Children’s Code Act, 2022

Jurisdiction: Zambia
Citation: Act 12 of 2022
Date: 11 August 2022
Language: English
Type: Legislation
Download: Download PDF (2.0 MB)

Children’s Code Act, 2022

Act 12 of 2022

Published on 11 August 2022
Assented to on 9 August 2022
Commenced on 11 August 2022
[This is the version of this document from 11 August 2022.]

An Act to reform and consolidate the law relating to children; provide for parental responsibility, custody, maintenance, guardianship, foster care, adoption, care and protection of children; provide for the grant of legal aid to, and establish procedures for the treatment of, children in conflict with the law; provide for the making of social welfare reports in respect of a child in conflict with the law; establish diversion and alternative correctional programmes and promote the rehabilitation of a child in conflict with the law through programmes to facilitate restorative justice and compliance with laws; provide for the protection of a child victim and child witness in investigative and judicial processes; provide for the probation of a child in conflict with the law and provision of probation services; provide for the development of treatment programmes, early intervention services and programmes to combat crime and prevent further offending; limit the negative effects of confinement by minimizing the impact of a finding of guilty on the family of a child in conflict with the law and facilitate the re-integration of the child in conflict with the law into society; provide for the establishment of child approved centres and child reformatory centres; provide for the regulation of child care facilities; provide for child safeguarding; domesticate the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption and the Convention on the Civil Aspects of International Child Abduction; repeal the Legitimacy Act, 1929, the Adoption Act, 1956, the Juveniles Act, 1956 and the Affiliation and Maintenance of Children Act, 1995 and provide for matters connected with, or incidental to, the foregoing.ENACTED by the Parliament of Zambia.

Part I – Preliminary provisions

1. Short title

This Act may be cited as the Children's Code Act, 2022.

2. Interpretation

In this Act, unless the context otherwise requires—"access order" means an order granted to a person to visit, periodically stay or have contact with a child as the court may determine;"administrative institution" means an authority, agency or any other body that applies a law affecting a child;"adoption order" means an adoption order made under Part XIV vesting parental responsibility on a person adopting a child;"adoption agency" means a local adoption agency accredited under Part XV;"adoptive parent" means a person who adopts a child under Part XIV;"adult" has the meaning assigned to the word in the Constitution;[Cap. 1]"affiliation order" means an order declaring a man to be the biological or putative father of a child;"appropriate authority" means the Minister for the time being having responsibility for, or such public body having powers under any other written law over children;"assessment order" means an order requiring a child to be evaluated by a person appointed by the court to assist the court in determining a matter concerning the welfare and upbringing of the child;"authorised officer" means a child development officer, child welfare inspector, a probation officer, a police officer or any other officer authorised by the Director of Child Development or Director of Social Welfare for the purposes of this Act;"care order" means an order entrusting the care and protection of a child to a person who is not the parent, guardian, custodial parent or person having parental responsibility for a child;"central authority" means—(a)in relation to the Republic, the Director of Social Welfare; and(b)a person, office or institution in a contracting State to the Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption and the Convention on the Civil Aspects of International Child Abduction;"certificate of accreditation" means a certificate of accreditation issued to a diversion service provider or adoption agency issued under section 63 and 255, respectively;"certificate of legal aid" means a certificate of legal aid issued under the Legal Aid Act, 2021;[Act No. 1 of 2021]"Chief Inspector" means a Chief Inspector of Reformatories who supervises child reformatory centres;"child" has the meaning assigned to the word in the Constitution;[Cap. 1]"child abuse" includes physical, sexual, psychological and mental injury of a child;"child approved centre" means an approved school established by the Minister;"child in conflict with the law" means a child in respect of whom court proceedings are contemplated or instituted under any written law;"child of family" includes a child—(a)adopted by a husband and wife, or by either of them with the consent of the other;(b)of the husband and wife, born before the marriage; and(c)of either party to a marriage, born before the marriage;"Children's Court" means the division of the High Court established under the Constitution;[Cap. 1]"child development officer" means the person appointed as a child development officer under section 30;"child welfare inspector" means the person appointed as a child welfare inspector under section 33;"child care facility" means a home or institution approved under section 268 and established for the care, protection, safety and rehabilitation of children, but does not include—(a)a child reformatory centre;(b)a child approved centre;(c)an educational institution;(d)a health facility; or(e)a children's day care centre, nursery or other similar establishment;"child marriage" means marriage with a child or any arrangement made by a person for that marriage;"child on the move" means a child who, voluntarily or involuntarily, moves within or outside the Republic with or without the child's parent, guardian or person having parental responsibility for the child and whose movement places the child or could place the child at risk of economic or sexual exploitation, abuse, neglect or any other form of violence;"child reformatory centre" means a child reformatory centre established under section 99;"child transit centre" means a child transit centre established for the temporary custody of children under section 99;"Civil Service Commission" means the Civil Service Commission established under Article 222 in the Constitution;[Cap. 1]"closed adoption" means an adoption which creates a permanent parent-child relationship with an adoptive parent and where a pre-existing parent-child relationship with the family of origin is terminated;"Court of Appeal" means the Court of Appeal established under the Constitution;[Cap. 1]"court" has the meaning assigned to the word in the Constitution;[Cap. 1]"corporal punishment" means the prohibited punishment in which physical force is used on a child;"custodial order" means an order to place a child in custody in a child reformatory centre on whom a finding of guilty is made by a juvenile court or Children's Court;"custodial parent" means the person to whom custody of a child is awarded under a custody order;"custody order" means an order vesting custody of a child in one or more persons;"cyberbulling" means the use of electronic communication to bully a child;"decree" has the meaning assigned to the words in the Matrimonial Causes Act, 2007;[ Act No. 20 of 2007]"defendant" in relation to a maintenance order or a related attachment of earnings order, means the person liable to make payments under that order;"Director of Child Development" means the Director of Child Development appointed under section 30;"Director of Social Welfare" means the Director of Social Welfare appointed under section 33;"disability" has the meaning assigned to the word in the Persons with Disabilities Act, 2012;[Act No. 6 of 2012]"diversion" means the referral of cases of children alleged to have committed offences away from the criminal justice system with or without conditions;"diversion programme" means a programme that provides for diversion;"diversion service provider" means a body that offers a diversion programme and includes a public body or non-governmental organisation;"domestic adoption" means the adoption of a child resident in the Republic by a prospective parent in the Republic;"drug" has the meaning assigned to the word in the Narcotic Drugs and Psychotropic Substances Act, 2021;[Act No. 35 of 2021]"early intervention" means the provision of services, diversion programmes and other programmes aimed at preventing the need for a child in conflict with the law to be dealt with in terms of the formal court procedure;"education" has the meaning assigned to the word in the Education Act, 2011;[Act No. 23 of 2011]"educational institution" has the meaning assigned to the words in the Education Act, 2011;[Act No. 23 of 2011]"employer" has the meaning assigned to the word in the Employment Code Act, 2019;[Act No. 3 of 2019]"exclusion order" means an order requiring a person who has used violence or threatened to use violence against a child, whether or not that person permanently resides with the child, to depart from the home in which the child is residing or to restrain the person from entering the home or a specified part of the home or from a specified area in which the home is included, or to restrain any other person from taking the child to the person against whom the child needs protection for a period that the court may specify;"family assistance order" means an order requiring a person appointed by the court to provide advice, counselling and guidance to a child, the child's parents, custodial parent or a person who has care and control of the child or with whom the child is residing, as the court may specify;"family group conferencing" means a gathering convened by a probation officer as a diversion or sentencing option to devise a restorative justice response to the offence;"female genital mutilation" means the cutting and removal of part or all of the female genitalia, the practice of clitoridectomy, excision, infibulation or other practice involving the removal of part or all of the entire clitoris or labia minora of a female person;"financial arrangement" means a provision governing the rights and liabilities towards each other of the parties to a marriage, including a marriage which has been dissolved or annulled, in respect of the making or securing of payments or the disposition or use of any property, and any rights and liabilities with respect to the maintenance or education of a child, whether or not a child of the family;"financial provision order" means an order for periodical or lump sum payment made under Part X;"firearm" has the meaning assigned to the word in the Firearms Act;[Cap. 110]"fit person" means an adult who is of high moral character and integrity, who has mental capacity to look after a child and is able to provide a caring home for a child;"foreign adoption body" means a body accredited to provide adoption services in a foreign State in accordance with the relevant laws of that State;"foster care" means the placement of a child with a person who is not the child's parent, guardian or person having parental responsibility who is willing to care for and maintain the child;"foster child" means a child placed with a foster parent or foster family;"foster family" means the placement of a child with a family that provides foster care;"foster parent" means a person who receives and retains a child so as to care for and maintain the child except for a child's parent, guardian or relative;"gender-based violence" has the meaning assigned to the words in the Anti-Gender Based Violence Act, 2011;[Act No. 1 of 2011]"guardian" in relation to a child, means a person—(a)who is a relative of a child;(b)who has charge or control of the child; or(c)appointed by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child on the death of that parent of the child, either alone or together with the surviving parent of the child;"health facility" has the meaning assigned to the words in the Health Professions Act, 2009;[Act No. 24 of 2009]"health practitioner" has the meaning assigned to the words in the Health Professions Act, 2009;[Act No. 24 of 2009]"High Court" means the High Court for Zambia established under the Constitution;[Cap. 1]"home" in relation to a child, means the place where the child's parent, guardian, custodial parent, person having parental responsibility for the child or foster parent permanently resides, or if there is no parent, guardian, custodial parent or person having parental responsibility for the child living and the child has no foster parent, the child's parent's, guardian's or custodial parent's last permanent residence or the last permanent residence of a person having parental responsibility for the child, except that—(a)in the case of a parent, guardian, custodial parent or person having parental responsibility having, or having had, more than one permanent place of residence, the parent, guardian, custodial parent or person having parental responsibility shall be presumed to be or to have been permanently resident at the place of that person's principal permanent residence; and(b)where the court is unable to determine the home of the child, the child shall be considered, for the purposes of this Act, to have the home in the area of jurisdiction of the local authority in whose area the child is found;"interim maintenance order" means an interim maintenance order made under Part X;"inter-country adoption" means the adoption of a child resident in the Republic by a prospective parent resident in a foreign country or the adoption of a child resident in a foreign State by a prospective parent resident in the Republic;"intensive family support" means a home visitation social work service focused on working with family members, relatives and the community to improve the safety and wellbeing of a vulnerable child;"juvenile court" means a Subordinate Court, sitting for the purposes of hearing a charge or matter involving a child,—(a)of the First Class or Second Class; or(b)in the case of a Subordinate Court of the Third Class, a Subordinate Court presided over by a Magistrate of not less than one year experience;"law enforcement agency" means the Zambia Police Service and any other agency exercising law enforcement under any written law;"law enforcement officer" means a police officer and includes an officer under any written law with powers of arrest;"Legal Aid Board" means the Legal Aid Board established under the Legal Aid Act, 2021;[Act No. 1 of 2021]"legal custody" means the parental rights and duties in relation to possession of a child conferred on a person by a custody order;"legal practitioner" has the meaning assigned to the word "practitioner" in the Legal Practitioners Act;[Cap. 30]"local authority" has the meaning assigned to the words in the Constitution;[Cap. 1]"maintenance agreement" means an agreement, in writing, between the parties to a marriage, containing financial arrangements, whether made during the continuance, or after the dissolution or annulment, of the marriage;"maintenance order" means an order for the maintenance of a child or other person, or both, made by a court under Part X;"maltreatment" means all forms of child abuse resulting in actual or potential harm to the child's health, survival or dignity of the child;"mental capacity" has the meaning assigned to the words in the Mental Health Act, 2019;[Act No. 6 of 2019]"mental health facility" has the meaning assigned to the words in the Mental Health Act, 2019;[Act No. 6 of 2019]"mental health practitioner" has the meaning assigned to the words in the Mental Health Act, 2019;[Act No. 6 of 2019]"mental patient" has the meaning assigned to the words in the Mental Health Act, 2019;"National Coordinating Committee for Children" means the National Coordinating Committee for Children established under section 36;"next friend" means a person who intervenes to assist a victim who is a child or a child who is a mental patient and brings an action on behalf of a child, and includes a child welfare inspector;"online exploitation" includes grooming, live streaming, consuming child sexual abuse material, and coercing and black mailing a child for a sexual purpose;"open adoption" means an adoption in which the parent-child relationship which existed before the adoption is not terminated but a new legal parent-child relationship between the child and the child's adoptive parent is established and the adoptive parent has parental responsibility for the child;"original court" in relation to an order under this Act, means the court by which the order was first made;"parent" means the mother or father of a child and includes a custodial parent;"parental responsibility" means the duties, rights, powers, responsibilities and authority which, by law or otherwise, a person has in relation to the child and the child's property in a manner consistent with the evolving capacities of the child;"personal protection order" means an order made by the court to stop threats or violence against the child who has reasonable fear for personal liberty and safety;"periodic payments order" means a maintenance order for payments to be done by regular instalments made at defined intervals;"petition" includes a cross-petition;"place of safety" means a child care facility, a house or other suitable place, the occupier of which is willing to accept the temporary care of a child, but excludes a child approved centre or a child reformatory centre;"precursor chemicals" has the meaning assigned to the words in the Narcotic Drugs and Psychotropic Substances Act 2021;,[Act No. 35 of 2021]"private body" means a voluntary organisation, non-governmental organisation, political party, charitable institution, company, partnership, club or any other person or organisation which is not a public body;"probation" means the release of a child in conflict with the law, subject to a period of good behaviour by the child in conflict with the law, from detention under supervision;"probation officer" means a probation officer appointed under section 33;"probation order" means an order made by a court under Part VIII placing a child under the supervision of a probation officer;"probation period" means the period specified under a probation order;"probationer" means a child in conflict with the law placed under supervision by a probation order;"production order" means an order requiring a person who is harbouring, concealing or otherwise unlawfully detaining a child, or who intends to remove a child from the Republic or from the local limits of the jurisdiction of the court, to disclose any information regarding the whereabouts of the child or to produce the child before the court or restraining the person from removing the child from the jurisdiction of the court for a period that the court may specify;"prospective parent" means a person who intends to adopt a child under Part XIV;"public body" has the meaning assigned to the words in the Public Finance Management Act, 2018;[Act No. 1 of 2018]"public officer" has the meaning assigned to the words in the Constitution;[Cap. 1]"putative father" means a man alleged to be or regarded as the father of a non-marital child;"receiving State" means a country receiving an adopted child in an inter-country adoption;"Register" means a Register kept and maintained under this Act;"register of births" means the register of births kept by the Registrar-General in accordance with the Births and Deaths Registration Act;[Cap. 51]"Registrar-General" has the meaning assigned to the word in the Births and Deaths Registration Act;[Cap. 51]"relative" in relation to a child, means a person related to the child, by consanguinity or adoption;"repealed Acts" means the Legitimacy Act, 1929, the Adoption Act, 1956, the Juveniles Act, 1956, and the Affiliation and Maintenance Proceedings Act, 1995;"residence order" means an order granted to a person to reside with a child or other arrangements that the court may determine;"respondent" includes a petitioner against whom there is a cross-petition;"restorative justice" means the promotion of reconciliation and responsibility through the involvement of a child and the child's parents, family members, victims and the communities concerned;"secured periodic payments order" means a maintenance order made by a court under Part X;"serious offence" means an offence which is punishable, without proof of previous conviction, with death, life imprisonment or a term of imprisonment of three years or more, with or without the option of a fine;"single man" includes a widower, a divorced man and a man on separation from the man's wife;"single woman" includes a widow, a divorced woman and a woman on separation from the woman's husband;"social welfare report" means a report made by a child welfare inspector regarding the physical, social, psychological and other circumstances, needs and deficiencies of a child for the purpose of assessing the appropriate action to be taken in respect of the child;"State of origin" means a country in which a child to be adopted resides;"supervising officer" means a child welfare inspector, probation officer, or a person delegated by the probation officer or child welfare inspector to act on behalf of that probation officer or child welfare inspector;"wardship order" means an order requiring that a child be placed under the protection of the court; and"young person" has the meaning assigned to the words in the Constitution.[Cap.1]

3. Best interest of child

(1)A child's best interest is the primary consideration in a matter or action concerning the child, whether undertaken by a public or private body.

(2)A court, an administrative institution or an authorised officer shall in determining the best interests of a child have regard to—

(a)the ascertainable feelings and wishes of the child concerned, having regard to the age and understanding of the child;

(b)the child's physical, emotional and educational needs and in particular, where the child has a disability, the ability of a person or institution to provide the special care or medical attention that may be required for the child;

(c)the likely effect on the child of any change in the circumstances of the child;

(d)the child's age, sex, religious persuasion, cultural background and any characteristics of a child which the court or an authorised officer considers necessary;

(e)any harm which the child has suffered or is at risk of suffering;

(f)the ability of a parent or a person having parental responsibility for the child to meet the child's needs;

(g)the strength of the relationship between a child and the child's parent or a person having parental responsibility for the child;

(h)where a child's parents have joint custody, the willingness of the parents to cooperate and co-parent;

(i)the customs and practices of the community to which the child belongs except where the customs and practices are repugnant to justice and morality;

(j)the child's exposure to, or use of, drugs or precursor chemicals and, in particular, whether the child is addicted to drugs or precursor chemicals, and the ability of a person or institution to provide special care or medical attention that may be required for the child; and

(k)other matters that the court, an administrative institution or an authorised officer considers necessary.

(3)A court, an administrative institution, an authorised officer or a person acting in the name of an administrative institution, exercising a power conferred by this Act or any other written law in relation to a child, shall treat the best interests of the child as the first and paramount consideration to the extent that the—

(a)best interests of the child safeguards and promotes the rights of the child;

(b)best interests of the child conserves and promotes the welfare of the child; and

(c)court, an administrative institution, an authorised officer or a person acting in the name of an administrative institution secures for the child guidance and correction as is necessary for the welfare of the child and in the public interest.

4. Principles in achieving children's rights

The following principles shall apply in matters relating to children:

(a)devotion to the best interests of a child;

(b)the observance of the right to life, survival and development of a child;

(c)the observance of children's rights as an integral part of attaining equity and equality among children in all spheres of life;

(d)non-discrimination of children; and

(e)child participation and respect for the views of a child in all spheres of life.

Part II – The rights and responsibilites of child

5. Right to survival and development

A child has an inherent right to life, dignity and respect and it is the responsibility of the State and the family to ensure the survival and development of the child.

6. Right to expression

A child who is capable of forming that child's own views shall be informed of, and be accorded an opportunity to express that child's opinion in a decision or a matter of procedure affecting the child, and that opinion shall be taken into account, as may be appropriate, having regard to the age and maturity of the child and the nature of the decision.

7. Prohibition of discrimination against child

(1)Aperson shall not discriminate against or punish a child on the basis of race, colour, sex, gender, age, language, political or other opinion, conscience, belief, tribe, pregnancy, health, ethnic or social origin, disability, property, birth, economic or other status.

(2)A person shall not discriminate against or punish a child on the basis of the colour, sex, gender, age, language, political or other opinion, conscience, belief, tribe, pregnancy, health, ethnic or social origin, disability, property, birth, economic or other status of that child's parent, guardian, custodial parent or person having parental responsibility.

8. Right to name and nationality

(1)A child has a right, from birth, to a name and nationality and where a child is deprived of that child's identity, the State shall provide appropriate assistance with a view to establishing that identity.

(2)Subject to this Act, a child has a right to establish who that child's biological parents are, where practicable, if it is in the best interest of a child.

(3)A child shall be registered after birth in accordance with the Births and Deaths Registration Act.[Cap. 51]

9. Right to parental care

(1)A child has a right to live with, and to be protected and cared for by, the child's parents, or to appropriate alternative care if the child is separated from the parents.

(2)A court or the Director of Social Welfare may separate a child from a parent where the court or the Director of Social Welfare determines that the child living with the parent would—

(a)lead to significant harm to the child;

(b)subject the child to serious neglect or abuse; or

(c)not be in the best interests of the child.

(3)Subject to subsection (1), where a court or the Director of Social Welfare determines that it is in the best interests of a child to separate the child from a parent, the best alternative care available shall be provided for the child in accordance with this Act.

(4)Subject to this Act, the Ministry responsible for child welfare shall ensure that a child who is separated from a parent maintains personal relations and direct contact with that parent on a regular basis, except if it is contrary to the best interests of the child.

(5)Where a child is separated from the child’s family without the leave of a court, the State shall provide assistance for the reunification of the child with the family in an expeditious manner.

10. Right to education

(1)A child's right to education provided under the Education Act, 2011, shall be directed at—

(a)developing the child's—

(i)personality, talents, skills, and mental and physical abilities to the child's fullest potential;

(ii)respect for human rights and fundamental freedoms enshrined in the Constitution;[Cap. 1]

(iii)respect for the child's parents, cultural identity, language and values; and

(iv)respect for the natural environment and ecosystem; and

(b)preparing the child for responsible life in society, in the spirit of tolerance, peace, equality of sexes and friendship.

(2)A child has a right to religious education, subject to appropriate parental guidance.

(3)The State and the parents of a child shall ensure the education of the child.

[Act No. 23 of 2011]

11. Right to health care

A child has a right to health and medical care, the provision of which is the responsibility of the child's parents, a person having parental responsibility for a child and the State.

12. Right to social protection and social services

A child has a right to social protection and social services.

13. Protection from child labour

(1)A person shall not subject a child to economic exploitation or any work that is hazardous or likely to interfere with the child's education, physical or mental health, spiritual, moral, emotional or social development.

(2)The minimum age of a child for the purposes of admission to employment and the number of hours and conditions of employment of a child shall be in accordance with the Employment Code Act, 2019.[Act No. 3 of 2019]

14. Protection from armed conflict

(1)A child shall not take part in hostilities or be recruited in armed conflict.

(2)The State shall provide protection, rehabilitation, care, recovery and re-integration into normal life for a child who becomes a victim of armed conflict.

15. Child with disability

A child with a disability has the right to be treated with dignity and respect in accordance with the Persons with Disabilities Act, 2012.[Act No. 6 of 2012]

16. Protection of child on move

A child on the move is entitled to appropriate protection and humanitarian assistance in accordance with the Anti-Human Trafficking Act, 2008, the Refugees Act, 2017 and any other relevant written law.[Act No. 11 of 2008; Act No. 1 of 2017]

17. Protection from maltreatment and other forms of exploitation

(1)A child is entitled to protection from maltreatment and any other form of exploitation, including sale, trafficking, abduction, cyber bulling or online exploitation by any person.

(2)The Minister shall issue guidelines and put in place measures for the establishment of social and child protection programmes to provide necessary support for the child and for the prevention, counselling, identification, reporting, referral, investigation, treatment and follow up of instances of child maltreatment or other forms of exploitation.

18. Protection from female genital mutilation, child marriage, etc.

(1)A person shall not subject a girl child to female genital mutilation.

(2)A person shall not subject a child to—

(a)child marriage; or

(b)cultural rites, and religious or traditional practices, that are likely to negatively affect the child's life, health, social welfare, dignity, and physical or psychological development.

19. Protection from sexual exploitation

A person shall not—

(a)subject a child to sexual abuse or sexual exploitation;

(b)use a child in prostitution;

(c)induce or coerce a child to engage in sexual activity; or

(d)expose a child to obscene or pornographic material.

20. Protection from hallucinogens, alcohol, tobacco products, drugs and precursor chemicals

A person shall not subject a child to the use, production, trafficking or distribution of hallucinogens, alcohol, tobacco products, drugs or precursor chemicals.

21. Right to leisure and recreation

A child is entitled to rest, leisure, play and participation in cultural and artistic activities appropriate to the age of that child.

22. Protection from corporal punishment

A person shall not impose corporal punishment as a form of punishment on a child.

23. Protection from torture and deprivation of liberty

(1)A person shall not subject a child to torture, cruel treatment or punishment, unlawful arrest or deprivation of liberty.

(2)Despite any other written law, a person shall not subject a child to capital punishment or life imprisonment.

(3)A child shall not be incarcerated on account of the imprisonment of a child's parent except where special circumstances exist as provided under the Zambia Correctional Services Act, 2021.[Act No. 37 of 2021]

24. Right to privacy

A child has the right to privacy appropriate to the age and maturity of that child.

25. Rights of child witness or child victim

(1)A child that is giving evidence to a law enforcement officer or other authorised officer shall be questioned—

(a)in the presence of the child's parents, guardian or relative, a person having parental responsibility for the child or a child welfare inspector;

(b)in a manner that avoids any harm being occasioned to the child;

(c)in a manner that promotes the well-being of the child; and

(d)having regard to the age, maturity and cognitive abilities of the child, through a child welfare inspector or other authorised officer acting for the child.

(2)A child witness or child victim giving evidence to a law enforcement officer or other authorised officer shall not come into contact with an alleged perpetrator of a crime or be made to confront the alleged perpetrator of a crime.

(3)The identity of a child witness or child victim is confidential and shall not be published under any circumstance.

26. Duties and responsibilities of child

(1)Subject to the Constitution and the provisions of this Act, a parent, guardian or person having parental responsibility for a child shall inculcate the following duties and responsibilities on a child:

(a)the duty and responsibility to contribute to the cohesion of the family;

(b)the duty and responsibility to respect a parent, a guardian, a person having parental responsibility for the child, and an elder at all times and assist them in case of need;

(c)the duty and responsibility to serve the community through the child's physical and intellectual abilities;

(d)the duty and responsibility to preserve and strengthen social and national solidarity; and

(e)the duty and responsibility to preserve and strengthen the positive cultural values of the community in the child's relations with other members of that community.

(2)When taking into account the duty and responsibility of a child, a person shall have due regard to the age, maturity and ability of that child, and to limitations that are contained in this Act.

[Cap. 1]

27. Sanction for infringement of rights of child

Except as otherwise provided in any other written law, a person who wilfully or negligently infringes a right of a child specified in this Act commits an offence and is liable, on conviction—

(a)to a fine not exceeding one million penalty units or to imprisonment for a term not exceeding ten years, or to both; or

(b)depending on the facts of the case, to community service.

28. Enforcement of rights of child

A person who alleges that a provision of this Act is being or is likely to be contravened in relation to a child, may petition the Children's Court for redress, on behalf of the child, without prejudice to any other action with respect to the same matter which is lawfully available.

Part III – Administration

29. Child Development Department

(1)The Child Development Department in the ministry responsible for child development and welfare is responsible for the promotion and advancement of the rights and development of a child under the general direction of the Permanent Secretary of the ministry responsible for child development and welfare.

(2)Despite the generality of subsection (1), the functions of the Child Development Department are to—

(a)ensure compliance to child rights standards;

(b)design and formulate policy on—

(i)child development activities; and

(ii)the reintegration of children in need of care and protection;

(c)promote and develop awareness among members of the public including children on matters relating to the rights of children;

(d)facilitate measures and strategies designed to prevent, respond and end violence against children and abuse;

(e)provide technical guidance on promotion of child rights, child participation and child protection;

(f)request data from State and non-state actors on the rights and welfare of children in the Republic and facilitate preparation of national, regional and international reports;

(g)request ad hoc thematic information and data from State and non-state actors for purposes of reporting on issues related to the rights and development of a child;

(h)disseminate recommendations from regional and international child rights bodies and oversee the implementation of the recommendations by responsible State and non-state actors;

(i)collaborate with relevant institutions and ministries to exchange information relating to child development; and

(j)conduct research on matters relating to the promotion and advancement of child rights and development.

(3)The Child Development Department may carry out its functions under this Act on its own or jointly with other ministries, departments, Government agencies, local authorities or public and private bodies.

30. Director of Child Development, child development officers and other staff

(1)The Civil Service Commission shall appoint as a public officer, the Director of Child Development who is responsible for the administration of the functions of the Child Development Department.

(2)The Civil Service Commission shall appoint as public officers, child development officers and other staff of the Child Development Department.

(3)The Director of Child Development may, in writing, delegate the exercise of any of the functions conferred on the Director of Child Development by this Act to a child development officer or other authorised officer that the Director of Child Development considers necessary.

(4)The Director of Child Development may, in writing, revoke or vary the delegation of function conferred by the Director of Child Development under subsection (3).

31. Functions of Director of Child Development

The Director of Child Development shall, despite the generality of section 30(1)—

(a)promote child rights and development;

(b)recommend effective measures to an appropriate authority to prevent violence against children and child rights abuse;

(c)promote awareness on the provision of legal aid for the advancement of the rights of a child; and

(d)inspect a child approved centre, child reformatory centre, place of custody and child care facility with a view to assessing the conditions of children held in those places and make recommendations to redress existing challenges.

32. Social Welfare Department

(1)The Social Welfare Department in the ministry responsible for child development and welfare is responsible for the administration of this Act and to supervise and exercise control over the planning, financing and coordination of welfare activities relating to children under the general direction of the Permanent Secretary of the ministry responsible for child development and welfare.

(2)Despite the generality of subsection (1), the functions of the Social Welfare Department are to—

(a)determine priorities in the field of child welfare in relation to the socio-economic policies of the State;

(b)provide assistance to vulnerable children, including children with disabilities, orphaned and destitute children, children who abuse drugs, children who are sexually abused and children affected by domestic violence;

(c)establish programmes to alleviate the hardships affecting children;

(d)regulate child care facilities;

(e)support child and family welfare activities;

(f)promote the provision of social services essential to the welfare of children in addition to the welfare of families;

(g)oversee fostering and adoption, and ensure compliance with the provisions relating to fostering and adoption under this Act;

(h)regulate and supervise the activities of an adoption agency;

(i)cooperate with foreign central authorities in inter-country adoptions and international child abduction;

(j)provide technical and other support services to agencies carrying out child welfare programmes;

(k)provide welfare services to a—

(i)circumstantial child and the circumstantial child’s family;

(ii)child in conflict with the law;

(iii)child in need of care and protection;

(iv)child that is a victim of gender-based violence and human trafficking; and

(v)child with disabilities;

(l)provide shelter to a child under paragraph (k);

(m)establish a panel of persons from whom a guardian ad litem may be selected by a court; and

(n)maintain a register of perpetrators of child sexual violence for the protection of a child, except that the register shall not include information relating to a child in conflict with the law.

(3)The Social Welfare Department may carry out its functions under this Act on its own or jointly with other ministries, departments, Government agencies, local authorities or public and private bodies.

33. Director of Social Welfare, child welfare inspectors and probation officers

(1)The Civil Service Commission, shall appoint as a public officer, the Director of Social Welfare who is responsible for the administration of the functions of the Social Welfare Department.

(2)The Civil Service Commission shall appoint as public officers, child welfare inspectors, probation officers and other staff of the Social Welfare Department.

(3)The Director of Social Welfare may, in writing, delegate the exercise of any of the functions conferred on the Director of Social Welfare by this Act to a child welfare inspector, probation officer or other authorised officer that the Director of Social Welfare considers necessary.

(4)The Director of Social Welfare may, in writing, revoke or vary the delegation of function conferred by the Director of Social Welfare under subsection (3).

34. Functions of Director of Social Welfare

The Director of Social Welfare shall, despite the generality of section 33(1)—

(a)assist in the establishment, promotion, coordination and supervision of services and facilities designed to advance the wellbeing of children;

(b)provide reports and assessments as may be required by a court or for the enforcement of an order made by a court under this Act;

(c)ensure the enforcement of court orders in relation to a child which requires supportive, social and administrative arrangements;

(d)safeguard the welfare of a child in all sectors, including a child in foster care or under care by virtue of a care order or an interim care order;

(e)trace the parents, guardian or relative of a lost or abandoned child, or return a lost or abandoned child to the child's lawful place of residence;

(f)provide guidance and other assistance and treatment for children who are arrested or remanded in police custody or a child transit centre; and

(g)assist children through court proceedings and children's hearings.

35. Powers of child development officer and child welfare inspector

(1)A child development officer and child welfare inspector shall ensure compliance with this Act.

(2)A child development officer and child welfare inspector shall be provided with a certificate of appointment, in the prescribed form, which shall be prima facie evidence of the child development officer and child welfare inspector's appointment.

(3)A child development officer and child welfare inspector shall, in performing a function under this Act—

(a)be in possession of the certificate of appointment referred to under subsection (2); and

(b)show the certificate of appointment to any person who requests to see it or is subject to an inspection or investigation under this Act.

(4)A child development officer and child welfare inspector may, without a warrant, at any reasonable time—

(a)enter and search any premises occupied by an institution or any other premises, including a private dwelling, where information or documents which may be relevant to an inspection may be kept;

(b)search any person on the premises if there are reasonable grounds for believing that the person has possession of a document or article that has a bearing on the inspection, except that a person shall only be searched by a person of the same sex;

(c)examine any document or article found on the premises that has a bearing on the inspection;

(d)require information to be given about any document or article by—

(i)the owner of the premises;

(ii)the person in control of the premises;

(iii)any person who has control of the document or article; or

(iv)any other person who may have the information;

(e)take extracts from, or make copies of, any book or document found on the premises that has a bearing on the investigation;

(f)use any computer system on the premises, or require assistance of any person on the premises to use that computer system, to—

(i)search any data contained in, or available to the computer system;

(ii)reproduce any record from the data; or

(iii)seize an output from the computer for examination and copying;

(g)attach and, if necessary, remove from the premises for examination and safeguarding a document or article that appears to have a bearing on the inspection; and

(h)enter an institution, a dwelling place of a person or a child care facility to examine a child or foster child who is placed in the custody of the institution, dwelling place of a person or child care facility.

(5)A child development officer and child welfare inspector who removes a document or article from any premises under subsection (4)(g) shall—

(a)issue a receipt for the document or article to the owner of, or person in control of, the premises; and

(b)return the document or article as soon as practicable after achieving the purpose for which it was removed.

(6)A person shall not—

(a)delay or obstruct a child development officer and child welfare inspector in the performance of the child development officer and child welfare inspector's functions under this Act;

(b)refuse to give a child development officer and child welfare inspector reasonable assistance that the child development officer or child welfare inspector may require for the purpose of exercising the child development officer or child welfare inspector's powers under this Act;

(c)fail to produce a report or record, or conceal a facility within a child care facility; or

(d)give a child development officer or child welfare inspector false or misleading information in answer to an inquiry made by the child development officer or child welfare inspector.

(7)A person who contravenes subsection (6) commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a period not exceeding two years, or to both.

(8)A child development officer shall furnish the Director of Child Development with a written report and any other information relating to an inspection as the Director of Child Development may require.

(9)A child welfare inspector shall furnish the Director of Social Welfare with a written report and any other information relating to an inspection as the Director of Social Welfare may require.

(10)Nothing in this section requires a person to disclose or produce information or a document, if the person would in an action in a court be entitled to refuse to disclose or produce the information or document.

36. National Coordination Committee for Children

(1)There is established the National Coordinating Committee for Children which is responsible for the coordination of child development and welfare matters in the ministry responsible for child development and welfare.

(2)The composition, functions and proceedings of the National Coordinating Committee for Children shall be prescribed.

(3)The National Coordinating Committee for Children may establish sub-committees in the provinces and districts as prescribed.

37. Immunity

An action shall not lie against the Director of Child Development, the Director of Social Welfare, a child development officer, child welfare inspector, probation officer or other staff of the Child Development Department or Social Welfare Department in respect of an act done in good faith and without negligence in the execution of the powers vested in them under this Act.

Part IV – Parental responsibility

38. Parental responsibility

(1)Except where a parent has surrendered that parent's responsibilities in accordance with this Act or any other written law, a parent of a child has—

(a)the duty to maintain the child, and in particular to provide the child with—

(i)food;

(ii)shelter;

(iii)clothing;

(iv)medical care, including immunisation;

(v)education and guidance; and

(vi)general care and assurance of the child's survival and development;

(b)the duty to protect the child from neglect, discrimination, violence and abuse;

(c)the right to—

(i)give parental guidance in religious, moral, social, cultural and other values;

(ii)determine the name of the child;

(iii)appoint a guardian in respect of the child;

(iv)receive, recover, administer and otherwise deal with the property of the child for the benefit and in the best interests of the child;

(v)arrange or restrict the emigration of the child from the Republic; and

(vi)on the death of the child, arrange for the burial or cremation of the child.

(2)A parent shall ensure that in the absence of that parent, the child is cared for by a competent person.

(3)The fact that a person has or does not have parental responsibility shall not affect—

(a)any obligation which the person may have in relation to the child; or

(b)any rights which in the event of the child's death or injury, that person may have in relation to the child's property.

(4)Subject to the provisions of this Act, a person who does not have parental responsibility for a particular child, but has care and control of the child may act in a manner that is reasonable in the circumstances of the case for the purpose of safeguarding or promoting the child's welfare.

39. Persons with parental responsibility

(1)A child's mother and father, whether married to each other or not, have a duty to protect and provide for the child.

(2)Where a child's father and mother were not married to each other at the time of the child's birth and have not subsequently married each other, the—

(a)mother shall have parental responsibility at the first instance; and

(b)father shall acquire parental responsibility for the child in accordance with section 40.

(3)Except where a person has surrendered the parental responsibilities in accordance with this Act or any other written law, a person who has parental responsibility for a child at anytime shall not—

(a)cease to have that parental responsibility for the child; and

(b)surrender or transfer any part of that parental responsibility to another person but may arrange for some or all of the parental responsibility to be met by one or more persons acting on that person's behalf.

(4)A person with whom the arrangement under subsection (3)(b) is made may be a person who already has parental responsibility for the child and the arrangement shall not affect any liability of the person making the arrangement which may arise from any failure by that person to meet any part of the parental responsibility for the child.

(5)Where more than one person has parental responsibility for a child, each of them may act on their own and without the other or others in that responsibility, but nothing in this Part shall be taken to affect the operation of any relevant written law which requires the consent of more than one person in a matter affecting a child.

(6)A person who has parental responsibility for a child shall not act in a manner that contravenes any order made with respect to the child under this Act.

40. Acquisition of parental responsibility by father

(1)Where a child's father and mother are not married at the time of the child's birth—

(a)a court may, on an application by the father, order that the father shall have parental responsibility for the child;

(b)the father and mother may, by a parental responsibility agreement, provide for the father's parental responsibility for the child; or

(c)the father shall acquire parental responsibility for the child if that father acknowledges paternity of the child or maintains the child.

(2)Where a child's mother loses parental responsibility under any written law that mother may—

(a)apply to the court for restoration of parental responsibility; or

(b)enter into a parental responsibility agreement to provide for parental responsibility of the child.

41. Parental responsibility agreement

(1)A parental responsibility agreement shall be made in the prescribed manner and form.

(2)A parental responsibility agreement shall be terminated by an order of a court made on application by a—

(a)person who has parental responsibility for the child; or

(b)child, with the leave of the court.

(3)A court shall only grant leave under subsection (2)(b), if the court is satisfied that the child has sufficient understanding to make the proposed application.

42. Transmission of parental responsibility

(1)Where the mother and father of a child are married to each other at the time of the birth of the child or subsequently marry each other after the birth of the child and the—

(a)mother dies, the father shall exercise parental responsibility for the child either alone or together with any guardian appointed by the mother; or

(b)father dies, the mother shall exercise parental responsibility for the child either alone or together with any guardian appointed by the father.

(2)Where the father and mother of the child were not married at the time of the birth of the child and have not subsequently married each other after the birth of the child and the—

(a)mother dies, the father shall have parental responsibility for the child either alone or with any guardian appointed by the mother or the relatives of the mother if the father has acquired parental responsibility; or

(b)father who has acquired parental responsibility dies, the mother shall exercise parental responsibility in respect of the child either alone or with any guardian appointed by the father or the relatives of the father.

(3)A surviving parent of a child may object to any guardian appointed under subsection (1) or (2) and may apply to a court for the revocation of the appointment of the guardian.

(4)The relatives of the deceased mother or father of the child, may, if the relatives of the deceased mother or father of the child consider the surviving father or mother of the child to be unfit to exercise parental responsibility for the child, apply to a court to make an appropriate order to safeguard the best interests of the child.

(5)Where the mother and the father of the child are deceased or are incapable of exercising parental responsibility due to illness or are mental patients, parental responsibility shall be exercised by—

(a)a guardian;

(b)a relative of the child; or

(c)a person named in a residence order, if a residence order relating to a child is in force or is subsequently made.

(6)A child's next friend shall, where the child's next friend considers the person appointed under subsection (5) to be unfit to exercise parental responsibility, apply to a court to make an appropriate order to safeguard the best interests of the child.

43. Extension of parental responsibility beyond nineteenth birthday

(1)A court may, on an application, extend parental responsibility in respect of a child beyond the date of the child's nineteenth birthday if the court is satisfied that special circumstances exist relating to the welfare of the child that would necessitate that extension being made.

(2)An application under subsection (1) may be made after the child's nineteenth birthday by—

(a)a parent or guardian;

(b)a person having parental responsibility for the child;

(c)the Director of Social Welfare; or

(d)the child.

44. Failure to exercise parental responsibility

A person who willfully fails or refuses to exercise parental responsibility in accordance with this Part commits an offence ad is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

Part V – Arrest, bail and deprivation of a child's liberty

45. Age of criminal responsibility of child

A child is not criminally liable for an act or omission except as provided under the Penal Code.[Cap. 87]

46. Rights of child during apprehension

(1)A child has a right to privacy and protection of the child's identity from exposure by the media—

(a)during an apprehension or arrest;

(b)during an investigation of an offence or court proceedings;

(c)while serving an order of the court; and

(d)whilst in custody.

(2)A child has the right to remain silent during an apprehension, arrest, an investigation of an offence or court proceedings, or whilst in custody and shall be informed of the right to remain silent when apprehended or arrested.

(3)A person shall not release any information for publication that is likely to lead to the identification of a child in the course of an apprehension or arrest while in custody, during an investigation of an offence or court proceedings, and while serving an order of the court.

(4)A person who contravenes subsection (3) commits an offence and is liable, on conviction, to a fine not exceeding three hundred thousand penalty units or to imprisonment for a term not exceeding three years, or to both.

47. Apprehension of child

(1)A law enforcement officer or other person shall, in apprehending a child, touch or confine the child to be apprehended if the child does not submit to the apprehension by word or action.

(2)A law enforcement officer shall not be in uniform or carry a firearm when apprehending a child at that child's dwelling home.

(3)Despite subsection (2), a law enforcement officer shall—

(a)wear a uniform and carry a firearm where—

(i)the child or a person at a child's dwelling home posses a danger to the law enforcement officer, the child or any other person at the child's dwelling home; or

(ii)the law enforcement officer is aware that there is an imminent threat at the child's dwelling home and the wearing of a uniform and the possession of a firearm is necessary for the protection and safety of persons within the vicinity of the child's dwelling home; and

(b)on request by a child, parent, guardian or person having parental responsibility for the child, provide an identification and which shall be prima facie evidence that the person is a law enforcement officer.

(4)A law enforcement officer or other person may, where a child forcibly resists an apprehension or attempts to evade the apprehension, use reasonable means to effect the apprehension.

48. Apprehension by person

(1)Subject to section 45 and the Criminal Procedure Code, a person may, without warrant, apprehend a child who, in the presence of that person, commits an offence or the child is reasonably suspected to have committed an offence.[Cap. 88]

(2)A person who apprehends a child shall immediately hand over the child to the nearest police station.

49. Apprehension and arrest by law enforcement officer

(1)A law enforcement officer may apprehend a child with or without a warrant.

(2)A law enforcement officer may apprehend a child, without a warrant, if the law enforcement officer has reasonable grounds to suspect that the child—

(a)has committed an offence;

(b)is about to commit an offence where—

(i)there is no other way of preventing the commission of the offence; or

(ii)the surroundings indicate that an offence is likely to be committed.

(c)commits an offence in the presence of the law enforcement officer;

(d)obstructs the law enforcement officer in the execution of law enforcement duties;

(e)escapes or attempts to escape from lawful custody; or

(f)is in possession of an implement adapted or intended to be used for the unlawful entry into a building without reasonable explanation for the possession of that implement.

(3)An arrest of a child by a law enforcement officer shall be made with due regard to the dignity and well-being of the child and in the presence of a parent, guardian, close relative of the child, person having parental responsibility for the child or a child welfare inspector

50. Information of arrest of child

(1)A child welfare inspector shall, within forty-eight hours, where an arrest of a child is made in the presence of a child welfare inspector as provided under section 49 (3) and the child's parent, guardian, close relative of the child or person having parental responsibility for the child cannot be found, trace the parent, guardian or close relative of the child or the person having parental responsibility for the child.

(2)A child welfare inspector shall, where a child welfare inspector cannot trace the parent, guardian, close relative of the child or the person having parental responsibility for the child, take responsibility of the child and place the child in a place of safety.

51. Issuance of warrant of arrest

A warrant for the arrest of a child shall be issued in accordance with the Criminal Procedure Code.[Cap. 88]

52. Notification of reason for arrest or substance of warrant

(1)A law enforcement officer effecting an arrest of a child shall, having regard to the age and maturity of the child, inform the child of the reason for the arrest.

(2)A law enforcement officer acting under the authority of the warrant shall, where an arrest is made under warrant and having regard to the age and maturity of the child, notify the child of the content of the warrant and exhibit a copy of the warrant to the child.

53. Search of arrested child

(1)A child may, where a child is arrested under section 48, be searched by a law enforcement officer in the presence of a child welfare inspector.

(2)A child shall be searched by a law enforcement officer of the same sex, and where a law enforcement officer of the same sex is not available, an adult of the same sex authorised by the law enforcement officer shall conduct the search.

(3)A law enforcement officer to whom the child is handed over to may take the articles of the child, other than clothing into safe custody.

(4)A search of a child shall be made with decency.

(5)The right to search shall not include the right to examine the private parts of the child, except where the circumstances of the offence warrant the examination of the private parts of the child, and that examination shall be carried out by a health practitioner.

(6)The examination referred to under subsection (5) shall be carried out in the presence of the child's parents, guardian or close relative, a person having parental responsibility for the child or a child welfare inspector, unless the child decides otherwise.

(7)Where a child is released on recognizance or on police bond, a law enforcement officer shall search the child or any suspected premises if the law enforcement officer has reasonable grounds to believe that the child is in possession of—

(a)stolen articles;

(b)instruments of violence;

(c)tools connected with the kind of offence the child is alleged to have committed and is charged with; or

(d)other articles which may provide evidence against the child with regard to the offence that the child is alleged to have committed.

54. Caution by law enforcement officer

(1)A law enforcement officer may, where it is in the best interests of the child, give an informal caution for a minor offence instead of arresting a child.

(2)An informal caution shall be a verbal warning of which no record shall be required to be kept.

(3)A law enforcement officer may give a formal caution to a child, with or without conditions, on the recommendation of a child welfare inspector.

(4)A formal caution to a child shall be given in private in the presence of a parent, guardian, close relative of the child or person having parental responsibility for the child.

(5)A law enforcement officer shall give a formal caution to a child in the presence of a child welfare inspector if the parent, guardian, close relative of the child or the person having parental responsibility for the child is absent or cannot be found by the law enforcement officer.

(6)A law enforcement agency shall cause a record of formal cautions to be kept in a register for the purpose of that law enforcement agency.

(7)A register of formal cautions referred to in subsection (6) shall be made available to a child welfare inspector for the purposes of this Act.

(8)A record of a formal caution shall be expunged after a period of five years from the date on which the caution was entered in the register.

55. Interview of child

(1)A child shall only be questioned or interviewed by a law enforcement officer in relation to an alleged offence if a parent, guardian, child welfare inspector, legal representative, close relative of the child or the person having parental responsibility for the child is present at the questioning or interview.

(2)A law enforcement officer shall, if the law enforcement officer fails to contact a child's parent, guardian, legal representative, close relative of the child or the person having parental responsibility for the child to be present at the questioning or interview of the child, request the presence of a child welfare inspector.

(3)Despite subsection (1), where the law enforcement officer considers that it is not in the best interests of a child for the child's parent, guardian, legal representative, close relative of the child or the person having parental responsibility for the child to be present, the law enforcement officer shall arrange for a child welfare inspector to be present at the interview.

56. Recognisance

(1)A child under arrest shall be released by a law enforcement officer on the child's own recognisance or a recognisance entered into by the child's parent, guardian, close relative of the child or the person having parental responsibility for the child, unless the offence which the child is accused of is a serious offence.

(2)A law enforcement officer shall, where a child is not released on recognisance, seek an order from a court to place the child in a place of safety.

(3)A court shall make an order to place a child in a place of safety within forty-eight hours after the arrest of the child.

57. Custody of child

(1)A child shall not be taken into custody—

(a)except as a measure of last resort; or

(b)for a period of more than forty-eight hours.

(2)A child in custody at a police station has a right to—

(a)food;

(b)medical attention, if required;

(c)reasonable visits from the child's parent, guardian, legal representative, close relative of the child or the person having parental responsibility for the child; and

(d)any other condition reasonably required for the welfare of the child.

(3)A law enforcement officer shall, where a child is not released on recognisance under section 56 or within forty-eight hours after the child is arrested, make arrangements to place the child in custody in a part of a police station designated for children or in a part of a police station which is separate from the area where adults are detained.

(4)A child shall not be allowed to associate with a person other than the child's parent, guardian, close relative of the child, child welfare inspector, legal representative, the person having parental responsibility for the child or a police officer while in custody at a police station or while being transported to a child transit centre or place of safety.

(5)A child shall be under the care of an adult of the same sex while in custody in a police station or while being transported to a child transit centre or place of safety.

(6)Male children in custody shall be held separately from female children.

Part VI – Diversion options

58. Diversion options

(1)Where a child is in conflict with the law, diversion shall be applied as a measure of first resort.

(2)The following diversion options shall apply:

(a)an informal reprimand by a law enforcement officer;

(b)a formal and recorded caution made by a law enforcement officer in the presence of a child's parent, guardian, close relative of the child or person having parental responsibility for the child;

(c)taking the child through a diversion programme;

(d)mediation;

(e)family group conferencing; or

(f)restitution.

(3)In determining the diversion option to be applied to a child, the following factors shall be considered:

(a)the nature and circumstances of the offence;

(b)the degree of harm caused by the child;

(c)the culpability of the child;

(d)the extent of the child's involvement in the offence;

(e)the child's age and developmental needs;

(f)whether the child is a repeat offender;

(g)whether the child committed the offence with an adult;

(h)the extent of remorse of the child;

(i)the child's cooperation with the relevant authorities;

(j)the child's vulnerability;

(k)whether the child targeted the victim or vice-versa;

(l)the child's cultural, religious and linguistic background;

(m)the child's level of education;

(n)the child's domestic and environmental circumstances;

(o)the child's cognitive ability;

(p)the interests of society; and

(q)whether the child failed to respond to a previous diversion option applied.

(4)A child has equal access to a diversion option and shall not be discriminated against in the selection of a diversion option.

59. Conditions for diversion

A child may be diverted from the formal criminal justice system if—

(a)there is a likelihood of a prima facie case against the child;

(b)the child acknowledges responsibility for the offence;

(c)the child and the child's parent, guardian or person having parental responsibility for the child consents to the nature, content and duration of a diversion option; and

(d)the child and the child's parent, guardian or person having parental responsibility for the child understand the consequences of a failure to comply with a diversion option as specified under section 60(4).

60. Failure to comply with diversion option

(1)A child welfare inspector or probation officer shall, where a child fails to comply with a diversion option, apply to a juvenile court or Children's Court for a warrant to apprehend the child or move a juvenile court or Children's Court to issue summons for the child to appear before a juvenile court or Children's Court.

(2)A juvenile court or Children's Court shall inquire into the reasons for the failure to comply with a diversion option and determine whether or not the failure is due to the child's fault or the fault of the child's parent, guardian or person having parental responsibility for the child.

(3)A juvenile court or Children's Court may, where a juvenile court or Children's Court finds that the failure is not due to the child's fault or the fault of the child's parent, guardian or person having parental responsibility for the child—

(a)continue with the diversion option, with or without altered conditions;

(b)apply a different diversion option; or

(c)make an appropriate order which shall assist the child and the child's family to comply with the recommended diversion option.

(4)A juvenile court or Children's Court may, where the juvenile court or Children's Court finds that the failure is due to the child's fault or the fault of the child's parent, guardian or person having parental responsibility for the child—

(a)order that the recommended diversion option should continue, with or without altered conditions, on recognisance being given by the child or the child's parent, guardian or person having parental responsibility for the child;

(b)apply a different diversion option;

(c)make an appropriate order which will assist the child and the child's family to comply with the recommended diversion option; or

(d)order trial of the child to proceed.

61. Requirements for diversion programme

A diversion programme shall—

(a)promote the dignity and well-being of a child;

(b)promote the development of a child's self-esteem and a child's ability to contribute to society;

(c)not be exploitative, harmful or hazardous to the physical and mental health of a child;

(d)be appropriate to the age and maturity of a child;

(e)not interfere with the education of a child; and

(f)give useful skills to a child, where possible.

62. Prohibition of provision of diversion programme without accreditation

(1)A diversion service provider shall not offer a diversion programme if that diversion service provider is not accredited in accordance with this Act.

(2)A diversion service provider who contravenes subsection (1) commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

63. Application for accreditation of diversion programme

(1)A diversion service provider that intends to offer a diversion programme shall apply to the Director of Social Welfare for accreditation as a diversion service provider in the prescribed manner and form on payment of a prescribed fee.

(2)The Director of Social Welfare shall, within thirty days of receipt of an application under subsection (1)—

(a)grant accreditation if the diversion programme that the diversion service provider seeks to offer meets the requirements under section 61; or

(b)reject accreditation if the diversion programme that the diversion service provider seeks to offer does not meet the requirements under section 61.

(3)The Director of Social Welfare shall, where the Director of Social Welfare rejects the accreditation of a diversion service provider under subsection (2)(b), inform the diversion service provider of the reasons for the rejection.

(4)The Director of Social Welfare shall, where the Director of Social Welfare grants the accreditation of a diversion service provider in accordance with subsection (2)(a), issue a diversion service provider with a certificate of accreditation within fourteen days of the grant of accreditation.

64. Suspension or revocation of accreditation of diversion programme

(1)The Director of Social Welfare may suspend or revoke the accreditation of a diversion service provider if the diversion service provider—

(a)obtained the accreditation through fraud or misrepresentation of a material fact;

(b)does not comply with a term or condition of the accreditation; or

(c)operates in contravention of this Act or any other written law.

(2)The Director of Social Welfare shall, before suspending or revoking the accreditation of a diversion service provider, notify the diversion service provider of the intention to suspend or revoke the accreditation and shall—

(a)give reasons for the intended suspension or revocation; and

(b)require the diversion service provider to—

(i)show cause, within a reasonable time that the Director of Social Welfare may specify in the notice, why the accreditation should not be suspended or revoked; or

(ii)remedy the default.

(3)The Director of Social Welfare shall not suspend or revoke the accreditation of a diversion service provider if the diversion service provider takes remedial measures to the satisfaction of the Director of Social Welfare within the period specified under subsection (2).

(4)The Director of Social Welfare shall, in making the final determination on the suspension or revocation of the accreditation of a diversion servi ce provider consider the remedial measures made by the diversion service provider in accordance with subsection (2).

(5)The Director of Social Welfare shall suspend or revoke the accreditation of a diversion service provider if the diversion service provider does not take remedial measures to the satisfaction of the Director of Social Welfare in accordance with subsection (2), and notify the diversion service provider of the suspension or revocation of accreditation.

Part VII – Court proceedings

65. Constitution of juvenile court

A subordinate court sitting for the purposes of hearing a charge against a child or for any other purpose relating to a child shall constitute itself as a juvenile court.

66. Jurisdiction of juvenile court

(1)A juvenile court shall—

(a)conduct civil proceedings on matters set out under Parts IV, VI, IX, X, XI and XII;

(b)hear any charge against a child, other than a charge—

(i)of murder or treason;

(ii)of a class of offences specified under the Criminal Procedure Code to be tried by the High Court; or[Cap. 88]

(iii)in which the child is charged together with an adult; and

(c)exercise any other jurisdiction conferred by this Act or any other written law.

(2)A juvenile court shall, where on the trial of a person the question of age of the accused person arises, at the instance of the defence or otherwise, inquire into and determine the question as soon as it arises.

(3)An appeal against the decision of a juvenile court shall lie with the Children's Court.

67. Jurisdiction of Children's Court

(1)A Children's Court shall—

(a)hear a charge against a child—

(i)of murder or treason;

(ii)of a class of offences specified under the Criminal Procedure Code to be tried by the High Court;[Cap. 88]

(iii)in which the child is charged together with an adult;

(b)hear an appeal against a decision of a juvenile court;

(c)conduct civil proceedings on matters set out under Parts XIII and XIV; and

(d)exercise any other jurisdiction conferred by this Act or any other written law.

(2)A charge against a child for an offence which if committed by an adult would be punishable by death shall be heard by a Children's Court.

(3)An appeal against the decision of the Children's Court shall lie with the Court of Appeal.

(4)Where any conviction or sentence made or passed by a court, other than a juvenile court, is appealed against or is brought before a Children's Court for confirmation or revision and it appears that the person convicted was at the time of the commission of the offence a child, the Children’s Court may substitute for the conviction, a finding of guilty and substitute for the sentence, an order.

68. Sittings of juvenile court or Children's Court

(1)A juvenile court or Children's Court shall sit in a different building or room from that in which sittings of other courts are held, or at different times or dates from those on which sittings of other courts are held.

(2)A person shall not be present at a sitting of a juvenile court or Children's Court, except—

(a)a member or officer of the juvenile court or Children's Court;

(b)a party to the case before the juvenile court or Children's Court;

(c)a party's legal representative;

(d)a witness;

(e)a parent, guardian or person having parental responsibility for the child;

(f)a person that the juvenile court or Children's Court may authorize to be present; and

(g)any other person directly concerned with the case.

(3)Subject to section 78(4)(a), the juvenile court or Children's Court may, where in any proceedings in relation to an offence against or by a child, or any conduct contrary to decency or morality, a person who, in the opinion of a juvenile court or Children's Court, is a child and is called as a witness, direct that all or any persons, who are not members or officers of the juvenile court or Children's Court, or parties to the case or the parties legal representatives, be excluded from the juvenile court or Children's Court.

(4)Proceedings in a juvenile court or Children's Court shall be informal and a law enforcement officer shall not be in uniform or carry a firearm.

(5)A restraint shall only be used on a child if there are exceptional circumstances which warrant the use of the restraint for the safety of any person.

69. Prohibition of other courts hearing charge or matter against child

(1)A court, other than a juvenile court or Children's Court, shall not hear any charge against a child or dispose of any matter which affects a person who appears to the court to be a child if it determines that—

(a)the charge or matter is one in which jurisdiction is conferred on the juvenile court or Children's Court; or

(b)a juvenile court or Children's Court is constituted for the place, district or area concerned.

(2)A court shall, where the court makes a determination under subsection (1), make an order transferring the charge or matter to a juvenile court or Children's court.

(3)Despite subsection (1), where a juvenile court or Children's Court is not constituted for a place, district or area concerned, a court of competent jurisdiction may deal with an application for bail concerning a child if it is in the best interests of the child to do so.

(4)A court shall, where it refuses to grant bail, record the reasons for the refusal and inform the applicant of the right to apply for bail to—

(a)the Children's Court where bail is denied in a juvenile court; or

(b)the Court of Appeal where bail is denied in the Children's Court.

(5)A court shall, where the court, other than a juvenile court or Children's Court, hears a charge against a child, apply the provisions of this Act relating to the safeguards to be accorded to a child in conflict with the law.

70. Remission of child to Children's Court

(1)Where a child appears before a court of competent jurisdiction, other than the Children's Court, on a charge made jointly against the child and an adult, that court shall remit the case to the Children's Court for hearing and determination.

(2)A court by which an order remitting a case to the Children's Court is made under this section—

(a)may give direction that the court considers necessary with respect to the custody of the child or for the release of the child on bail until the child can be brought before the Children's Court; and

(b)shall cause to be transmitted to the registrar of the Children's Court a certificate setting out the nature of the offence.

71. Presumption and determination of age

(1)Where a person, whether charged with an offence or not, is brought before a court and it appears to the court that the person is a child or the person alleges that the person is a child, the court shall make an inquiry as to the age of that person.

(2)In the absence of a birth certificate or an affidavit sworn for the purpose of certifying a person's date of birth, a certificate signed by a health practitioner as to the age of a person below nineteen years of age shall be evidence of that age before a court without proof of signature, unless the court directs otherwise.

(3)An order of a court shall not be invalidated by any subsequent proof that the age of the child has not been correctly stated to the court and the age presumed or declared by the court to be the age of the child shall be deemed to be the true age for the purpose of any proceeding under this Act.

(4)Despite subsections (3), a court may vary its order under this section on subsequent proof that the age of the child has not been correctly stated to the court.

72. Rights of child in conflict with the law

(1)A child in conflict with the law shall—

(a)be informed promptly and directly of the charges against that child;

(b)have the matter determined without delay;

(c)not be compelled to give testimony or to confess guilt;

(d)have free assistance of an interpreter if the child cannot understand or speak the language used;

(e)if a finding of guilty is made, have the decision and any measures imposed in consequence thereof reviewed by a higher court;

(f)have the child's privacy fully respected at all stages of the proceedings; and

(g)if that child has a disability, be given special care and be treated with the same dignity as a child without disability.

(2)A child in conflict with the law before a court is entitled to legal representation.

(3)The Legal Aid Board shall provide legal aid services where a child cannot afford legal representation of choice.

(4)A court may, where a child is brought before the court in proceedings under this Act or any other written law and the child is not represented, cause the issuance of a certificate of legal aid or cause the child to be assisted by a child welfare inspector.

(5)Any expenses incurred in relation to the legal representation of a child under subsection (3) shall be defrayed out of monies appropriated by Parliament.

73. Appearance of child in juvenile court or Children's Court and bail

(1)A juvenile court or Children's Court shall, at the commencement of proceedings in a juvenile court or Children's Court inform the child in a language that the child understands of the following rights:

(a)the right to have the child's parent, guardian, probation officer or child welfare inspector or the person having parental responsibility for the child present at the proceedings;

(b)the right to legal representation; and

(c)the right to legal aid.

(2)Where a child appears before a juvenile court or Children's Court charged with an offence, the court shall enquire into the case and, unless there is a serious danger to the child or the community, release the child on bail.

(3)A child granted bail shall be released from custody after giving security or accepting specified conditions.

(4)A juvenile court or Children's Court may grant bail on the child's own undertaking or with sureties from the child's parent, guardian or person having parental responsibility for the child.

(5)The amount of the bail shall be fixed with due regard to the circumstances of the case and shall not be unreasonable or excessive.

74. Procedure in court

(1)A charge sheet or information shall be translated in a language that a child in conflict with the law understands.

(2)A juvenile court or Children's Court shall request a child in conflict with the law to indicate to the juvenile court or Children's Court whether or not the child admits the offence in the charge sheet or information.

(3)A charge may be withdrawn at any stage of the proceedings and—

(a)if the charge is withdrawn before the child is put on defence, the child shall be discharged; or

(b)if the charge is withdrawn after the child has made a defence, that child shall be acquitted.

(4)The discharge of a child under subsection (3)(a) shall not be a bar to subsequent proceedings against the child on the same facts.

(5)If it appears to the court that a prima facie case is established, the evidence of any witness for the defence shall be heard and the child shall have a right to remain silent or be allowed to give evidence or make a statement.

(6)A child shall, where a court is satisfied that the offence is proven against a child, request the child to say anything in mitigation of the penalty or otherwise before sentencing.

(7)Subject to subsection (6), a court shall before deciding on how to deal with the child, where practicable, obtain information in relation to the child's general conduct, home surroundings, school record, and medical history that may assist the court to deal with the case in the best interests of the child, and the court may ask the child any question arising out of the information obtained.

75. Remand of apprehended child during trial

(1)A juvenile court or Children's Court may, where a child is not released on bail, make an order to remand the child to a child transit centre situated within a reasonable distance from a juvenile court or Children's Court.

(2)An order for remand made under subsection (1) shall be delivered with the child to the person who is vested with the care of the child and shall be sufficient authority for the detention of the child by that person.

(3)A child under a remand order shall be deemed to be in legal custody while on remand and while being conveyed to or from the child transit centre, and if the child escapes, the child may be apprehended without warrant.

(4)The maximum period of a remand warrant shall be seven days, and the remand warrant shall not be renewed without the appearance of the child at the hearing.

(5)The total period of remand of a child shall not exceed ninety days except in the case of an offence punishable by death, where the period of remand shall not exceed one hundred and eighty days.

(6)A child shall not be placed on remand in an adult prison or correctional centre.

(7)A female child shall not be remanded in the same child transit centre at the same time with a male child.

(8)A child on remand shall be supervised only by a person of the same sex as the child.

(9)A child on remand who is ill, or who complains of illness, shall be examined and treated promptly by a health practitioner.

(10)A police officer or probation officer shall be responsible for transporting a child between a juvenile court or Children's Court and the child transit centre, and that police officer or probation officer shall be of the same sex as the child.

76. Social welfare report of child

(1)A juvenile court or Children's Court shall, where a child is charged with an offence, order a child welfare inspector to submit a social welfare report to the juvenile court or Children's Court and that juvenile court or Children's Court shall take the social welfare report into account in the making of an order.

(2)A child welfare inspector shall, in preparing the social welfare report under subsection (1), visit the home of the child.

(3)A social welfare report shall include particulars on the background of the child, the present circumstances of the child, the conditions under which the offence was committed and recommendations for an order.

(4)A social welfare report may include a recommendation that the matter before a juvenile court or Children’s Court be dealt with under the diversion procedures under Part VI.

(5)The social welfare report referred to in this section is confidential and shall not be accessed by any other person except an officer of the juvenile court or Children's Court.

(6)A juvenile court or Children's Court shall—

(a)inform the child in relation to whom a social welfare report is made about the contents of the social welfare report; and

(b)avail a copy of the social welfare report to the child in respect of whom it is made or the child's legal representative.

(7)A juvenile court or Children's Court may request an oral report from a child welfare inspector in addition to a social welfare report.

(8)A juvenile court or Children's Court shall, where it rejects the recommendations given in a social welfare report, give written reasons for the rejection and make an alternative order as the juvenile court or Children’s Court considers necessary in the best interests of the child.

77. Parent guardian to give security

(1)A juvenile court or Children's Court may, where a child is charged with an offence, order the child's parent, guardian or the person having parental responsibility for the child to give security to the juvenile court or Children’s Court for the good behaviour of the child.

(2)Where a juvenile court or Children's Court determines that a charge against a child is proved, it may make an order against the child's parent, guardian or person having parental responsibility for the child for the payment of damages or costs, or require the parent, guardian or person having parental responsibility for the child to give security for good behaviour, without proceeding to make an order against the child.

(3)A juvenile court or Children's Court may make an order under subsection (2) against a child's parent, guardian or person having parental responsibility for the child who has been asked to attend the juvenile court or Children's Court but has failed to do so, but shall not make the order without giving the parent, guardian or person having parental responsibility for the child an opportunity to be heard.

(4)Any sums imposed and ordered to be paid under this section by the parent, guardian or person having parental responsibility for the child may be recovered by distress.

(5)A juvenile court or Children's Court shall not exercise the powers conferred under this section in a discriminatory manner.

(6)A parent, guardian or person having parental responsibility for the child may appeal against an order made under this section.

78. Evidence of Child

(1)Where, in any criminal or civil proceedings against a person, a child is called as a witness, the juvenile court or Children's Court shall receive the evidence, on oath, of the child if, in the opinion of the juvenile court or Children's Court, the child possesses sufficient intelligence to justify the reception of the child's evidence, on oath, and understands the duty of speaking the truth.

(2)If, in the opinion of the juvenile court or Children's Court, the child does not possess sufficient intelligence to justify the reception of the child's evidence, on oath, and does not understand the duty of speaking the truth, the child may give—

(a)unsworn evidence that may be received as evidence in a juvenile court or Children's Court; or

(b)evidence through a child welfare inspector responsible for the child's case.

(3)A child required to give evidence in a juvenile court or Children's Court shall be prepared to testify by a child welfare inspector or any other authorised officer.

(4)A child that is giving evidence in a court shall—

(a)be questioned in an environment that is child friendly;

(b)be questioned in camera;

(c)be questioned in a manner that is proportional to the child's age and maturity of the child;

(d)not interact or be in the same room with a person the child is testifying against; and

(e)not be questioned more than twice.

(5)Subject to subsection (4)(d), a person the child is testifying against or that person's legal practitioner shall cross examine a child witness through—

(a)a child welfare inspector, an authorised officer or a child's next friend, acting as an intermediary; or

(b)the use of a video link.

(6)The juvenile court or Children's Court shall—

(a)permit recorded pre-trial interviews with a child to be presented as evidence in lieu of a live testimony by a child; or

(b)request a report from a child welfare inspector or other authorised officer who has interviewed a child to be used as evidence.

(7)Information about the previous sexual history of a child witness or child victim, or a delay between the alleged commission of the offence and the reporting of the offence shall not be presented as evidence before a juvenile court or Children's Court.

(8)A child witness shall be protected from threats, intimidation, reprisal or any other form of victimisation prior to and when giving evidence before a juvenile court or Children's Court.

(9)A juvenile court or Children's Court may, having regard to the nature and circumstances of the offence in question, require evidence presented before the juvenile court or Children's Court to be corroborated by some other material evidence.

79. Methods of dealing with child in conflict with law

(1)A juvenile court or Children's Court may deal with a child in one or more of the following ways:

(a)dismiss the case against the child or discharge the child;

(b)make a probation order in respect of the child;

(c)send the child to a child approved centre or child reformatory centre;

(d)commit the child to the care of a fit person or child care facility;

(e)in the case of a child who is a young person, order the young person to pay a fine, damages or costs;

(f)order the child's parent, guardian or person having parental responsibility for the child to pay a fine, damages or cost;

(g)order the child's parent, guardian or person having parental responsibility for the child to give security for the good behaviour of the child;

(h)make a restorative justice order in accordance with programmes established under section 84; or

(i)in any other manner that the juvenile court or Children's Court determines in the administration of justice.

(2)A juvenile court or Children's Court shall, in making an order under subsection (1), take into consideration the ability of the young person, child's parent, guardian or a person having parental responsibility for the child to pay the fine, damages or costs before the order is made.

(3)A child below the age of sixteen shall not be given a custodial order by a court.

(4)A child who is aged sixteen to eighteen shall not be given a custodial order if the child can be suitably dealt with in any other manner.

(5)A juvenile court or Children's Court shall not pronounce or record an order of death against a child.

(6)A juvenile court or Children's Court shall not use the words "conviction" and "sentence" in relation to a child before the court and a reference in any written law to "conviction" and "sentence" shall not apply but the words "finding of guilty" or "order" shall be used.

(7)A juvenile court or Children's Court shall expeditiously deal with the case of a child and if the case is not completed within six months of the child's first appearance before the court, the juvenile court or Children's Court may discharge the child immediately.

(8)Nothing in this section shall be construed as restricting the power of a juvenile court or Children's Court to pass any order or a combination of orders which it is empowered to pass under this Act or any other written law in relation to a child.

80. Payment of fine by parent, guardian or person having parental responsibility

(1)A juvenile court or Children's Court may, when dealing with a child on whom a fine, damages or costs may be imposed, order that the fine, damages or costs awarded be paid by the child's parent or guardian or person having parental responsibility for the child instead of the child, unless the juvenile court or Children's Court is satisfied that the child's parent or guardian or person having parental responsibility for the child—

(a)cannot be found; or

(b)has not contributed to the commission of the offence by neglecting to exercise due care for the child.

(2)A juvenile court or Children's Court may exercise the power conferred under subsection (1) without imposing any other punishment.

81. General principles with regard to proceedings in juvenile court or Children's Court

(1)Subject to section 4, where a juvenile court or Children's Court is considering whether or not to make one or more orders under this Act with respect to a child, the juvenile court or the Children's Court shall only make the order or orders if it considers that doing so would be more beneficial to the welfare of the child than not making an order at all.

(2)A juvenile court or Children's Court shall, in any proceedings in which the issue of the upbringing of a child arises, have regard to the general principle that any delay in determining the question is likely to be prejudicial to the welfare of the child.

(3)A juvenile court or Children's Court shall, in considering whether or not to make an order with regard to a child, have regard to the best interests of a child referred to under section 3.

(4)A juvenile court or Children's Court may, if it considers necessary for the determination of any matter in issue before it, of its own motion or on application, call any expert witness that it considers appropriate to provide assistance to the juvenile court or Children's Court, and the expense of that expert witness shall be determined by the juvenile court or Children's Court and shall be defrayed out of moneys appropriated by Parliament.

(5)In any proceedings concerning a child, whether instituted under this Act or any other written law, a child's name, identity, home, last place of residence, school or the particulars of the child's parents, photograph, depiction or caricature of the child shall not be published or revealed in any publication, report or otherwise.

(6)In this section, "report" includes a law report.

(7)A person who contravenes subsection (5) commits an offence and is liable, on conviction, to a fine not exceeding fifty thousand penalty units or to imprisonment for a term not exceeding six months, or to both.

82. Presence of child welfare inspector or authorised officer

A juvenile court or Children's Court shall ensure that a child welfare inspector or any other authorised officer is present at all stages of the proceedings in a juvenile court or Children's Court to safe guard the interests of the child.

83. Reports

(1)A juvenile court or Children's Court may, in considering a question with respect to a child under this Act, require a report to be presented to it, either oral or written as the juvenile court or the Children's Court may direct, by a person designated by that juvenile court or Children's Court on matters relating to the child that the juvenile court or Children's Court considers necessary.

(2)A juvenile court or Children's Court may, in considering a report under this section, take into account—

(a)any statement contained in the report, or

(b)any evidence given in respect of the matters referred to in the report which is relevant to the question before the juvenile court or Children's Court.

Part VIII – Probation of children

Division 1 – Administration

84. Programmes for combating crime and rendering probation services

The Minister may for purposes of this Act, establish or cause to be established a programme or service aimed at—

(a)the prevention and combating of crime involving a child;

(b)the assessment, care, treatment, support, referral for, and provision of, counselling in respect of a child who is a victim of crime;

(c)the observation, treatment, counselling and supervision of a child who is a probationer and has been released from a child approved centre or a child reformatory centre or who is placed in the custody of any person in accordance with any written law;

(d)the rendering of assistance to the family of a child—

(i)referred to under paragraph (c); or

(ii)placed in custody in a child approved centre or a child reformatory centre;

(e)the establishment and financing of a child approved centre;

(f)the adaptation of children under paragraph (c) to the community and their families;

(g)early intervention, including family group conferencing; and

(h)restorative justice and diversion options, including the compensation of victims of crime.

85. Functions of probation officer

A probation officer shall, subject to the direction of a juvenile court or Children's Court—

(a)investigate the circumstances of a child and prepare a report to the juvenile court or Children's Court on the treatment and committal of the probationer to an institution, and to render assistance to the probationer's family;

(b)assist probationers in complying with the probation conditions in order to improve probationer social functioning;

(c)advise and assist the probationer and, where possible, endeavour to find the probationer suitable employment;

(d)report to a juvenile court or Children’s Court if a probationer does not comply with, or breaches the probation conditions;

(e)report to a juvenile court or Children’s Court, in a manner and at a time that a juvenile court or Children’s Court may determine, on the progress and supervision of, and the compliance with the probation conditions by, a probationer;

(f)plan and implement the programmes referred to in section 84 in general or in respect of particular children;

(g)provide psychosocial counselling;

(h)receive, assess and refer children and render early intervention services and programmes, including mediation and family group conferencing;

(i)monitor a child subject to home-based supervision;

(j)monitor persons subject to supervision;

(k)conduct family tracing; and

(l)gather information for assessment by the probation officer.

86. Powers of probation officers

(1)A probation officer shall, apply to a juvenile court or Children's Court for a warrant for the apprehension of the probationer, if a probationer breaches any condition of the probation order.

(2)A law enforcement officer shall, where a warrant under subsection (1) is issued by a juvenile court or Children's Court, apprehend the probationer concerned, and where the probationer is found guilty, an order for the original offence shall be made.

(3)A person who obstructs, delays, assaults or hinders a probation officer in the exercise of any powers or the performance of the probation officer's duties or functions under this Act commits an offence and is liable, on conviction, to a fine not exceeding one hundred thousand penalty units or to imprisonment for a term not exceeding one year, or to both.

Division 2 – Probation orders

87. Probation order

(1)A juvenile court or Children's Court may, where the juvenile court or Children's Court before which a child is charged with an offence determines that the charge is proved and it considers it necessary to do so, make a probation order requiring the Director of Social Welfare to place the child under the supervision of a probation officer for a period specified in the probation order.

(2)A juvenile court or Children's Court shall, in making the probation order under subsection (1), have regard to the age, character, antecedents, home surroundings, health or mental condition of the child, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed.

(3)A female probationer shall be placed under the supervision of a female probation officer, and a male probationer shall be placed under the supervision of a male probation officer, unless it is not practical to do so.

(4)A probation order shall have effect for a period of not less than six months and not more than one year from the date of the probation order.

(5)A juvenile court or Children's Court shall explain the effect of the probation order to the child in a language that the child understands.

(6)A juvenile court or Children's Court shall, before making a probation order, satisfy itself that the child understands the effect of the probation order, including any additional requirements proposed to be specified in the probation order under section 88(2) and (4), and that if the child fails to comply with the probation order during the probation period, the child shall be found guilty and an order for the original offence shall be made.

88. Contents of probation orders

(1)A probation order shall name the district in which the probationer resides or will reside, and the probationer shall notify the probation officer responsible for the probationer's supervision of any change of residence.

(2)A probation order may require the probationer to comply during the whole or any part of the probation period with requirements that a juvenile court or Children's Court, having regard to the circumstances of the case, considers necessary for securing the good conduct of the probationer or for preventing a repetition of the same offence by the probationer or the commission of other offences.

(3)Without prejudice to the powers of the juvenile court and Children's Court to make an order for the payment of sums by way of costs, damages or compensation, the payment of those sums shall not be included among the requirements of a probation order.

(4)Despite the generality of subsection (1), a probation order may include requirements relating to the residence of the probationer, except that—

(a)before making an order containing those requirements, the juvenile court or Children's Court shall consider the home surroundings of the probationer; and

(b)where the order requires the probationer to reside in a child care facility, the name of the child care facility and the period for which the probationer is so required to reside shall be specified in the order, and that period shall not exceed twelve months from the date of the order.

(5)A juvenile court or Children's Court shall, at the time of making the order, where a probation order requires the probationer to reside in a child care facility, give notice of the terms of the order to a probation officer.

(6)A juvenile court or Children's Court shall, where the district named in a probation order as the district in which the probationer resides or shall reside is not the district in which the probation order is made, transmit to the juvenile court or Children's Court for the district named in all the documents and information relating to the case, and the last-mentioned juvenile court or Children's Court shall be considered for all the purposes of this Act to be the juvenile court or Children's Court by which the probation order was made.

89. Submission of child to treatment of mental condition

(1)Where a juvenile court or Children's Court is satisfied, on the evidence of a mental health practitioner that a child requires treatment but does not qualify the child being declared as a mental patient, the juvenile court or Children's Court may, if it makes a probation order, include a requirement that the child shall be provided for a period that may be specified in the probation order, not exceeding twelve months from the date of the order, treatment by, or under, the direction of a mental health practitioner in order to improve the child's mental condition.

(2)A probation order may specify any one of the following treatments:

(a)treatment as a resident patient in a mental health facility or place prescribed for the purpose of this section as may be specified in the order;

(b)treatment as a non-resident patient at a mental health facility or place as may be specified in the order; or

(c)treatment by, or under the direction of, a mental health practitioner as may be specified in the order.

(3)Despite subsection (1), the nature of the treatment shall not be specified in the probation order.

(4)A juvenile court or Children's Court shall make a probation order containing the requirements under subsection (2) if it is satisfied that arrangements are or shall be made for the treatment, and, if the child is to be treated as a resident patient, for the child's reception at the specified mental health facility or place.

(5)A probation officer responsible for the probationer's supervision shall, where a probationer is under treatment as a resident patient in accordance with subsection (4), carry out the supervision to an extent only that may be necessary for the purpose of the discharge of the probation order.

(6)A mental health practitioner may, where the mental health practitioner by whom or under whose direction a probationer is being treated for a mental condition in accordance with a probation order is of the opinion that part of the treatment can be better or more conveniently given by or under, the direction of a mental health practitioner in, or at, a mental health facility or place not specified in the order, make arrangements, with the consent of the probation officer, for the probationer to be treated accordingly, and to receive part of the treatment as a resident patient in that mental health facility or place.

90. Copies of orders

A juvenile court or Children's Court by which a probation order is made or which makes an order amending or discharging a probation order, shall furnish copies of the probation order to the probationer or the probationer's parent, guardian or person having parental responsibility for the probationer, the probation officer responsible for the supervision of the probationer and to the person in charge of the child care facility, if any, in which the probationer is to reside or is residing.

91. Failure of probationer to comply with probation order

(1)Subject to subsection (2), at any time during the probation period and on a report by a probationer's parent, guardian, person having parental responsibility for the probationer, probation officer or child welfare inspector that the probationer is not complying with the conditions of a probation order, a juvenile court or Children's Court may issue summons to the probationer requiring the probationer to appear at the place and time specified in the summons or may issue a warrant for the arrest of the probationer.

(2)A juvenile court or Children's Court shall not issue a summons or warrant except on information on oath.

(3)A juvenile court or Children's Court may, if it is proved to the satisfaction of a juvenile court or Children's Court by which the probation order was made that the probationer has failed to comply with any of the provisions of the probation order—

(a)without prejudice to the continuance in force of the probation order, impose a fine not exceeding three hundred penalty units; or

(b)make any order in respect of the original offence in respect of which the probation order was made, which it could have made if the probationer had been found guilty of that offence.

(4)Where a juvenile court or Children's Court has, under subsection (3)(a) imposed a fine on the probationer, a subsequent order made in respect of the probationer under this section shall take into account the imposition of the fine in determining the nature of a subsequent order.

92. Commission of further offences by probationer

(1)Subject to Part V, where a juvenile court or Children's Court finds a probationer guilty of an offence committed during the probation period, the juvenile court or Children's Court may commit the probationer to custody or release the probationer on bail, with or without sureties, until the probationer can be brought or appear before the juvenile court or Children's Court which made the probation order.

(2)Where a juvenile court or Children's Court commits a probationer to custody or releases the probationer on bail under subsection (1), the juvenile court or Children's Court shall transmit to the juvenile court or Children's Court which made the probation order—

(a)particulars of the case that the juvenile court or Children's Court considers necessary; and

(b)a signed certificate of the finding of guilty for an offence committed during the probation period.

(3)A certificate issued under subsection (2) shall be admissible, in a juvenile court or Children's Court which made the probation order, as evidence of a finding of guilty for an offence committed by a probationer during the probation period.

(4)Where it is proved to the satisfaction of the juvenile court or Children's Court which made the probation order that the probationer has been found guilty of an offence committed during the probation period, the juvenile court or Children's Court may make an order in respect of the offence which the juvenile court or Children's Court would have been likely to make if the probationer had just been found guilty of that offence before that juvenile court or Children's Court.

93. Effect of finding of guilty where probation order made

(1)Subject to this section, a finding of guilty for an offence for which a probation order is made shall be considered not to be a finding of guilty for any purpose other than the purposes of the proceedings in which the probation order is made and of any subsequent proceedings which may be taken against the child under the other provisions of this Act, except that where an order is subsequently made against a child under this Act, the provisions of this subsection shall cease to apply to the finding of guilty.

(2)Without prejudice to subsection (1), a finding of guilty in respect of a child in conflict with the law who is placed on probation shall be disregarded for the purposes of any law which imposes a disqualification or disability on convicted persons, or authorises or requires the imposition of a disqualification or disability.

(3)This section shall not affect—

(a)a right of the child to appeal against the finding of guilty, or to rely on the findings in bar of any subsequent proceedings for the same offence; or

(b)the re-vesting or restoration of any property in consequence of the finding of guilty in respect of the child.

94. Amendment of probation order

(1)Subject to the other provisions of this section, where, on the application of a probationer or the probation officer responsible for the supervision of the probationer, the juvenile court or Children's Court which made the probation order is satisfied that the provisions of the probation order should be varied, or that any provision should be inserted or cancelled, the court may, by order, amend the probation order accordingly.

(2)A juvenile court or Children's Court shall, if it is satisfied on the application of the probation officer responsible for the supervision of the probationer that the probationer has changed, or is about to change, the residence from the district named in the probation order to another district—

(a)by order, vary the probation order by substituting for the reference to the district named in the order a reference to the district where the probationer is residing or about to reside; and

(b)transmit to the juvenile court or Children's Court for the new district all documents and information relating to the case, and the last-mentioned court shall be deemed for all the purposes of this Act to be the juvenile court or Children's Court which made the probation order.

(3)Where an application is made under this section by the probation officer responsible for the supervision of the probationer, the juvenile court or Children's Court shall summon the probationer to appear before the court and the juvenile court or Children's Court shall amend the probation order if the probationer expresses willingness to comply with the requirements of the order as amended.

(4)Where an order is made under this section for the variation, insertion or cancellation of a provision requiring a probationer to reside in a mental health facility, the juvenile court or Children's Court shall give notice of the terms of the order to a probation officer.

95. Discharge of probation orders

A juvenile court or Children's Court may, on an application by a probation officer, discharge a probation order if the juvenile court or Children's Court is satisfied that the discharge is in the best interests of the probationer.

96. Reformatory children

(1)A juvenile court or Children's Court may, where a parent, guardian or person having parental responsibility for a child proves to a juvenile court or Children's Court that the parent, guardian or person having parental responsibility for the child is unable to control a child, order that the child be—

(a)placed under the supervision of a probation officer in accordance with this Act for a period not exceeding three years;

(b)sent to a child approved centre; or

(c)committed to the care of a fit person, whether that person is related to the child or not, who is willing to care for the child.

(2)A juvenile court or Children's Court shall exercise the powers under subsection (1) where the juvenile court or Children's Court is satisfied that it is necessary to do so and the parent, guardian or the person having parental responsibility for the child understands the results which will follow an order being made and consents to the making of the order.

97. Probation Committee

(1)The Minister may, by statutory instrument, establish a Probation Committee to advise the Minister on matters of policy relating to the probation of children in conflict with the law and the development of the probation system in the Republic.

(2)The composition, functions, procedures and allowances of the Probation Committee shall be prescribed.

Part IX – Child approved centre order and child reformatory centre order

98. Establishment of child approved centre

(1)The Minister may, by statutory instrument, establish child approved centres for the reception, maintenance and training of a child sent to a child approved centre under this Act or any other written law.

(2)A child approved centre established under subsection (1) shall be under the supervision of the Director of Social Welfare.

(3)The management of a child approved centre established under subsection (1) shall be prescribed.

(4)A child approved centre shall be classified according to the discipline and training required by a child placed in custody in the child approved centre.

99. Child reformatory centre and child transit centre

(1)The Minister responsible for correctional centres may, by statutory instrument, establish—

(a)child reformatory centres where children may be placed in custody; and

(b)child transit centres where children may be temporarily kept.

(2)A child reformatory centre established under subsection (1) shall be under the supervision of the Chief Inspector who shall be assisted by reformatory boards established by the minister responsible for correctional centres for each province, as prescribed.

(3)The management and maintenance of a child reformatory centre and transit centre shall be as prescribed.

(4)A child below the age of sixteen years shall not be sent to a child reformatory centre.

100. Child approved centre order and child reformatory centre order

(1)Where a finding of guilty is made against a child and the period of an order is for six months or more without the option of a fine and where it is in the best interests of the child, the juvenile court or Children's Court may—

(a)make an order for the correction of the child at a child approved centre; or

(b)having regard to the child's character, previous conduct and the circumstances of the offence, require the child to undergo a period of training in a child reformatory centre.

(2)The juvenile court or Children's Court may, where a juvenile court or Children's Court makes an order under subsection (1)(h), direct that a child in respect of whom the order is made be placed in the custody of a parent, guardian, person having parental responsibility for the child, or fit person, or be placed in a place of safety while awaiting conveyance to a child approved centre.

(3)A juvenile court or Children's Court may, where a juvenile court or Children's Court makes an order under subsection (1)(b), direct that a child in respect of whom the child reformatory centre order is made be placed in the custody of a parent, guardian, person having parental responsibility or fit person, or be placed in a child transit centre while awaiting conveyance to a child reformatory centre.

(4)A directive of a juvenile court or Children's Court under subsections (2) and (3) shall not extend beyond twenty-one days but if at the expiration of twenty-one days the juvenile court or Children's Court considers it necessary to do so, the juvenile court or Children's Court may extend its directive beyond twenty-one days.

(5)An order made by a juvenile court or Children's Court under this section shall cease to have effect when the child attains the age of nineteen years.

101. Contents of child approved centre order and child reformatory centre order

(1)A juvenile court or Children's Court shall, in making an order under this Part, state the reasons for the imposition of the order on a child.

(2)An order made under this Part shall specify the—

(a)age or ascertained age of the child;

(b)sex of the child;

(c)religion of the child;

(d)child approved centre or child reformatory centre to which the child is being sent; and

(e)time frame within which a child shall be conveyed to a child approved centre or child reformatory centre.

(3)The age specified under subsection (2)(a) shall, until the contrary is proved, be presumed to be the true age of the child and a child approved centre order or child reformatory centre order shall not be invalidated by any subsequent proof that the age of the child has not been correctly specified in the order.

(4)If for any reason a child in respect of whom a child approved centre order or child reformatory centre order is made cannot be received into the child approved centre or child reformatory centre specified in the order, another child approved centre or child reformatory centre may be specified by an endorsement or further endorsement on the order by the court.

102. Conveyance to child approved centre or child reformatory centre

(1)A person responsible for conveying the child to a child approved centre or a child reformatory centre shall deliver the following documents to the person in-charge of a child approved centre or a child reformatory centre:

(a)the juvenile court or Children's Court order and any endorsement;

(b)the social welfare report; and

(c)any other additional information on the child.

(2)The Director of Social Welfare may cause a child to be transferred from one child approved centre to another if the Director of Social Welfare considers it in the best interests of the child to do so.

(3)The Chief Inspector may cause a child to be transferred from one child reformatory centre to another if it is in the best interests of the child to do so.

(4)Except as otherwise provided in this Part, a child who is transferred under subsections (2) and (3) shall, on transfer, be kept in custody in the child approved centre or child reformatory centre for the unexpired period of the term specified in the child approved centre order or child reformatory centre order.

103. Duration of custody in child approved centre or child reformatory centre

(1)Where a juvenile court or Children's Court makes a child approved centre order or child reformatory centre order, the period of custody shall not exceed three years.

(2)Where a child has been remanded in custody before the making of an order under this Part, the period spent in remand shall be taken into consideration when making a child approved centre order or child reformatory centre order.

(3)A child shall not be kept in custody in an adult prison or correctional centre.

104. Extension of period of custody in child approved centre or child reformatory centre

(1)The Director of Social Welfare may, if the Director of Social Welfare determines that it is in the best interests of a child to be in custody in a child approved centre for a further period, recommend to a juvenile court or Children's Court to extend the period of custody in a child approved centre.

(2)The Chief Inspector may, if the Chief Inspector determines that it is in the best interests of a child to be in custody in a child reformatory centre for a further period, recommend to a juvenile court or Children's Court to extend the period of custody in a child reformatory centre.

(3)The Director of Social Welfare or Chief Inspector shall, in making a recommendation under subsection (1) or (2), cause a social welfare report to be prepared and submitted to the juvenile court or Children's Court that made the child approved centre order or child reformatory centre order.

(4)The juvenile court or Children's Court shall on receipt of a social welfare report under subsection (3), issue a warrant to extend the period of custody of a child in a child approved centre or child reformatory centre if the juvenile court or Children's Court is satisfied that an extension of the period is warranted.

(5)A warrant issued under subsection (4), to keep a child in custody at a child approved centre or child reformatory centre for a further term, shall not exceed one year, except that that child shall not be kept in custody beyond the date on which that child attains the age of nineteen years.

105. Harbouring or concealing child

(1)A person who harbours or conceals a child who has been ordered, under this Part, to be sent to a child approved centre, child reformatory centre, child transit home or place of safety is liable, on conviction, to a fine not exceeding one hundred thousand penalty units or to imprisonment for a term not exceeding one year, or to both.

(2)A person who knowingly prevents a child from returning to a child approved centre, child reformatory centre, child transit home or place of safety when the child is required to do so, commits an offence and is liable, on conviction, to a fine not exceeding one hundred thousand penalty units or to imprisonment for a term not exceeding one year, or to both.

106. Penalty for escape or absence from child approved centre, child reformatory centre, child transit centre or place of safety

(1)A child who having been ordered to be placed in custody in a child approved centre, child reformatory centre, child transit centre or place of safety may be arrested without warrant and brought before a juvenile court or Children's Court if the child—

(a)escapes from the child approved centre, child reformatory centre, child transit centre or place of safety;

(b)escapes from the custody of the person in whose charge the child has been placed pending conveyance or transfer in accordance with the provisions of this Part;

(c)being absent from a child approved centre or child reformatory centre, on temporary leave of absence or on permit, escapes from the person in whose charge the child has been placed or fails to return to the child approved centre or child reformatory centre, on the expiration of the leave or on the revocation of the permit; or

(d)being absent from a child approved centre or child reformatory centre, under supervision fails to return to the child approved centre or child reformatory centre, when recalled.

(2)A juvenile court or Children's Court may, if a child escapes from the care of a fit person and that person is not willing to take the child back, make an order which is in the best interests of the child after the submission of a social welfare report.

107. Separation of incorrigibles

(1)Despite anything in this Part, where a child in custody at a child approved centre or child reformatory centre, is incorrigible or a bad influence on the other children at the child approved centre or child reformatory centre, the person in-charge of the child approved centre or child reformatory centre, shall cause the child to be separated from the rest of the children for the unexpired period of the term of custody, except that the period of separation shall not exceed the residue of the unexpired term for which the child would have been in custody for the commission of an offence.

(2)A separation by a person in-charge under subsection (1) shall be made having regard to the best interests of the child, and the child shall be placed in a child friendly environment with access to the necessary amenities.

108. Power to release on permit

(1)The Director of Social Welfare may discharge a child from a child approved centre on condition that the child is placed under the supervision of a probation officer.

(2)The Chief Inspector may discharge a child from a child reformatory centre on condition that the child is placed under the supervision of a probation officer.

(3)The Director of Social Welfare or Chief Inspector shall issue a permit under subsection (1) or (2), if the Director of Social Welfare or Chief Inspector determines that there is reasonable probability that the child will abstain from crime and lead a useful and industrious life.

(4)A permit shall not be issued under this section within six months from the commencement of a term of custody of a child with respect to whom it is issued.

(5)A permit under this section shall continue in force until the expiration of the term for which the child should have been kept in custody, unless earlier revoked or forfeited under section 109.

109. Revocation or forfeiture of permit

(1)A permit issued under section 108 may be revoked at any time by the Director of Social Welfare or the Chief Inspector.

(2)Where a permit is revoked under subsection (1), the child discharged on the permit shall return to the child approved centre or child reformatory centre and if the child fails to return to the child approved centre or child reformatory centre, the child shall be apprehended without warrant and taken to the child approved centre or child reformatory centre concerned.

(3)A child who returns to the child approved centre or child reformatory centre in accordance with subsection (2) may be kept in custody in the child approved centre or child reformatory centre for a period not exceeding three months, but may, at any time after the revocation, be placed on permit.

(4)A child discharged on permit forfeits the permit if the child—

(a)escapes from the supervision of a probation officer or other child welfare inspector responsible for that child;

(b)commits an offence; or

(c)breaches a condition of the permit.

(5)A juvenile court or Children's Court may, where a permit is forfeited under subsection (4)—

(a)issue a warrant for the apprehension of the child concerned; and

(b)commit the child to a place of safety or child transit centre until it is convenient for the child to be moved to the child approved centre or child reformatory centre concerned.

(6)Despite section 108, a child released on permit shall return to a child approved centre or child reformatory centre if the person who granted the permit determines that the return is necessary for the protection of the child and, as soon as may be practicable, but not later than three months from the date of return, the child in custody shall again be placed on permit, and no child in these circumstances shall be kept in custody after the expiration of one year’s supervision provided for in section 110.

(7)The time during which a child is absent from a child approved centre or child reformatory centre on permit shall be treated as part of the time of custody at the child approved centre or child reformatory centre.

(8)Where a child fails to return to a child approved centre or child reformatory centre after revocation or forfeiture of a permit, the time which elapses after the failure to return to a child approved centre or child reformatory centre shall be excluded in computing the time of custody at the child approved centre or child reformatory centre.

110. Supervision after expiration of period of custody

(1)A person in charge of a child approved centre or child reformatory centre shall submit a written report to the Director of Social Welfare or Chief Inspector on children kept in custody in a child approved centre or child reformatory centre respectively, including any extended period of custody.

(2)A child shall remain under the supervision of a probation officer for one year from the date of expiration of the custody.

111. Contributions for maintenance of child

(1)Where a juvenile court or Children's Court makes an order for the custody of a child in a child approved centre or child reformatory centre, the juvenile court or Children's Court may further order that the parent, guardian or other person responsible for the child pays a contribution towards the cost of maintaining the child in the child approved centre or child reformatory centre during the period of custody that the juvenile court or Children's Court considers reasonable after due inquiry and having regard to the means of the parent, guardian or other person.

(2)An order made under subsection (1) shall provide for the payment of the contribution at a time and in a manner that the juvenile court or Children's Court may direct, including any period when the child may be on permit or under supervision.

(3)The Director of Social Welfare or Chief Inspector may, where a juvenile court or Children's Court does not make a contribution order, apply to the juvenile court or Children's Court which made the child approved centre order or child reformatory centre order for an order for the payment of the contribution referred to in subsection (1), if it appears to the Director of Social Welfare or the Chief Inspector at any time during the period of the custody that the parent, guardian or person having parental responsibility for the child is able to contribute towards the cost of maintenance of the child in the child approved centre or child reformatory centre.

(4)A person against whom an order to contribute is made under this section may apply for a variation of the order to the juvenile court or Children's Court which made the order.

(5)A juvenile court or Children's Court shall only make an order against a person under this section if it—

(a)gives the person an opportunity to be heard; and

(b)determines that, where the order is made in that person's absence, the person has received notice of the intention to make the order, but failed to attend the proceedings before the juvenile court or Children's Court.

(6)A payment which a person is ordered to make under this section may be recovered from the person as a civil debt.

112. Production of child

(1)A juvenile court or Children's Court shall issue summons requiring a person named in the summons to attend before the juvenile court or Children's Court on a date specified in the summons and produce the child where the juvenile court or Children's Court is satisfied by information on oath that—

(a)a person authorised to convey a child to a child approved centre, child reformatory centre, child transit centre or place of safety does not know the whereabouts of the child to be taken into custody but is aware that another person is able to produce the child; or

(b)there is reasonable ground to believe that a serious offence has been committed by a child and that someone is able to produce the child.

(2)A person who is summoned under subsection (1) and who, without reasonable excuse, fails to attend before the juvenile court or Children’s Court as required in the summons to produce the child commits an offence and is liable, on conviction, to a fine not exceeding fifty thousand penalty units or to imprisonment for a term not exceeding six months, or to both.

113. Expunge of record of finding of guilty and order

(1).A record of finding of guilty and order made in respect of a child shall be expunged after—

(a)a period of five years, where—

(i)a non-residential order was made by the juvenile court or Children's Court;

(ii)the child has complied with the order; and

(iii)the child has not been found guilty of an offence during the five year period; or

(b)a period of ten years, where—

(i)a residential order committing the child to a child approved centre or child reformatory centre has been made by the juvenile court or Children's Court;

(ii)the child has complied with the order; and

(iii)the child has not been found guilty of an offence during the ten year period.

(2)A record of finding of guilty and custodial order made in respect of a child shall not be expunged where the finding of guilty and custodial order was in respect of murder, rape, defilement, indecent assault and aggravated robbery.

114. International reciprocity

(1)The Minister may enter into an agreement with another State or territory on terms and conditions that the Minister may consider just, where a child who has been ordered by a juvenile court or Children's Court under the provisions of this Act to be sent to the child approved centre or child reformatory centre or other institution, or committed to the care of a fit person, may be received into that State or territory and then placed in a child approved centre or child reformatory centre or other institution approved under the relevant legislation of that State or territory or received into the care of, or returned to, the child's parent, guardian, person having parental responsibility for the child or a fit person.

(2)A child who is ordered, under the provisions of this Act, to be placed in a child approved centre or child reformatory centre may, while still subject to that order, by warrant signed by the Minister, be removed from custody of a child approved centre or child reformatory centre into any other State or territory with which an agreement has been concluded under subsection (1), and placed in a child approved centre or child reformatory centre or other institution, or placed in the care of a parent, guardian, person having parental responsibility for the child or fit person in accordance with the law in force in the State or territory authorising such placement, until the expiration of the order or until that child is sooner released according to law.

(3)An order of a court of a State or territory with whom an agreement has been entered into in accordance with subsection (1), which would be lawfully made by a court in the Republic if the person had been within its jurisdiction, shall on the person being received in the Republic, have the same effect and be enforceable as if the order had been made by a juvenile court or Children's Court.

115. Appeal against child approved centre order or child reformatory centre order

(1)A court shall, where an order is made under this Part, explain to a child and a child's parent, guardian or person having parental responsibility for the child, the right to appeal.

(2)A child, child's parent, guardian or person having parental responsibility for the child may lodge an appeal.

(3)Despite subsection (2), where a child objects to an appeal being made by a parent, guardian or person having parental responsibility for the child, the court shall consider the views of the child having regard to the age and maturity of the child concerned.

Part X – Affiliation, status of child, maintence and custody

Division 1 – Affiliation orders

116. Application by child's mother

A court may make an affiliation order on the application of a child's mother at any time after giving birth to a child, or on proof that the biological or putative father of the child has paid money for the child's maintenance.

117. Application by party to void marriage

A court may, on the application of a child's mother who has given birth to a child, make an affiliation order on proof that before the birth, the child's mother was a party to a marriage which would have been valid except for the fact that the child's mother or the other party were under the age at which either party might have legally contracted a marriage.

118. Application by child

A court may, on the application of a child, made through the child's next friend, make an affiliation order, subject to the limitations contained in this Act.

119. Corroboration of evidence

(1)A court shall, on the hearing of an application for an affiliation order, hear—

(a)the evidence of the mother; and

(b)any evidence tendered by or on behalf of the biological or putative father.

(2)A court shall not make an affiliation order unless the evidence of the mother or any other party is corroborated in some material particular by other evidence.

120. Order of unfitness for custody

Where a court makes an affiliation order, it may include in the order that either party to the proceedings is unfit to have the custody of a child.

(2)Where an order is made under this section and the party to whom the order relates is a parent of a child, that party shall not, on the death of the other parent, be entitled as of right to the custody or the guardianship of that child, except with the leave of the court.

(3)A court may vary or discharge an order made under this section or suspend any provision of the order temporarily and revive the operation of any provision so suspended.

Division 2 – Family status of a child

121. Equal status of children

A child born to a mother and father, whether married to each other or not, shall have equal rights and privileges as a child born in a marriage.

122. Presumption of parenthood of child born during marriage

(1)Subject to subsections (2) and (3), a child born to a woman during the woman's marriage, or within ten months after the marriage has been dissolved by death or otherwise, shall, in the absence of evidence to the contrary, be presumed to be the child of that woman and the husband, or former husband.

(2)Subsection (1) shall not apply if, during the whole of the time within which the child must have been conceived, the mother and the husband were living apart under an oral or written agreement for separation, a decree or order of separation, or a decree nisi of divorce made by a competent court or authority in the Republic or elsewhere.

(3)Subsection (1) shall not apply where a child is born after ten months after the dissolution of the marriage by death or otherwise, and after the child's mother has re-married, and there shall be no presumption as between the mother's former husband or the husband of the mother, respectively, that either the former husband or the husband of the mother is the father of the child, and the question shall be determined on a balance of probabilities in each case.

123. Recognition of paternity in case of succession

(1)The relationship of father and child, and any other relationship traced in any degree through that relationship shall, for any purpose related to testate succession to property or to the construction of a will or other testamentary disposition or of an instrument creating a trust, be recognised only if paternity has been admitted by, or established during the lifetime of, the father.

(2)If the purpose of recognition of paternity is for the benefit of the father, there shall be the additional requirement that paternity has been admitted or established during the lifetime of the child or prior to the child's birth.

(3)Where in a matter relating to testate succession to property or to the construction of a will or other testamentary disposition or of an instrument creating a trust, the relationship of father and child is not recognised for that purpose at the time the child is born, the occurrence of any act, event or conduct which enables the relationship of the father and child, and any other relationship traced in any degree through the relationship of the father and child, to be recognised, shall not affect any estate, right or interest in any real or personal property to which any person has become absolutely entitled, whether beneficially or otherwise, before the act, event or conduct occurred.

124. Evidence and proof of paternity

(1)Where, in accordance with the Births and Deaths Registration Act, the name of the father of the child to whom an entry relates has been entered in the register of births, a certified copy of the entry signed by the Registrar-General shall be prima facie evidence that the person named as the father is the father of the child.[Cap. 51]

(2)An instrument signed by the mother of a child and by any person acknowledging that the person is the father of the child shall be prima facie evidence that the person named as the father is the biological or putative father of the child if executed—

(a)as a deed; or

(b)in the presence of a legal practitioner, a magistrate judge, health practitioner, minister of religion or a person authorised to solemnise a marriage.

(3)An affiliation order shall be prima facie evidence of paternity in any subsequent proceedings.

(4)Subject to section 123, a declaration of paternity made by a court shall, unless the contrary is proved, be conclusive proof of the matters contained in it.

(5)An order made in any State outside the Republic declaring a person to be the biological or putative father of a child, being an order to which this Act applies, shall be prima facie evidence that the person declared as the biological or putative father is the father of the child.

(6)The Minister responsible for home affairs may, by statutory order, declare that subsection (5) applies with respect to orders made by a court or public authority in any specified State outside the Republic or by any specified court or public authority in that State.

125. Filing of instruments of acknowledgement

(1)An instrument of acknowledgement of parentage or a duplicate or attested copy of that instrument may be filed in the office of the Registrar-General in the prescribed manner and form on payment of a prescribed fee.

(2)Where a court makes a declaration of paternity under this Act or makes an affiliation order, the Registrar or the clerk of court shall notify the Director of Social Welfare and forward a copy of the declaration or order, as applicable, to the Registrar-General for filing.

126. Use of paternity test

(1)A court may, in any civil proceedings in which the paternity of a child is to be determined, on an application by a party test to the proceedings, issue an order for—

(a)the use of a paternity test to ascertain whether that test shows that a party to the proceedings is, or is not thereby excluded from being, the father of the child in respect of whom the paternity is to be determined; and

(b)the taking of samples within a period specified in the order.

(2)A court may, in the interests of justice, revoke or vary an order previously given by it under this section.

(3)The person responsible for carrying out a paternity test for the purpose of giving effect to an order of a court under this section shall make to the court by which the order was given a report which shall state the results of the test.

127. Consent to taking of samples

(1)Subject to subsection (3), a sample which is required to be taken from a person for the purpose of giving effect to an order by a court under section 126 shall not be taken without that person's consent.

(2)A person shall not unreasonably withhold consent to take samples for the purpose of giving effect to an order by a court.

(3)A court may, where a person whose consent is required under this section unreasonably withholds the consent, on an application being made to the court by a party to the proceedings, order that a sample be taken.

(4)A person seeking to take a sample shall explain, to the person from whom the sample is sought, the consequences of giving the sample.

(5)A sample may be taken from a child who has attained the age of sixteen years with that child's consent.

(6)A sample shall not be taken from a child who is under the age of sixteen years, without the consent of a person who has a care order or a person having parental responsibility for the child.

(7)A sample may be taken from a mental patient who is incapable of understanding the nature and purposes of the test if the person who has the care and control of that person consents and a mental health practitioner has certified that the taking of a sample from the mental patient shall not be prejudicial to the mental patients proper care and treatment.

128. Impersonating another person for purposes of paternity test

(1)A person shall not, with intent to falsify the result of a paternity test—

(a)provide a wrong sample for a test required to give effect to an order by a court;

(b)impersonate a person required to provide a sample to give effect to an order of the court; or

(c)procure another person or a child to take a test, knowing that the person or child is not the person named in the order.

(2)A person who contravenes subsection (1) commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

Division 3 – Maintenance of affiliated children

129. Presumptions regarding maintenance of children

The following presumptions apply with regard to the maintenance of a child, unless a court otherwise directs:

(a)where the parents of a child were married to each other at the time of the birth of the child and are both living, the duty to maintain the child shall be their joint responsibility;

(b)where the mother and father of a child were not married to each other at the time of the birth of the child and have not subsequently married, it shall be the joint responsibility of the mother and father of the child to maintain that child;

(c)where two or more guardians of a child have been appointed, the duty to maintain the child shall be the joint responsibility of the guardians, whether acting in conjunction with the parents of the child or not;

(d)where two or more persons have been granted custody of a child, it shall be the joint responsibility of those persons to maintain the child; and

(e)where an order is made in favour of more than one person in respect of a child, it shall be the duty of those persons to jointly maintain the child.

130. Maintenance of affiliated child

A court may, at the time of making an affiliation order or on subsequent application for a maintenance order, make a maintenance order in respect of the child concerned.

131. Types of maintenance orders

(1)A maintenance order under section 130 may take any of the following forms:

(a)an order that the defendant shall, for the benefit of a child make periodic payments for a specific term; or

(b)an order that the defendant shall, pay to a person or to the child a lump sum for any expenses reasonably incurred for the care of the child at the time the maintenance order is made.

(2)A court may, where it makes an order under subsection (1) for the payment of a lump sum and directs that payment of the lump sum be deferred or paid by instalments, order that the amount deferred or the instalments carry interest at a rate specified by the order from a specified date, not being a date earlier than the date of the order, until the date when payment of the lump sum is effected.

132. Matters for consideration when making maintenance order

(1)A court shall, before making a maintenance order, have regard to the best interests of the child and all the circumstances of the child concerned.

(2)Despite the generality of subsection (1), a court shall have regard to the following matters:

(a)the welfare of the child, including any preliminary expenses, and the financial needs of the child;

(b)the income, earning capacity, property and other financial resources which each interested person has, or is likely to have, in the foreseeable future, including, in the case of earning capacity, any increase in that capacity which it would, in the opinion of the court, be reasonable to expect a person to take steps to acquire;

(c)the financial needs, obligations and responsibilities which each interested party has or is likely to have in the foreseeable future;

(d)the age of the child and of each interested party;

(e)any physical or mental health of the child;

(f)the contributions which each person has made or is likely in the foreseeable future to make to the welfare of the child, including any contribution made or to be made by caring for the child; and

(g)the manner in which the child's parents expect the child to be, educated or trained.

133. Financial provision by step-parent of child

(1)A court may order financial provision to be made by a step-parent of a child who is accepted as a child of the family.

(2)A court shall, in making an order under this section, take into account the following matters:

(a)the income or earning capacity, property and other financial resources which the parties or any other person in whose favour the court proposes to make the order, has or is likely to have in the foreseeable future;

(b)the financial needs, obligations or responsibilities which each party has or is likely to have in the foreseeable future;

(c)the financial needs of the child and the child's current circumstances;

(d)the mental health or medical condition of the child;

(e)the manner in which the child is expected to be educated or trained;

(f)the circumstances of any of the child's siblings who are children of the family;

(g)whether the defendant has assumed responsibility for the maintenance of the child and if so, the extent to which and the basis on which the defendant has assumed that responsibility and the length of the period during which the defendant has met that responsibility;

(h)whether the defendant assumed responsibility for the maintenance of the child knowing the child was not the defendant's child, or knowing that the defendant was not legally married to the mother of the child;

(i)the liability of any other person to maintain the child; and

(j)the liability of that person to maintain other children.

134. Duration of maintenance order

(1)Subject to subsection (3), a maintenance order shall not be made in favour of a person who has attained the age of nineteen.

(2)The term to be specified in any periodic payment or secured periodic payments order in favour of a child may begin on a date specified in the order and shall not extend beyond the date of the child's nineteenth birthday.

(3)Subsections (1) and (2) shall not apply if it appears to a court that—

(a)the child is or shall receive instructions in some profession or vocation, whether or not the child is or shall be in gainful employment;

(b)the person in respect of whom the maintenance order is made is or shall be involved in education and training which shall extend beyond the child's nineteenth birthday;

(c)the child has a disability and requires specialised care which extends beyond the child's nineteenth birthday;

(d)the child is suffering from an illness or ailment which requires medical care extending beyond the child's nineteenth birthday; or

(e)there are special circumstances which justify the making of an order in the best interests of the child.

(4)Subsection (3)(a) and (b) shall not extend beyond the person's twenty-fifth birthday.

(5)A periodic payment order in favour of a child shall, despite anything in the order, cease to have effect on the death of the child in respect of whom the order is made, except in relation to arrears due under the order on the date of the death.

135. Variation or discharge of maintenance order

(1)A court may vary or discharge a

Children’s Code Act, 2022

Related documents

Children’s Code Act, 2022

Act 12 of 2022

Part I – Preliminary provisions

1. Short title

2. Interpretation

3. Best interest of child

4. Principles in achieving children's rights

Part II – The rights and responsibilites of child

5. Right to survival and development

6. Right to expression

7. Prohibition of discrimination against child

8. Right to name and nationality

9. Right to parental care

10. Right to education

11. Right to health care

12. Right to social protection and social services

13. Protection from child labour

14. Protection from armed conflict

15. Child with disability

16. Protection of child on move

17. Protection from maltreatment and other forms of exploitation

18. Protection from female genital mutilation, child marriage, etc.

19. Protection from sexual exploitation

20. Protection from hallucinogens, alcohol, tobacco products, drugs and precursor chemicals

21. Right to leisure and recreation

22. Protection from corporal punishment

23. Protection from torture and deprivation of liberty

24. Right to privacy

25. Rights of child witness or child victim

26. Duties and responsibilities of child

27. Sanction for infringement of rights of child

28. Enforcement of rights of child

Part III – Administration

29. Child Development Department

30. Director of Child Development, child development officers and other staff

31. Functions of Director of Child Development

32. Social Welfare Department

33. Director of Social Welfare, child welfare inspectors and probation officers

34. Functions of Director of Social Welfare

35. Powers of child development officer and child welfare inspector

36. National Coordination Committee for Children

37. Immunity

Part IV – Parental responsibility

38. Parental responsibility

39. Persons with parental responsibility

40. Acquisition of parental responsibility by father

41. Parental responsibility agreement

42. Transmission of parental responsibility

43. Extension of parental responsibility beyond nineteenth birthday

44. Failure to exercise parental responsibility

Part V – Arrest, bail and deprivation of a child's liberty

45. Age of criminal responsibility of child

46. Rights of child during apprehension

47. Apprehension of child

48. Apprehension by person

49. Apprehension and arrest by law enforcement officer

50. Information of arrest of child

51. Issuance of warrant of arrest

52. Notification of reason for arrest or substance of warrant

53. Search of arrested child

54. Caution by law enforcement officer

55. Interview of child

56. Recognisance

57. Custody of child

Part VI – Diversion options

58. Diversion options

59. Conditions for diversion

60. Failure to comply with diversion option

61. Requirements for diversion programme

62. Prohibition of provision of diversion programme without accreditation

63. Application for accreditation of diversion programme

64. Suspension or revocation of accreditation of diversion programme

Part VII – Court proceedings

65. Constitution of juvenile court

66. Jurisdiction of juvenile court

67. Jurisdiction of Children's Court

68. Sittings of juvenile court or Children's Court

69. Prohibition of other courts hearing charge or matter against child