abuse is not uncommon and it is a
serious problem in Malawi.
Again, the Commission was on this theme guided by the Convention on
the Rights of the Child. The Convention makes provision that State Parties
should protect children from all forms of sexual exploitation and sexual abuse. For these
purposes, States Parties shall, in particular, take all appropriate national, bilateral and
multilateral measures to prevent:
•
•
•
the inducement or coercion of a child to engage in any unlawful sexual activity;
the exploitative use of children in pornographic performances and materials;
the exploitative use of children in prostitution or other unlawful sexual
practices.108
The Commission noted that in Malawi, there is no express law that criminalizes
child sexual abuse. The Penal Code does make provision against defilement of girls
under thirteen years of age.109 However the Commission observed that this provision
lacks essential elements of “child abuse”. First, defilement has been defined as “carnal
knowledge of a girl below thirteen years”. Child abuse, however, is wider than just
carnal knowledge and is applicable even to “boys”, not just “girls”.
The Commission however took solace in realizing that the Report on the Review
of the Penal Code recommends the introduction of a new Chapter in the Penal Code on
“offences against morality relating to children”. The Chapter is wide enough and it
107
Sexual abuse between peers do also occur
Article 34
109
Section 138
108
107
covers all activities of child sexual abuse. In view of this, the Commission recommends
that this status quo be maintained but only expressed its concern that the Penal Code
(Amendment) Bill based on the Report has been pending before Parliament without being
passed since it was published in 2001.
(e).
Undesirable cultural practices.
The Commission noted that some cultural practices currently taking place in
Malawi are harmful to children. The Commission had in mind cultural practices such as
feminine genital mutilation, forced sexual intercourse during initiation ceremonies,
circumcision outside registered health centres, forced and early marriages whether in
settlement of debts or not, child labour in satisfaction of debts. The Commission was
guided by the Convention for the Rights of the Child as well as other foreign municipal
statutes on children, notably the Uganda Children’s Statutes. Both of them restrict the
abolition of cultural practices to those that are prejudicial to the health of children.
The Commission therefore recommends that the proposed new statute should
have provisions on “protection of children from undesirable practices. The following
provisions therefore on child abduction, child trafficking and undesirable cultural
practices should be inserted in the proposed statutePROTECTION OF CHILDREN FROM UNDISIRABLE PRACTICES
Child
abduction
(1)
A person who, unlawfully takes, retains or conceals
child without the consent of the parent or without the consent of any
other person who has lawful custody of the child commits an offence
and shall be liable to imprisonment for ten years.
(2)
For the purposes of this section, lawful custody may be
conferred on a person by(a)
(b)
(c)
Child
trafficking
the operation of any written law;
judicial or administrative decision; or
a lawful agreement.
(1)
A person who takes part in any transaction the object
or one of the objects of which is child trafficking commits an
offence and shall be liable to imprisonment for life.
(2)
For the purposes of this section, child trafficking means
the recruitment, transaction, transfer, harbouring or receipt of a child
for the purposes of exploitation of the child.
No person shall subject a child to a social or customary cultural
practice that is harmful to the health or general development
practices
of the child
Harmful
108
Forced
marriage
or betrothal
No person shall –
Pledge of a
child as
security
No person shall –
(a)
(b)
(c)
(a)
(b)
(c)
force a child into marriage;
force a child to be betrothed; or
subject a child to any dowry transaction.
use a child as a pledge to obtain credit;
use a child as surety for a debt or mortgage; or
force a child into providing labour for the income of a
parent, guardian or any other person.
Offence
A person who contravenes sections….and …110 commits an
offence and shall be liable to imprisonment for three years.
Inquiries and
placements
(1)
If a social welfare officer has
to believe that a child –
(a)
(b)
(c)
(d)
reasonable grounds
has been trafficked;
has been abducted;
has been subjected to a harmful cultural practice or any
practice prohibited under sections….111; or
is being used for the purposes of prostitution or
immoral practices,
he may remove and temporarily place the child in a place of safety.
(2)
A child who is temporarily placed in a place of safety
under this Chapter, shall be brought before a child justice court
within forty-eight if it is practicable to do so.
(3)
The child justice court may commit the child to a foster
home or may place the child under the supervision of a social welfare
officer until an inquiry into the circumstances of the case has been
carried out and submitted to the child justice court by a social welfare
officer.
(4)
The social welfare officer shall complete the inquiry
under subsection (3) and submit a report of the inquiry to the child
justice court within one month from the date of placing the child into
a place of safety.
110
111
Section on cultural practices and forced marriage
Section on forced marriage
109
(5)
The child justice court may, after considering the report
and if satisfied that the child is in need of protection and
rehabilitation (a)
commit the child to a foster home;
(b)
make an order placing the child under the supervision
of a social welfare officer,
for such period as the court thinks fit.
(6)
The child justice court may, in the best interests of the
child, extend the period of the placement or the supervision, but such
extension shall not go beyond the eighteenth birthday of the child.
(7)
If the child justice court is not satisfied that the child is
in need of protection or rehabilitation, it may order that the child be
returned to the custody of the parent, guardian or any other person
who had custody of the child.
Child recovery
order
(1)
If it appears to a child justice court that there
are reasonable grounds to believe that a child has been
abducted or trafficked, it may make a child recovery order.
(2)
A child recovery order may be made by a child justice
court on the application by or on behalf of a person having lawful
custody of the child.
(3)
A child recovery order may-
(a)
direct any person who is in a position to do so to take
the child to a person specified in the order,
authorize a person specified in the order to remove the
child from the unlawful custody;
require any person who has information that can assist
in the recovery of the child to disclose that information
to a person specified in the order; or
authorize any police officer to enter premises specified
in the order and search for the child.
(b)
(c)
(d)
(4)
A person who knowingly obstructs an authorized
person from exercising the power under subsection (3) commits an
offence and shall be liable to imprisonment for three years.
PART IV
110
BOARD OF VISITORS
SECTION 24 (Establishment of the Board)
This section establishes a Board of Visitors and its membership. The
Commission noted that the membership is comprised of Government Departments only
and therefore recommends that non-governmental organizations and other civil society
organizations directly concerned with child justice issues should be included in the
membership. The Commission thought inclusion of these organizations in the
membership will create an environment of transparency, accountability and public trust.
It was further noted that other relevant ministries and government departments are
omitted from the list of the members. The Commission had in mind the following
ministries and departments; Ministry of Youth, Ministry of Justice, Ministry of Home
Affairs, the Police and the Human Rights Commission,112 which the Commission
recommends should be added to the membership of the Board. On the appointment of
alternates, the Commission questioned the appropriateness of creating a shadow board of
visitors in the Act. After a lengthy discussion, it was concluded that there is nothing
wrong to have alternates appointed in this manner.
The Commission however noted that the appointment of the deputy to the
Chairman should be done by the Chief Justice. Further, in line with the Commission’s
earlier recommendation, that the name should change from “Board of Visitors” to “Child
Case Review Board”, the name “Board of Visitors” should be replaced with the name
“Child Case Review Board” wherever it appears.
The provisions therefore are to be as follows-
“CHILD CASE REVIEW BOARD
Establishment
(1)
A Child Case Review Board is hereby established.
of Child Case
Review Board”
(2)
The Board shall consists of members appointed by the
Minister as follows(a)
(b)
(c)
a chairperson of the Board who shall be a judge of
the High Court nominated by the Chief Justice;
a deputy chairperson who shall be a Resident
Magistrate nominated by the Chief Justice;
other members nominated by the relevant authority or
organization each to represent(i)
(ii)
112
the Secretary for Health;
the Secretary for Education;
The Commission consulted the current chairman of the Board and was of the same view
111
(iii) the Secretary for Labour;
(iv) the Secretary for the ministry responsible for
children affairs;
(v)
the Secretary for Justice;
(vi)
the Secretary for the Ministry responsible for
Youth;
(vii) the Malawi Human Rights Commission;
(viii) a non-governmental organization that is directly
concerned with children matters;
(ix) the Malawi Police;
(x)
reformatory centres;
(xi)
the Secretary for home affairs; and
(xii) religious organizations.
(2)
The nominating authority of a member under
subsection 1(c) may, subject to the approval of the Minister designate
any duly qualified officer or other person to act for that member
during the members temporary inability to act by reason of sickness,
absence or other causes.
(3)
Members of the Board shall not, by reason of their
appointment, be deemed to be officers in the public service.
(4)
Members of the Board appointed under this section
shall be paid such allowances for refundable costs and sundries out of
the funds of the Board as the Minister may prescribe.”
SECTION 25 [Tenure of office of members of the Board]
The section provides that the Chairman of the Board shall hold office at the
pleasure of the Chief Justice and that other members shall hold office at the minister’s
pleasure. The Commission noted that holding office at somebody’s pleasure is not
appropriate because it does not bring certainty in appointments. The Commission
recommends that members should be appointed for a specific term for certainty and
efficiency. The Commission further observed that this term should be a reasonable one.
To that effect, The Commission recommends that a period of three years is reasonable
and will be in line with similar provisions in other legislation for similar bodies.
The provision therefore is to be as follows:
SECTION 25 [Tenure of office of members of the Board]
(1)
Members of the Board shall hold office for a period of three
years subject to re-appointment.
(NEW PROVISION)
112
(2) A person appointed to fill a vacancy in the Board shall serve for
the remainder of the term and shall be eligible for re-appointment.
(3)
Retain the existing subsection (2).
SECTION 26 [Proceedings of the Board])
The section provides for rules that should be followed when the Board is
conducting its proceedings. The provision states that the Chairman or, in the absence of
the Chairman, his alternate shall preside over the meetings. In the absence of both, the
Chairman and the alternate, the members present shall elect one of the numbers to
preside.
The Commission debated on whether it is appropriate to allow members to
proceed with the meeting in the absence of the appointed chairman or his deputy. The
Commission noted that since most of the functions of the Board are judicial in nature, it
would be inappropriate to allow members to proceed without the appointed chairman or
the deputy who, according to the provision are judicial officers. It was however noted
that there would be some urgent matters that members would want to dispose of with
immediacy and to require the chairman or his deputy to be present at all times will
sometimes not be practicable. To accommodate these concerns, the Commission
recommends that a meeting should be allowed to proceed in the absence of the chairman
or his deputy only when the matter to be discussed is urgent and non-judicial in nature.
The Commission was of the view that drafting the law in such a way will promote the
best interests of the child. On the issue of a quorum, the Commission recommends that a
quorum should be formed by a simple majority of members. Further, the Commission
recommends that instead of empowering the Minister to make rules for the regulation of
the Board, the Board should be a self regulatory body. The section therefore to read as
follows(1)
The Chairman of the Board shall preside at meetings of the
Board and in his absence the Deputy Chairman shall preside.
(2)
In the absence of both the Chairman and the Deputy chairman
of the Board, and if the issue to be disposed of is urgent and non-judicial in
nature, members of the Board present and forming a quorum shall elect one
of their number to preside at that meeting.
(3)
The quorum of the Board shall be formed by a simple majority
of the members of the Board.
(4)
Retain subsection (3)
(5)
Meetings of the Board shall be held as often and at such times
and places as the chairman shall determine, but not less than four times in a
calendar year.
113
(6)
The Board shall determine its own procedure subject to the
provisions of this Act.
SECTION 27 [Functions of the Board]
Functions of the Board are stipulated under this section. The Commission noted
that section 27(a) is a catch all function. As such, the provision should be at the very end
of the section. Further the Commission recommends that in section27(c) the words “to
prisons where juveniles have been transferred to or detained” be deleted and replaced
with “safety homes” to ensure compliance with the earlier recommendation that children
should never be sent to prison. The Commission also recommends the addition of the
following functions which, it was thought, should be under the purview of the Board.
•
•
•
•
•
Reviewing cases of child offenders;
Reviewing cases of children in need of care and protection
Facilitating the design of rehabilitation programmes and curriculum in
reformatory centres;
Coordinating with members of civil society dealing with children;
Facilitating the relationship between reformatory centres, safety homes, foster
homes and the community.
Section 27 therefore to read as followsFunctions
of the Board
The functions of the Board shall be(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
to consult with and advise on the administration of
reformatory centres, safety homes and foster homes;
to undertake visits and to monitor reformatory centres,
safety homes and foster homes to ensure compliance
with this Act;
to keep a register of detained children;
to review cases of child offenders and matters of
children kept for the purposes of care and protection;
to facilitate the designing and implementation of
rehabilitation programmes and curriculum for the
proper re-integration of children into society;
to coordinate with civil society organizations and other
organizations dealing with children;
to facilitate relationships between communities and
places of detention;
to facilitate and supervise the recruitment of staff in
reformatory centres safety homes and foster homes;
to carry out any other duties imposed upon it under
this Act; and
to do all the functions that are necessary in order to
promote the development of children.
114
SECTION 28. [Powers of the Board]
Powers of the Board are provided for under this section. The Commission went
through the provisions and recommends that in addition to the matters listed, the Board
should also have power of specifying foster homes to which a child may be sent in
cases of foster home placements.
Subsection(1)
(a)
(b)
(c)
(d)
(e)
Retained
Add the phrase “ or any other place of detention” after the sentence
Retained
To add the word “educate” after the word “supervise” and the phrase
“as the Board may recommend” at the end of the sentence. Further, the
phrase “ who may be a probation officer” should be substituted with the
phrase “ including a probation officer”
Retained
Subsection(2)
To delete paragraphs (b), (c) and (d) in order to emphasize the fact that
under no circumstances should a child be sent to prison. Further, the Commission
recommends that before any order is made under this provision, the child should be given
a right to be heard. Subsection (2)is therefore to read as followsWhere the Board is satisfied, on the representations of the manager of a
reformatory centre or safety home, that a child ordered to be detained in
such reformatory centre or safety home is of unruly character that he
cannot be detained, or is of a depraved character that he is not a fit person
to be so detained, the Board may, upon assessing the child, order the child to
be transferred to and be detained in another reformatory centre or safety
home, which the Board considers more suitable for the child.
Subsection(3)
This subsection makes reference to subsection (2) paragraphs (b) and (c) Since
paragraphs (b) and (c) have been deleted, subsection (3) should be
redrafted as followsWhere a child having been transferred to another reformatory centre, safety
home or any other place of detention is again brought before the Board on
the representations of the manager of the reformatory centre or safety home
as being of unruly or depraved character, the Board shall make any
necessary order as it thinks fit and proper
115
Subsection(4)
The Commission recommends that this subsection should be retained
Subsection (5)
To add the phrase “not being the child” after “any person” and to
substitute the fine of “fifty pounds” with the fine of Twenty Thousand Kwacha.
New Provisions
The Commission further recommends that in order to improve efficiency, the
Board should be independent with its own secretariat. It was noted that the current coordinator in the Ministry responsible for children has got other duties apart from those of
the Board and it was thought that this arrangement compromises efficiency. However, the
Commission recommends that some linkages with the ministry should be maintained.
The secretariat is therefore to be established within the Ministry. The new Act should
provide as followsSecretariat
of the Board
(1)
An officer shall be appointed in the public service
to act as Secretary to the Board
(2)
The Secretary shall-
(a)
(b)
(c)
(d)
(e)
maintain records for the Board;
perform administrative duties;
prepare budgets;
act as liaison officer for the Board; and
perform such other duties as the Board may assign to
him,
and shall be subject to the general and special direction of the
chairman and the Board;
(3)
In addition to the Secretary to the Board, there may be
appointed in the public service other officers in the service of the
Board subordinate to the Secretary.
Funding
for the
board
(1)
The funds for the Board shall consist of such
sums as Parliament shall appropriate for the purposes of the duties
and functions of the Board.
(2)
In addition to any sums appropriated under subsection
(1) the Board may receive donations of funds, materials and other
forms of assistance from any person, body or organization.
PART V
116
DETENTION OF CHILDREN PENDING TRIAL
Detention of children pending trial is covered under this Part of the Act. The
Commission recommends that these provisions should come immediately after the
proposed provisions on arrest. It was the view of the Commission that procedural matters
that follow each other in practice should do likewise in the Act.
Further, the Commission noted that the current provisions on detention are not
adequate for the protection of child offenders against abuse of their rights. This lack of
adequate provisions has in the past resulted in children being detained for longer periods
than necessary, being sent to adult cells and suffering other avoidable abuses.
The Commission therefore recommends that in addition to the current provisions,
the Act should make express provisions regarding places of detention, restriction of
detention, age of detention and period of detention.
On period of detention, the Commission considered whether the period be
reduced to twenty-four hours in child matters. The Commission noted that such a
recommendation would not be contrary to the constitutional provision of forty-eight
hours, which is just a maximum period. After some discussions it was observed that
although this proposal would be to the best interests of the child, it will not always be
practicable for the Police to conduct their investigations within that reduced period of
time. With that in mind, the Commission recommends that the constitutional provision
of forty-eight hours be maintained.
It was however noted that there will be two scenarios of detentions, that is to say,
before a preliminary inquiry or after a preliminary inquiry. If the detention is before a
preliminary inquiry, it has been recommended earlier under the provision on preliminary
inquiry that the child’s appearance before an inquiry magistrate will be regarded as the
child’s first court appearance. The child should therefore be brought before an inquiry
magistrate within forty-eight hours after the arrest. If the decision to detain the child is
made after a preliminary inquiry, the Commission observed that the forty-eight hour rule
will not apply since the detention will have been ordered by a judicial officer after
consideration of the facts. In light of this, the Commission thought it necessary to repeat
that Constitutional provision in this Act to reflect this scenario.
On places of detention, the Commission recommends that special places should
be established for the detention of children pending trial. The Commission noted that the
current practice of detaining children in juvenile wings or police cells is contrary to the
principle of the best interests of the child. The Commission further recommends that
special rules should be developed that will stipulate minimum conditions for these
detention places. For example, a place of detention before a preliminary inquiry should
have provisions for recreation, healthcare, parent or community/child interaction,
counselling, adequate nutrition, proper clothing, beddings and communication materials.
117
A decision was taken that these places should be called “safety homes” and that
they should be established under the part dealing with Approved Schools and Approved
Homes (now called Reformatory Centres)
The Commission therefore recommends that new provisions be introduced as
follows DETENTION BEFORE A FINDING AGAINST A CHILD
Restriction
on detention
before a
finding
against
a child
(1) No child under the age of fourteen years shall be
detained before a finding against him unless the Director of
Public Prosecutions, in writing or upon hearing, satisfies the
inquiry magistrate or court that(a)
(b)
(c)
the prosecutor wishes to charge the child with a
serious offence in respect of which there is sufficient
evidence to prosecute;
it is necessary in the interest of the child to remove him
the child from undesirable circumstances;
the prosecutor has reason to believe that the release of
the child would defeat the ends of justice.
(2)
Where a person who appears to be a child is detained
pending preliminary inquiry,
he shall as soon as it is reasonably
possible, but not later than forty-eight hours after the arrest, or if the
period of forty-eight hours expires outside ordinary court hours or on
a day which is not a court day, the first court day after such expiry, be
brought before an inquiry magistrate for purposes of conducting a
preliminary inquiry, failing which he shall, subject to section….113 be
released.
Places of
detention
before a
finding
against a
child
(1)
Where a decision has been made to detain a child
before a finding against the child, he shall subject to subsection(2)
be detained in a safety home.
(2)
Where a decision has been made to detain a child
in accordance with subsection (1) and the officer in charge of a police
station responsible for the child’s case or the prosecutor is of the
opinion that –
(a)
(b)
113
it is impracticable to do so;
the child is of unruly or depraved character that he or
she can not be safely so detained;
see the provisions on bail
118
(c)
(d)
by reason of the child’s state of health or of the child’s
mental or physical condition, it is not advisable to
detain him; or
the detention is not otherwise in the best interests of the
child,
such officer in charge or prosecutor shall immediately apply to the
inquiry magistrate, child justice court or any other court that made
the order for a alternative order.
(3)
When making the alternative order pursuant to an
application under subsection (2), the inquiry magistrate or the court
shall consider the following options-
(a)
(c)
(d)
(e)
parenting order;
hospital order;
home confinement order;
reformatory centre order.
(4)
An order made under this section maybe varied or
revoked by any court and if so revoked, the provisions of this section
shall apply.
SECTION 29 [children not to associate with adult offenders]
The section provides that no child shall be permitted to associate with adults. The
Commission recommends that the section be retained subject to deleting the phrase
“police station” and to replace it with the phrase “safety home or reformatory centre”.
SECTION 30 [Bail of children]
This section provides for guidelines for police officers when granting bail to child
offenders. Under the section, the police are empowered to release on bail any child
offender subject to the limitations put thereunder. The Commission discussed this section
in light of the proposed provisions on detention of children pending trial and also in
light of the provisions of Bail (Guidelines) Act 2000. The Commission considered on
whether this provision is similar to the proposed provisions on detention before a finding
of guilty. It was observed that these provisions are different. The Commission therefore
recommends that this provision be maintained subject to replacing the phrase “apparently
under the age of eighteen” with the phrase “who appears to be a child” and the word
“court” with the word “inquiry magistrate” in the opening sentence.. On the application
of the Bail (Guidelines) Act, the Commission recommends that its provisions should
apply only in as far as they are consistent with the provisions of this Act. The
Commission further recommends that monetary payments should not be a condition of
bail so far as child cases are concerned. To that extent, the phrase “for such amount as
119
will in the opinion of the officer” should be deleted and a new subsection introduced
banning attachment of monetary conditions to bail in child cases. The following new
subsections therefore are to be introduced(2)
Where a child or a person who appears to be a child is released on
bail under subsection (1), no monetary payments shall be attached or
ordered as a condition for granting the bail.
(3)
The provisions of the Bail (guidelines) Act shall, in so far as they are
consistent with the provisions of this Act, apply when granting bail
under this section.
SECTION 31 [Custody of juvenile not released on bail]
The Commission recommends that in view of the proposed provisions on
detention the section should be deleted.
SECTION 32 [Remand of or committal to custody in a place of detention ]
The Commission recommends that section 32 should be deleted in view of the
proposed provisions on detention.
SECTION 33 [Places of detention]
In view of the proposed provisions on places of detention, the Commission
recommends that this section should be deleted.
PART VI
APPROVED SCHOOLS, AND APPROVED HOMES
This Part deals with the establishment of approved schools and approved
homes. It is provided that “until the Minister by order otherwise provides, the approved
schools shall be the institution known as the Chilwa Approved School and
Mpemba Boys Home”. The Minister may, by order, establish such further or other
approved schools as may be desirable.114 The Act further provides that a manager or
proprietor of any school/home intended, in whole or in part, for the reception, education
and vocational training of persons to be sent there, may apply to the minister to appoint
the school or home as an approved home.115
It was noted by the Commission that as far as the wording of this law is
concerned, any public institution intended for the reception, education and vocational
training of children will be called an Approved School and any private institution
114 Section 34
115 Section 35
120
intended for the same purpose will be called an Approved Home. This means that the
only deference between Approved Schools and Approved Homes is that the former is
publicly owned and the later is privately owned. The Commission was advised that the
intention was to encourage establishment of child detention facilities that are owned by
members of the community in order to promote re-integration. The Commission
therefore recommends that in order to maintain this reasoning and, in line with the
Commission’s earlier recommendation that the name of these institutions be changed to
“reformatory centres,” “approved schools” should be called “public reformatory centres”
and “approved homes” be called “private reformatory centres” The Commission further
recommends that safety homes, recommended earlier on, should be established under this
Part.
The Part therefore should be as followsREFORMATORY CENTRES AND SAFETY HOMES
Public
reformatory
centers and
Public safety
homes
(1) The Minister shall establish places or institutions as
public reformatory centres or public safety homes for the
purposes of this Act.
(2)
All institutions which at the commencement of this Act
are operating as public reformatory centers shall be deemed to have
been established under this Act.
(3) A public reformatory centre and a public safety home
shall be managed by a person appointed by the Minister.
(4) The establishment of a public reformatory centre and a
public safety home under this section shall be published in the Gazette.
(5) The publication shall state whether the public
reformatory centre or the public safety home is for female or male
children or for both and shall specify the number of children to be
detained in that centre.
(1)
The manager or proprietor of a home or an
may apply to the Minister to appoint the home or private
institution to be a private reformatory centre or private
safety home.
Minister may
appoint institution
the
reformatory
centers
and private
safety homes
(2)
The Minister, upon being satisfied that the
application meets the necessary requirements in accordance with this
Act, may designate the institution as a private reformatory centre or a
private safety home and shall issue a certificate to that effect to the
manager or proprietor of the institution.
121
(3)
The issue of the certificate by the Minister shall be
notified in the Gazette.
(4)
The certificate issued by the Minister shall state the
number of children authorized to be detained at the centre or home at
any one time and shall state whether the centre or home is for male
children or female children or for both.
SECTION 36 [Manager may make rules subject to the approval of the minister]
The section authorizes the manager of any approved home to make rules for the
regulation and management of the home. The Commission observed that to allow
managers of approved homes to make rules of regulation will bring inconsistencies in the
running of the homes. The Commission therefore recommends that instead this power
should be given to the Minister so that these institutions should be operating under
uniform regulations. Further, the Commission recommends that these rules be applicable
to both public and private reformatory centres to set the minimum standards and that they
should be prescribed in a schedule to the Act.
Section 36 is therefore to be deleted and replaced with the following provisionReformatory
Centre and
(Management)
Rules
(1)
A reformatory centre and a safety home shall be
regulated and managed in accordance with the Reformatory
Centre Safety Home and Safety Home ( Management) Rules as set
out in the….. Schedule .
(2)
The Minister may, by order published in the gazette,
amend the … Schedule.116
SECTION 37
[Manager shall send monthly report to the minister and allow
inspection]
This section requires managers of approved homes [now private reformatory
centres] to send reports to the Minister containing such particulars as may be required
by the rules for such home at monthly intervals. The provision envisages that each home
shall have its own rules, hence the use of the phrase “for such homes” in subsection(1).
The Commission observed that in light of the recommendation in section 36, the phrase
“for such home” should be deleted so that any report sent should be subjected to the same
rules. The Commission also proposed that the report required under this section should
be in a prescribed form, stamped and signed by the manager. In addition, the Commission
observed that the Child Case Review Board is the proper body to receive these reports,
not the Minister. Further, the Commission recommends the addition of the words “or
persons” immediately after the words “person” in order to reflect the several categories
of individuals that may be required to carry out inspections, and the phrase “in
accordance with this Act” immediately after the word “Minister” in subsection (2). The
116
See the schedule on reformatory centre and safety home rules
122
Commission further recommends that this provision should equally apply to safety
homes.
The section is to be redrafted as follows:
Manager shall
send monthly
reports to the
Board and
allow
inspection
(1)
The manager of a reformatory centre or a safety home
shall send reports in the prescribed form, to
the Board containing
such particulars as are
required by the Reformatory Centre
and Safety Home (Management) Rules at monthly intervals and
such other intervals as the Board may direct.
(2)
The manager of a reformatory centre or a safety home
shall at all reasonable times allow the centre or home to be inspected
by any person or persons appointed by the Board in accordance with
this Act.
SECTION 38 [Minister may withdraw his certificate])
The section makes provision for the appointment of inspectors and the withdrawal
of the certificate of an approved home by the Minister if not satisfied with the conditions
of the home. The Commission observed that the first section lacks three important
elements; first, the inspectors needed to be qualified enough to carry out the inspection
and therefore a minimum level of qualifications should be prescribed, secondly, the
Commission was of the view that it is important to hear the managers of the institutions
before the decision to withdraw a certificate is made, thirdly, it was noted that the
provision only applies to approved homes (now private reformatory centres) and not to
approved schools ( now public reformatory centres).Given the nature of the mischief this
is trying to prevent, the Commission recommends that the provision should be extended
to public reformatory centres as well as safety homes.
The Commission further reflected on the strong need to protect the children and
recognised that there may be urgent and compelling reasons to effect immediate closure
of reformatory centres and safety homes. Certain examples were cited such as evidence
that the children are being abused, evidence of dire hazardous conditions seriously
detrimental to health, etc. The Commission was of the view that it will be proper in such
instances to allow inspectors to immediately close premises found not to be in
compliance with the rules, leaving it up to the aggrieved party to show cause to the
Minister, why the premises should not be permanently closed pending his final decision.
In coming up with this provision, the Commission considered whether it would be proper
at law to give to inspectors the power of directing the cancellation of the certificate,
albeit temporarily, as it is the Minister who issues the certificates. However in view of
the possibility of need for urgent action intended to protect children from serious life
threatening situations, the Commission observed that a temporary closure, which would
only become permanent upon the Minister’s final decision having taken into account
submissions from the manager, would not be tantamount to usurpation of the Minister’s
power. On appointment of inspectors and receipt of reports, the Commission
recommends that the Board is better suited to exercise these functions.
123
In addition, the Commission recommends that the section should be redrafted as
followsInspection of
reformatory
centres and
safety homes
(1)
The Board may appoint a team of qualified persons
qualified persons for the purposes of(a)
(b)
inspecting reformatory centres and safety homes;
and
reporting to the Board on the management and state
of the condition, appearance and training of children
detained at a centre or home.
(2)
The persons so appointed shall have authority to enter
and inspect the premises and the detained children and to make all
reasonable inquiries about the management of the centre or home and
to promptly report the findings to the Board.
(3) If, in the opinion of the Board, the centre or the home
requires to be closed, it shall forward the inspectors report together
with its recommendations to the Minister.
(4) Where inspectors consider it necessary for the welfare
and safety of the children held at a reformatory centre or safety
home, they may direct immediate and temporary closure of the centre
or home, and shall include such decision in the report sent to the
Board and the Board shall forward the report and its
recommendations to the Minister for final decision.
(5)
The manager of a reformatory centre or safety home
may make submissions to the minister in writing showing cause why
the centre or home should not be permanently closed pending the
Minister’s final determination.
(1) In all other circumstances not requiring immediate Minister
and temporary closure of a reformatory centre or a safety home
to direct
the Minister, upon considering the report of the inspectors
closure of
and the Board’s recommendations, may direct closure of the
reformatory
reformatory centre or safety home by notice in writing.
Power of
centres and
safety homes
(2) The Minister shall not close a reformatory centre or a
safety home without giving the manager of the center or home
an opportunity to be heard.
(3) Notice of the closure of a reformatory center or a safety
home shall be given to the manager of the centre or home and the
124
centre or the home shall cease to be a reformatory centre or a safety
home from the time specified in the notice.
(4) The Minister shall publish the notice of the closure of a
reformatory center or safety home in the Gazette.
Application
to review
minister’s
decision on
closure of
a reformatory
centre or
safety home
The manager of a reformatory canter or a safety home may
apply to the Minister to review a decision to close the centre or
the home and the Minister may, upon considering the application,
re- issue the certificate.”
SECTION 39 [Manager etc, his executor or administrator may resign certificate]
The section makes provision for the procedure to be followed whenever the
managers of any approved home or their executors and administrators wish to close the
premises. It is provided that six months notice should be given to the Minister if the
notice is tendered by the manager or one month notice if the notice is tendered by
executors and administrators.
The Commission had some problems with subsection (2) which provides that this
notice may be withdrawn before the expiry of the stipulated time. On that note, the
Commission recommends that, the Minister should be given power to proceed with the
cancellation despite the withdrawal of the notice depending on the condition of the
centre. The Commission came to this conclusion after observing that it is possible for the
home to deteriorate in condition because of negligence after tendering the notice. The
Commission therefore recommends that a new subsection be inserted that will give the
Minister such powers. The Commission further observed that six months notice is rather
too long especially where the centre is facing some financial problems. On that point the
Commission recommends that the provision should provide for minimum and maximum
periods of time. Further, the Commission recommends that the provision should be
extended to safety homes.
Section 39 is therefore to be redrafted as follows(1) The manager or proprietor of a private reformatory
centre or a private safety home intending to close the centre or his
the home , may, upon giving notice of the intention to the administrator
Minister of not less than one month and not more than six
or
month in writing, apply for the closure of such centre or the
etc may apply home.
Manager
proprietor,
executor
for closure
(2) The executors or administrators of a deceased
125
proprietor intending to close a private reformatory centre or private
safety home may, upon giving one month’s notice in writing of
their intention, apply for the closure the centre or home.
(3) At the expiry of the period of the notice given under
subsections (1) or(2), unless the notice has been withdrawn, the
Minister may proceed with the closure, and notice of such closure
shall be published in the gazette.
(4) A notice of the intention to close a centre or a home given
under subsections (1) or (2) may be withdrawn, before the closure of
the centre or home.
(5)
Notwithstanding subsection (4), the Minister may,
proceed with the closure if the condition of the centre so requires that
the center or home be closed but the Minister shall not so proceed
unless he has given the proprietor, executor, manager, or the
administrator an opportunity to be heard.
SECTION 40 [Liabilities of manager]
The Commission recommends retention of this section subject to redrafting it as
follows:
The manager of a private reformatory centre or a private
safety home shall, if there is a vacancy in the number of children
children authorized to be detained at the centre or home, be liable
to receive any child sent to the centre or home under this Act,
and shall undertake to educate, clothe, lodge and feed the child
during the whole period for which the child is liable to be detained
at the centre or home.
Liabilities
to receive
SECTION 41 [Effect of cancellation]
The Commission recommends retention of this section subject to redrafting it as
followsEffect of
closure
notice
If a reformatory centre or a safety home has been closed
under the provisions of this Act no child shall be received into
the centre or home, after the date of the receipt by the manager
of the centre or the home of the notice of the closure or
cancellation of the certificate, or after the date specified in the
notice of the closure or cancellation of the certificate as the case may be.
SECTION 42 [Discharge or transfer of children]
126
The Commission recommends retention of the provision subject to redrafting it as
follows(1)
When the closure of a private reformatory centre or or
safety home takes effect, the persons resident shall be, by of children
order of the Board, and upon consultation with the Minister,
either discharged or transferred to some other reformatory centre or
safety home as the case may be.
Discharge
transfer private
(2)
Where a reformatory centre or a safety home is
temporarily closed by inspectors in accordance with section…117, the
Board shall make all necessary arrangements to transfer the persons
resident at the center or home to an alternative suitable location.
(3)
The period of stay for which a child was sent to
a reformatory centre or a safety home shall not be increased by the
transfer of the child to another place.
SECTION 43 [Review of cases of detained juvenile]
The Commission recommends retention of this section.
SECTION 44 [Approved schools and homes lawful places of detention]
The Commission recommends that this section should be retained. However,
since the Commission has earlier on recommended establishment of safety homes as
detention places before conclusion of trial, the Commission recommends that this
provision should, as a result, be redrafted to cover safety homes as lawful places for
detention in addition to reformatory centres.
The section is therefore to read as followsReformatory
centres, safety
homes lawful
places of
detention
A reformatory centre or a safety home shall be a lawful place
of detention for children in respect of whom a lawful order has
been made or who may lawfully be transferred thereto.
SECTION 45 [Illness of juveniles detained]
The section gives power to the manager or any person having control of an
approved school or home or any institution created under the provisions of the Act for
purposes of keeping children to remove a child to a government hospital in cases of
serious illness.
117
See provisions on temporary closure of a reformatory centre or safety home
127
The Commission observed that it is sometimes not practicable to restrict the
manager or the person in charge to remove the child to government hospitals only. The
Commission therefore recommends that the word “government” in subsection (1) be
deleted. It was however noted that if the word “government” is deleted as recommended,
there will be need to define the word “hospital” so that children are only sent to reputable
hospitals. The definition of the word “hospital” is therefore to replace the definition of
the phrase “government hospital” in subsection 3 as followsIn this section “hospital” means a government hospital and any registered
health centre, institution or facility.
Further, the Commission recommends that the phrase “or is committed to the care
and custody of any society or institution” in subsection (1) be deleted in line with the
earlier recommendation that all matters of child care and protection should be dealt with
under that theme.
Additionally, the Commission recommends that the provision should be extended
to include “safety homes’
A question arose as to whether the person in-charge should be under duty to inform
parents whenever a child falls sick. The Commission concluded that it is only this
should be done only in cases of serious or recurring illness.
To that effect, the Commission recommends that a subsection should be created
as followsThe manager or the person having control of the reformatory centre or
safety home concerned shall, if the illness is serious or recurrent, inform the
parents or the guardian about such illness..
SECTION 46 [Return when cured]
The section makes provision for the return to the approved school or home
whenever the child is cured. The Commission recommends retention of the section
subject to redrafting it appropriately.
It was also observed that in certain circumstances, it will be to the best interests of
the child if, after the cure, the child is released whether or not his period of stay at the
approved school or approved home has expired. The Commission therefore suggested
that the person in charge of the child should seek advice from the doctor as to whether
the child is fit to be kept at the institution or not and depending on that advice, to
recommend to the Board for the release of the child. The Commission therefore
recommends that a provision be inserted to this effect. Further, the Commission
recommends that the marginal note should read “Return after treatment”.
128
Section 46 is therefore to read as follows –
Return after
treatment
(1)
If in the opinion of the medical officer, it is no
longer necessary that the child should remain in the hospital,
the medical officer shall issue a certificate releasing the child from the
hospital to the manager or the person having control of the place
where the child was detained.
(2)
The manager or the person having control of the place
where the child was detained may, upon seeking the advice of the
medical officer, recommend to the Board for the release of the child
form the place of detention.
SECTION 47 [Duty to prevent escape]
The Commission recommends that the section be redrafted by adding the word
“reasonable” immediately before the word “precaution” to avoid use of unreasonable
force or other undue means. Additionally, the Commission recommends that the phrase
“and it shall be lawful for the said officers to take such measures for preventing the
escape of any such juvenile as shall be necessary” be deleted because it is superfluous.
The section is to read as followsDuty to
prevent
Every reasonable precaution shall be taken by medical
officers or other officers of a hospital to prevent the escape of a escape
child who may at any time be under medical care at the hospital.
SECTION 48 [Breaches of rules and school discipline]
The Commission recommends that the provision be retained subject to deleting
the words “guilty and punished” and paragraph (b) of subsection (1).
Subsection (1) therefore will read as follows(1)
A child committed to the care or custody of a
reformatory centre or a safety home who wilfully neglects or refuses to
conform to the rules of discipline of the centre or home shall be disciplined in
accordance with the disciplinary rules of the center or home made under
section…..118.
Subsection (2)
Retained.
118
See the provision on Disciplinary rules
129
SECTION 49 [Penalties for assisting or inducing escape and harbouring or concealing
escaped children]
The Commission recommends that the section be retained but noted that it should
be made clear that this provision is not applicable to children who assist their friends to
escape. The Commission therefore recommends the addition of the phrase “not being
another child” immediately after the phrase “any person” in the opening statement.
Further, the phrase “to the care or custody” in paragraph (a) should be deleted and the
word “person” be replaced with the word “child” wherever it appears in this section. The
Commission also recommends replacement of the fine of “fifty pounds” with the fine of
Fifty Thousand Kwacha.
SECTION 50 [Presumption]
The section provides that production of a warrant of detention or otherwise duly
signed by the person in control of the child shall be prima face evidence of the identity
and lawful detention and disposal of the child named in that warrant. The Commission
recommends that the provision be retained but with slight modifications as followsPresumption
of evidence
of identity
The production of warrant or any other document, in
pursuance of which a child is sent to a reformatory centre,
safety home or hospital shall in all proceedings relating to the
child be sufficient evidence of the identity and of the lawful detention
or disposal of the child named in the warrant or document.
SECTION 51 [Evidence]
The section provides that a copy of the rules of an approved school or home
appointed or established under the Act purporting to be signed by the manager thereof
shall be evidence of such rules in legal proceedings. This is in reference to section 36 of
the Act, which empowers managers to make rules for the running of the institutions. The
Commission has recommended that all places of detention should be managed by
uniform rules to be prescribed in a Schedule to the Act. In view of this recommendation,
section 51 becomes irrelevant in as far as proof in court proceedings is concerned because
the rules will be uniform. However, as far as disciplinary rules are concerned, the section
is still relevant because disciplinary rules are context specific and therefore not covered
under the proposal in section 36. Consequently there will be need to prove them in legal
proceedings. The Commission therefore recommends that the section should be redrafted
with specific reference to disciplinary rules. It will read as followsDisciplinary
rules
(1)
The manager of a reformatory centre or a safety
home may make rules not repugnant to, or inconsistent with, this Act
for the maintenance of discipline at the center.
(2)
Disciplinary rules under this section shall not be
enforced until they have been approved by the Minister.
130
(3)
Rules approved by the Minister shall not be altered
without the like approval .
(4)
A copy of disciplinary rules of a reformatory center or
a safety home purporting to be signed by the manager of the center or
the home shall be prima facie evidence of such rules for purposes of
any legal proceedings.
PART VII
EXPENSES AND CONTRIBUTIONS
Expenses and contributions for the maintenance of children in approved schools
or approved homes(now reformatory centres) or where a child has been committed to the
care of a fit person, are provided for under sections 52 and 53.
Section52 provides that parents or guardians are under a duty to contribute to the
maintenance of children who are being kept at an approved school or home or where the
child is under the care or custody of a fit person appointed by the court. The rate of the
contribution is determined by the Minister. Section 53 empowers courts to make a
contribution order at the time of making an approved school or approved home order or
subsequent to that, ordering parents or guardians to contribute to the maintenance of the
children.
The Commission recommends that the sprit of the two sections be retained.
However the Commission also recommends that the provisions be extended to include
safety homes and foster homes to be established as the Commission has recommended.
Further, the Commission was of the view that the Minister should consult the Board
before coming up with rates of the contributions because the Board is better placed to
determine the nature and extent of the contribution. The Commission further noted that
the two sections will make more sense if combined subject to minor changes. In addition,
the Commission recommends that a new provision should be inserted, which should
expressly provide for other sources of funding for public reformatory centres, public
safety homes and public foster homes.
The redrafted sections 52 and 53 and the proposed new section are to read as
followsContribution
order
(1)
When a reformatory centre order, a safety home
order a foster home placement order or an order committing a child
to the care of a fit person has been made by a child justice court
(hereinafter in this section referred to as a committal order) the court
may, at the same time or subsequently, make a contribution order
requiring a parent or guardian or other person having custody of the
child to contribute a weekly, monthly or other periodic sum as may
be specified in the order or to make other necessary contributions as
the court may consider proper in respect of his maintenance.
131
(2)
A contribution order may be made against the parent
or guardian or a person having custody of the child, who having been
required to attend before the child justice court, has failed to do so;
but no such order shall be made without giving the person to make
the contribution an opportunity to be heard.
(3)
A contribution order shall remain in force as long as the
relevant committal order is in force.
(4) Subject to subsections (4) and (5), no contribution shall be
payable under a contribution order in respect of any period during
which the person to be maintained is on conditional discharge or
release or under the supervision of a probation officer.
(5) A contribution order may be varied, revoked or
suspended by the court which made it but shall not be varied as
to increase any contribution payable under the order without
giving the person making the contribution an opportunity to be
heard.
(6)
If a person wilfully neglects to comply with a
contribution order, the court which made the order may, for every
breach of the order, by warrant, direct the amount due to be levied in
accordance with the law for levying fines imposed by courts or may
sentence the person to imprisonment for fourteen days for each
month’s contribution remaining un paid.
NEW PROVISION
Funds for
public
reformatory
centres,
public safety
homes and
public foster
homes
Funds for public reformatory centres , public safety
homes and public foster homes shall consists of –
(a)
such funds as Parliament may appropriate;
(b)
contributions ordered by the court under
section..;119 and
(c)
any donations of funds, materials and other gifts
from any person.”
PART VIII
119
See provisions of the existing section 53
132
GENERAL
SECTION 54
[Power of Minister to remove a juvenile undergoing imprisonment
to an approved school or home]
The provision gives power to the Minister to direct removal to an approved school
or approved home of any juvenile who at the commencement of the Act was in prison.
The Commission noted that this is a transitional provision and as such the provision
should be retained. The Commission however also noted that power by its nature is
discretionary. Since the Commission has earlier on recommended that under no
circumstances should a child be sent to prison, the Minister should rather be under a duty
to direct the removal of children from prison upon the commencement of the proposed
laws. The Commission therefore recommends that the section should be redrafted to
reflect this position. Further, the Commission recommends that while retaining the spirit
of the provision, more elaborate provisions should be drafted. Among other things, the
provisions should cover matters of child care and protection as well as child justice. The
transitional provisions should therefore be drafted as follows –
TRANSITIONAL PROVISIONS
Transfer of
Children
(1)
The Minister shall, at the commencement of this
Act, by writing under his hand direct(a)
the transfer to a safety home in accordance with the
provisions of this Act, any person on custody, who is a
child and is alleged to have committed an offence in
respect of
which proceedings have not been
commenced;
(b)
the transfer to a reformatory centre in accordance
with the provisions of this Act, any person who is a
child and is serving a custodial sentence.
(c)
Remittance
of a list of
children
the transfer to a foster home in accordance with the
provisions of this Act, an child who is in a reformatory
centre for the purposes of care and protection.
(1)
A police officer in charge of a police station or a
person in charge of prison shall, at the commencement of this
Act(a)
remit to the Board a list of all persons in custody who
are children within the meaning of this Act; and
133
(b)
remit to the Board a list of all persons serving sentences
in custody who were children at the time the offences
were committed.
(2) A person in charge of a reformatory center shall at the
commencement of this Act, and in any case within six months, remit
to the Board a list of children being kept at the centre for the
purposes of care and protection.
Proceedings
under
the repealed
Act
SECTION 55
Where, at the commencement of this Act, proceedings
have been commenced in respect of a person who is a child
or a young person within the meaning of the Children and
Young Person Persons Act (now repealed) the and all related
matters shall be dealt with as if they had been commenced under
this Act and any court dealing with the matter shall continue as
if it has jurisdiction under this Act.
[Power of juvenile court conferred on other courts dealing with
juvenile]
The Commission recommends that this section be deleted in view of the amended
section 6, especially subsection (4) on the jurisdiction of juvenile courts, which states that
no charge against a child shall be heard by any court other than a child justice court. The
Commission also recalled its recommendation to delete the definition of Traditional
Court earlier in the Report.
SECTION 56 [Saving of powers of High Court]
This provision serves to retain the power of the High Court. It provides that
nothing in the Act shall be held to lessen or affect the powers of judges of the High Court
to direct persons confined in the Republic to be brought before the court. It further
provides that the High Court can exercise all powers, which may be exercised by
juvenile court including power to order children to be detained in prison. The
Commission observed that the High Court was already given unlimited jurisdiction
under the Constitution120. The Commission however thought that even though this is the
case, the repetition here is necessary and recommends that the section be retained. Fears
were nonetheless raised that if the High Court retains this original jurisdiction, the
specialisation and training required for adjudicators dealing with children will be
compromised. The concerns were eventually allayed as the Commission envisages that
High Court Judges could also benefit from the envisaged training on child adjudication
and that all judges will eventually be trained on child adjudication as part of their
continual judicial training.
120
Section 108
134
While maintaining the spirit of the provision, the Commission recommends that
the section should be redrafted as followsSaving of
powers of the
High Court
(1)
Nothing in this Act shall preclude the High Court
from exercising its ordinary jurisdiction over any matter.
(2)
All powers exercised by a child justice court under this
Act , may, in like manner be exercised by the High Court.
SECTION 57 [Duties and powers of persons to whom juvenile is committed]
Powers and duties of persons to whom a child offender is committed are provided
for under this section. They will be responsible for the maintenance of the child and the
child shall continue to be under the care of such person notwithstanding that he is being
claimed by his parent or any other person. They are also under a duty to make periodic
reports to the court on the condition, education and health of the child. The Commission
recommends that the section be retained subject to adding the phrase “unless the court
orders otherwise” at the end of subsection (1) and to replace “half yearly” with
“quarter yearly” in subsection (2) paragraph (a).
SECTION 58 [Duties arising from a probation order]
The Commission recommends that the section be retained subject to splitting
subsection (1) into two subsections as follows(1)
Where a court has made a probation order under section…,
the parents or guardians of the child shall continue to be responsible for
the care and maintenance of the child but shall allow the probation
officer or other persons appointed for the purpose by the court
(hereinafter referred to as the supervisor) to have access at any time to
the place where the child is living.
(2)
The parents of the child shall give all such information
relating to the condition, education and health of the child as the
supervisor may require and shall, in the best interests of the child,
consider any advise relating to the upkeep and education of the child
which may be given by the Supervisor.
(3)
Retain subsection (2) of the existing Act.
SECTION 59 [Offence]
The Commission recommends that the section should be retained subjecting to
adding the phrase “guilty of an offence and be” immediately before the word “liable”
in paragraph (d) and to substitute the fine of “fifty pounds” with “Fifty Thousand
Kwacha”. Additionally, the Commission recommends that the phrase “not being a
135
child” should be added immediately after the words “any person” in order to emphasize
that children shall not be liable to imprisonment.
SECTION 60 [Mistake as to age]
The Commission observed that this section prevents magistrates from being
answerable if they make a mistake as to the age of the child, even if this mistake is
detrimental to the best interests of the child as long as they can show that the mistake was
made in good faith. The Commission was of the view that such a provision could
encourage laxity in age determination procedures and that it leaves the child to suffer the
inconvenience of the mistake without being given an opportunity to have the mistake
reversed. In view of this, the Commission recommends that a provision be drafted that
will empower the court that made the mistake or any other court of co-ordinate
jurisdiction to review the decision. In making these recommendations, the Commission
was mindful that ordinarily rules of procedure demand that a higher court and not a court
of co-ordinate jurisdiction should review cases of lower courts. However, the
Commission noted that this is not a matter of review but simply taking action to correct a
mistake of fact that if left unchanged will be detrimental to the best interests of the child.
The Commission was comfortable with this position even though there is no precedent to
support the recommendation because it is the only way to guarantee the best interests of
the child in such matters.
The Commission therefore recommends that the section be redrafted as follows:
Mistake
as to age
(1)
Subject to subsection (2), no action and no order made in
the purported exercise of any power conferred by this Act shall be
deemed illegal by reason only that it afterwards appears or is
discovered that a mistake has been made regarding the age of a
person.
(2)
Where a mistake is made as to the age of a child, an
order of the court made against the child on the basis of the mistake
as to age shall be invalid to the extent of the adverse effect as against
the child, and the court which made the order or any court of coordinate jurisdiction shall have power to make a declaration to that
effect.”
SECTION 61 [Regulation and Rules]
This provision empowers the Minister to make regulations for the general
administration of the Act and management of approved schools. The Commission
recommends that the section be retained but noted that section 21 of the General
Interpretation Act, Cap. 1:01 provides for a maximum fine of One Thousand Kwacha and
a maximum term of imprisonment of three months for breaches of regulations made
under any Act. This position is consistent with section 58(2) of the Constitution which
highlights the danger of giving too much power to un- elected members of the executive
branch of government to impose harsh penalties and take away liberty of individuals for a
136
considerable period of time. The Commission therefore was of the view that section 21 of
the General Interpretation Act is sufficient for purposes of the level of penalties for
breach of regulation under this Act. On the rules for the regulation of approved schools
(now public reformatory centres), the Commission noted that a similar provision was
already recommended earlier on. The Commission therefore recommends that the section
should be redrafted as follows The Minister may, on the recommendation the Board, make regulations for
carrying this Act into effectSECTION 62 [Court Rules]
The provision provides that the Chief Justice shall be responsible for making rules
regulating the procedure and practice in a juvenile court. The Commission recommends
that the section be retained but redrafted to reflect the changed terminology to child
justice court as followsThe Chief Justice may make rules regulating the procedure and practice in a
child justice court.
SECTION 63 [Designation of Traditional Courts]
The provision gives power to the Minister responsible for Traditional
Courts to designate any Traditional or Local Courts to exercise jurisdiction under this
Act. The Commission recommends the deletion of the whole section in view of the
Commission’s earlier recommendation to delete references to traditional courts.
CONSEQUENTIAL AMENDMENTS
(i)
The Courts Act (Cap. 3:02)
Bearing in mind that all matters concerning children shall be under the
jurisdiction of the proposed child justice court, the Commission observed that section
39(2)(d) of the Courts Act is inconsistent to this recommendation. The section makes
provision that matters of guardianship and custody of children shall not be heard by
subordinate courts. The Commission therefore recommends that the Courts Act (Cap
3:02) be amended by deleting section 39 (2) (d).
(ii)
Births and Deaths Registration Act (Cap. 24:01)
The Act makes provision that “no person shall be bound as father to register the
birth of an illegitimate child, and no person shall be entered in the register as the father of
such child except at his own request and upon acknowledging himself to be the father of
the child and signing, or affixing his mark to the birth report as such”121.
121
Section 6.
137
Recalling its earlier recommendation that children should not be discriminated
against on the basis of their birth status or otherwise, the Commission is of the view that
this provision runs against this recommendation as well as the provisions of section 23 of
the Constitution on equal status of children regardless of the condition of their birth and
the UN Convention on the Rights for a Child.
The Commission therefore recommends that the Births and Deaths Registration
Act be amended by repealing section 6.
RE-ARRANGEMENT OF PARTS
The Commission recommends that the Act be re-arranged as follows –
PART I
PRELIMINARY
PART II
GENERAL PRINCIPLES
PART III
CHILDREN SUSPECTED TO HAVE COMMITTED OFFENCES
Chapter I:
Chapter II:
Chapter III:
Chapter IV:
Methods of bringing a child offender before a court or other
inquiry
Detention before a finding against a child
Preliminary Inquiry
Diversion
PART IV
DETERMINATION OF AGE OF A CHLD
PART V
LEGAL REPRESENTATION
PART VI
CHLD JUSTICE COURT: ESTABLISHMENT
COMPOSITION PROCEDURE AND POWERS
PART VII
CHILD CASE REVIEW BOARD
PART VIII
REFORMATORY CENTRES AND SAFETY HOMES
PART IX
CHILD CARE AND PROTECTION
Chapter I:
Chapter II:
Chapter III:
Chapter IV:
Chapter V:
Chapter VI:
PART X
JURISDICTION,
Child care and protection by the family
Children in need of care and protection
Guardianship
Fosterage
Support for children by local authorities
Protection of children from undesirable practices
EXPENSES AND CONTRIBUTIONS
138
PART XI
TRANSITIONAL PROVISIONS
PART XII
GENERAL
SCHEDULES
In view of the Commission’s recommendations the following schedules shall be
part of the new Act -
FIRST SCHEDULE
Section …
GUIDING PRINCIPLES IN MATTERS CONCERNING CHILDREN
Welfare
1.
principle determines
Whenever the state, a court, a local authority or any person
any question with respect to(a)
(b)
the upbringing of a child or,
the administration of property of a child or the application
of any income arising from it, the welfare of the child
shall be of the paramount consideration.
Time being
of the essence
2.
In all matters relating to a child, whether before a court of law
before any other person, regard shall be had to the general principle
that delay in determining the questions is likely to be prejudicial to the
welfare of the child.
Criteria for
decisions
3.
In determining any question relating to circumstances set in
paragraphs (a) and (b) of paragraph (1), the court or any other
person shall have regard in particular to(a)
(b)
(c)
(d)
(e)
the ascertainable wishes and feelings of the child concerned
considered in the light of his age and understanding;
the physical, emotional and educational needs of the child;
the likely effects of any changes in the child’s
circumstances;
the age, sex, background of the child and any other
circumstances relevant in the matter;
any harm that the child has suffered or is at the risk of
suffering;
139
Rights of
the child
(f)
where relevant, the capacity of the parents, guardians or
other people involved in the care of the child in meeting
the needs of the child.
4.
A child shall have the right –
(a)
to leisure which is not morally harmful and the right to
participate in sports and positive cultural and artistic
activities;
to a just call on any social amenities or other resources
available in any situation of armed conflict or natural or
man-made disasters;
to exercise, in addition to all rights stated in this Schedule
and this Act, all the rights set out in the United Nations
Convention on the Rights for the Child and the
Organization of African Union Charter on the Rights and
Welfare of the African Child with appropriate
modifications to suit the circumstances in Malawi that are
not specifically mentioned in this Act.
(b)
(c)
140
SECOND SCHEDULE
CHILD (CARE, PROTECTION AND JUSTICE) ACT
SECTION …122
Children charged with the following offences shall not be considered for diversion.
Offences
1. Rape
2. Attempted rape
3. Abduction
4. Defilement of a girl under 13 years and attempted defilement.
5. Defilement of an idiot or imbecile
6. Manslaughter
7. Murder
8. Attempted murder
9. Infanticide
10. Killing an unborn child
11. Disabling in order to commit a felony or misdemeanour
12. Stupefying by overpowering drug or thing with intent to commit a felony or
misdemeanour
13. Robbery with violence
122
See provisions on diversion
141
14. Attempted robbery with violence
15. House breaking and burglary
16. Arson
17. Offences against Aircraft
18. Offences against motor vehicles, trains, etc
19. Conspiracy to murder
20. Aiding suicide
21. Acts intended to cause grievous harm or prevent arrest
22. Preventing escape from a wreck
23. Maliciously administering poison with intent to harm
24. Intentionally endangering safety of persons travelling by railway
25. Accessory after the fact to murder.
THIRD SCHEDULE
CHILD (CARE, PROTECTION AND JUSTICE) ACT
142
123
SECTION …
DIVERSION OPTIONS
CATEGORY A
Category A diversion options are –
(1)
An oral or written apology to the victim or victims of the offence or to any other
specified person or institution;
(2)
A formal caution with or without conditions;
(3)
Placement under a supervision and guidance order placing the child under the
supervision and guidance of a mentor or peer role model for a period not
exceeding three months in order to monitor and guide the child’s behaviour;
(4)
Placement under a reporting order requiring a child to report to a specified person
at a time or at times specified in such order so as to enable such person to monitor
the child’s behaviour for a period not exceeding three months;
(5)
The issue of compulsory school attendance order for a period not exceeding three
months requiring the child to attend school everyday for a specified period of
time, which attendance shall be monitored by a specified person;
The issue of a family time order requiring the child to spend a number of hours
with his family for a period not exceeding three months;
(6)
(7)
The issue of a positive peer association order requiring a child to associate with
persons who can contribute to the child’s positive behaviour for a period not
exceeding three months;
(8)
The issue of a good behaviour order requiring a child to abide by an agreement
made between the child and his family to comply with certain standards of
behaviour;
(9)
The issue of an order prohibiting the child from visiting, frequenting or appearing
at a specified place;
(10)
Referral to counselling or therapy for a period not exceeding three months;
(11)
Compulsory attendance at a specified centre or place for a specified vocational or
educational purpose for a period not exceeding five hours each week, for a
maximum of three months;
123
See provisions on diversion
143
(12)
Symbolic restitution of an object owned, made or bought by a child to a specified
person, persons, group or institution; and
(13)
Restitution of a specified object to a specified victim or victims of the alleged
offence where the object concerned can be returned or restored.
(14)
Any order removing the child from undesirable environment for a specified
period.
144
CATEGORY B
Category B diversion options are –
(1)
Any of the options under Category A provided that where a maximum period has
been imposed under paragraphs (3), (4), (5), (6), (7), (8), (9), and (10), the
maximum period shall not exceed six months;
(2)
Compulsory attendance at a specified centre or place for a specified vocational or
educational purpose for a period not exceeding eight hours each week, for a
maximum of six months;
(3)
Performance without remuneration of some service for the benefit of the
community under the supervision or control of an organization or institution, or a
specified person or group identified by the probation officer for a maximum
period of fifty hours, and to be completed within a maximum period of six
months;
(4)
Provision of some service or benefit to a specified victim or victims which the
child or the family can afford;
(5)
Payment of compensation to a maximum of K10,000 to a specified person,
persons, group or institution where the child or his family is able to afford this;
(6)
Where there is no identifiable person or persons to whom restitution or
compensation could be made, provision of some service or benefit or payment of
compensation to a community organization, charity or welfare organization;
(7)
Referral to appear at a victim-offender mediation or other restorative justice
involving family members at a specified place and time; and
(8)
Any two of the options listed used in combination.
145
CATEGORY C
Category C diversion options are –
(1)
Referral to a programme with a residential requirement, where the duration of the
programme does not exceed six months, and no portion of the residence
requirement exceeds a maximum of thirty-five nights during the operation of the
programme;
(2)
Performance without remuneration of some service for the benefit of the
community under the supervision and control of an organization or institution, or
a specified person or group identified by the probation officer for a maximum
period of two hundred fifty hours, to be completed within a maximum period of
twelve months;
(3)
Where a child is and is not attending formal schooling, compulsory attendance at
a specified centre or place for a specified vocational or educational purpose for a
maximum period of not more than thirty-five hours per week, to be completed
within a maximum period of six months;
(4)
Referral to counselling or therapeutic intervention, which shall be in conjunction
with any of the options listed in this category.
FOURTH SCHEDULE
CHILD (CARE, PROTECTION AND JUSTICE) ACT
146
SECTION …124
Child offenders charged with the following offences shall be detained in accordance with
section …
Offences
1.
Attempting to murder.
2.
Attempting to murder by convict
3.
Accessory after the fact to murder
4.
Written threats to murder
5.
Conspiracy to murder
6.
Aiding suicide
7.
Disabling in order to commit felony or misdemeanour
8.
Stupefying in order to commit felony or misdemeanour
9.
Acts intended to cause grievous harm or prevent arrest
10.
Preventing escape from wreck
11.
Intentionally endangering safety of persons travelling by railway
12.
Attempting to injure by explosive substance
13.
Maliciously administering poison with intent to harm
14.
Infanticide
124
See provisions on punishment on punishment of certain grave crimes
147
FIFTH SCHEDULE
CHILD (CARE, PROTECTION AND JUSTICE) ACT
SECTION …125
REFORMATORY CENTRE AND SAFTEY HOME ORDER
IN THE CHILD JUSTICE COURT SITTING AT ……….
CHILD CASE NUMBER
……………………………………………………………………………………………………..
(hereinafter called the child) who appears to the court to be a child having been born as far as can
be ascertained, in or about the ……………………day of …………. 20…… has this day *been
found to be responsible for Or having been charged with the following offences
………………………………………………………………………………………………………
……………………………………………………………………………………… Or * having
been found to be in need of care, control and protection
IS HEREBY ORDERED to be sent FORTHWITH (or on the ………… day of
………………………….. 20……..) to a reformatory centre/ safety home to be kept there until
the child has been released on the recommendation of the Board Or until the child has been
discharged/released on bail/acquitted.
AND it is further ordered that the Police officers of the Republic or ………………… shall be
responsible for conveying the child to such reformatory centre/safety home as may be specified
by the Board.
*AND it is further ordered that ……………………..residing at …………………….. being the
parent or guardian or other person hitherto having custody of the child shall pay to
……………………………. the weekly (monthly) sum of …………………… until the child
ceases to be subject to this order.
* AND it is further ordered that until the child is sent to the said reformatory centre/safety home
in pursuance of this order he or she shall be kept in ……………………… or is committed to the
custody of …………………………
Dated this ………………. Day of ………………………… 20 …….
…………………………….
Magistrate/Chairman
*Delete if inappropriate
SIXTH SCHEDULE
CHILD (CARE, PROTECTION AND JUSTICE) ACT
SECTION …126
125
126
See provisions on reformatory centre and safety home orders
See provisions on reformatory centre and safety home rules
148
REFORMATORY CENTRE AND SAFETY HOMES (MANAGEMENT) RULES
Citation
1.
These Rules may be cited as Reformatory Centre and Safety
Homes (Management ) Rules.
Minimum
2.
Standards Act shall
and services
of reformatory
centres and
safety homes
Reformatory centres, and safety homes designated under this
provide for the following minimum conditions(a)
(b)
(c)
(d)
(f)
(f)
education , recreation and health care;
parent/child interaction centre;
counselling services;
proper hygiene and sanitation;
adequate nutrition, proper clothing and bedding;
communication materials.
Other
services
3.
In addition to the services mentioned in rule 2, reformatory
centres, and safety homes may, where circumstances do require, facilitate any
other services by allowing service providers access to the centre or home or
by allowing children to have access to the services
Records
4.
The officer -in-charge of a reformatory centre, or safety home
shall keep a register in which details of each child shall be recorded.
Inspection
of the Register
by the Board
5.
Details of the register shall be examined by the Board.
[Subsidiary]
Child Justice Courts Designation Notice
SUBSIDIARY LEGISLATION
149
CHILD JUSTICE COURT DESIGNATION NOTICE
DESIGNATION NOTICE
Under section …
The Chief Justice has designated the following courts to exercise jurisdiction
under the Act-
SEVENTH SCHEDULE…
Under section ..
PRESCRIBED FORM OF ACCOUNT OF A CHILD’S ESTATE
I …………………………………………….. of ………………………………………. do
solemnly and sincerely declare that the estate of
(name of child / ren)
…………………………………………………………. Is as follows-
Description of property…………………………………………………………………...
150
Income (monthly, Quarterly, yearly……………………………………………………...
Bank Details (account number, balance etc……………………………………………..
AND I MAKE this solemn declaration, conscientiously believing the same to be true
[and by virtue of the Oaths, Affirmations and Declarations Act].
Declared at ………………………………… this ……………………………. Day of
……………………………. 200………………
Before me
…………………………………………
[COMMISSIONER FOR OATHS]
EIGHTH SCHEDULE
FOSTER-CARE PLACEMENTS
Section … …..
Form 1
APPLICATION TO FOSTER A CHILD
NAME OF APPLICANT…………………………………………………………………………
MARRIED / SINGLE ……………………………………AGE…………………………………
ADDRESS ……….………………………………………………………………………………..
……………………………………………………………...TEL. NO……………………………
NUMBER OF CHILDREN………………………………...AGE…………………………….
EMPLOYMENT OF APPLICANT……….. ………………………………………………….
EMPLOYMENT OF HUSBAND……….………………………………………………………
EMPLOYMENT OF WIFE……….……………………………………………………………
151
OTHER SOURCES OF INCOME (e.g. farm………...………………………………………
HAVE YOU EVER FOSTERED A CHILD/CHILDREN BEFORE? (If so give
particulars)………………………………………………………………………...………………
……………………………………………………………………………………………………..
REASONS FOR FOSTER……………………………………….…………………………….
ARE YOU WILLING TO UNDERTAKE SHORT TERM FOSTERING?………………
NAMES OF REFEREES AND THEIR ADDRESSES (one shall be your local or Village
Chief)………………………………………………………………………………………………
1.
……………………………………………………………………………………………..
…………………………………………………………………………………….……….
…………………………………………………………………………………….……….
…………………………………………………………………………….……………….
2.
…………………………………………………………………………….……………….
…………………………….………………………………………………….……………
…………………………………………………………………………………..………….
AGE RANGE ……………… SEX OF CHILD YOU WISH TO FOSTER…………………
APPLICANT’S SIGNATURE……………….…………………………………………………..
DATE…………………………………….
FOSTER-CARE PLACEMENTS
Form 2
section …
FORM OF UNDERTAKING
(To be filled in Triplicate)
I / We (names of foster parents) …………………………………………………………………………….
Who received (name of child)………………………………………………………………………………..
Into my /our home on (date) ……………………………………………………………………………….
From (name of District Social Welfare Office) ……………………………………………………………
Undertake that1.
2.
3.
4.
5.
6.
I/we will care for (name of Child) ………………………………………………………………...
as though he /she were my/our own child.
I/we will bring him/him up in accordance with the ……………………………………………..
……………………………………………………………………………………………………….
I/we will look after his/her health and allow him/her to be medically examined as required by the
District Social Welfare Office.
1/we will allow an Officer of the District Social Welfare Office or representative of the Ministry to
visit my/our home, and to see the child at any time.
I/we will inform the District Social Welfare Office immediately if the child is seriously ill, or is
missing, or is involved in an accident, or is in any kind or trouble.
I/we will inform the district Social Welfare Office immediately if I /we plan to change residence
and address.
152
7.
8
I/we understand that an Officer of the District Social Welfare Office has the right to remove the
child from my/or home in certain circumstances.
I/we will ensure that the child is not transferred to another country without leave of the court
………………………………………
(Signed, Foster Father)
……………………………………..
(Signed foster Mother)
……………………………………
(Address of Foster Parent)
(Signed,
manager
of
foster home)
..…………………………
(Address of foster home)
………………………………
CERTIFICATE
I ……………………………………………………(Title) ………………………………
Certify that I have explained the foregoing undertaking in the ………………………
………………………………………… language to …………………………………….
………………………………………… and ……………………………………………..
foster parent(s).
Signed…………………………………………………….
(District Social Welfare Officer)
Signed ……………………………………………………..
(Witness)
………………………………………………………………
(Address of Witness)
………………………………………………………………
(Address of District Social Welfare Office)
Date:………………………………..
153
FOSTER-CARE PLACEMENTS
Form 3
section…
PROSPECTIVE FOSTER PARENT RECORD
Name of Prospective Foster Parent(s)…………………………………………………………….
Date of Birth……………………………………………..
Age……………………………………………………….
District of Origin ………………………………………
Religion…………………………………………………
Occupation………………………………………………………………………………………….
Marital Status of prospective Foster Parent(s) …………………………………………………..
Is the relationship monogamous or polygamous?……………………………………………….
Home Address
TA
…………………………………………………..
Village
……………………………………………………
…………………………………………………….
District
……………………………………………………..
………………………………………………………
Details of other people living in the home:
______________________________________________________________________________
Name
Relationship to
Prospective
Age
School/Class
Occupation
Foster Parent
154
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Is there or has there been any serious illness/infection in the family? (If any, give details)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
State the income and wealth of the prospective foster Parents. Give details of business and land
owned by the family/person.
Description of the home _________________________________________________________
_____________________________________________________________________________
Number of Rooms ______________________ Type of Toilet __________________________
Type of Water Supply___________________________________________________________
Will the family/person need material support in order to start fostering? If the answer is “yes”
state what will be needed?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Why does this family/person wish to foster children?
______________________________________________________________________________
______________________________________________________________________________
Do they understand the temporary nature of fostering?________________________________
Has the person/any member of the family had a serious conviction (if YES, give details and dates
and state whether in your opinion it is of such seriousness as to prevent the family/person from
taking on a foster placement?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Assessment of the suitability of that family/ person to foster children.____________________
155
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Recommendation______________________________________________________________
What type of foster child would best benefit from this family/person? (baby, child, male, female,
etc)
Details of Foster Child(ren) already placed with foster parents
______________________________________________________________________________
Name
Sex
placement
Date of
date of
Age at
Date of
Why terminated
termination
of Foster
placement
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Details of parents and siblings of foster children if known
______________________________________________________________________________
Name of
Names of
Names of
Sex
Age
Religion
Address
Foster
Parents
brothers/
Child
sisters
of foster
child
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Name of Supervising Officer _____________________________________________________
Signature_________________________________________
Address_______________________________________________________________________
Date_____________________________________________
156
FOSTER-CARE PLACEMENTS
Form 4
section …
FOSTER CHILD CASE RECORD
Name of child (surname first)_____________________________________________________
Date of Birth _______________________________Age________________________________
District of Origin_________________________________________
Sex_________________________________Religion___________________________________
Name of Foster Parents__________________________________________________________
Foster Parent’s Home Address
Change of Address
TA
_______________________________
Village _______________________________
_______________________________
District _______________________________
_______________________________
________________________________
________________________________
________________________________
________________________________
________________________________
Natural Father’s Name_________________________________ Alive/Dead/Unknown
Natural Mother’s Name_________________________________Alive/Dead/Unknown
Natural Father or
Guardians Address
TA
_______________________________
Village _______________________________
_______________________________
_______________________________
_______________________________
Natural Mother or
Guardians Address
_______________________________
_______________________________
_______________________________
________________________________
________________________________
Details of Foster Child brothers, sisters and relative.
Name
____________________
____________________
____________________
____________________
Addresses
Alive/Dead
_____________________
_____________________
_____________________
_____________________
_________________________
_________________________
_________________________
_________________________
Where was the child living immediately prior to this foster placement? (Please give names and
addresses of carers or institution).
157
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
CASE HISTORY OF THE CHILD AND HIS/HER FAMILY
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
State what efforts have been made to trace the parents or relatives and to return the child to
his/her family.
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Details of medical history including immunization
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Give details of education
School______________________________________class______________________________
Name of supervising officer_______________________________________________________
Address ________________________________________________________
Date___________________________________ Supervisor’s Signature____________________
158
CHILD (CARE, PROTECTION AND JUSTICE) BILL, 2003
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1.
Short title
2.
Interpretation.
PART II
GENERAL PRINCIPLES
3.
Mode of pronouncing a finding against a child.
4.
Non-effect of a finding against a child
5.
General consideration
PART III
CHILDREN SUSPECTED TO HAVE COMMITTED AN OFENCE
CHAPTER I
METHODS OF BRINGING A CHILD OFFENDER BEFORE A
COURT OR OTHER INQUIRY
6.
Arrest of a child
7.
Guidelines on arrest of children
8.
Summons
9.
Arrest of a child by a private person
10.
Reference to a probation officer
11.
Police powers to caution and release.
159
CHAPTER II
DETENTION BEFORE A FINDING AGAINST A CHILD
12.
Restriction on detention before a finding against a child
13.
Places of detention before a finding against a child
14.
Child not to associate with adult offender
15.
Bail of children.
CHAPTER III
PRELIMINARY INQUIRY
16.
Nature and objectives of a preliminary inquiry
17.
Persons who shall attend a preliminary inquiry
18.
Persons who may attend a preliminary inquiry
19.
Procedure relating to holding a preliminary inquiry
20.
General powers and duties of inquiry
21.
Release or detention of a child by inquiry magistrate
22.
Evidentiary matters
23.
Separation and joinder of proceedings of a preliminary inquiry
24.
Adjourning a preliminary inquiry
25.
Failure to comply with conditions pursuant to adjournment of a preliminary
inquiry
26.
Failure to appear at a preliminary inquiry
27.
Decisions regarding diversion, withdrawal, prosecution of charged or transfer
to a child justice court
28.
Procedure upon referral of matter to court
160
Chapter IV
DIVERSION
29.
Diversion to occur in certain circumstances
30.
Diversion options
31.
Minimum standards applicable to diversion
32.
Registration of diversion programmes
33.
Establishment of child panels
34.
Procedure of child panels
35.
Victim-offender, mediation or other restorative justice.
36.
Failure to comply with diversion orders
37.
Monitoring programmes of diversion
38.
Keeping of records.
PART IV
DETERMINATION OF AGE OF A CHILD
39.
Application of this Part
40.
Age estimation by a probation officer
41.
Age determination at a preliminary inquiry
42.
Age assessment and determination by an officer presiding in a criminal court
other than a child justice court
PART V
LEGAL REPRESENTATION
43.
Access by a child to legal representation
44.
Child to be provided with legal representation at State expense
45.
Requirements to be complied with by legal representatives.
161
46.
Mode of seeking legal representation at State expense
47.
Child may not waive legal representation in some circumstances.
48.
Legal assistance
PART VI
CHILD JUSTICE COURT: ESTABLISHMENT, JURISDICTION,
COMPOSITION, PROCEDURE AND POWERS
49.
Establishment of child justice court
50.
Composition of a child justice court
51.
Jurisdiction of a child justice court
52.
Parent or guardian may be allowed to attend court
53.
Separation and joinder of trials involving children and adults
54.
Jury trials in children matters
55.
Places of sitting of child justice court
56.
Restriction on media reports of proceedings in a child justice court.
57.
Restrictions on punishment of children
58.
Punishment of certain grave crimes.
59.
Power to order parent or guardian to pay fine etc. instead of child.
60.
Power of other courts to remit children to a child justice court.
61.
Criminal procedure in child justice court
62.
Proceedings of a child justice court to be informal
63.
Power of child justice court on proof of offence.
64.
Reformatory centre orders and other orders for detention
65.
Escape from custody and breach of condition.
66.
Appeals and review.
162
PART VII
CHILD CASE REVIEW BOARD
67.
Establishment of Child Case Review Board.
68.
Tenure of office for members of the Board
69.
Proceedings of the Board.
70.
Functions of the Board.
71.
Powers of the Board.
72.
Secretariat of the Board.
73.
Funding for the Board
PART VIII
REFORMATORY CENTRE AND SAFETY HOMES
74.
Public reformatory centers and public safety homes
75.
Minister may appoint private reformatory centres and private safety homes
76.
Reformatory centre and safety home [management] rules
77.
Manager shall send monthly reports to the Board and allow inspection.
78.
Inspection of reformatory centers and safety homes
79.
Powers of a Minister to direct closure of reformatory centre or safety home
80.
Application to review Minister’s decision on closure of a Reformatory centre
or safety home
81.
Manager, proprietor, his executor, administrator etc may apply for closure
82.
Liabilities to receive children
83.
Effect of closure notice and cancellation of certificate
84.
Discharge or transfer of children
85.
Review of cases of detained children
163
86.
Reformatory centers, safety homes lawful places of detention.
87.
Illness of children detained.
88.
Return after treatment.
89.
Duty to prevent escape.
90.
Breaches of rules of discipline.
91.
Penalties for assisting or inducing escape and for habouring or concealing
escaped children.
92.
Presumption of evidence of identity
93.
Disciplinary rules
PART IX
CHILD CARE AND PROTECTION
Chapter I
CHILD CARE AND PROTECTION BY THE FAMILY
94.
Parents duties and responsibilities
95.
Child duties and responsibilities
96.
Parentage
97.
Evidence of parentage
98.
Determination of parentage
99.
Custody and access
100.
Application for maintenance
101.
Consideration for maintenance
102.
Request for social inquiry report
103.
Maintenance order
104.
Attachment order
164
105.
Persons entitled to receive maintenance funds
106.
Duration of maintenance order
107.
Continuation of maintenance orders
108.
Variation or discharge of orders
109.
Enforcement of maintenance orders
110.
Joint responsibility to maintain a child
111.
Maintenance during matrimonial proceedings
112.
Power to make maintenance funds to be paid to a person other than the
applicant
113.
Offences
Chapter II
CHILDREN IN NEED OF CARE AND PROTECTION
114.
Determination of children in need of care and protection
115.
Taking a child into place of safety
116.
Determination before child justice court
117.
Child in need of medical examination
118.
Medical examination and treatment
119.
Hospitalization
120.
Control over hospitalised children
121.
Authorization of medical treatment
122.
Steps to be taken after medical examination or treatment
123.
No liability incurred for giving authorization
124.
Duty of a Health worker
125.
Duty of members of the family
165
126.
Duty of child care provider
127.
Duty of members of the community
128.
Functions of child justice courts in cases of children in need of care
Chapter III
GUARDIANSHIP
129.
Appointment of guardian
130.
Appointment of a testamentary guardian
131.
Application for the appointment of guardian by a child or family member
132.
Application for the appointment of a guardian by other persons other than a
child or a family member
133.
Extension of guardianship beyond a child’s eighteenth birthday
134.
Power to revoke, modify or vary a guardianship order
135.
Disputes between guardianships
136.
Offences by guardians
Chapter IV
FOSTERAGE
137.
Interpretation
138.
Public foster homes
139.
Private foster homes
140.
Management of foster homes
141.
Foster home placement
142.
Responsibilities of a Manager or Warden of a foster home
143.
Commitment of a child to a foster parent
144.
Application to foster a child
166
145.
Responsibilities of foster parents
146.
Persons qualified to foster children
147.
Procedure before placement
148.
Religion
149.
Cultural background
150.
Undertaking by foster parents
151.
Medical arrangements
152.
Supervising officer
153.
Visits during placement
154.
Marriages
155.
Termination of placement
156.
Surrendering a foster child
157.
Illness
158.
Death
159.
Records
160.
Application for adoption
161.
Offences
Chapter V
SUPPORT FOR CHILDREN BY LOCAL AUTHORITIES
162.
General functions of local government assemblies
163.
Secretary for children affairs
164.
Registration of children with disabilities
165.
Duty to provide accommodation to children in need
167
166.
Tracing of parents or guardians
167.
Duty to report infringement of a child’s rights
168.
Registration of births and deaths of children
169.
Registration of children suffering from HIV/AIDS
Chapter VI
PROTECTION OF CHILDREN FROM UNDESIRABLE PRACTICES
170.
Child abduction
171.
Child trafficking
172.
Harmful cultural practices
173.
Forced marriage or betrothal
174.
Pledge of a child as security
175.
Offence
176.
Inquiries and placements
177.
Child recovery order
PART X
EXPENSES AND CONTRIBUTIONS
178.
Contribution order
179.
Funds for public reformatory centres and public safety homes
PART XI
TRANSITIONAL PROVISIONS
180.
Transfer of children
181.
Remittance of a list of children
182.
Proceedings under the repealed Act (Cap 26:03)
168
PART XII
GENERAL
183.
Saving of powers of the High Court
184.
Duties and powers of a person to whom a child is committed
185.
Duties arising from a probation order
186.
General offences
187.
Mistake as to age
188.
Regulations and rules
189.
Court rules
190.
Amendments and repeals
A BILL
entitled
An Act to consolidate the law relating to children by making provision for child
Justice and for child care and protection; and for matters of social development of the
child and for connected matters.
PART I
PRELIMINARY
Short title
1.
This Act may be cited as the Child (Care, Protection and Justice)Act,
20.. and shall come into operation on such date as the Minister shall appoint
by notice in the Gazette.
Interpretation
2.
In this Act, unless the context otherwise requires –
169
“appropriate adult” means an adult relative or any adult who
knows the child or is known to the child or any person appointed
by the court, but shall not include:
(a)
a police officer, investigator, prosecutor or any person
working with the police in relation to the case;
(b)
victim of the offence;
(c) a witness in the case whether for or against the child;
“Board” means the Child Case Review Board established under Part X ;
“child” means a person below the age of eighteen years;
“child justice court” means a subordinate court established under section
49;
“child panel” means a child panel established under section 33.
“court” in relation to proceedings relating to a child, includes any tribunal;
“diversion” means the referral of cases of child offenders away from
formal court proceedings with or without conditions;
“diversion option” means a plan or a programme of diversion of a
prescribed order and content and of specified duration;
“guardian” means a person who has lawful or legitimate custody, care or
control of a child in place of a parent;
“parent” includes an adoptive parent, foster parent or any person acting in
whatever way as parent;
“ parent, guardian, or appropriate adult” used in relation to a child means a
parent, guardian or appropriate adult of the child;
170
“place of detention” means a place of detention as provided under this
Act;
“place of safety” means an appropriate place where a child in need of
care and protection can be kept temporarily and includes a safety home
or a foster home;
“probation officer” means a person appointed as such under section 15 of
the Probation of Offenders Act [cap9:01] or any other person in the public
service whom the Minister may appoint to perform probation duties for
the purposes of this Act;
“public reformatory centre ” means a reformatory centre
established
under section 74;
“public safety home” means a safety home established under section 74;
“private reformatory centre ” means a reformatory centre established
under section 75;
“private safety home” means a safety home established under section 75;
“medical officer” means any person duly authorised to perform duties of a
medical personnel and includes a health worker;
“reformatory centre”
means a home or institution or part thereof
established for the purposes of:
(a)
reception, education and vocational training;
(b)
counselling of children in accordance with this Act.
“restorative justice” means the promotion of reconciliation, reconstruction
and sense of responsibility in respect of the offence committed by a child;
171
“serious offence” in relation to a child means any of the offences listed in
the Fourth Schedule ;
“safety home” means a place or part thereof for the purposes of reception,
education, counseling and safety of children before conclusion of trial or
in circumstances requiring placement of a child for care and protection.
“vocational training” means training in some branch of useful industry,
including agriculture.
PART II
GENERAL PRINCIPLES
Mode of
pronouncing
a finding
against a
child
Non-effect
of finding
against a child
3.
The words “finding of guilty” “conviction” and “sentence” shall
not be used in respect of any child in proceedings in a child justice court
or any other court but in pronouncing the conviction against the child, the
court shall record that the child is found to be responsible for the offence
charged and, instead of sentencing the child, the court shall proceed to
make an order upon such a finding in accordance with this Act.
4.
Save as provided in section 22
(a)
a finding of responsibility for an offence against a
child shall have no effect whatsoever against the child
for the purposes of any law except in respect only of the
offence for which the child is found responsible and in
respect of such offence, the finding shall elapse upon the
child serving the order.
(b)
any document, communication or information, which is a
record of the child’s finding of responsibility, shall not be
admissible(i)
in any future criminal or civil proceedings in any
court against the child while still a child or as an
adult;
(ii)
or for any other purpose.
172
General
consideration
5.
A court , when dealing with a child who is brought before such
court either as an offender or in need of care or protection , shall(a)
(b)
in a proper case, take steps for removing him or her from
undesirable surroundings and for securing that proper
provision is made for his or her nutrition, education, and
training;
give primary consideration to the rights of the child as
recognized by the Convention on the Rights of the Child set
out in the First Schedule.
PART III
CHILDREN SUSPECTED TO HAVE COMMITTED OFFENCES
Chapter I
METHODS OF BRINGING A CHILD OFFENDER BEFORE A COURT OR OTHER INQUIRY
Arrest of
a child
6.
In addition to the provisions of the Criminal Procedure and
Evidence Code or of any other law relating to the arrest of a
child, or a person who appears to be a child, a police officer or any person
arresting the child or the person who appears to be a child shall-
Guidelines
on arrest of
children
7.
(a)
have due regard to the observance of the principle of the
best interests of the child as well as the general welfare of
the child; and
(b)
make the arrest in accordance with the guidelines set out
under this Chapter.
A police officer or any person effecting the arrest of a child or a
person who appears to be a child shall ensure that-
(a)
(b)
the person has been informed of his or her rights in
relation to the arrest or detention and the reasons for the
arrest in a manner appropriate to the age and understanding
of the person;
there is no harassment or physical abuse of the child;
173
Summons
Arrest of a
child by
a private
person
(c)
the person is provided with medical attention where
necessary;
(d)
there is no use of handcuffs except if the child
is handcuffed to the arresting police officer or the person
effecting the arrest;
(e)
the person is not mixed with adults;
(f)
the person is provided with nutritious food;
(g)
the person is accompanied by a parent, guardian or
appropriate adult as far as it is practicable to do so;
(h)
a parent, guardian or appropriate adult is informed
immediately after the arrest if such parent, guardian or
appropriate adult was not present at the time of the arrest;
(i)
in serious offences, the person is provided with legal
representation ;
(j)
the person has been provided with counselling services
where possible.
8.
Where summons have been used for the purposes of bringing a
child before a court , the summons shall –
9.
(a)
be issued by a court of competent jurisdiction;
(b)
be served on the child, or parent, guardian or the
child’s next of kin; and
(c)
be served on a day and time that ensures due consideration
of the child’s best interests.
Where an arrest of a child or a person who appears to be a child
is made by a private person, that person shall present the child to a
police officer or to the nearest police station or court as soon as it is
practicable to do so, but no later than twenty-four hours after the arrest.
174
Reference
to a
probation
officer
10.
(1) Where a child is arrested or summoned, the officer-in-
charge of the police station shall as soon as it is practicable, refer
the child to a probation officer.
(2)
Where a police officer has reason to believe that a
child suspected of having committed an offence is below the age of ten
years, he or she shall not arrest the child, but shall refer such child to a
probation officer for the estimation of age.
(3)
Where a child or a person who appears to be a child has
been referred to a probation officer under subsection (1) the probation
officer shall assess the child for the purposes of(a)
(b)
(c)
(d)
establishing the possibility of diverting the case;
determining whether the child is in need of care and
protection;
age estimation, if the age is not known;
formulating recommendations regarding–
(i)
release of the child with or without bail;
(ii)
release into the care of a parent, guardian or an
appropriate adult; or
(iii) detention pending a preliminary inquiry.
(4)
The probation officer shall submit the assessment report
containing the recommendations in respect of the child to the prosecutor
handling the matter.
(5)
The prosecutor may, upon consideration of the
recommendations(a)
(b)
(c)
release the child with or without bail,
release the child into the care of a parent, guardian or an
appropriate adult or
detain the child.
(6)
Where the charges have not been withdrawn, the prosecutor
shall make arrangements for a preliminary inquiry.
(7) Where the probation officer estimates that the age of the child is
below ten years, he or she shall recommend that the child be released for
want of criminal responsibility.
(8)
Where it is not possible to refer the child to a probation
officer or where the reference may cause unnecessary delays, the
prosecutor handling the matter may175
Police
powers to
caution and
release
11.
(a)
take the child to a safety home and arrange
preliminary inquiry within forty-eight hours;
for a
(b)
release the child in accordance with section 15.
(1)
A police officer of the rank of sub-inspector and above
may caution a child offender against the repetition of the crime and
release the child with or without conditions if(a)
(b)
(c)
the offence alleged to have been committed is not a serious
offence;
there is enough evidence to warrant prosecution in the
case; and
the child voluntarily admits responsibility for the offence.
(2)
A Police officer imposing a condition under this section
shall take into account the best interests of the child and the condition
shall not be penal in nature.
(3)
The caution and release of a child shall be administered
in the presence of a parent or guardian, or an appropriate adult or a
probation officer unless the police officer considers it to be in the best
interests of the child to dispense with this requirement.
(4)
A police officer shall, when cautioning and releasing a
child, take into account –
(a)
the circumstances in which the offence was committed;
(b)
the views of the victim or complainant;
(c)
personal conditions of the arrested child including age,
physical or mental infirmity, his or her general character
and family circumstances; and
(d)
the views of the parent, guardian or appropriate adult of the
child.
(5)
The Chief Justice may, unless satisfied that the rules
176
made under section 32 of the Criminal Procedure and Evidence Code are
sufficient for the purposes of this Act, make rules prescribing guidelines for
the police on the exercise of powers referred to in this section.
Chapter II
DETENTION BEFORE A FINDING AGAINST A CHILD
Restriction
on detention
before a
finding
against a child
12.
(1)
No child under the age of fourteen years shall be detained
before a finding against him or her unless the Director of Public
Prosecution, in writing or upon hearing, satisfies the inquiry magistrate or
court that(a)
(b)
(c)
the prosecutor wishes to charge the child with a serious
offence in respect of which there is sufficient
evidence to prosecute;
it is necessary in the interest of such child to remove him
or her from undesirable circumstance; or
the prosecutor has reason to believe that the release of such
child would defeat the ends of justice;
(2)
Where a person who appears to be a child is detained
pending a preliminary inquiry, he shall as soon as it is reasonably
possible, but not later than forty-eight hours after the arrest, or if the
period of forty-eight hours expires outside ordinary court hours or on a
day which is not a court day, the first court day after such expiry, be
brought before an inquiry magistrate for purposes of conducting a
preliminary inquiry, failing which he shall, subject to section 15, be
released.
Places of
detention
before a
finding
against a child
13.
(1)
Where a decision has been made to detain a child before a
finding against the child , the child shall, subject to subsection (1), be
detained in a safety home.
(2)
Where a decision has been made to detain a child in
accordance with subsection (1) and the officer in charge of a police station
responsible for the child or the prosecutor is of the opinion that –
(a)
it is impracticable to do so;
177
(b)
the child is of unruly or depraved character that he cannot
be safely so detained;
(c)
by reason of the child’s state of health or of his o mental or
physical condition it is not advisable so to detain the child
or;
(d)
the detention is not otherwise in the best interests of the
child,
he officer in charge or prosecutor shall immediately apply to the
inquiry magistrate, child justice court or any other court that made the
order for any necessary alternative order.
(3)
When making the alternative order under subsection (2),
the inquiry magistrate or the court shall consider the following options(a)
(b)
(c)
(d)
Child not to
associate
with adult
offenders
parenting order;
hospital order;
home confinement order;
reformatory centre order.
(4)
An order made under this section may be varied or revoked
by any court and if so revoked the provisions of this section shall apply.
14.
No child, while in detention in a safety home or reformatory centre
or while being conveyed to or from any court or while awaiting before or
after attending a criminal court, shall be permitted to associate with an
adult (not being a relative) who is charged with an offence other than the
offence with which the child is jointly charged with the adult.
Bail of
children
15.
(1) Where a child or a person who appears to be a child is
apprehended with or without a warrant and cannot be brought forthwith
before an inquiry magistrate, the officer-in-charge of the police station to
which such person is brought shall, unless(a)
the charge is one of homicide or any offence punishable
with imprisonment for a term exceeding seven years;
(b)
it is necessary in the interest of such person to remove the
person from undesirable circumstances; or
(c)
the officer has reason to believe that the release of the
person shall defeat the ends of justice,
178
release the person on a recognizance being entered into by the
person or by his parent, guardian or appropriate adult with or without
sureties to secure the attendance of the person upon the hearing of the charge.
(2)
Where a child or a person who appears to be a child is
released on bail under subsection (1), no monetary payments shall be
attached or ordered as a condition for granting the bail.
(3)
The provisions of the Bail (Guidelines) Act shall, in so far
as they are consistent with the provisions of this Act, apply when granting
bail under this section.
Chapter III
PRELIMINARY INQUIRY
Nature
and
objectives
of a
preliminary
inquiry
16.
(1) A preliminary inquiry shall be held in respect of a child
suspected to be responsible for an offence prior to plea unless the child
has been released on caution or the charge has been withdrawn.
(2) A magistrate of the second grade or above may preside over a
preliminary inquiry and while so presiding shall be called an “inquiry
magistrate” for the purposes of this Act.
(3) A child’s appearance before a preliminary inquiry shall be
regarded as his or her first court appearance for the purposes of this Act.
(4)
The objectives of a preliminary inquiry are to –
(a)
ascertain whether a probation officer has made a social
inquiry of the child and, if not, whether compelling reasons
exist for not making such an inquiry;
(b)
establish whether the matter can be diverted before plea;
(c)
identify a suitable diversion option if the matter is to be
diverted;
(d)
ensure that all available information relevant to the child,
his or her circumstances and the offence is considered in
179
order to make a decision on diversion and placement of the
child;
(e)
establish whether the matter should be referred to the
child justice court to be dealt with in accordance with the
provisions of this Act;
(f)
provide an opportunity for the prosecutor to assess
whether there are sufficient grounds for the matter to
proceed to trial;
(g)
encourage participation of the child and his or her parent,
guardian, or appropriate adult in decisions concerning the
child;
(h)
to ensure that views of persons concerned and present are
considered before a decision is taken;
(i)
determine release or placement of the child in
accordance with the provisions of this Act pending
conclusion of the preliminary inquiry or appearance of the
child in a court;
(j)
take such other measures as may be necessary for
the final disposition of the case.
(5)
A preliminary inquiry shall be held in camera at any
suitable place that the inquiry magistrate shall deem fit.
(6) The inquiry magistrate shall conduct the proceedings in
an informal manner.
Persons
who shall
attend a
preliminary
inquiry
17.
(1)
Subject to subsection (2), persons who shall attend a
a preliminary inquiry are –
(a)
(b)
(c)
(d)
(e)
(f)
(g)
the inquiry magistrate;
the prosecutor;
the child;
the child’s parent or guardian if available;
the probation officer;
any other person served with a subpoena or requested by
the inquiry magistrate to attend the preliminary inquiry;
an appropriate adult in the absence of a parent or guardian.
180
(2)
In exceptional circumstances as determined by the inquiry
magistrate, a preliminary inquiry may proceed in the absence of any of the
persons referred to in subsection (1) (d), (e)and (f).
(3)
Where a preliminary inquiry proceeds in the absence of a
probation officer, the officer’s social report must be available at the
preliminary inquiry unless assessment has been dispensed with in
accordance with section 20(3).
(4)
An inquiry magistrate may, if he considers to be in the best
interests of the child, exclude the persons referred to in subsection 1(d)
from attending a preliminary inquiry.
Persons
who may
attend a
preliminary
inquiry
18.
Persons who may attend a preliminary inquiry are –
(a)
the child’s legal representative if one has been appointed;
(b)
the arresting police officer, the investigating police officer
or any other police officer;
an appropriate adult whether a parent is present or not; and
any other persons permitted to attend the preliminary
inquiry by the inquiry magistrate.
(c)
(d)
Procedure
relating to
holding a
preliminary
inquiry
19.
(1)
At the start of the preliminary inquiry, the inquiry
magistrate shall –
(a)
explain the purposes of the preliminary inquiry and the
role of each person present in an official capacity ;
(b)
inform the child the nature of the allegations;
(c)
inform the child of his or her rights in a manner
appropriate to the age and understanding of the child; and
(d)
explain to the child the immediate procedures to be
followed in accordance with the provisions of this Act.
(2)
At the start of the preliminary inquiry, the prosecutor shall
ensure that the inquiry magistrate has the probation officer’s social inquiry
report and a completed age estimation form with all relevant documents
attached.
181
(3)
Where a child does not admits responsibility for the alleged
offence, no further questions regarding the offence shall be put to the child
and the inquiry magistrate shall set the matter down for plea and trial in a
child justice court and the preliminary inquiry shall be closed.
(4)
inquiry.
A record shall be kept of the proceedings of the preliminary
(5)
No decision taken at a preliminary inquiry is subject to
appeal, save for a decision by the inquiry magistrate to detain a child in a
safety home.
General
powers and
duties of
inquiry
magistrate
20.
(1)
The inquiry magistrate may –
(a)
cause a subpoena to be served on any person whose presence
is necessary for the conclusion of the preliminary inquiry;
(b)
(c)
request or permit the attendance of any other person
who may be able to contribute to the proceedings;
request any further documentation or information which is
relevant or necessary to the proceedings;
(d)
make a determination of age in accordance with section 41.
(e)
after consideration of the information contained in the
social report, elicit any information from the persons
attending the inquiry to supplement or clarify the
information in the social report;
(f)
take necessary steps to establish the truth of any
statement or the correctness of any submission provided
that such steps shall not unduly influence the child to
accept responsibility of the alleged offence; and
(g)
perform any other duties necessary for the final disposition
of the case.
(2)
The inquiry magistrate may, where the conduct of
the proceedings of the preliminary inquiry or any aspect is in
dispute, rule on the conduct of the proceedings in a manner
consistent with the provisions of this Act.
(3)
If it is ascertained that a social inquiry has not yet
been conducted, the inquiry magistrate may adjourn the
182
preliminary inquiry in accordance with section 24(1) (f) pending
such social inquiry or may dispense with the social inquiry if it is
in the best interests of the child to do so.
(4)
The inquiry magistrate shall ensure that the persons
present at the inquiry know of the recommendations in the
probation officers social inquiry report.
(5)
Where the probation officer is present at a
preliminary inquiry, the inquiry magistrate may request the
probation officer to explain, elaborate upon or justify any
recommendation or statement made in the social inquiry report, or
provide additional information.
(6)
The inquiry magistrate shall permit any person
present to challenge the correctness of any statement made in the
probation officer’s social report.
(7)
The inquiry magistrate shall ensure that the persons
present at the preliminary inquiry are informed of diversion
options available in the District or area.
(8)
The inquiry magistrate shall consider reports
regarding arrest and detention of the child.
Release or
detention
of a child
by inquiry
magistrate
Evidentiary
matters
21.
The inquiry magistrate may make an order regarding the
release or detention of the child pending further appearance of the
child at a preliminary inquiry or court where-
22.
(a)
(b)
the preliminary inquiry is adjourned ;
the matter is to be set down for plea and trial in a child
justice court or in any other court.
(1)
Where a child has admitted responsibility for the
offence, information regarding a previous diversion or finding of a
previous responsibility may be furnished at the preliminary inquiry by any
person for the purpose only of assisting the inquiry magistrate to reach a
proper decision regarding diversion.
(2)
No self-incriminating information furnished at a
preliminary inquiry by the child shall be admissible in any subsequent
court proceedings.
183
Separation
and joinder of
proceedings
of a preliminary
inquiry
23.
(1)
Subject to section 17(1)(f),
if a child in respect of whom
a preliminary inquiry is held, is co-accused with an adult, the adult shall
be excluded from the preliminary inquiry
(2)
If a child in respect of whom the holding of a preliminary
inquiry is contemplated is a co-accused with one or more other children, a
joint preliminary inquiry may be held.
(3)
Where a joint preliminary inquiry is held, different
decisions may be made in respect of each accused child.
Adjourning
a
preliminary
inquiry
24.
(1)
The inquiry magistrate may on his own motion or upon
request, adjourn the proceedings of a preliminary inquiry for a period of
not exceeding seven days for the purposes of –
(a)
securing the attendance of a person necessary for the
conclusion of the inquiry;
(b)
obtaining information necessary for the conclusion of the
inquiry;
(c)
establishing the attitude of the victim to diversion or a
diversion option;
(d)
planning a diversion option;
(e)
finding alternatives to pre-trial residential detention;
(f)
conducting of a social inquiry of the child , where no social
inquiry has previously been undertaken and it is found
that such inquiry should not be dispensed with;
(g)
conducting a further social inquiry of the child where the
inquiry magistrate is satisfied that there are exceptional
circumstances warranting the inquiry;
(h)
holding an identification parade;
(i)
any other reason considered to be necessary by the inquiry
magistrate.
184
(2)
Where the preliminary inquiry is adjourned for the
purposes of holding an identification parade, the inquiry magistrate shall
inform the child of the need to have a parent, a guardian, an appropriate
adult or legal representation during such proceedings.
(3)
If the matter upon which the adjournment was granted has
not been concluded upon the expiry of the period of seven days the
preliminary inquiry shall be re- convened and section 27 shall apply.
Failure to
comply with
conditions
pursuant to
adjournment
of a preliminary
inquiry
25.
A child or his parent, guardian or an appropriate adult who fails
to comply with the conditions of the release of the child pursuant
to an adjournment of a preliminary inquiry shall be liable to arrest
upon a warrant issued by the court for such person to be brought before the
court to show cause for failure to comply and the court shall make a
necessary order.
Failure to
appear at a
preliminary
inquiry
26.
Where a child or his parent, guardian, or appropriate adult
has been notified to appear at a preliminary inquiry by a police officer
or by a probation officer and such child, parent, guardian or appropriate
adult fails to attend, such person shall be compelled to attend as if he had
been summoned by the inquiry magistrate.
Decisions
regarding
diversion,
withdrawal,
of charges or
transfer to
a child justice
court
27.
(1)
After consideration of –
(a)
the social inquiry report, unless prosecution the report has
been dispensed with;
(b)
the views of the persons at the preliminary inquiry;
(c)
any further information provided by any person present at
the preliminary inquiry;
(d)
(e)
any further information requested or elicited;
the willingness of the child to admit responsibility for the
offence,
185
the inquiry magistrate shall ascertain from the prosecutor whether the
matter can be diverted.
(2)
Where the prosecutor decides that the matter should be
diverted, he or she shall withdraw the charge or charges against the child
with or without conditions.
(3)
Where the prosecutor decides that the mater be diverted,
the inquiry magistrate shall(a)
(b)
make an order regarding(i)
an appropriate diversion option or
options as set out in the Fifth Schedule ; and
(ii)
implementation of the diversion option or
options, or
refer to the matter to a child panel.
(4)
In addition to the diversion options set out in the
Third Schedule, the inquiry magistrate may, after consultation with the
persons present at the preliminary inquiry, develop an individual diversion
option that meets the purposes and standards applicable to diversion set
out under Chapter IV and the implementation thereof.
(5)
Where the inquiry magistrate has reason to believe that the
child is in need of care and protection, he may order that the preliminary
inquiry be closed and the matter be dealt with in accordance with the
provisions on care and protection under this Act.
(6)
Where the prosecutor decides to proceed with the
prosecution of the child, he shall inform the inquiry magistrate and the
preliminary inquiry shall be closed and the matter shall be set down for
plea and trial in a child justice court, or any other court of competent
jurisdiction within fourteen days after conclusion of the preliminary
inquiry.
(7)
The prosecutor may withdraw the charge at any time during
the preliminary inquiry.
Procedure
upon referral
of matter
to court
28.
(1)
Where the matter has been referred to court and the child
has no legal representation, the inquiry magistrate shall explain to the
child , parent, guardian or an appropriate adult the provisions on legal
representation under this Act;
186
(2)
Where the child, or any of the persons referred to
in subsection (1) indicates an intention to apply for legal representation at
State expense in accordance with section 44, the inquiry magistrate shall
assist the child, as far as is reasonably possible to make an application for
legal aid at State expense;
(3)
Where the child is in a safety home, the inquiry magistrate
(a)
inform the child, his parent, guardian, or appropriate
adult to attend such proceedings at the time and place as
advised by the court or prosecutor; and
(b)
direct the person in charge of the safety home to bring
the child to court at the specified time and place, or may –
shall-
(i)
(ii)
direct the release of the child on bail ;
make any other order in accordance with the
provisions of this Act.
(4)
Where the child is not in detention, the inquiry magistrate
shall warn the child, his parent, guardian or the appropriate adult to
appear in court at a specified place and time and may(a)
alter or extend any conditions imposed before or during the
preliminary inquiry ;
(b)
where necessary, order that the child be detained.
(5)
Where the matter has been set down for plea and trial the
prosecutor shall inform the child, parent, guardian or appropriate adult of
the place and time.
(6)
The inquiry magistrate who presides over a preliminary
inquiry, shall not preside over any subsequent trial emanating from that
inquiry.
Chapter IV
DIVERSION
Diversion to
occur in
certain
circumstances
29.
A child suspected of being responsible for an offence shall be
considered for diversion if(a)
such child admits responsibility for the alleged offence
without undue influence;
187
(b)
the child understands his right to remain silent;
(c)
there is sufficient evidence to prosecute the child;
(d)
the diversion process and options have been explained to
child, his parent, guardian or appropriate adult and such
child or his parent, guardian or appropriate adult, if such
person is available, consents to the diversion process; and
the offence is not one of the offences specified in the
Second Schedule.
(e)
Diversion
options
30.
(1)
For the purposes of this Chapter categories and the range of
diversion options are set out in the Third Schedule.
(2)
In selecting a specific diversion option for a particular child
at a preliminary inquiry or in a court, consideration shall be given to-
Minimum
standards
applicable
31.
(a)
the selection of a diversion option from an
appropriate category in accordance with the Third
Schedule;
(b)
the child’s cultural, religious and linguistic background;
(c)
the child’s educational level, cognitive ability, domestic
and environmental circumstances;
(d)
the proportionality to the offence of the option
recommended or selected;
(e)
the interest of society;
(f)
(g)
the child’s age and developmental needs;
whether the child is a repeat offender; and
(h)
any other peculiar circumstances relating to the child;
(3)
The Minister may, on the recommendation of the Board,
prescribe additional suitable diversion options consistent
with the provisions of this Chapter.
(1)
No child
shall be excluded from a diversion option on
account of inability to pay a fee or charge required for such programme.
188
to diversion
(2)
A child below the age of fourteen years shall not be
required to perform community service or any other service other than
service done in homes, vocational technical schools or other training
institutions, as an element of diversion.
Registration
of diversion
programmes
32.
(3)
Diversion options shall –
(a)
promote the dignity and well-being of the child, and the
development of his or her sense of self-worth and ability to
contribute to society;
(b)
not be exploitative, harmful or hazardous to the physical,
mental, spiritual and social development of the child;
(c)
be appropriate to the age and maturity of the child; and
(d)
not interfere with the education of the child.
(4)
Diversion options shall, where reasonably possible-
(a)
impart useful skills;
(b)
include restorative justice element which aims to heal
relationships, including the relationship with the victim;
(c)
include an element which seeks to ensure that the child
understands the impact of his behaviour on others,
including the victims of the offence, and may include
compensation or restoration; and
(d)
be provided in a location reasonably accessible to the child,
and a child who cannot afford transport in order to attend a
selected diversion programme should, as far as is
reasonably possible, be provided with the means to do so
by an authority or person identified at a preliminary inquiry
or identified by a child panel.
(1)
Every institution that provides for diversion options in
a predetermined and regular basis shall be registered with the Minister.
189
(2)
For the purposes of subsection (1),every such institution
shall specify the particulars of the diversion option provided at the
institution and any variations of the option or any additional option shall
be notified to the Minister for registration .
Establishment
of
child panels
33.
(1)
There shall be a child panel within the jurisdiction of each
second grade magistrate court which shall be responsible for -.
(a)
(b)
devising diversion option or diversion options; and
implementing the diversion option or the diversion options,
for child offenders in that area.
(2) A child panel shall be composed of persons
nominated by the probation officer from amongst individuals in the
community representing the following:
(a)
(b)
(c)
(d)
(e)
the faith community;
the local Government;
chiefs;
teachers; and
health workers.
(3)
If an area is served by a chief, the probation officer
shall consult the chief before nominating members of the child panel.
(4)
Members of a child panel shall perform the functions on
voluntary basis and shall hold the position for a period of three years
subject to re-nomination.
(5)
A person nominated to fill a vacancy on a child panel shall
serve for the remainder of the term and shall be eligible for renomination.
(6)
The probation officer shall act as
proceedings of a child panel.
secretary during the
(7)
A child panel may co-opt any reputable person to assist in
the proceedings.
Procedure of
child panels
34. (1)
Subject to this section, a child panel shall regulate its
190
own procedure and shall make diversionary plans as it deems fit.
(2)
Where a child has been referred to a child panel, a
probation officer shall be notified in writing of such referral by the
inquiry magistrate or court responsible for the referral of the child.
(3)
Upon receipt of the notice, the probation officer or a person
designated by him shall convene a child panel within fourteen days after
such receipt by(a)
setting the time and place of the panel; and
(b)
notifying all members of the child panel.
(4)
Failure to notify any person under subsection (3) shall
not affect the validity of the proceedings of the child panel unless the
failure is likely to materially affect the outcome of the proceedings.
(5)
Where proceedings of a child panel fail to take place,
the probation officer shall arrange for an alternative date and shall notify
all members of the child panel.
(6)
(a)
The plan made by the child panel may includethe application of any diversion option contained in the
Fifth Schedule ; and
(b)
any other resolution appropriate to the child, his family and
to the local circumstances which is consistent with the
principles contained in this Act.
(7)
A plan made by a child panel shall-
(a)
specify the objectives of the plan and the period within
which they are to be delivered;
(b)
contain details of the services and assistance to be provided
for the child and for a parent or a guardian;
(c)
specify the persons or organizations to be provided with
such services and assistance;
(d)
state the responsibilities of the child and of the child’s
parent or guardian;
191
(e)
include such other matters relating to education,
employment, recreation and welfare of the child, as may be
relevant.
(8)
The probation officer shall record, with reasons, any
plan formulated at a child panel and shall furnish a copy of such record
to(a)
the child, parent, guardian or appropriate adult ; and
(b)
any person entrusted to monitor the implementation of the
selected diversion option.
(9)
A probation officer shall, within seven days, submit a
record of the child panel proceedings to the inquiry magistrate or the
court which referred the child to the panel.
(10) If no agreement on the plan is reached, the proceedings
shall be closed and the probation officer shall, within forty-eight hours,
refer the matter back to the inquiry magistrate or the court for further
consideration.
(11) The proceedings of a child panel shall be confidential and
statements made by any person shall not be used as evidence in any
subsequent proceedings before any court.
Victimoffender
mediation or
other
restorative
justice
35.
(1)
Where a victim-offender mediation or restorative
justice process has been selected as a diversion option, a probation
officer shall convene the mediation and shall regulate its procedure as
he deems fit.
(2)
If the process fails whether for the reason that the victim
has not accepted the mediation or for any other reason, the probation
officer shall refer the matter back to the preliminary inquiry, the court or
the child panel as the case may be, for an alternative diversion option .
Failure to
comply with
diversion
orders
36.
(1)
If a child who has been referred to diversion fails to
comply with any order relating to the diversion, the inquiry
magistrate may, upon being notified in writing of the failure by
the person entrusted to monitor the child or by a probation officer,
issue a warrant of arrest or a written notice in respect of the child
to appear before the inquiry magistrate or the court.
(2)
When a child appears before an inquiry magistrate or court
pursuant to a warrant of arrest or a written notice to appear issued under
192
subsection (1), the inquiry magistrate or court shall inquire as to the
reasons for the child’s failure to comply with the diversion order.
(3)
The inquiry magistrate may, after consideration of the
views of any person present at the inquiry –
(a)
apply the same option with altered conditions;
(b)
apply any other diversion option as described in the Fifth
Schedule;
make an appropriate order which shall assist the child or his
or her parents, guardian or appropriate adult to comply with
the diversion option initially applied;
(c)
(d)
recommend to the prosecutor that the matter be taken to
trial, in which case the matter shall be set down for plea.
(4)
The execution of a warrant of arrest under this section
may be suspended by the inquiry magistrate or the court and the police
officer required to execute the warrant may, instead of arresting a child,
invite him or her with a written notice to appear before him or her for an
assessment.
Monitoring
programmes
of diversion
37.
Keeping
of records
38.
Upon the selection of a diversion option in accordance with
this section, an inquiry magistrate, a court or a child panel shall
identify a probation officer or any suitable person to monitor the
implementation of the selected diversion option.
The Board shall keep and maintain a register of children
diverted from prosecution.
PART IV
DETERMINATION OF AGE OF A CHILD
Application
39.
The provisions of this Part shall apply to the determination
193
of this Part
of age for the purposes of criminal responsibility under section 14 of the
Penal Code and for the purposes of the Act.
Age estimation
by a
probation
officer
40.
(1)
If the age of a person brought before a probation officer
is not known, the probation officer shall make an estimation of that
person’s age.
(2)
For the purposes of subsection (1), a probation officer shall
obtain any relevant information as regards the age of the person concerned
and complete an age estimation form.
(3)
In making such an estimation, information available shall
be considered in the following order of cogency(a)
a birth certificate;
(b)
a previous determination of age under this Act;
(c)
statements from a parent, guardian, or person likely to have
direct knowledge of the age of the person;
a baptismal certificate or other religious records, school
registration forms, school reports, under five clinic cards
and other information or document of a similar nature if
relevant to establishing a probable age;
(d)
(e)
an estimation of age by a medical practitioner; and
(f)
a statement by the person who is claiming to be a child.
(4)
The form referred to in subsection (2) shall be
available at the child’s appearance at a preliminary inquiry for purposes
of age determination of the child by the inquiry magistrate in accordance
with section 41.
Age
41.
(1)
An inquiry magistrate shall, on all the available information
determination
at a
preliminary
inquiry
and with due regard to
the provision of section 40 (3),
make
a determination of the age of the person, which shall be recorded as the
age of the person.
(2)
For the purposes of age determination, an inquiry
magistrate may require any documentation, information or statements
194
relevant to age determination from any person, body or institution to be
furnished.
(3)
If an inquiry magistrate determines that a person was, at the
time of the alleged commission of the offence with which the person is
being charged, over the age of eighteen years, he shall close the
preliminary inquiry and direct that the matter be transferred to another
court other than a child justice court.
(4)
The age determined by the inquiry magistrate under this
section shall be considered as the age of the person unless contrary
information is placed before the inquiry magistrate or court.
Age
assessment
and
determination
by an officer
presiding in
a criminal
other
than a child
justice court
42.
(1)
Where a person appearing in a criminal court other than
a child justice court alleges, at any stage before sentence, that he
was, at the time of the alleged commission of the offence with which
he is being charged, below the age of eighteen years, or where court
it appears to the court that the person may be below the age of eighteen
years,
the person shall be referred, in the prescribed manner to a
probation officer for estimation of age under section 40 which age
estimation shall be submitted to the presiding officer of the court.
(2)
A presiding officer referred to in subsection (1) shall
make a determination of age on the same basis as an inquiry magistrate
under section 41.
(3)
If the age of the person referred to in subsection (1) is
found to be below the age of eighteen years and the trial has not yet
commenced, the presiding officer shall transfer the matter to child
justice court.
(4)
If the age of the person referred to in subsection (1) is
found to be below the age of eighteen years and the trial has commenced,
the proceedings shall continue to be conducted before the presiding
officer, but the remainder of the proceedings shall be conducted in
accordance with the provisions of this Act.
195
(5)
The presiding officer concluding a trial in accordance with
subsection (4) may, after a finding of responsibility, refer the matter to a
child justice court for an order, if to do so is in the best interests of the
child.
(6)
Where proceedings have started in accordance with the
provisions of this Act in respect of a person who is alleged to have been
below the age of eighteen years at the time of the alleged commission of
the offence with which such person is being charged, and evidence is
produced proving that such person was eighteen years of age or older at
such time, the inquiry magistrate or court shall(a)
if such person is appearing at a preliminary inquiry, close
the inquiry and refer the matter to the prosecutor for
arrangements to be made for that person to be tried as an
adult;
(b)
if a trial has not yet commenced, refer the matter to the
prosecutor for arrangements to be made for that person to
be tried as an adult;
(c)
if a trial has commenced, adjourn the trial and
proceed in an open court or transfer the matter to an
appropriate court;
(d)
if the trial has commenced and the offence is otherwise
triable by jury, terminate the trial and re-commence the trial
as an adult
(e)
if the person has been convicted, transfer the matter to an
appropriate court for that person to be sentenced as an
adult.
PART V
LEGAL REPRESENTATION
Access by a
child to legal
representation
43.
(1)
A child has the right to legal representation.
196
(2)
A child, parent, guardian or appropriate adult may appoint
a legal representative of their choice to provide legal representation to the
child.
(3)
A person providing legal representation for a child shall be
a person who is entitled to practice as a legal practitioner or any other
person lawfully allowed to provide legal representation under written law.
(4)
Where a legal representative for a child is appointed in
accordance with subsection (2), liability for payment of fees for the
legal representation rests on the parents, guardian, or the appropriate adult or
where the interests of justice so require, on the State.
(5)
A child, parent, guardian, or appropriate adult has the right
to give instructions to a legal representative in the language of their
choice, and, where necessary, with the assistance of an interpreter.
Child to be
provided
with legal
representation
at State
expense
44.
(1)
Where a child is subject to proceedings under this Act and
no legal representative has been appointed, legal representation shall, upon
conclusion of a preliminary inquiry, be provided at State expense in
accordance with the Legal Aid Act if(a)
the child is remanded in detention pending a plea and trial
in court;
(b)
it is likely that an order involving a residential requirement
may be imposed;
(c)
in the opinion of the inquiry magistrate, it is in the best
interest of the child,
and the child , parent, guardian or the appropriate adult cannot afford to
engage a legal representative.
(2)
Where a child is subjected to care and protection
proceedings under this Act, and no legal representative has been
appointed, legal representation shall be provided at State expense in
accordance with the Legal Aid Act if in the opinion of the court, it is in the
best interests of the child, and the child, parent, guardian or appropriate
adult cannot afford to engage the services of a legal representative.
197
(3)
Where a child is charged with an offence contemplated
in subsection (1) (b), a plea may not be taken until a legal representative
has been appointed.
(4)
If the parent or guardian of a child who is granted
legal representation at State expense under this Act is ineligible for legal
representation at State expense due to the fact that the income of the
parent or guardian exceeds the means test applied by the Legal Aid Act,
the legal aid office may recover from the parent or guardian the whole or
part of the costs of the legal representation afforded to the child.
Requirements
to be complied
with by legal
representatives
Mode of
seeking legal
representation
at State
expense
45.
46.
(1)
A legal representative representing a child shall-
(a)
explain the rights and responsibilities of the child in
relation to any proceedings under this Act in a manner
appropriate to the age and intellectual development of
the child;
(b)
allow the child, if capable of doing so, to give the legal
representative independent instructions concerning the
case;
(c)
in matters of criminal proceedings, promote diversion
where appropriate, whilst ensuring that the child is not
unduly influenced to admit responsibility of the crime;
(d)
ensure that all trials are concluded speedily.
(1)
Where a child requires legal representation at State expense,
the inquiry magistrate or the court , shall immediately request the legal
aid office to appoint a legal representative to represent the child.
(2)
Where a child is remanded in detention, the legal
representative shall, before the next court date, consult with the child at the
place where the child is being detained.
Child may
not waive
legal
representation
in some
circumstances
47.
(1)
A child in need of legal representation in accordance
with the provisions of section 44 shall not waive the right to legal
representation.
(2)
Where a child referred to in section 44 declines to give
198
instructions to the legal representative, the probation officer shall bring
this factor to the attention of the inquiry magistrate or the court, and the
inquiry magistrate or the court, shall question the child to ascertain the
reasons for so declining and the inquiry magistrate or the court shall
note the reasons on the record of the proceedings.
(3)
If, after questioning the child under subsection (2),
the inquiry magistrate or the court is of the opinion that the reason for
declining relates to the legal representative, the court or the inquiry
magistrate may request the legal aid office to appoint another legal
representative.
Legal
assistance
48.
(1)
If after questioning the child under subsection (2) the
child continues to decline the legal representation, the inquiry magistrate
or the court may request the legal aid office to assist the child at State
expense.
(2)
A person legally assisting the child shall –
(a)
attend all hearings pertaining to the case;
(b)
address the court on the merits of the case;
(c)
give notice of intention to appeal against a finding of the
court or against an order following such finding; and
(d)
have access to the affidavits, statements and any other
materials of evidence relating to the case.
(3)
A person assisting a child in accordance with this section
(a)
cross-examine any witness;;
(b)
raise objections to the introduction of evidence;
may –
PART VI
CHILD JUSTICE COURT: ESTABLISHMENT, JURISDICTION,
COMPOSITION, PROCEDURE AND POWERS
Establishment
of child justice
court
49.
There shall be established child justice courts, which shall be
subordinate to the High Court and shall exercise jurisdiction conferred on
them by this Act or any other written law.
199
Composition
of child
justice court
50.
(1)
A child justice court shall be presided
over by a
professional magistrate or a magistrate of the first grade.
(2)
The Chief Justice, having been satisfied as to the
competence of the presiding officer , may designate a court of magistrates
of any grade to be a child justice court and shall publish a notice of the
designation in the Gazette.
(3)
A presiding magistrate shall, before commencement of
proceedings in a child justice court, ensure that a probation officer of
sufficient competence relevant to the requirements of this Act is present
throughout the proceedings.
Jurisdiction
of a child
justice court
51.
(1)
Subject to subsection (2), a child justice court shall have
jurisdiction over children matters.
(2)
Where a matter involving a child is otherwise liabe to be
heard by the High Court, it shall be heard by the High Court, but the High
Court shall comply with the requirements of this Act in respect of the
child.
Parent or
guardian may
be allowed
to attend
court
52.
(1)
Where a child is brought before a child justice court, as
an accused person or for care and protection proceedings, his parent
or guardian may in any case, and , if such parent or guardian can be
found and resides within a reasonable distance, shall be required to
attend all stages of the proceedings, unless the child justice court
is satisfied that –
(a)
it is unreasonable or unnecessary to require the
attendance of such parent or guardian; or
200
(b)
it is in the best interests of the child that the parent or
guardian should not attend the proceedings.
(2)
Where it is unreasonable or unnecessary to require the
attendance of a parent or guardian or where the attendance of a parent or
guardian will be prejudicial to the fair disposal of the case, taking into
account all preliminary findings of the case, the court shall appoint an
appropriate adult for purposes of subsection(1) to attend the proceedings
in place of the parent or guardian .
Separation
and joinder
of trials
involving
children
and adults
53.
(1)
Where a child and an adult are jointly charged of an
offence, the child shall be tried separately from the adult, unless there
are compelling reasons for joinder of the trials.
(2)
An application for such joinder shall be directed to the
court after notice to the child, parent, guardian or the appropriate adult and
the legal representative of the child if available.
(3)
If the court grants an application for joinder of trials, the
matter shall be transferred to the court, in which the adult is to appear.
(4)
The court to which the matter has been transferred shall
afford the child concerned all the benefits conferred upon a child by this
Act .
Jury trials
in children
matters
54.
(1)
A child below the age of fourteen years shall not be tried by
jury except where the child is jointly charged with an adult;
(2)
The court may, on application or on its own motion, order
trial by jury if it considers that trial by jury is necessary taking into
account the circumstances and facts of the case, and shall institute all
measures necessary to protect the best interests of the child.
(3)
Where a child who is below the age of fourteen years is
charged with an offence which is otherwise triable by jury and that he
shall be tried without a jury in accordance with subsection (1), the child
shall be tried in camera by a High Court Judge sitting without a jury.
Places of
sitting of
child justice
court and
55.
(1)
A child justice court shall sit as often as is necessary
for the purpose of exercising any jurisdiction conferred on it by or
201
persons who
may attend the
proceedings
under this Act or under any other written law.
(2)
A child justice court shall, save as otherwise provided in
this section, sit either in a different building or room from that in which
sittings of courts other than child justice courts are held, or on different
days from those which sittings of such other courts are held.
(3)
Where a child justice court sits in the same room, and on
the same day as other courts, child cases shall take precedence.
(4)
No person shall be present at any sitting of a child justice
court, except –
Restriction on
media
reports of
proceedings
in a child
child justice
court
56.
(a)
(b)
members and officers of the court;
parties to the case before the court and their legal
representatives and witnesses;
(c)
probation officers, teachers and community leaders that are
directly concerned in the matter;
(d)
properly accredited reporters of newspapers and other
media agencies as authorized by the court with or without
conditions; and
(e)
such other persons as the court may specially authorize to
be present.
(1)
Subject to subsection (2), no media report of any
proceedings in a child justice court shall reveal the name, address or
school, or include any particulars calculated to lead to the identification of
parties to the proceedings, or witnesses and no picture shall be published
in any media report as being or including a picture of the child concerned
in such proceedings.
(2)
A court may, if satisfied that it is in the interests of justice
so to do, by order dispense with the requirements of this section to such
extent as may be specified in the order.
(3)
Any person who publishes any matter in contravention of
this section commits an offence is liable to(a)
if such person is a publisher, a fine of K100,000;
202
(b)
if such person is a reporter, a fine of K20,000 and
imprisonment for six months.
(4)
A court may in addition to ordering the publisher to pay
a fine, also order payment of compensation to the child who has been
injured by the publication.
(5)
A complaint under this section may be lodged with the
police or directly with the court by the injured child, or his parents,
guardian, community representatives or any other person on behalf of the
child.
Restrictions
on
punishment
of children
57.
No child shall be imprisoned for any offence.
Punishment
of certain
grave crimes
58.
(1)
Where a child is found responsible for an offence
punishable by death, the court shall order him to be detained at a
reformatory centre under such conditions as the Board shall generally
or specially determine.
(2)
Where a child is found to be responsible for any of the
offences listed in the Fourth Schedule, and the court is of the opinion that
none of the other methods by which the case may legally be dealt with is
suitable, the court may order that the child be detained for such period as
may be specified in the order.
(3)
Where the court makes an order under subsection (2) the
child shall, during that period, notwithstanding any other provisions of
this Act, be liable to be detained in a place of detention other than a prison
on such conditions as the Board may generally and specially determine.
(4)
A person detained in pursuance of the directions of the
Board under this section shall, while so detained, be deemed to be in legal
custody.
(5)
A child detained in accordance with this section may be
discharged by the order of the President unconditionally or on such
conditions as the President, upon recommendations of the Board, may
direct.
(6)
Where the child is discharged with conditions, such order
of discharge may, upon recommendations of the Board, be varied or
revoked by the President if the child is in breach of the conditions.
203
(7)
Where an order of discharge has been revoked, by the
President the person to whom the order related shall proceed to such place
as the Board may direct and if he fails to do so, may be apprehended
without warrant and taken to that place.
(8)
Where a person detained under this section attains the age
of eighteen years while still in detention, he shall be separated from the
rest of the children or sent to another place of detention other than a
prison until the expiry of the remaining period of his detention.
Power to
order parent
or guardian
to pay fine
imposed etc
instead
of child
59.
(1)
Where a child is charged before a child justice
court with the commission of an offence for which a fine may be
imposed and compensation, damages and costs or any or all of them
may be awarded, and the child justice court is of the opinion that justice
would be best served by the imposition of all or any of those penalties,
whether with or without any other punishment, the child justice court may
order that the fine imposed and compensation, damages or costs awarded
be paid by the parent or guardian of the child, unless the child justice court
is satisfied that the parent or guardian cannot be found or does not have
the means to meet the award, in which case the court may make such
alternative order as the court may see fit
(2)
Where a child is charged with an offence, a child justice
court may release the child and order his parent or guardian to give
security for the child’s good behavior.
(3)
Where a child justice court thinks that a charge against a
child is proved, the court may make an order against a parent or guardian
for the payment of compensation, damages or costs or may make an order
requiring the parent or guardian to give security for the good behavior of
the child without proceeding to record a finding of guilty against the child.
(4)
An order under this section may be made against a parent
or guardian who, having been required to attend, has failed to do so, but
otherwise, no such order shall be made without giving the parent an
opportunity to be heard.
(5)
Any sum imposed and ordered to be paid by a parent, or
guardian, or on forfeiture of any security given by a parent or guardian
under this section, may be recovered from the parent or guardian in like
manner as if the order had been made on the conviction of the parent or
guardian of the offence with which the child was charged.
Power of
other courts
60.
(1)
Any court other than the High Court before which a
204
to remit
children
to a child
justice court
child offender is found to be responsible for an offence shall, unless
the best interests of the child require otherwise, remit the case to a
child justice court.
(2)
The child justice court to which the case of a child is
remitted under subsection(1) shall deal with the child as if he had been
tried and found to be responsible for the offence by that child justice
court.
(3)
No appeal shall be made against an order of remission
made under this section, but nothing in this subsection shall affect any
right of appeal against the verdict or finding on which such an order is
founded, and a person aggrieved by the order of the child justice court to
which the case is remitted may appeal therefrom to the High Court as if
the child concerned had been tried by, or had pleaded guilty before that
child justice court.
(4)
A court making an order remitting a case of the child to a
child justice court under this section may –
(a)
(b)
Criminal
procedure in
a child justice
court
61.
direct that the child be detained in a reformatory centre or
be released on bail until he can be brought before a child
justice court;
transmit to the child justice court to which the case has
been remitted a certificate setting out the nature of the
offence and stating that the case has been remitted for the
purpose of being dealt with under this section; or
(c)
make an order as the child justice court may make under
section 59.
(1)
Where a child is brought before a child justice court
charged with any offence it shall be the duty of the court as soon as
possible to explain to the child in simple language suitable to his age and
understanding the substance of the alleged offence.
(2)
After explaining the substance of the alleged offence, the
court shall ask the child whether he admits or does not admit the facts
constituting the offence.
(3)
If the child does not admit the facts constituting the
offence the court shall then hear the evidence of witnesses in support
205
thereof and at the close of the evidence in chief of each witness, the
witness may be cross-examined by or on behalf of the child.
(4)
The court shall, except in any case where the child
has legal representation, allow the parents or guardian or, in their absence,
any relative or other responsible person to assist the child in conducting
his defence.
(5)
If in any case where the child is not represented or
assisted in his defence as provided in subsection (4), the child, instead of
asking questions by way of cross-examination, makes assertions, the court
shall then put to the witness such questions as it thinks necessary on behalf
of the child and may for this purpose question the child in order to bring
out or clear up any point arising out of such questions.
(6)
If, when the evidence against the child has been heard, the
court is of the opinion that a case is made out against the child sufficiently
to require him to make a defence in respect of the offence charged or
some other offence which the court is competent to try, the shall consider
the charge against the child and decide whether it is sufficient and, if
necessary, amend the charge.
(7)
If the charge is amended the substance of the offence
alleged in it as amended shall then be explained by the court to the child
in simple language suitable to his age and understanding, and he shall be
asked whether or not he admits the truth of the charge.
(8)
If the child does not admit the truth of the charge as
amended or if no amendment is made, the court shall explain to the child
the substance of the evidence against him and, in particular, any points
which are specifically against him or which require explanation and the
court shall thereupon inform the child that he is required to give evidence
and the child shall be asked whether he has any witness to examine or
other evidence to adduce in his defence.
(9) The child shall give his evidence upon oath or affirmation
if he is of an age to understand the nature and consequences of the oath or
affirmation, and shall answer any question or produce anything lawfully
put to or required of him by the court or in cross-examination.
(10)
If the child refuses or neglects to –
(a)
(b)
be sworn or affirmed, as the case may be;
give evidence;
206
(c)
(d)
answer any question lawfully put to him by the court or in
cross-examination; or
produce any document or thing which he is required to
produce,
such refusal or neglect may be taken into account by the court in reaching
its decisions.
(11) Where the child elects to call witnesses other than himself
evidence shall be taken before that of such other witnesses.
(12) After the child, and his witnesses, if any, have given their
evidence and after their examination, cross-examination and reexamination, if any, the court shall give its judgment.
(13) If the child admits the offence or the court is satisfied that it
is proved that the child is responsible for the offence, the child and his
parent, guardian or appropriate adult, if present, shall then be asked if he ,
and such parent, guardian, or appropriate adult, desires to say anything in
extenuation or mitigation of the penalty or otherwise and before deciding
how to deal with the child, the court shall obtain such information as to
general conduct, character, home surroundings, school record and medical
history, as may enable the court to deal with the case in the best interests
of the child, and may put to the child any question arising out of such
information which may include any written report of a probation officer or
registered medical practitioner or other appropriate person which may be
received and considered by the court without being read aloud.
(14) For the purpose of obtaining the information required under
subsection (13), or for special medical examination or observation, the
court may from time to time remand the child on bail or to a place of
detention.
(15) Where the court has received and considered a written
report of a probation officer, a registered medical practitioner or other
appropriate person(a)
the child shall be told the substance of any part of the
report bearing on his character or conduct which the court
considers to be material to the manner in which he
should be dealt with;
(b)
the parent, guardian, or appropriate adult, if present, shall
be told the substance of any part of the report which the
court considers to be material and which has reference to
the character, conduct, home surroundings or health of
the child; and
207
(c)
Proceedings
of a child
Justice court
to be informal
Power of
child justice
court on
proof of
offence
62.
if the child or the parent or guardian having been told the
substance of any part of a report, desires to produce
evidence with reference thereto, the court, if it thinks the
evidence is material, shall adjourn the proceedings for the
production of further evidence, and shall, if necessary,
require the attendance at the adjourned hearing of the
person who made the report.
The proceedings of a child justice court shall be informal and
in particular, the presiding officer shall ensure that-
63.
(a)
technical language is not used during hearing;
(b)
no person puts on official uniform or professional
robes or dress save only if it is strictly required to do so for
the child to make an identification or for purposes of
evidence as the court may authorize;
(c)
the proceedings are conducted in a form of round table
discussion;
(d)
there are regular breaks with
such
necessary
provisions for the child as the Minister may prescribe by
regulations;
(e)
children with disabilities are accorded assistance to meet
their special needs where necessary.
(1)
Where a child admits the facts constituting the offence
or where a child justice court is satisfied that an offence has been proved,
the court shall, in addition to any other powers exercisable by virtue of this
Act or any other written law , in so far as such law is consistent with
this Act, have power –
(a)
to discharge the child unconditionally;
(b)
to discharge the child upon his entering into a bond to
be of good behaviour and to comply with such conditions
as the court may direct to be inserted in the bond;
(c)
to commit the child to the care of a relative or other fit
person willing to undertake the care of the child,
208
(d)
to order the parent or guardian to execute a bond to
exercise proper care and guardianship;
(e)
to order the child to pay a fine, compensation, damages or
costs;
(f)
without making any other order, or in addition to an order
under paragraphs (b), (c), (d) or (e), to make a probation
order placing the child under the supervision of a probation
officer or some person appointed for the purpose by the
court, for a period of not less than one year and not more
than three years from the date of the order as may be
specified in the order, and to require the probation officer
or the appointed person as the case may be to submit
regular reports to the court on the development of the
behavior of the child;
(g)
to commit the child to the High Court for an order where
appropriate;
(h)
to make a reformatory centre order;
(i)
to commit the child to a diversion programme.
(2)
A court shall not make a reformatory centre order in
relation to a child under the age of fourteen years, unless-
Reformatory
centre orders
and other
orders for
detention
(a)
there is no fit person willing to undertake the care of the
child; or
(b)
the court is satisfied that the child cannot suitably be dealt
with otherwise.
(3)
In arriving at its decision under this section, the court shall
have regard to section 5 of this Act.
64.
(1)
A reformatory centre order or any other order of detention
relating to a child shall be sufficient authority for the detention and
rehabilitation of the child in a reformatory centre in accordance with this
Act.
(2)
The Board may at any time during the authorized period of
detention exercise any of its powers in relation to the child under section
209
71 .
.
(3)
Schedule .
A reformatory centre order shall be in the form in the Fifth
(4)
The Chief Justice may by notice in the Gazette amend the
Fifth Schedule.
(5)
A reformatory centre order or a warrant in pursuance of
which a child is detained under this Act shall be delivered with the child to
the person in charge of a reformatory centre and a copy of the order shall
be delivered to the Registrar of the High Court for transmission to the
Chairman of the Board.
(6)
The manager of a reformatory centre shall assess the
progress of each child under his control and shall submit the monthly
assessment reports for each child to the Board for purposes of section 70.
Escape from
custody or
care and
breach of
court condition
65.
(1)
A child in the custody and care of any person pursuant
to an order of a court under this Act, while being conveyed between
the court and a reformatory centre or safety home on remand or
otherwise, or while being transferred by direction of the Board shall be
deemed to be in lawful custody and if such child escapes he may be
apprehended without warrant and brought back to the appropriate place
but the escape shall not constitute a criminal offence.
(2)
Where a court has committed a child to the care of
any person under section 63 (1) (c) and it is reported to the court that the
child has escaped from the care of the person or that the person is unable
or no longer willing to continue to undertake the care of the child, the
court may, upon the child being brought before it, make such other order
in replacement of its previous order as it could have made at the time of its
previous order.
(3)
Where a child has committed a breach of any
condition upon which the child has been released by order of court or by
the Board, the Chairman of the Board may direct any person, without
warrant, to apprehend that child and to convey him to a reformatory
centre for detention, and the provision of subsection (1) shall apply.
Appeal
and review
66.
(1)
Any child, his parent, guardian or appropriate adult
210
dissatisfied with any judgment or order of a child justice court, may
appeal to the High Court against such judgment or order in
accordance with the provisions of any written law regulating appeals
to the High Court from a subordinate court.
(2)
Where a reformatory centre order or any other order for
detention has been made by the child justice court under this Act, a copy
of the order together with the proceedings, including the information
obtained under section 61(13) and the reasons of the court for making
the order, shall be sent within seven days to the High Court which
may confirm or set the order aside and substitute any other order which
the child justice court might have made.
PART VII
CHILD CASE REVIEW BOARD
Establishment
of Child
Case Review
Board
67.
(1)
A Child Case Review Board is hereby established .
(2)
The Board shall consists of members appointed by the
Minister as follows-
(a)
(b)
(c)
a chairperson of the Board who shall be a judge of the High
Court, nominated by the Chief Justice;
a deputy chairperson who shall be a Resident Magistrate
appointed by the Chief Justice
other members nominated by the relevant authority or
organization each to represent(i)
(ii)
(iii)
(iv)
the Secretary for Health;
the Secretary for Education;
the Secretary for Labour;
the Secretary for the Ministry responsible for
Children Affairs;
(v)
the Secretary for Justice;
(vi)
the Secretary for the Ministry responsible for
Youth;
(vii) the secretary for Home Affairs;
(viii) the Malawi Human Rights Commission;
211
(ix)
(x)
a non-governmental organization that is directly
concerned with children matters,
the Malawi Police;
(xi)
reformatory centres; and
(xii)
religious organisation
(2)
The nominating authority of a member under subsection
1(c) may subject to the approval of the Minister designate any duly
qualified officer or other person to act for that member during the
member’s temporary inability to act by reason of sickness, absence or
other causes.
(3)
Members of the Board shall not, by reason of their
appointment, be deemed to be officers in the public service.
(4)
Members of the Board appointed under this section shall
be paid such allowances for refundable costs and sundries out of the funds
of the Board as the Minister may prescribe.
Tenure of
office of
members
of the Board
68.
(1)
Members of the Board shall hold office for a period of
three years subject to re-appointment.
(2)
A person appointed to fill a vacancy on the Board shall
serve for the remainder of the term and shall be eligible for reappointment.
(3)
The Chairman and Deputy Chairman of the Board may,
resign their appointment and the other members of the Board or their
alternates may resign their appointment by giving notice in writing to the
Chairman, but no such resignation shall take effect until seven days after
the receipt of the notice by the Chief Justice or the Chairman, as the case
may be.
Proceedings
69.
(1)
The Chairperson of the Board shall preside at meetings of
212
of the Board
the Board and in his absence, the deputy Chairperson shall preside.
(2)
In the absence of both the Chairperson and the Deputy
Chairman of the Board, and if the issue to be disposed of is urgent and
non-judicial in nature, members of the Board present and forming a
quorum shall elect one of their number to preside at that meeting.
(3)
The quorum of the Board shall be formed by a simple
majority of the members of the Board.
(4)
Decisions of the Board shall be in accordance with the vote
of the majority of members present and voting, but in the event of an
equality of votes, the chairman or the person performing the functions of
the chairman at the meeting concerned, shall, have a casting vote in
addition to his deliberative vote.
(5)
Meetings of the Board shall be held as often and at such
times and places as the Chairman shall determine but not less than four
times in a calendar year.
(6)
The Board shall determine its own procedure subject to the
provisions of this Act.
Functions of
the Board
70.
The functions of the Board shall be(a)
to consult with and advise on the administrators of
reformatory centres, safety homes and foster homes;
(b)
to undertake visits and to monitor reformatory centres,
safety homes and foster homes to ensure compliance with
this Act;
(c)
to keep a register of detained children;
(d)
to review cases of child offenders and matters of children
kept for the purposes of care and protection;
(e)
to facilitate the designing and implementation of
rehabilitation programmes and curriculum for the proper
re-integration of children into society;
(f)
to coordinate with civil society organizations and other
organizations dealing with children;
(g)
to facilitate relations between communities and places of
213
detention;
(h)
(i)
Powers of
the Board
71.
to facilitate and supervise recruitment of staff in
reformatory centres, safety homes and foster homes;
to carry out any other duties imposed upon it under this
Act, and
(j)
to do all the functions that are necessary in order to
promote the development of children.
(1)
The Board shall have the power –
(a)
to specify the reformatory centre to which any child in
respect of whom a reformatory centre order has been made
is to be sent;
(b)
to specify the foster home to which any child in respect of
whom a foster home placement order has been made is to
be sent.
(c)
at any time to cancel a reformatory centre order or safety
home order and order the absolute or conditional discharge
of any child from any reformatory centre or safety home or
any other place of detention;
(d)
to order any child to be transferred from one reformatory
centre or safety home to another reformatory centre or
safety home or to any other place of detention;
(e)
to order any child to be released from any reformatory
centre or safety home on condition that the child shall live
under the charge of, and be supervised by, any fit person
including a probation officer named in the order of release
willing to receive, take charge of, supervise, educate and
keep the child employed in some trade, occupation or
calling as the Board may recommend from time to time;
(f)
to attach such conditions as it thinks fit to any order
discharging a child from a reformatory centre and to cancel
the order of discharge if any such condition is not observed.
(2)
Where the Board is satisfied, on the representations of
the manager of a reformatory centre or safety home, that a child ordered to
be detained in such reformatory centre or safety home is of unruly
character that he is not a fit person to be detained, or is of depraved
character that he is not a fit person to be so detained, the Board may upon
214
assessing the child, order the child to be transferred to and be detained in
another reformatory centre or safety home, which the Board considers
more suitable for the child.
(3)
Where a child having been transferred to another
reformatory centre , safety home or any place of detention is again brought
before the Board on the representations of the manager of the
reformatory centre or safety home as being of unruly or depraved
character, the Board shall make any necessary order as it thinks fit and
proper.
(4) Any person who considers himself aggrieved by any order
made by the Board under this section may appeal to the High Court.
(5)
Any person, not being a child, who wilfully disobeys,
obstructs, or fails to comply with any order made by the Board under
this section commits an offence and shall be liable to a fine of Twenty
Thousand Kwacha.
Secretariat
of the Board
72.
(1)
An officer shall be appointed in the public service to
act as Secretary to the Board
(2)
The Secretary shall(a)
maintain records for the Board;
(b)
perform administrative duties;
(c)
prepare budgets;
(d)
act as liaison officer for the Board; and
(e)
perform such other duties as the Board may assign
to him,
and shall be subject to the general and special direction of the
chairman and the Board;
(3)
In addition to the Secretary to the Board, there may
be appointed in the public service other officers in the service of
the Board subordinate to the Secretary.
Funding
for the
board
73.
(1)
The funds of the Board shall consist of such sums as
Parliament shall appropriate for the purposes of the duties and functions of
the Board.
215
(2)
In addition to any sums appropriated under subsection (1) the
Board may receive donations of funds, materials and other forms of
assistance from any person, body or organization.
PART VIII
REFORMATORY CENTRES AND SAFETY HOMES
Public
reformatory
centers and
Public safety
homes
74.
(1) The Minister shall establish places or institutions as public
reformatory centers or public safety homes for the purposes of this Act.
(2)
All institutions which at commencement of this Act are
operating as public reformatory centers shall be deemed to have been
established under this Act.
(3)
All public reformatory centres and safety homes shall be
managed by a person appointed by the Minister.
(4)
The establishment of public reformatory centres and public
safety homes under this section shall be published in the Gazette.
(5) The publication shall state whether the public reformatory
centre or public safety home is for female or male children or for both and
shall specify the number of children to be detained in that centre.
Minister may
appoint
private
reformatory
centers
and private
safety homes
75.
(1)
The manager or proprietor of a home or institution may
apply to the Minister to appoint the home or the institution to be a
private reformatory centre or private safety home.
(2)
The Minister, upon being satisfied that the application
meets the necessary requirements in accordance with this Act, may
designate the institution as a private reformatory centre or a private safety
home and shall issue a certificate to that effect to the manager or
proprietor of the institution.
216
(3)
The issue of the certificate by the Minister shall be notified
in the Gazette.
(4)
The certificate issued by the Minister shall state the number
of children authorized to be kept at the center or home at any one time and
shall state whether the centre or home is for male children or female
children or for both.
Reformatory
Centre and
Safety Home
[Management]
Rules
76.
(1)
A reformatory centre and a safety home shall be regulated
and managed in accordance with the Reformatory Centre and Safety
Home [Management] Rules as set out in the Sixth Schedule .
(2)
The Minister may, by order published in the Gazette,
amend the Sixth Schedule
Managers shall
send monthly
reports to the
Board and
allow
inspection
77.
(1)
The Manager of a reformatory centre or a safety home
shall send reports to the Board in the prescribed form containing
such particulars as are required by the Reformatory Centre and Safety
Home (Management) Rules at monthly intervals and such other
intervals as the Board may direct.
(2)
The Manager of a reformatory centre or a safety home
shall at all reasonable times allow the centre or home to be inspected by
any person or persons appointed by the Board in accordance with this Act.
Inspection of
reformatory
centers and
safety homes
78.
(1)
The Board may from time to time appoint a team of
qualified persons for the purposes of –
217
(a)
inspecting reformatory centres and safety homes;
(b)
reporting to the Board on the management and state of
condition, appearance and training of children detained at a
centre or a home.
(2)
The persons so appointed shall have authority to enter and
inspect the premises and the detained children and to make all reasonable
inquiries about the management of the centre or home and to promptly
report the findings to the Board.
(3)
If, in the opinion of the Board, the centre or home requires
to be closed, it shall send the inspectors report together with its
recommendation to the Minister
(4)
Where inspectors consider it necessary for the welfare and
safety of the children held at a reformatory centre or safety home, they
may direct immediate and temporary closure of the centre or home and
shall include such decision in the report send to the Board and the Board
shall forward the report and the recommendations to the Minister for final
decision.
(5)
The manager of a reformatory centre or a safety home may
make submissions to the Minister in writing showing cause why the centre
or home should not be permanently closed pending the Minister’s final
determination.
Powers of
Minister to
direct closure
of reformatory
centers or
safety homes
79.
(1)
In all other circumstances not requiring immediate and
temporary closure of a reformatory centre or safety home, the
Minister, upon considering the
report of inspectors and the
Board’s recommendations may, direct the closure of the centre or home by
notice in writing
(2) The Minister shall not close a reformatory centre or a safety
home without giving the manager of the center or the home an opportunity
to be heard.
(3)
Notice of the closure of a reformatory center or a safety
home shall be given to the manager of the centre or home and the centre
or home shall cease to be a reformatory centre or a safety home from the
time specified in the notice.
218
(4)
The Minister shall publish the notice of the closure of a
reformatory center or safety home in the Gazette.
Application
to review
Minister’s
decision on
closure of a
reformatory
centre or
safety home
80.
Manager,
proprietor,
his executor or
administrator,
etc may
apply for
closure
81.
The manager of a reformatory centre or a safety home may apply
to the Minister to review a decision to close the centre or home and the
Minister may, upon considering the application, re- issue the certificate.
(1)
The manager or proprietor of a private reformatory
centre or a private safety home intending to close the centre or the
home, may, upon giving notice of the intention to the Minister of not
less than one month and not more than six months in writing, apply
for the closure of the centre or the home.
(2)
The executors or administrators of a deceased
proprietor intending to close a private reformatory centre or a private
safety home may, upon giving one month’s notice in writing of their
intention, apply for the closure of the center or home.
(3)
At the expiry of the period of the notice given under
subsections (1) or (2), unless the notice has been withdrawn, the Minister
may proceed with the closure and notification of such closure shall be
published in the Gazette.
(4)
A notice of the intention to close a reformatory centre or a
safety home given under subsection (1) or (2) may be withdrawn before
the close of the centre or home.
(5)
Notwithstanding subsection (4), the Minister may, proceed
with the closure if the condition of the centre or home requires that the
center or home be closed, but the Minister shall not so proceed unless he
has been given the proprietor, executor, manager, or the administrator an
opportunity to be heard.
Liabilities
to receive
82.
The manager of a private reformatory centre or a private safety
219
children
home shall, if there is a vacancy in the number of children
authorized to be detained at the centre or home, be liable to receive any
child sent to the centre or home under this Act, and shall undertake to
educate, clothe, lodge and feed the child during the whole period for
which the child is liable to be detained at the centre or home.
Effect of
closure
notice
83.
If a reformatory centre or a safety home has been closed under the
provisions of this Act, no child shall be received into such centre or
home under any of the provisions of this Act after the date of the
receipt by the manager of the centre or home of the notice of the closure
or after the date specified in the notice of the closure.
Discharge or
transfer of
children
84.
(1)
When the closure of a private reformatory centre or private
safety home takes effect, the persons resident shall be, by order of the
Board and upon consultation with the Minister, either discharged or
transferred to some other reformatory centre or safety home as the case
may be.
(2)
Where a reformatory centre or a safety home is temporarily
closed by inspectors in accordance with section 78 (4) the Board shall
make all necessary arrangements to transfer the children resident at the
centre or home to an alternative suitable place.
(3)
The period of stay for which any child was sent to a
reformatory centre or a safety home shall not be increased by the transfer
of such child to another place.
Review of
cases of
detained
children
85.
The manager of a reformatory centre or a safety home shall review
all cases of children detained for twelve months, and may, after such
review, recommend to the Board the conditional discharge of such
220
children.
Reformatory
centre, safety
homes lawful
places of
detention
Illness of
children
detained
86.
A reformatory centre or a safety home shall be a lawful place of
detention for children in respect of whom a lawful order has been made or
who may lawfully be transferred thereto.
87.
(1)
In the case of serious illness of any child who
is detained in a reformatory centre or a safety home under the provision of
this Act, in which there is no suitable provision for the care of such illness,
the manager or the person having control of the place where such child is
detained may, on the certificate of a medical officer, make an order for the
removal of the child to a hospital.
(2)
So long as any child who shall have been removed to a
hospital under the provisions of subsection (1) shall remain in the hospital,
the medical officer in charge of the hospital shall, at the end of every
month, transmit to the manager or the person having control of the place
where such child was detained a certificate signed by the medical officer
that it is in the medical officer’s opinion necessary that the child should
remain in the hospital.
(3)
The manager or the person having control of the
reformatory centre or safety home concerned shall, if the illness is serious
or recurrent, inform the parents or the guardian about such illness.
(4)
In this section, “hospital” means a government hospital and
any registered health centre, institution or facility.
Return after
treatment
88.
(1)
If, in the opinion of the medical officer, it is no
longer necessary that the child should remain in the hospital,
the medical officer shall issue a certificate to that effect to the manager
or person having control of the place where the child was detained.
(2) The manager or the person having control of the place where
the child was detained may, upon seeking the advice of the medial officer,
recommend to the Board for the release of the child from the place of
detention.
Duty to
prevent
escape
89.
Every reasonable precaution shall be taken by medical officers
or other officers of a hospital to prevent the escape of a child who may at
221
Breaches of
rules and
discipline
any time be under medical care at the hospital.
90.
(1)
A child committed to the care or custody of a
reformatory centre or a safety home who wilfully neglects or refuses to
conform to the rules of discipline of the centre or home shall be
disciplined in accordance with the disciplinary rules of the center or
home made under section 93 .
.
(2)
Where a child who has been committed to a reformatory
centre or a safety home proves, in the opinion of the manager of such
place, to be of so unruly or depraved a character as to render his retention
in the reformatory centre or the safety home undesirable, the manager may
make a report of the circumstances of the case in writing to the Board.
Penalties for
91.
assisting or
inducing escape
and for habouring
or concealing
escaped children
Any person, not being another child, who(a)
knowingly assists, directly or indirectly, or induces any
child legally detained in a reformatory centre or a safety
home or detained in a hospital to escape from such place;
(b)
knowing that a child ordered to be detained or committed
at a reformatory centre, safety home or hospital has escaped
from the centre or home, or hospital, harbours or conceals,
or assists in harbouring or concealing the child, or causes or
induces the child not to return to centre , home, or hospital,
commits an offence and shall be liable to imprisonment for six months and
a fine of Fifty Thousand Kwacha.
Presumption
of evidence
of identity
92.
The production of the warrant or any other document, in
pursuance of which a child is sent to a reformatory centre, safety
home or hospital shall in all proceedings relating to the child be
sufficient evidence of the identity and of the lawful detention or
disposal of the child named in the warrant or document.
Disciplinary
93.
(1)
The Manager of a reformatory centre or a safety home may
222
rules
make rules not repugnant to, or inconsistent with, this Act for the
maintenance of discipline at the center or home.
(2)
Disciplinary rules under this section shall not be enforced
until they have been approved by the Minister.
(3)
Rules approved by the Minister shall not be altered without
the like approval .
(4)
A copy of the disciplinary rules of a reformatory center or
safety home purporting to be signed by the manager of the centre or home
shall be prima facie evidence of such rules for purposes of any legal
proceedings.
PART IX
CHILD CARE AND PROTECTION
Chapter I
CHILD CARE AND PROTECTION BY THE FAMILY
Duties
and
responsibilities
of parents
94.
(1)
A parent or guardian shall not deprive a child of his welfare
.
(2)
Parent or guardian have responsibilities whether
imposed by law or otherwise towards the child which include the
responsibility to (a)
protect the child from neglect, discrimination, violence
abuse, exploitation, oppression and exposure to physical,
mental, social and moral hazards;
(b)
provide proper guidance, care, assistance and maintenance
for the child to ensure his or her survival and development,
including in particular adequate diet, clothing, shelter and
medical attention;
(c)
ensure that during their temporary absence, the child shall
be cared for by a competent person;
(d)
exercise joint primary responsibility for raising their
children;
except where the parent or guardian has forfeited or surrendered his or her
rights and responsibilities in accordance with the law.
223
(3)
A parent or guardian shall be responsible for the
registration of the birth of his children.
(4)
The fact that a parent or guardian has parental
responsibility for a child shall not entitle him to act in any way which
would be incompatible with any court order made in respect of the child.
(5)
Subject to this Act, a person who does not have parental
responsibility for a particular child but has care of the child may do what
is reasonable in all the circumstances of the case for the purposes of
safeguarding or promoting the child’s welfare.
(6)
Where it is more than one person that have parental
responsibility for a child, each of them may act alone and without the
other (or others) in meeting that responsibility; but nothing in this Chapter
shall affect the operation of any law which requires the consent of more
than one person in a matter affecting the child.
Duties and
responsibilities
of children
95.
In the application of the provisions of this Act, and in any
matter concerning a child, due regard shall be had to duties and
responsibilities of the child to –
(a)
(b)
(c)
(d)
(e)
respect the parents, guardians, superiors and elders at all
times and depending on the age of the child assist them in
cases of need;
serve the community by placing his or her physical and
intellectual abilities at its service;
preserve and strengthen social and national unity and
character of Malawi;
uphold the positive values of the community; and
contribute towards the child’s own development into being
a useful member of the society,
but due regard shall be paid to the age and ability of the child and to
such limitations as are contained in this Act.
Parentage
96.
(1) Where parents are not known or where parentage is disputed,
the following persons may apply to a child justice court for an order to
determine the parentage of a child(a)
(b)
(c)
(d)
(e)
the child;
the parent of the child;
the guardian of the child;
a probation officer;
a social welfare officer,
224
or any other interested person as the child justice court may deem fit.
(2)
The application for parentage may be made(a)
before the child is born; or
(b)
before a child is eighteen years of age or after the child has
attained that age but with special leave of a child justice
court or High Court
(3)
For the purposes of succession and inheritance, the
application for parentage shall be made within three years after the death
of the father or mother of a child.
Evidence
of
Parentage
97.
(1)
The following shall be considered by a child justice
court as evidence of parentage(a)
(b)
(c)
(d)
(e)
the name of the parent entered in the register of births;
performance of a customary ceremony towards the child
by the purported father of the child;
refusal by the purported father to submit to medical test;
public knowledge of parentage; and
any other matter that the child justice court may consider
relevant.
(2)
The child justice court may order the putative father to
submit to a medical test.
Determination
of parentage
98.
The child justice court shall, on the basis of the evidence under
section 97 determine whether or not the alleged parent is the parent of
the child.
Custody and
access
99
(1)
A parent, a family member or any other appropriate person
may apply to a child justice court for custody of a child.
(2)
A family member or any other appropriate person may
apply to a child justice court for periodic access to the child.
(3)
The child justice court shall consider the best interests of
the child and the importance of the child, on account of age, being with his
mother when making an order for custody or access.
(4)
In addition to the matters under subsection (3), a child justice
court shall consider 225
(a)
(b)
(c)
the views of the child;
that it is desirable to keep siblings together; and
any other matter the child justice court may consider
relevant.
(5)
Upon application for custody or access under this section,
the child justice court may make an order granting the applicant custody or
the access to the child and may attach such conditions as the court may
consider appropriate.
Application
for
maintenance
100.
Consideration
for
maintenance
101.
(1)
maintain a child or to contribute towards the maintenance of the child,
neglects to maintain the child or to make the contribution, the following
persons may apply against such person to the child justice court for a
maintenance order of the child(a)
the child;
(b)
the parent of the child;
(c)
the guardian of the child;
(d)
relatives of the child;
(e)
a social welfare officer;
(e)
a police officer;
(f)
a teacher;
(g)
a health officer; and
(h)
any other appropriate person.
A child justice court shall consider the following when making a
maintenance order(a)
(b)
(c)
(d)
(e)
(f)
Request for
social
inquiry
report
Where a parent or any other person who is legally liable to
102.
the income and wealth of both parents of the child or of the
person legally liable to maintain the child;
any impairment in the earning capacity of the person with a
duty to maintain the child;
the financial responsibility of the person with respect to the
maintenance of other children;
the cost of living in the area where the child resides;
the rights of the child under this Act; and
any other matter, which the child justice court may
consider relevant.
A child justice court may request that a Social Welfare Officer
prepare a social inquiry report on the issue of maintenance and submit the
report to the child justice court for consideration before the child justice
court makes the maintenance order.
226
Maintenance
order
103.
A child justice court may award maintenance to the child
and the maintenance order may include the following(a)
(b)
(c)
Attachment
order
104
(1)
periodic expenses for the child;
a periodic allowance for the maintenance of the child, and
the payment of a reasonable sum to be determined by the
child justice court for the education of the child.
Where periodic payment or lump sum payment for the
maintenance of a child has been ordered, the child justice court may order
that the earnings, salary or property of the person liable, be attached.
(2)
The attachment order shall be applicable in all cases of
failure to pay maintenance.
(3)
The attachment order may be directed to the employer to
deduct the sum of the maintenance funds every time payment of the salary
is made.
(4)
If the maintenance order is made before the birth of the
child or within two months after the birth of the child, such payment may,
if the court thinks fit, be calculated from the birth of the child.
Persons
entitled to
receive
maintenance
funds
105.
(1)
A person who has custody of a child who is the subject of a
maintenance order under the Act is under a duty to receive and
administer the funds on behalf of the child.
(2)
A copy of the maintenance order shall be served on the
public officer or the local government officer responsible for children
welfare in the area.
(3)
The public officer or the local government officer shall
make quarterly reports to the child justice court that made the order on the
way funds are being administered.
Duration of
maintenance
order
106.
(1)
A maintenance order made in pursuance of this Act, shall,
except for purposes only of recovering money previously due under such
order, cease to be of any force or validity(a)
(b)
(c)
after the death of the child;
after the marriage of the child;
after the child has attained the age of eighteen years.
(2) A maintenance order may lapse before the child attains the age
227
of eighteen years if before that age the child is gainfully and permanently
employed.
Continuation
of
maintenance
orders
107.
(1)
Notwithstanding the provisions of section 106 a child
justice court may continue or order a resumption of a maintenance order
after the child has attained the age of eighteen years if the child is engaged
in education or training after that age, up to obtaining his or her first
university qualification where applicable.
Variation
or discharge
of
orders
(2)
An application under this section may be brought by the
child a parent or guardian, or any other person who has custody of the
child.
108. A child justice court may, if satisfied that the interests of the child
will be better protected or will not be adversely affected, vary or discharge,
as the case may be, a maintenance order on the application of the child, a
parent, guardian, the person having custody of the child or any other
person legally liable to maintain the child.
Enforcement
of
maintenance
orders
109.
Maintenance orders shall be enforced thirty days after the order is
made, but a child justice court may in appropriate circumstances, make an
order for a longer period.
Joint
responsibility
to maintain
a child
110.
Unless the child justice court orders otherwise, the responsibility to
maintain a child as between parents and guardians shall be joint
and several.
Maintenance
during
matrimonial
proceedings
111.
The child justice court or High Court shall have power to make a
maintenance order against either parent or both parents where proceedings,
for nullity judicial separation, divorce or any other matrimonial proceedings
are filed by either parent and such order may be made during such
proceedings or after a final decree is made in such proceedings.
Power to
make
maintenance
112.
Whenever a maintenance order is made under this Act, the child
justice court may, at the time of making the order, or from time to time
228
funds to be
paid to a
person other
than the
applicant
thereafter, on being satisfied that the person having custody of the child(a)
is not or has ceased to be a fit and proper person to receive
any maintenance funds specified in the order
in respect of the child;
(b)
has left the jurisdiction of the child justice court for an
indefinite period;
is dead or is incapacitated or has become of unsound mind;
has been imprisoned or has been declared insolvent;
has misappropriated, misapplied or mismanaged any
maintenance funds paid to him or her for the benefit of the
child;
has otherwise committed an offence under this Act,
(c)
(d)
(e)
(f)
Offences
appoint any other person it considers fit and responsible to receive and
administer any maintenance funds required to be paid under a maintenance
order, or order the person required to make a payment of the maintenance
funds to invest the funds in whole or in part in trust for the benefit of the
child.
113. (1)
A person who, being liable to maintain a child under a
maintenance order, fails to maintain the child in respect of food, clothing,
health, basic education and reasonable shelter, commits an offence and –
(a)
on first conviction, shall be liable to pay the maintenance
order;
(b)
on the second or every subsequent conviction for
continuous failure to maintain the child, shall be liable to
imprisonment for one year.
(2)
A person who misapplies funds paid under a maintenance
order commits an offence and shall be liable to a fine of Fifty Thousand
Kwacha and to imprisonment for one year.
Chapter II
CHILDREN IN NEED OF CARE AND PROTECTION
Determination of
children in need
of care and
protection
114.
(1)
A child is in need of care and protection if-
(a)
the child has been or there is substantial risk that the child
229
will be physically, psychologically or emotionally injured
or sexually abused by the parent or guardian or a member
of the family or any other person;
(b)
the child has been or there is substantial risk that the child
will be physically injured or emotionally injured or
sexually abused and the parent or guardian or any other
person, knowing of such injury, risk or abuse or risk, has
not protected or is unlikely to protect the child from such
injury, risk or abuse;
(c)
the parent or guardian of the child is unfit or has
neglected, or is unable, to exercise proper supervision and
control over the child and the child is falling into
undesirable association;
(d)
the parent or guardian of the child has neglected or is
unwilling to provide for the child’s adequate care, food,
clothing, shelter, education and health;
(e)
the child(i)
(ii)
has no parent or guardian; or
has been abandoned by the parents or guardians
and after reasonable inquiries the parents or
guardians cannot be found, and no other suitable
person is willing and able to care for the child;
(f)
the child needs to be examined, investigated or treated for
the purposes of restoring or preserving the child’s health
and if the parents or guardians neglects or refuse to have
the child so examined, investigated or treated;
(g)
the child behaves in a manner that is, or is likely
to be, harmful to the child or to any other person and the
parents or guardians are unable or unwilling to take
necessary measures to remedy the situation or the remedial
measures taken by the parents or guardians have failed and
as a result the child cannot be controlled by his or her
parents or guardians;
(h)
there is such a conflict between the child and the parent(s)
or guardians, or between the parents or guardians, that
family relationships are seriously disrupted, thereby
causing the child emotional injury;
230
(i)
the child is in the custody of a person who has been
convicted of committing an offence in connection with that
child;
(j)
the child frequents the company of immoral, vicious,or
otherwise undesirable person or persons or is living in
circumstances calculated to cause or induce the child’s
seduction, corruption or prostitution;
(k)
the child is allowed to be on a street, premises or any
place for the purpose of(i)
begging or receiving alms, whether or not there
is any pretence of singing, playing, performing or
offering anything for sale and as a result the child
becomes a habitual beggar;
(ii)
(l)
(m)
(2)
(a)
carrying out illegal hawking, illegal lotteries,
gambling or other illegal activities detrimental to
the health and welfare or retard the educational
advancement of the child;
the child cannot be controlled by his parent or
guardian or the person in custody of the child;
if the child is assessed by the Social Welfare Officer
to be in need of care and protection.
For the purposes of this Chapter, a child isphysically injured if there is injury to any part of the child’s
body as a result of the non-accidental application of force
or agent to the child’s body that is evidenced by, among
other things, a laceration, a concussion, an abrasion, a scar,
a fracture or other bone injury, a dislocation, a sprain, a
haemorrhaging, a rupture, a burn, a scald, loss or alteration
of consciousness or loss of hair or teeth;
(b)
emotionally and psychologically
injured if there is
impairment of the child’s mental or emotional functioning
that is evidenced by, amongst other things, a mental or
behavioural disorder, including anxiety, depression,
withdrawal, aggression or delayed development;
(c)
sexually abused if the child has taken part, whether as a
participant or an observer, in any activity which is sexual in
nature for the purposes of(i)
any pornographic or indecent material, photograph,
recording, film, videotape or performance; or
231
(ii)
Taking a child
into place
of safety
115.
Presentation
before
child justice
court
116.
sexual exploitation by any person for that person’s
the other person’s sexual gratification or for
commercial gain.
A police officer, social welfare officer, a chief or any member
of the community, if satisfied on reasonable grounds that a child is in
need of care and protection, may take the child and place him into his
temporary custody or a place of safety.
(1)
Subject to section 117, a child who is taken into a place of
safety under section 115 shall be brought before a child justice court
within forty-eight hours.
(2)
If it is not possible to bring a child before a child justice
court within the time specified under subsection (1), the child shall be
brought before any magistrate who may direct that the child be placed in (a)
a place of safety; or
(b)
the care of a fit and proper person,
until such time as the child can be brought before a child justice court.
(3)
If a child is in a place of safety or in the care of a fit and
proper person under subsection (2)(a)
the person in charge of the place of safety or such fit and
proper person shall have the like control over, and
responsibility for the maintenance of, the child as the parent
or guardian of the child would have had; and
(b)
the child shall continue to be in the care of the person
referred to in paragraph (a) notwithstanding that the child is
claimed by the parent or guardian or any other person.
(4)
A social welfare officer, police officer, chief or any
member of the community who takes a child to a place of safety under this
section shall, immediately upon such taking, cause the parent or guardian
232
of the child to be notified of such taking if the parents are known and if it
is practicable to do so.
(5)
A police officer, chief or any member of the community
who takes a child into temporary custody under this section shall,
immediately upon such taking, notify the social welfare officer of such
taking.
Child in need
of medical
examination
117.
(1)
If a social welfare officer, police officer, chief or any
member of the community is of the opinion that a child is in need of
medical examination or treatment he may, instead of bringing the
child before a child justice court present the child for medical care.
(2)
If a social welfare officer, police officer or chief is satisfied
on reasonable grounds that the child is in need of medical examination or
treatment, he may direct either in writing or orally that the person keeping
the child for the time being immediately present the child for medical care.
(3)
If the person referred to under subsection (2) fails to
comply within forty-eight hours with a direction made under that
subsection, the social welfare officer, police officer or chief may take the
child into temporary custody for the purpose of taking the child for the
medical care.
Medical
examination
and treatment
118.
(1)
A medical officer before whom a child is presented
under section 117 shall provide or cause to be provided such examination
or treatment as the medical officer thinks necessary.
(2)
The child who is presented before a medical officer under
subsection (1) shall be exempted from medical fees with the authority of a
District Social Welfare Officer.
(3)
The medical officer shall upon completing the
treatment present a report to the person who brought the child for the
medical care.
Hospitalization 119.
If the medical officer is of the opinion that hospitalization of the
child is necessary, he shall cause the child to be so hospitalized.
Control over
hospitalised
children
120.
If a child is hospitalised under section 119, the social welfare
officer shall have the same control and responsibility over the maintenance
of the child as the person in charge of a place of safety would have had if
the child had been placed in a place of safety.
233
Authorization
of medical
treatment
121.
(1)
If, in the opinion of the medical officer, the child
referred to under section 119 is suffering from a minor illness, injury or
condition, the treatment may be authorised by a social welfare officer.
(2)
If, in the opinion of the medical officer, the child referred to
in section 119 is suffering from a serious illness, injury or condition or
requires surgery or psychiatric examination or treatment, a social welfare
officer or police officer (a)
shall immediately notify or take reasonable steps to notify
and consult the parent or guardian of the child or any person
having authority to consent to such examination or treatment;
and
(b)
may, with the written consent of the parents or guardians or
such other appropriate person, authorize such medical or
surgical or psychiatric examination or treatment as may be
considered necessary by the health worker.
(3)
If a medical officer has certified in writing that there is
immediate risk to the health of a child, a social welfare officer or police
officer may authorize, without obtaining the consent referred to in
subsection (2), such medical or surgical or psychiatric examination or
treatment as may be considered necessary by the medical officer but only
under any of the following circumstances-
Steps to be
taken after
medical
examination
or treatment
122.
(a)
that the parent or guardian of the child or any person
having authority to consent to such examination or
treatment has unreasonably refused to give, or abstained
from giving, consent to such treatment;
(b)
that the parent or guardian or the person having authority to
consent to such examination or treatment is not available or
cannot be found within a reasonable time; or
(c)
the social welfare officer or the police officer believes on
reasonable grounds that the parent or guardian or the
person having authority to consent to such examination or
treatment has ill-treated, neglected, abandoned, or exposed
or sexually abused, the child.
(1)
A child who is placed in a place of safety and is medically
examined or treated shall be brought before a child justice court within
forty-eight hours234
(a)
of the completion of such examination or treatment; or
(b)
if the child is hospitalized, of his discharge from the
hospital
(2)
If it is not possible to bring the child before the child
justice court within the time specified in subsection (1), the child shall be
brought before any magistrate who may direct that the child be placed in (a)
a place of safety; or
(b)
the care of a fit and proper person,
until such time as the child can be brought before child justice court.
(3)
A child who-
(a)
(b)
is taken into custody under section 115; and
subsequently undergoes medical examination or treatment,
may be returned to the person from whose care the child was taken upon
the completion of such examination or treatment or if the child is
hospitalized, upon discharge from the hospital.
No liability
incurred for
giving
authorization
123.
(1)
If a child is examined or treated pursuant to sections 118 -
(a)
the social welfare officer or police officer who authorizes
such examination or treatment;
the medical officer who examines or treats the child; and
all persons acting in aid of the medical officer,
(b)
(c)
shall not incur any civil or criminal liability at law by reason only that a
child is examined or treated pursuant to that section.
(2)
Nothing contained in subsection (1) relieves a medical
officer from liability in respect of any negligent medical examination or
treatment of a child.
Duty of a
medical
officer
124.
(1)
A medical officer shall, if he believes on reasonable
grounds that a child being examined or treated is physically,
psychologically or emotionally injured as a result of being ill-treated,
neglected, abandoned or exposed, or is sexually abused, immediately
inform a social welfare officer or police officer.
235
(2)
A medical officer who fails to comply with subsection (1)
commits an office and shall be liable to a fine of Twenty Thousand
Kwacha and to imprisonment for six months.
Duty of
members of
the family
Duty of child
care provider
125.
(1)
If any member of the family of a child believes on
reasonable grounds that the child is physically, psychologically or
emotionally injured as a result of being ill-treated, neglected, abandoned
or exposed, or is sexually abused, he shall immediately inform a social
welfare officer or a police officer.
(2)
A member of the family who fails to comply with
subsection (1) commits an offence and shall be released on a binding
agreement on conditions to be determined by the court.
126. (1)
If a child care provider believes on reasonable grounds
that a child is physically, psychologically or emotionally injured as a result
of being ill-treated, neglected, abandoned or exposed, or is sexually
abused, he shall inform a social welfare officer or a police officer.
(2)
If a child care provider fails to comply with subsection (1)
commits an offence and shall be liable to a fine of Ten Thousand Kwacha
and imprisonment for three months.
Duty of
members of
the
community
127.
(1)
If a member of the community believes on reasonable
grounds that a child is physically, psychologically or emotionally injured
abandoned, or exposed, or is sexually abused, he shall immediately
inform a chief, a police officer or a social welfare officer.
(2)
A member of the community who fails to comply with
subsection (1) commits an offence and shall be liable to a fine of Ten
Thousand Kwacha and to imprisonment for three months.
Functions of
child justice
courts in cases
of children in
need of care
128.
(1)
If a child justice court is satisfied that any child brought
before it under this Chapter is a child in need of care and protection,
the court may(a)
order the parents or guardians to enter into a binding
agreement to exercise proper care and guardianship for a
period specified by a child justice court.;
(b)
make an order placing the child in the custody of a fit and
proper person for a period specified by the child justice
court.
236
(c)
without any other order or in addition to an order made
under paragraph (a) or (b), make an order placing the child
under the supervision of (i)
(ii)
a social welfare officer; or
some other person appointed for the purpose by the
child justice court,
for a period specified by the child justice court.
Chapter III
GUARDIANSHIP
Appointment
of guardian
129.
(1)
A guardian may be appointed by-
(a)
(b)
(d)
the testamentary will or choice of a parent;
an order of the court;
the family of the child.
(2)
A guardian may be appointed in respect of any child
who is resident in Malawi.
(3)
A guardian appointed under this Act shall be a
person resident in Malawi.
(4)
Where a guardian is appointed only in respect
of the estate of the child, he need not have actual custody of the
child but shall, with the authority of the child justice court and with
the assistance of a legal representative as the court may provide
for the child, have –
(a)
power and responsibility to administer the estate of
the child, and in particular to receive or recover and
invest the property of the child in his own name for
the benefit of the child;
(b)
the duty to take all reasonable steps to safeguard the
estate of the child from loss or damage;
(c)
the duty to produce and avail accounts or a written
report to the child justice court in the prescribed
form in the Seventh Schedule.
Appointment
of a
testamentary
guardian
130.
(1)
A parent of a child may by will or deed appoint any person
to be a guardian of the child after that parent’s death.
237
(2)
A guardian of a child may by will appoint another
individual to take his place as the guardian of the child in the event of his
death.
Application
for the
appointment
of a guardian
by a child or
family member
131.
(1)
If a child, or any member of the family, considers that a
surviving parent is unfit to have legal custody of the child, he may apply to
the child justice court for the appointment of a guardian.
(2)
The court, after considering the application, may-
(a)
(b)
appoint the guardian;
make an order that the guardian shall act jointly with the
parent; or
(c)
make any other order which the court considers appropriate
in the circumstances.
(3)
Where the child justice court makes an order that the
guardian is the only guardian of the child, it may order the parent to pay
the guardian a financial provision towards the maintenance of the child,
having regard to the means of the parent as the court may consider
reasonable.
(4)
A guardian who has been appointed to act jointly with the
surviving parent under subsection (2), shall continue to act as a guardian
after the death of the parent, but if the parent appointed a guardian by
will, before his death the guardian appointed by the child justice court
shall act jointly with the guardian appointed by the parent.
Application
for the
appointment
of a guardian
by other
persons other
than a child or
a family member
132.
(1)
appoint a guardian on the application made by any person where –
(a)
the child’s parents are no longer living,
(b)
(c)
the parents cannot be found ;and
the child has no guardian and there is no other person
having parental responsibility for the child; or
where the parents of the child are no longer living together
and it is necessary in the best interests of the child that a
guardian be appointed for the child.
(d)
Extension of
A child justice court may, in the best interest of a child,
133.
(1)
An appointment for guardianship shall determine upon
238
guardianship
beyond a
child’s
eighteenth
birthday
the child attaining the age of eighteen years, unless exceptional
circumstances exist that require a child justice court to grant an order
that the appointment be extended.
(2)
An application for extension of guardianship shall be made
within six months before or after the child’s eighteenth birthday.
(3)
A child justice court making an order under this section
shall specify the duration of the order and the order may contain such
conditions and directions as the court may see fit.
Power to
revoke,
modify or
vary a
guardianship
order
134.
Disputes
between
guardians
135.
Offences by
Guardians
(1)
A child justice court may, on application by the child,
parent, guardian, a family member or a social welfare officer, vary,
modify or revoke a guardianship order.
Where two or more persons act as joint guardians to a child or where
the surviving parent and a guardian act jointly and are unable to agree on
any question affecting the welfare of the child, any of them may apply to a
child justice court for its direction, and the child justice court may make
orders regarding the differences as it may think proper.
136.
A guardian of the estate of a child who(a)
refuses or neglects to provide sufficient food, clothes and
other necessaries for the child; or
(b)
misapplies, misplaces, neglects to recover or to safeguard
any asset forming part of the estate of the child, resulting in
the loss or damage of such estate; or
(c)
fails to produce to the child justice court or the parent or
guardian of the child any account or inventory required by
the child justice court; or
(d)
produces any such inventory or account which is false,
commits an offence and shall be liable to a fine of One Hundred
Thousand Kwacha and to imprisonment for two years and in addition
239
shall on that account be liable to make good any loss or damage
occasioned to the estate.
Chapter IV
FOSTERAGE
Interpretation
137.
In this Chapter, unless the context otherwise requires-
“foster care” means the placement of a child in a foster home or with a
foster parent;
“foster child” means a child placed in a foster home or with a foster
parent;
“foster parent” means a person with whom a child is placed for foster care
and protection under this Act;
“foster home” means a home approved by the Minister under section 138
or 139;
Public foster
homes
138.
(1)
The Minister shall establish places or institutions as public
foster homes for the purposes of foster care placement.
(2)
All institutions which at the commencement of this Act are
operating as public foster homes shall be deemed to have been established
under this Act.
(3)
Public foster homes shall be managed by a person
appointed by the Minister.
(4)
The establishment of public foster homes under this section
shall be published in the Gazette.
(5)
The publication shall state whether the foster home is for
female or male children or for both and shall specify the number of
children to be kept in that home.
Private foster
homes
139.
(1)
A person or an organization may apply to the Minister
to appoint a home or place of that person or organization to be a foster
home.
(2)
The Minister, upon being satisfied that the application
meets the necessary requirements in accordance with this Act, may
designate the home or place as a private foster home for the purposes of
foster-care placements.
(3)
The establishment of a private foster home under this
section shall be published in the Gazette.
(4)
The publication shall state whether the home is for female
or male children or for both and shall specify the number of children to be
kept in that home.
240
Management
of foster
homes
Foster home
placement
140.
The provisions on management, inspection and closure of
reformatory centers and safety homes shall apply to foster homes mutatis
mutandis.
141. A child justice court may, if satisfied that a child before it
is in need of foster-care and protection, commit the child to a foster home
for a period of time as the court sees fit.
Responsibilities
of a manager
of
a foster home.
142.
A manager of a foster home in whose care a child is placed
shall have the same rights and responsibilities in respect of the child
as the parent of the child while the child remains in the foster home.
Commitment
of a child to
a foster parent
Application
to foster a
child
143.
(1)
Where a child has been committed to a foster home under
this Act, the District Social Welfare Officer, in conjunction with
the manager of the foster home may place the child with a foster
parent who is willing and has applied to take the care and maintenance of
the child for a period not exceeding five years.
(2)
A foster parent may, at the expiry of the period specified in
subsection (1), apply to the District Social Welfare Officer for the
extension of the period.
144.
An application to foster a child shall be made to the District
Social Welfare Officer by completing the prescribed Form I in the Eighth
Schedule except that a relative of a child without a parent or guardian
may foster the child without first applying to the District Social Welfare
Officer.
Responsibilities
of foster
parents
145.
Persons
qualified
to foster
children
146.
A foster parent in whose care a child is committed shall, while the
child remains in his care, have the same responsibilities in respect of
the maintenance of the child as if such foster parent were the parent of the
child.
(1)
The following persons may apply to be foster parents-
(a)
a husband and wife but if a man has more than one wife, the
241
name of the wife who is to be the foster mother shall be
clearly stated;
(b)
a single person not below the age of twenty-five years.
(2)
A single person shall not foster a child of the opposite sex
unless a District Social Welfare Officer certifies to the court that it is in
the best interest of the child that the person fosters the child.
(3)
A non-Malawian citizen residing in Malawi is qualified to
apply to be a foster parent subject to subsections (1) and (2).
Procedure
before
placement
147.
(1)
A child shall not be placed with a foster parent who
is not a relative of the child, unless(a)
a social welfare officer has interviewed the prospective
foster parent and assessed that he or she is a suitable person
to foster a child;
(b)
a social welfare officer has visited the home of the
prospective foster parent and has confirmed in writing that
it is likely to meet the requirements of the particular child
and that the conditions in it are satisfactory;
(c)
(d)
(e)
(f)
two reputable persons who know the prospective foster
parent have confirmed on his or her good character and
suitability to care for the child;
it has been established by a social welfare officer that no
person in the household of the prospective foster parent is
suffering from any physical or mental illness likely to
affect the child adversely;
it has been established from the officer in charge of a police
station in the area that no person in the home has been
convicted of a serious criminal offence rendering it
undesirable for the child to associate with that person; and
the wishes of the child so far as can be ascertained
concerning the proposed fostering have been ascertained
and have, so far as practicable, been taken into account.
(2)
The social welfare officer concerned with the fostering
shall make a written report which shall contain the following(a)
the information required in section (1);
(b)
details of the name, approximate age, religion and
employment of the prospective foster parents; and
(c)
the number and approximate ages of other persons living in
the household of the prospective foster parent.
(3)
The report shall be in Form 3 in the Eighth Schedule to .
Religion
148. (1)
Where the religion of the child is known, the child shall be
placed with a foster parent who is of the same religion as the foster child
242
but where that is not possible, the foster parent shall undertake to bring up
the child in accordance with the religious denomination of the child.
(2)
Where a child’s religion is not known, the child shall be
placed with a foster parent who shall undertake to bring up the child in
accordance with the religious denomination of the foster parent, but the
child’s choice of any other established religion shall be respected.
Cultural
background
149.
Wherever possible, a child shall be placed with a foster parent
who has the same cultural background as the child’s parents and who
originates from the same area in Malawi as the parents of the child.
Undertaking
by foster
parents
Medical
arrangements
150.
(1)
Each foster parent shall, on the day on which the child is
placed with him or her, sign the undertaking specified in Form 2 in the
Eighth Schedule in the presence of a witness.
(2)
Where the prospective foster parent cannot read the English
language sufficiently to understand the nature of the undertaking, the
social welfare officer concerned shall cause the undertaking to be
explained to the prospective foster parent in a language which he
understands and shall certify to that effect as prescribed in Form 2 in the
Eighth Schedule.
(3)
Each foster parent shall be given a copy of the undertaking
signed by him or her.
(4)
A copy of the undertaking shall be sent to the District
Social Welfare Officer and to the District Commissioner.
151.
(1)
Except in the case of an emergency, a child shall not
be placed with a foster parent unless the child has been examined by a
medical officer, child has reported to the District Social Welfare Officer
in writing on the physical and mental condition of the child.
(2)
In the case of an emergency, the examination report
required under subsection (1) shall be made within four weeks after the
placement.
(3)
A District Social Welfare Officer shall submit to the foster
parent a list of immunizations carried out in respect of the child and
indicate to the foster parent the list of other immunizations required to be
effected in respect of the child in accordance with the Ministry of Health
rules of immunizations and the foster parent shall ensure that those
immunizations are carried out.
243
(4)
The foster parent and the District Social Welfare Officer
shall at all times keep a record of the immunizations in respect of the
child.
(5)
Where a child placed with a foster parent is under five
years of age, the child shall be medically examined by a medical officer (a)
within one month after the date of placement;
(b)
thereafter once every six months until the child attains the
age of five years,
and the District Social Welfare Officer shall, so far as possible, assist the
foster parent in ensuring the carrying out of the requirements of this
provision
(6)
Where a child placed with a foster parent is above the age
of five years, the child shall be medically examined by a medical officer
once in every year.
(7)
The medical officer who examines a child under subsection
(5) or (6), shall report in writing to the District Social Welfare Officer by
whom the child was placed, on the physical, mental and emotional
condition of the child as found by such medical officer.
Supervising
officer
152.
The District Social Welfare Officer shall be responsible for
overseeing all aspects of the fostering and for ensuring that the provisions
of this Act are complied with.
Visits during
placement
153.
(1)
The District Social Welfare Officer shall visit the foster
family and see the child-
(a)
(b)
(c)
(d)
within two weeks after the date of placement of the child
with the foster family where the child is under two years of
age, and thereafter once every three months;
within one month after the date of placement of the child
with the foster family, where the child is above two years
of age, and thereafter once every three months
within one month after receiving notification from a foster
parent that he or she has changed his or her residence;
immediately, and in any case not later than one week, after
receipt of any information from the child, a foster parent or
any other person which indicates the need for the District
Social Welfare Officer to visit the child.
244
(2)
The District Social Welfare Officer shall, after carrying out
the visit under subsection (1) make a written report to be placed in the
child’s case record stating in detail his observations as to the child’s
welfare, progress and conduct or any changes which have occurred in the
circumstances of the foster family.
(3)
The report made under subsection (2) shall also include the
child’s views and feelings concerning placement and where there are any
problems, they shall be discussed and resolved openly within the foster
family.
Marriages
154. No foster parent shall marry a child he is fostering and any such
purported marriage shall be void.
Termination
of placement
155.
(1)
A child shall not be allowed to remain with a foster
parent where it appears that the placement is no longer in the best
interests of the child, except that-
(a)
the foster parent may appeal to the District Social Welfare
Officer if it is sought to remove a child who has been in the
care of the foster parent for more than twelve months; and
(b)
the District Social Welfare Officer on any such appeal may
prohibit or authorise the removal subject to such conditions
as he thinks fit.
(2)
A child shall not be required to remain in the care of a
foster parent after the child has attained the age of eighteen years.
Surrendering
a foster
child
156.
If at any time a foster parent intends to return a foster child, he or she
shall bring the child before the District Social Welfare Officer and the
District Social Welfare Officer shall place the child in a foster home.
Illness
157. If a foster child is seriously ill, the foster parent shall as soon as
possible give notice to the District Social Welfare Officer who shall in
turn notify the parents or guardian of the illness.
245
Death
158. (1)
If the foster child dies, the foster parent shall make every
effort to obtain a medical certificate of death and post-mortem report and
shall, within forty-eight hours, after the death notify the social welfare
officer who shall, in turn notify the parents of the death.
(2)
If the foster parent dies, in the case where a child is placed
with a single foster parent, the child shall be returned to the social welfare
office or to the manager of the foster home from which the child was
received.
Records
159. (1)
The District Social Welfare Officer shall maintain a register
of foster parents, in which shall be stated a record set out in Form 3 in the
Eighth Schedule.
(2)
The register referred to in subsection (1) shall, in addition,
contain(a)
a statement of the name, sex, age, religion and address of
each parent of the foster child if known; and
(b)
the date of placement, the date of termination and the
reason for termination.
(3)
The District Social Welfare Officer shall also, in respect
of each child placed by him in a foster home, maintain a foster child case
record in the form set out in Form 4 in the Eighth Schedule.
(4)
The District Social Welfare Officer shall also keep with the
foster child case record the following(a)
a copy of the application form completed by the foster
parent and a copy of the undertaking required by section
150; and
(b)
reports made under section 153.
(5)
The register prescribed by subsection (1) and the foster
child case record made under subsection (3) may be inspected at any
reasonable time by the Board.
(6)
Every foster child case record made under this section shall
be preserved for at least seven years after the child to whom it relates has
attained the age of eighteen years or has died or has returned to the care of
his or her parents.
(7)
The District Social Welfare Officer shall report to the
Board within one month after each fostering effected by him, the fact of
the fostering and stating the information in Form 3 in the Eighth Schedule.
(8)
The District Social Welfare Officer shall also notify the
Board within twenty-one days after its occurrence of any change in the
information referred to in subsection (7).
246
Application
for adoption
160.
A foster parent may at any time apply to adopt a foster child in
accordance with the Adoption of Children Act.
Offences
161.
A person who-
(a)
refuses to allow a foster child to be visited by a persons
authorized by either the District Social Welfare Office or
the child justice court;
(b)
fails, without reasonable excuse, to comply with any
requirement under the Act;
(c)
accommodates a foster child in undesirable premises.
(d)
runs a foster home without the approval of the Minister,
commits an offence and shall be liable to a fine of Fifty Thousand Kwacha
and imprisonment for one year
Chapter V
SUPPORT FOR CHILDREN BY LOCAL AUTHORITIES
General
162.
(1)
It is the general duty of every local government
functions
of local
government
authorities
authority within its area of jurisdiction to(a)
safeguard and promote the welfare of children;
(b)
mediate in any situation where the rights of a child are
infringed, especially the child’s right to succeed to property
of his parents and all the rights accorded to the child by this
Act;
(c)
provide and maintain sufficient and appropriate recreational
facilities;
(d)
conduct inspection of child care facilities to ensure
maintenance of standards;
(e)
inspect structures, places and activities that impose
potential or actual harm to children.
247
Secretary
for children
affairs
(2)
The power conferred by subsection (1) on a local
government authority to protect the right of a child to succeed to property
of his parents shall not be construed to authorize the authority to distribute
such property.
163. (1)
A local government authority shall designate one of its
officers to be the person responsible for the welfare of children and
such officer shall be referred to as the Secretary for Children’s Affairs.
(2)
The Secretary for Children’s Affairs shall, in the exercise
of his functions in relation to the welfare of children, be assisted by such
other officers of the local government authority as the local government
authority may determine.
Registration
of children
with
disabilities
Duty to
provide
accommodation to
children in
need
164.
A local government authority shall keep a register of disabled
children within its area of jurisdiction and give assistance to them
whenever possible in order to enable those children grow up with
dignity among other children and to develop their potential and selfreliance.
165
A local government authority shall provide accommodation for
children within its area of jurisdiction who appear to the assembly to
be in of the accommodation as a result of their being lost or abandoned or
seeking refuge.
Tracing of
parents or
guardians
Duty to report
infringement
of a child’s
rights
166.
A local government authority shall make every effort, including
publication through the mass media, to trace the parents or guardians of
any lost or abandoned child or to return the child to the place where the
child ordinarily resides; and, where the authority does not succeed, it shall
refer the matter to a probation officer or social welfare officer or to the
police.
167.
(1)
It shall be the duty of any member of the community who has
evidence that a child’s rights are being infringed or that a parent,
guardian or any person having custody of a child, who is able to but
refuses or neglects to provide the child with adequate food, shelter,
clothing, medical care or education, to report the matter to the local
government authority of the area.
248
(2)
The Secretary for Children’s Affairs may, upon receiving
the report, summon the person against whom the report was made under
subsection (1) to discuss the matter; and a decision shall be made by the
Secretary for Children’s Affairs in the best interests of the child.
Registration
of births and
deaths of
children
(3)
Where the person against whom the report was made
refuses to comply with the decision made under subsection (2), the
Secretary for Children’s Affairs shall refer the matter to child justice court
which may make such orders as it may see fit.
168. (1)
Unless the duty to do so has been conferred on another
authority, a local government authority shall keep and maintain a
register of the births and deaths of children in the area of its
jurisdiction.
(2)
The registration of the birth or death of a child under this
section shall be with sufficient particulars including in particular(a)
(b)
(c)
(d)
Registration
of children
suffering from
HIV/AIDS
169.
the name and sex of the child;
the name of the parents;
place of birth and the home of origin of the child; and
in the case of death, the place of death and, where possible,
the cause of the death.
A local government authority shall keep a register of children
suffering from HIV/AIDS for the purposes of ensuring that(a)
(b)
(c)
(d)
they are not discriminated against on the basis of
their status;
they have equal access to health care services regardless of
their status;
they are provided with the necessary material support if
required; and
in conjunction with the District Social Welfare Officer,
they are provided with substitute care in the form of –
(i)
care by relatives;
(ii)
foster-care; or
(iii) adoption
(2)
For the purposes of this section, children suffering
from HIV/AIDS means children who are(a)
infected by HIV;
249
(b)
(c)
(d)
orphaned by AIDS
vulnerable to HIV infection; or
from infected families and facing increased financial,
physical and emotional burdens.
Chapter VI
PROTECTION OF CHILDREN FROM UNDESIRABLE PRACTICES
Child abduction
170. (1)
A person who, unlawfully takes, retains or conceals a child
without the consent of the parent or without the consent of any other
person who has lawful custody of the child commits an offence and shall
be liable to imprisonment for ten years.
(2)
For the purposes of this section, lawful custody may be
conferred on a person by-
Child
trafficking
171.
(a)
(b)
(c)
the operation of any written law;
judicial or administrative decision; or
a lawful agreement.
(1)
A person who takes part in any transaction the object or
one of the objects of which is child trafficking commits an offence and
shall be liable to imprisonment for life.
(2)
For the purposes of this section, child trafficking means the
recruitment, transaction, transfer, harbouring or receipt of a child for the
purposes of exploitation.
Harmful
Cultural practice
172.
No person shall subject a child to a social or customary practice
that is harmful to the
Forced
marriage
or betrothal
173.
No person shall –
(a)
(b)
(c)
Pledge of a
child as
security
174.
health or general development of the child.
force a child into marriage;
force a child to be betrothed; or
subject a child to any dowry transaction.
No person shall –
(a)
use a child as a pledge to obtain credit;
250
(b)
(c)
use a child as surety for a debt or mortgage; or
force a child into providing labour for the income of a
parent, guardian or any other person.
Offence
175. A person who contravenes sections 172, 173 and 174 commits an
offence and shall be liable to imprisonment for three years.
Inquiries and
placements
176.
(1)
If a social welfare officer has reasonable grounds
to believe that a child –
(a)
(b)
(c)
(d)
has been trafficked;
has been abducted;
has been subjected to a harmful cultural practice or any
practice prohibited under sections 173 and 174; or
is being used for the purposes of prostitution or immoral
practices,
he may remove and temporarily place the child in a place of safety.
(2)
A child who is temporarily placed in a place of safety,
under this Chapter shall be brought before a child justice court within
forty-eight hours if it is practicable to do so.
(3)
The child justice court may commit the child to a foster
home or may place the child under the supervision of a social welfare
officer until an inquiry into the circumstances of the case has been carried
out and submitted to the child justice court by a social welfare officer.
(4)
The social welfare officer shall complete the inquiry under
subsection (3) and submit a report of the inquiry to the child justice court
within one month from the date of placing the child into a place of safety.
(5)
The child justice court may, after considering the report and
if satisfied that the child is in need of protection and rehabilitation (a)
(b)
commit the child to a foster home;
make an order placing the child under the supervision of a
social welfare officer,
for such period as the court thinks fit.
(6)
The child justice court may, in the best interests of the
child, extend the period of the placement or the supervision, but such
extension shall not go beyond the eighteenth birthday of the child.
251
(7)
If the child justice court is not satisfied that the child is in
need of protection or rehabilitation, it may order that the child be returned
to the custody of the parent, guardian or any other person who had custody
of the child.
Child recovery
order
177.
(1)
If it appears to a child justice court that there are
reasonable grounds to believe that a child has been abducted or
trafficked, it may make a child recovery order.
(2)
A child recovery order may be made by a child justice
court on the application by or on behalf of a person having lawful custody
of the child.
(3)
A child recovery order may-
(a)
direct any person who is in a position to do so to take the
child to a person specified in the order;
(b)
authorize a person specified in the order to remove the
child from the unlawful custody;
require any person who has information that can assist in
the recovery of the child to disclose that information to a
person specified in the order; or
(c)
(d)
authorize any police officer to enter premises specified in
the order and search for the child.
(4)
A person who knowingly obstructs an authorized
person from exercising the power under subsection (3) commits an offence
and shall be liable to imprisonment for three years.
PART X
EXPENSES AND CONTRIBUTIONS
Contribution
order
178.
(1)
When a reformatory centre order,
safety home order, a
foster home placement order or an order committing a child to the care of
a fit person has been made by a child justice court (hereinafter in this
section referred to as a committal order) the court may, at the same time or
subsequently, make a contribution order requiring a parent or guardian or
other person having custody of the child to contribute a weekly, monthly
or any other periodic sum as may be specified in the order or to make
252
other necessary contributions as the court may consider proper in respect
of his or her maintenance.
(2)
A contribution order may be made against the parent or
guardian or a person having custody of the child, who having been
required to attend before the child justice court, has failed to do so; but no
such order shall be made without giving the person to make the
contribution an opportunity to be heard.
(3)
A contribution order shall remain in force as long as the
relevant committal order is in force.
(4)
Subject to subsections (4) and (5), no contribution shall be
payable under a contribution order in respect of any period during which
the person to be maintained is on conditional discharge or release or
under the supervision of a probation officer.
(5)
A contribution order may be varied, revoked or
suspended by the court which made it but shall not be varied as to increase
any contribution payable under the order without giving the person
making the contribution an opportunity to be heard.
(6)
If a person wilfully neglects to comply with a contribution
order, the court which made the order may, for every breach of the order,
by warrant, direct the amount due to be levied in accordance with the law
for levying fines imposed by courts or may sentence the person to
imprisonment for fourteen days for each month’s contribution remaining
un paid.
Funds for
179. Funds for public reformatory centre, public safety homes
public
reformatory
public foster homes shall consist ofcentres ,
public safety
homes and public
(a)
such funds as Parliament may appropriate;
foster homes
and
(b)
contributions ordered by the court under section 178 and
(c)
any donations of funds, materials and other gifts from
any person.
PART XI
TRANSITIONAL PROVISIONS
Transfer of
children
180.
(1)
The Minister shall, at the commencement of this Act,
253
by writing under his hand direct-
(a)
(b)
the transfer to a safety home in accordance with the
provisions of this Act, any person in custody who is a child
and is alleged to have committed an offence in respect of
which proceedings have not been commenced.
the transfer to a reformatory centre in accordance with the
provisions of this Act, any person who is a child and is
serving a custodial sentence;
(c)
Remittance of
a list of
children
181.
the transfer to a foster home or, where necessary, to a
safety home in accordance with the provisions of this Act,
any child who is in a reformatory centre for the purposes
of care and protection.
(1) A police officer in charge of a police station or a person in
charge of a prison shall, at the commencement of this Act-
(a)
remit to the Board a list of all persons in custody who are
children within the meaning of this Act; and
(b)
remit to the Board a list of all persons serving sentences in
custody who were children at time the offences were
committed.
(2) A person in charge of a reformatory centre shall, at the
commencement of this Act remit to the Board a list of children being
kept at the centre for the purposes of care and protection.
Proceedings
under
the repealed
Act
Cap. 26:03
182.
(1) Where, at the commencement of this Act, proceedings
have been commenced in respect of a person who is a child
or a young person within the
meaning of the Children and Young
Persons Act (now repealed) the proceedings and all related matters
shall be dealt with as if they had been commenced under this Act and
any court dealing with the matter shall continue as if it has
jurisdiction under this Act.
254
PART XII
GENERAL
Saving of
powers of the
High Court
183.
(1)
Nothing in this Act shall preclude the High Court from
exercising its ordinary jurisdiction over any matter.
(2)
All powers exercised by a child justice court under this Act
may in like manner be exercised by the High Court.
Duties and
powers of a
person to
whom a child
is committed
184.
(1)
A person to whose care a child is committed under this Act
shall, whilst the order is in force, have the like control over the child as if
he were the parent of the child responsible for the maintenance of the
child and the child shall continue to be in the care of such person not
withstanding any claim by the child’s parent or by any person unless the
court orders otherwise.
(2)
A person to whose care a child is committed under this Act
shall report to the court (a)
(b)
quarterly, on the condition, education and health of the
child;
immediately, if the child dies or escapes from that person’s
control.
(3)
Where a person fails to make a report under this section
the court may exercise any of its powers under section 63.
(4)
A person to whose care a child is committed shall at all
reasonable times allow a Social Welfare Officer to visit the place where
the child is living and shall answer all reasonable enquiries which may be
made by such Social Welfare Officer.
Duties arising
from a
probation
order
185.
(1)
Where a court has made a probation order under section 63
(1) (f) the parents or guardians of the child shall continue to be responsible
for the care and maintenance of the child but shall allow the probation
officer or other persons appointed for the purpose by the court
(hereinafter referred to as the supervisor) to have access at any time to the
place where the child is living.
255
(2)
The parents of the child shall give all such information
relating to the condition, education and health of the child as the
supervisor may require and shall, in the best interests of the child, consider
any advice relating to the upkeep and education of the child which may be
given by the supervisor.
(3) If at any time the supervisor reports to the court that the child
in respect of whom the probation order has been made should be removed
from the custody of the parents or guardian, the court shall consider such
report as though there were proceedings pending under section 61 and
may make any order in place of the probation order which it might have
made under section 63.
General
Offences
186.
Any person, not being a child, who –
(a)
refuses to answer, to the best of his knowledge and belief,
any question which he is legally bound to answer and
which is asked of him by any officer appointed by or under
this Act;
(b)
willfully signs or delivers any false or incorrect
notification, report or statement;
(c)
refuses to allow an officer appointed or authorized under
this Act such entry or access to any house, building, land,
enclosure, vessel or other place as he is required by this
Act to allow; or
(d)
contravenes or fails to comply with any order, summons or
warrant lawfully made or issued under this Act,
commits an offence and shall be liable to imprisonment for six months and
to a fine of Fifty Thousand Kwacha.
Mistake as
to age
187.
(1)
Subject to subsection (2), no action and no order made in
the purported exercise of any power conferred by this Act shall be deemed
illegal by reason only that it afterwards appears or is discovered that a
mistake has been made regarding the age of a person.
(2)
Where a mistake is made as to the age of a child, an order
of the court made against the child on the basis of the mistake as to the
age shall be invalid to the extent of the adverse effect as against the child,
and the court which made the order or any other court of co-ordinate
jurisdiction shall have power to make a declaration to that effect.
256
Regulations
and rules
Court rules
Amendments
and repeals
188.
The Minister may, on the recommendation of the Board,
make regulations for carrying this Act into effect189. The Chief Justice may make rules regulating the procedure and
practice in a child justice court.
190.
The enactments specified in the First Column of the Ninth
Schedule are amended or repealed in the manner specified in
the Second Column of that Schedule.
SCHEDULES
FIRST SCHEDULE
Section 5
GUIDING PRINCIPLES IN MATTERS CONCERNING CHILDREN
Welfare
principle
1.
Whenever the state, a court, a local authority or any person
determines any question with respect to(a)
(b)
Time being
of the essence
2.
the upbringing of a child or,
the administration of a child’s property or the application of
any income arising from it, the welfare of the child shall be
of the paramount consideration.
In all matters relating to a child, whether before a court of law or
before any other person, regard shall be had to the general principle that
delay in determining the questions is likely to be prejudicial to the welfare
of the child.
Criteria for
decisions
3.
In determining any question relating to circumstances set in
paragraphs (a) and (b) of paragraph (1), the court or any other persons
shall have regard in particular to(a)
(b)
the ascertainable wishes and feelings of the child concerned
considered in the light of his age and understanding;
the physical, emotional and educational needs of the child;
257
(c)
(d)
(e)
(f)
Rights of
the child
the likely effects of any changes in the child’s
circumstances;
the age, sex and background of the child and any other
circumstances relevant in the matter;
any harm that the child has suffered or is at the risk of
suffering;
where relevant, the capacity of the parents, guardians or
other people involved in the care of the child in meeting
needs of the child.
4.
A child shall have the right –
(a)
to leisure which is not morally harmful and the right to
participate in sports and positive cultural and artistic
activities.
to a just call on any social amenities or other resources
available in any situation of armed conflict or natural or
man-made disasters.
to exercise, in addition to all rights states this Schedule and
this Act, all the rights set out in the United Nations
Convention on the Rights for the Child and the O.A.U.
Charter on the Rights and Welfare of the African child with
appropriate modifications to suit the circumstances in
Malawi that are not specifically mentioned in this Act.
(b)
(c)
SECOND SCHEDULE
CHILD (CARE, PROTECTION AND JUSTICE) ACT
SECTION 29(e)
Children charged with the following offences shall not be considered for diversion.
Offences
1.
Rape
2.
Attempted rape
3.
Abduction
4.
Defilement of a girl under 13 years and attempted defilement.
5.
Defilement of an idiot or imbecile
6.
Manslaughter
7.
Murder
8.
Attempted murder
9.
Infanticide
10.
Killing an unborn child
11.
Disabling in order to commit a felony or misdemeanour
12.
Stupefying by overpowering drug or thing with intent to commit a felony or
misdemeanour
13.
Robbery with violence
14.
Attempted robbery with violence
258
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
House breaking and burglary
Arson
Offences against Aircraft
Offences against motor vehicles, trains, etc
Conspiracy to murder
Aiding suicide
Acts intended to cause grievous harm or prevent arrest
Preventing escape from a wreck
Maliciously administering poison with intent to harm
Intentionally endangering safety of persons travelling by railway
Accessory after the fact to murder.
THIRD SCHEDULE
CHILD (CARE, PROTECTION AND JUSTICE) ACT
SECTION 30
DIVERSION OPTIONS
CATEGORY A
Category A diversion options are –
(1)
An oral or written apology to the victim or victims of the offence or to any other
specified person or institution;
(2)
A formal caution with or without conditions;
(3)
Placement under a supervision and guidance order placing the child under the
supervision and guidance of a mentor or peer role model for a period not
exceeding three months in order to monitor and guide the child’s behaviour;
(4)
Placement under a reporting order requiring a child to report to a specified person
at a time or at times specified in such order so as to enable such person to monitor
the child’s behaviour for a period not exceeding three months;
(5)
The issue of compulsory school attendance order for a period not exceeding three
months requiring the child to attend school everyday for a specified period of
time, which attendance shall be monitored by a specified person;
(6)
The issue of a family time order requiring the child to spend a number of hours
with his family for a period not exceeding three months;
259
(7)
The issue of a positive peer association order requiring a child to associate with
persons who can contribute to the child’s positive behaviour for a period not
exceeding three months;
(8)
The issue of a good behaviour order requiring a child to abide by an agreement
made between the child and his family to comply with certain standards of
behaviour;
(9)
The issue of an order prohibiting the child from visiting, frequenting or appearing
at a specified place;
(10)
Referral to counselling or therapy for a period not exceeding three months;
(11)
Compulsory attendance at a specified centre or place for a specified vocational or
educational purpose for a period not exceeding five hours each week, for a
maximum of three months;
(12)
Symbolic restitution of an object owned, made or bought by a child to a specified
person, persons, group or institution; and
(13)
Restitution of a specified object to a specified victim or victims of the alleged
offence where the object concerned can be returned or restored.
(14)
Any order removing the child from undesirable environment for a specified
period.
260
CATEGORY B
Category B diversion options are –
(1)
Any of the options under Category A provided that where a maximum period has
been imposed under paragraphs (3), (4), (5), (6), (7), (8), (9), and (10), the
maximum period shall not exceed six months;
(2)
Compulsory attendance at a specified centre or place for a specified vocational or
educational purpose for a period not exceeding eight hours each week, for a
maximum of six months;
(3)
Performance without remuneration of some service for the benefit of the
community under the supervision or control of an organization or institution, or a
specified person or group identified by the probation officer for a maximum
period of fifty hours, and to be completed within a maximum period of six
months;
(4)
Provision of some service or benefit to a specified victim or victims which the
child or the family can afford;
(5)
Payment of compensation to a maximum of K10,000 to a specified person,
persons, group or institution where the child or his family is able to afford this;
Where there is no identifiable person or persons to whom restitution or
compensation could be made, provision of some service or benefit or payment of
compensation to a community organization, charity or welfare organization;
(6)
(7)
Referral to appear at a victim-offender mediation or other restorative justice
involving family members at a specified place and time; and
(8)
Any two of the options listed used in combination.
261
CATEGORY C
Category C diversion options are –
(1)
Referral to a programme with a residential requirement, where the duration of the
programme does not exceed six months, and no portion of the residence
requirement exceeds a maximum of thirty-five nights during the operation of the
programme;
(2)
Performance without remuneration of some service for the benefit of the
community under the supervision and control of an organization or institution, or
a specified person or group identified by the probation officer for a maximum
period of two hundred fifty hours, to be completed within a maximum period of
twelve months;
(3)
Where a child is and is not attending formal schooling, compulsory attendance at
a specified centre or place for a specified vocational or educational purpose for a
maximum period of not more than thirty-five hours per week, to be completed
within a maximum period of six months;
(4)
Referral to counselling or therapeutic intervention which shall be in conjunction
with any of the options listed in this category.
FOURTH SCHEDULE
CHILD (CARE, PROTECTION AND JUSTICE) ACT
SECTION 58
Child offenders charged with the following offences shall be detained in accordance with
section 58
Offences
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Attempting to murder.
Attempting to murder by convict
Accessory after the fact to murder
Written threats to murder
Conspiracy to murder
Aiding suicide
Disabling in order to commit felony or misdemeanour
Stupefying in order to commit felony or misdemeanour
Acts intended to cause grievous harm or prevent arrest
Preventing escape from wreck
262
11.
12.
13.
14.
Intentionally endangering safety of persons travelling by railway
Attempting to injure by explosive substance
Maliciously administering poison with intent to harm
Infanticide
[Subsidiary]
Child Justice Courts Designation Notice
SUBSIDIARY LEGISLATION
CHILD JUSTICE COURT DESIGNATION NOTICE
DESIGNATION NOTICE
Under section 50
The Chief Justice has designated the following courts to exercise jurisdiction under the
Act-
263
FIFTH SCHEDULE
CHILD (CARE, PROTECTION AND JUSTICE) ACT
SECTION 64
REFORMATORY CENTRE AND SAFTEY HOME ORDER
IN THE CHILD JUSTICE COURT SITTING AT ……….
CHILD CASE NUMBER
………………………………………………………………………………………………
(hereinafter called the child) who appears to the court to be a child having been born as far as can
be ascertained, in or about the ……………………day of …………. 20…… has this day *been
found to be responsible for Or having been charged with the following offences
………………………………………………………………………………………………………
……………………………………………………………………………………… Or * having
been found to be in need of care, control and protection
IS HEREBY ORDERED to be sent FORTHWITH (or on the ………… day of
………………………….. 20……..) to a reformatory centre/ safety home to be kept there until
the child has been released on the recommendation of the Child Case Review Board Or until the
child has been discharged/released on bail/acquitted.
AND it is further ordered that the Police officers of the Republic or ………………… shall be
responsible for conveying the child to such reformatory centre/safety home as may be specified
by the Child Case Review Board.
*AND it is further ordered that ……………………..residing at …………………….. being the
parent or guardian or other person hitherto having custody of the child shall pay to
……………………………. the weekly (monthly) sum of …………………… until the child
ceases to be subject to this order.
* AND it is further ordered that until the child is sent to the said reformatory centre/safety home
in pursuance of this order he or she shall be kept in ……………………… or is committed to the
custody of …………………………
Dated this ………………. Day of ………………………… 20 …….
…………………………….
264
Magistrate/Chairman
*Delete if inappropriate
SIXTH SCHEDULE
CHILD (CARE, PROTECTION AND JUSTICE) ACT
SECTION 76
REFORMATORY CENTRE AND SAFETY HOME (MANAGEMENT) RULES
Citation
1.
These Rules may be cited as Reformatory Centre and Safety
Home (Management ) Rules.
Minimum
standards of
safety homes
Other services
2.
Reformatory centres and
safety homes shall provide for the
following minimum services and conditions-
3.
(a)
education , recreation and health care;
(b)
parent/child interaction centre;
(c)
counselling services;
(d)
proper hygiene and sanitation;
(e)
adequate nutrition, proper clothing and bedding;
(f)
communication materials.
In addition to the services mentioned in rule 2, reformatory centres
and safety homes may where circumstances do require, facilitate any other
265
services by allowing service providers access to the centre or home or by
allowing children to have access to the services
4.
Records
The officer -in-charge of a reformatory centre or a safety home
shall keep a register in which details each
.
Inspection
of the Register
by the Board.
5.
Details of the register shall be examined by the Board.
266
SEVENTH SCHEDULE
Under section 129
PRESCRIBED FORM OF ACCOUNT OF A CHILD’S ESTATE
I …………………………………………….. of ………………………………………. do
solemnly
and
sincerely
declare
that
the
estate
of
(name
of
child/ren)
…………………………………………………………. Is as follows-
Description of property…………………………………………………………………...
Income (monthly, Quarterly, yearly……………………………………………………...
Bank Details (account number, balance etc……………………………………………..
AND I MAKE this solemn declaration, conscientiously believing the same to be true
[and by virtue of the Oaths, Affirmations and Declarations Act].
Declared at ………………………………… this ……………………………. Day of
……………………………. 200………………
Before me
…………………………………………
[COMMISSIONER FOR OATHS]
267
EIGHTH SCHEDULE
FOSTER-CARE PLACEMENTS
Section 144
Form 1
APPLICATION TO FOSTER A CHILD
NAME OF APPLICANT…………………………………………………………………………
MARRIED / SINGLE ……………………………………AGE…………………………………
ADDRESS ……….………………………………………………………………………………..
……………………………………………………………...TEL. NO……………………………
NUMBER OF CHILDREN………………………………...AGE…………………………….
EMPLOYMENT OF APPLICANT……….. ………………………………………………….
EMPLOYMENT OF HUSBAND……….………………………………………………………
EMPLOYMENT OF WIFE……….……………………………………………………………
OTHER SOURCES OF INCOME (e.g. farm………...………………………………………
HAVE YOU EVER FOSTERED A CHILD/CHILDREN BEFORE? (If so give
particulars)………………………………………………………………………...………………
……………………………………………………………………………………………………..
REASONS FOR FOSTER……………………………………….…………………………….
ARE YOU WILLING TO UNDERTAKE SHORT TERM FOSTERING?………………
NAMES OF REFEREES AND THEIR ADDRESSES (one shall be your local or Village
Chief)………………………………………………………………………………………………
1.
……………………………………………………………………………………………..
…………………………………………………………………………………….……….
…………………………………………………………………………………….……….
…………………………………………………………………………….……………….
2.
…………………………………………………………………………….……………….
…………………………….………………………………………………….……………
…………………………………………………………………………………..………….
AGE RANGE ……………… SEX OF CHILD YOU WISH TO FOSTER…………………
APPLICANT’S SIGNATURE……………….…………………………………………………..
268
DATE…………………………………….
FOSTER-CARE PLACEMENTS
Form 2
section 150
FORM OF UNDERTAKING
(To be filled in Triplicate)
I / We (names of foster parents) …………………………………………………………………
Who received (name of child)……………………………………………………………………
Into my /our home on (date) ……………………………………………………………………
From (name of District Social Welfare Office) …………………………………………………
Undertake that1.
I/we will care for (name of Child) ………………………………………………………
as though he /she were my/our own child.
2.
I/we will bring him/her up in accordance with the ……………………………………
………………………………………………………………………………………………
3.
I/we will look after his/her health and allow him/her to be medically examined as
required by the District Social Welfare Office.
4.
1/we will allow an Officer of the District Social Welfare Office or representative of the
Ministry to visit my/our home, and to see the child at any time.
5.
I/we will inform the District Social Welfare Office immediately if the child is seriously
ill, or is missing, or is involved in an accident, or is in any kind or trouble.
6.
I/we will inform the district Social Welfare Office immediately if I /we plan to change
residence and address.
7.
I/we understand that an Officer of the District Social Welfare Office has the right to
remove the child from my/or home in certain circumstances.
………………………………………
(Signed, Foster Father)
……………………………………..
(Signed foster Mother)
269
……………………………………
(Address of Foster Parent)
CERTIFICATE
I ……………………………………………………(Title) ………………………………
Certify that I have explained the foregoing undertaking in the ………………………
………………………………………… language to …………………………………….
………………………………………… and ……………………………………………..
foster parent(s).
Signed…………………………………………………….
(District Social Welfare Officer)
Signed ……………………………………………………..
(Witness)
………………………………………………………………
(Address of Witness)
………………………………………………………………
(Address of District Social Welfare Office)
Date:………………………………..
270
FOSTER-CARE PLACEMENTS
Form 3
section 159
PROSPECTIVE FOSTER PARENT RECORD
Name of Prospective Foster Parent(s)…………………………………………………………….
Date of Birth……………………………………………..
Age……………………………………………………….
District of Origin ………………………………………
Religion…………………………………………………
Occupation………………………………………………………………………………………….
Marital Status of prospective Foster Parent(s) …………………………………………………..
Is the relationship monogamous or polygamous?……………………………………………….
Home Address
TA
…………………………………………………..
Village
……………………………………………………
…………………………………………………….
District
……………………………………………………..
………………………………………………………
Details of other people living in the home:
______________________________________________________________________________
Name
Relationship to
Prospective
Age
School/Class
Occupation
Foster Parent
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________
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Is there or has there been any serious illness/infection in the family? (If any, give details)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
State the income and wealth of the prospective foster Parents. Give details of business and land
owned by the family/person.
Description of the home _________________________________________________________
_____________________________________________________________________________
Number of Rooms ______________________ Type of Toilet __________________________
Type of Water Supply___________________________________________________________
Will the family/person need material support in order to start fostering? If the answer is “yes”
state what will be needed?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Why does this family/person wish to foster children?
______________________________________________________________________________
______________________________________________________________________________
Do they understand the temporary nature of fostering?________________________________
Has the person/any member of the family had a serious conviction (if YES, give details and dates
and state whether in your opinion it is of such seriousness as to prevent the family/person from
taking on a foster placement?
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Assessment of the suitability of that family/ person to foster children.____________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Recommendation______________________________________________________________
What type of foster child would best benefit from this family/person? (baby, child, male, female,
etc)
Details of Foster Child(ren) already placed with foster parents
272
______________________________________________________________________________
Name
Sex
placement
Date of
date of
Age at
Date of
Why terminated
termination
of Foster
placement
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Details of parents and siblings of foster children if known
______________________________________________________________________________
Name of
Names of
Names of
Sex
Age
Religion
Address
Foster
Parents
brothers/
Child
sisters
of foster
child
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Name of Supervising Officer _____________________________________________________
Signature_________________________________________
Address_______________________________________________________________________
Date_____________________________________________
273
FOSTER-CARE PLACEMENTS
Form 4
section 159
FOSTER CHILD CASE RECORD
Name of child (surname first)_____________________________________________________
Date of Birth _______________________________Age________________________________
District of Origin_________________________________________
Sex_________________________________Religion___________________________________
Name of Foster Parents__________________________________________________________
Foster Parent’s Home Address
Change of Address
TA
_______________________________
Village _______________________________
_______________________________
District _______________________________
_______________________________
________________________________
________________________________
________________________________
________________________________
________________________________
Natural Father’s Name_________________________________ Alive/Dead/Unknown
Natural Mother’s Name_________________________________Alive/Dead/Unknown
Natural Father or
Guardians Address
TA
_______________________________
Village _______________________________
_______________________________
_______________________________
_______________________________
Natural Mother or
Guardians Address
_______________________________
_______________________________
_______________________________
________________________________
________________________________
Details of Foster Child brothers, sisters and relative.
Name
____________________
____________________
____________________
____________________
Addressses
Alive/Dead
_____________________
_____________________
_____________________
_____________________
_________________________
_________________________
_________________________
_________________________
274
Where was the child living immediately prior to this foster placement? (Please give names and
addresses of carers or institution).
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
CASE HISTORY OF THE CHILD AND HIS/HER FAMILY
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
State what efforts have been made to trace the parents or relatives and to return the child to
his/her family.
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Details of medical history including immunization
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Give details of education
School______________________________________class______________________________
Name of supervising officer_______________________________________________________
Address ________________________________________________________
Date___________________________________ Supervisor’s Signature____________________
275
NINTH SCHEDULE
AMENDMENTS AND REPEALS
Section 190
1. Affiliation Act: Cap 26:02
The whole Act is repealed.
2. Children and Young Person’s Act:
Cap 26:03
The whole Act is repealed.
The Act is amended by –
3. Adoption of Children Act:
Cap 26:01
(a)
the insertion, after section 3, of the following
section –
“Inter-country
adoption
3A.
(1) Subject to the provisions
of this Act, a court may make an
inter- country adoption order as an
alternative means of care and
protection of a child who cannot be
placed under foster care or in an
adoptive family or who cannot in any
suitable manner be cared for in
Malawi.
(2) A court shall not make an
inter-country adoption order unless
the Minister after consultation with
competent authorities of the
276
receiving country determines that –
(a)
the applicants are eligible to
adopt the child;
(b)
the applicants have been
counselled as may be
necessary;
(c)
the child is or will be
authorised to enter and
reside permanently in the
receiving country;
(d)
the applicant or one of the
applicants, if not a relative
of the child has, while in
Malawi, fostered the child
for a continuance period of
three years prior to the
application; and
(e)
the receiving country is a
signatory to and has
implemented the United
277
Nations Convention on
Protection of Children and
Co- operation in Respect of
Inter-country Adoption.
(3) For the purposes of this
section, inter-country adoption means an
adoption in which the applicant intends to
take the adopted child outside Malawi
within a period of one year from the
date of the application;
(4)
An adoptive parent who
adopted a child otherwise than under the
provisions of this section shall not
subsequently take the child outside
Malawi without leave of the court.
(b) deleting subsection (2) of section 6 and
substituting therefore the following -
“(2) An adoption order shall not deprive the
adopted child or person of any right to or interest
in property to which the child is entitled under
any intestacy occurring before the adoption order,
278
or under a disposition, whether made before or
after the making of the adoption order”;
(c) the insertion , after section 6, of the following
section –
“Devolution
where an
adopter
dies
intestate
6A Where an adopter dies intestate,
the property of the adopter shall devolve
in all respects as if the adopted child or
person was the natural child of the
adopter.”
(d) deleting section 9 and substitute it as follows “Jurisdiction
9.
(1)
Subject to subsections (2)
and (3), the court having jurisdiction
to make an adoption order under this
Act is a child justice court
established under the Child (Care,
Protection and Justice) Act.
(2) Where the application is
for an inter-country adoption order,
the court having jurisdiction to make
the order is the High Court.
(3) If owing to special
279
circumstances, an application appears
to a child justice court to be more
fit to be dealt with by the High Court,
the court may order that the matter be
transferred to the High Court.
(4) For the purposes of any
application under this Act, the court
shall appoint some person or body to
act as a guardian ad litem of the
infant upon the hearing of the
application to safeguard the interests
of the infant before the court.
(e) the insertion, after section 11, of the following
sections–
“Disclosure
of information
of adoptive
status to the
adopted
child
11A. (1) An adopter may inform the
adopted child or the person of the fact
that the child or person is adopted and
of his parentage but such disclosure
shall only be made if it is in the best
interest of the child or person after
considering his age and mental
280
maturity.
(2) No person other than the
adopter shall disclose adoption to
the adopted child or person.
(3) Any person who contravenes
this section (2) commits an offence and
shall be liable to a fine of Fifty
Thousand Kwacha and imprisonment
for one year.
Post adoption
contacts
with natural
parents or
natural
family
members
11B. Where an adopted child knows
of his adoptive status, the adopter shall
not refuse or obstruct contacts by the
child with the child’s natural parents or
with other members of the child’s
natural family, unless it can be shown
on reasonable grounds that such
contacts would not be in the best
interests of the child.
(f) the deletion of section 2(2) and section 3 (5).
(g) the deletion from the Adoption of Children
281
(Subordinate Court) rules of -
(a)
(b)
4. Employment Act
No. 6 of 2000
the definition of “the court” in rule 2;
rule 16.
The Act is amended –
(a) in section 22(1) by deleting the words “between the
age of fourteen and eighteen years”, and substituting
the words “below sixteen years of age”.
(b)
by
the insertion, after section 23, of the
following new section –
“Prohibition
of child
labour at
night
23A.
(1) No person shall
engage a person under the age
of fourteen years in night
work.
(2) For the purposes
of this section, night work
constitutes work between the
hours of eight o’clock in the
evening and six o’clock in the
morning”.
5. Court Act Cap 3:02
The Act is amended by deleting section 39(2)(d).
282
6. Births and Deaths Registration Act
Cap. 24:01
The Act is amended by the repeal of section 6.
283