CHILDREN’S PROTECTION AND WELFARE BILL 2004
A Bill
for
An Act to consolidate and reform the laws relating to the protection and welfare of children and to provide for incidental matters.
Enacted by the Parliament of Lesotho.
Short title and commencement
This Act may be cited as Children’s Protection and Welfare Act 2004 and
shall come into operation on the date of its publication in a Gazette.
PART I
INTRODUCTORY PROVISIONS
Objects
1. (1) The objects of this Act are to extend, promote and protect the
rights of children as defined in the 1989 United Nations Convention on the Rights of the Child, the 1990 African Charter on the Rights and Welfare of the Child and other international instruments, protocols, standards and rules on the protection and welfare of children to which Lesotho is signatory.
(2) It is the intention of Parliament that-
(a) this Act should be interpreted purposively and liberally and
applied extensively so as to further the objects of this Act;
(b) any administrative and judicial discretions conferred by this Act and parental rights and responsibilities conferred should be exercised, as far as possible, so as to facilitate and encourage and foster the full enjoyment by the child of the rights conferred; and
c) any criminal sanctions imposed against the child should be strictly rehabilitative and in accordance with the better development of the character of the child and his/her best interests.
(3) This Act must be administered and enforced so as to open up
more avenues for the promotion, protection and realisation of the rights and welfare of children.
(4) Nothing in this Act is intended to prevent, discourage or
displace the application of informal and traditional regimes that are more promotive or protective of the rights of children except where those regimes are contrary to the best interests of children.
(5) Where there is anything to the contrary or less protective or
less promotive in any law, the provisions of this Act shall apply.
Interpretation
2. In this Act, unless the context otherwise requires-
“abuse” in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes-
(a) assaulting a child or inflicting any other form of deliberate injury or harm on a child;
(b) sexually abusing a child;
c) committing an exploitative labour practice in relation to a child;
(d) exposing or subjecting a child to behaviour that may socially, emotionally, physically or psychologically harm the child;
(e) exposing a child to physical or mental neglect; and
(f) abandoning or leaving a child without visible means of support.
“approved school” means a school designated as such under section 191;
“approved school order” means an order made by a Children’s Court requiring a child to be sent to an approved school;
“assessment” means a process of evaluation of a child, by a probation
officer or social worker, on the child’s development and competencies, the
child’s family or home circumstances, the nature and circumstances
surrounding the socioeconomic circumstances of the child or the alleged
commission of an offence and its impact upon the victim, the intention of
the child to acknowledge responsibility for the alleged offence, and any
other relevant circumstances or factors;
“chief” has the meaning assigned to it in the Chieftainship Act 1968[1];
“child” means -
(a) a person under the age of eighteen years;
(b) in relation to criminal proceedings, is a person who has attained the age of criminal responsibility as referred to under section 83.
“children’s court” has the meaning assigned to it under section 137;
“community service” means compulsory work for a community organisation or other compulsory work of value to the community, performed by a child with his/her consent and without remuneration;
“contribution order” means an order made by the Children’s Court for a parent of a child who is send to an institution to contribute financially for the welfare of the child;
“a child with disability” means a child who is affected by any disability of a physical, intellectual, sensory, or mental nature or other disability irrespective of its cause, whether temporary or permanent, to the extent that a child is unable to engage in activities in a normal way and is as a result hampered in his normal functions in certain areas of social life;
“detention” means the deprivation of liberty of a child including confinement in a police cell, lock-up, prison, approved school, probation hostel;
“foster parent’ means a person, not being a parent of a child who undertakes the responsibility of providing for the care, accommodation and upbringing of the child, with or without financial reward;
“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 which is intended to promote a child’s accountability and reintegration into society;
“early intervention services” means social development services which are provided to families with children in order to strengthen and build their capacity and self-reliance to address problems that may or are bound to occur in the family environment.
“family group conference” means a meeting involving the child, his/her parents and family members, the victim of the offence, his/her parents and any other relevant party to find ways to restore the harm and broken relationships caused by the child’s offending;
“guardian” means any person who, in the opinion of the Children’s Court having cognizance of any case in relation to the child or in which the child is concerned, is for a time being in charge of and /or has control over the child;
“household member” means a person who ordinarily resides in the same household as the child;
“inquiry magistrate” means the officer presiding in a preliminary inquiry;
“member of the family” includes a parent or a guardian, or a member of
the extended family, who is a household member;
“minister” means the minister responsible for children’s issues or the minister for the time being charged with the responsibility for that matter;
“person” means a natural person or juristic person;
“place of detention” -
(a) means any place of detention established or appointed under section 183; and
(b) includes accommodation in police station, police cell or lock-up, prison, approved school, probation hostel, separate or apart from adult offenders;
“place of safety” means any institution designated for the care and protection of children, foster home or any other suitable place the occupier of which is willing temporarily to receive a child;
“police officer” has the same meaning as in the Police Service Act 1998[2];
“preliminary inquiry” means the compulsory procedure which takes place before charges are instituted in relation to the alleged offence and which is held in all cases involving a child over the minimum age of criminal responsibility, where diversion, conversion to a Children’s Court inquiry or a decision to decline to charge the child has not yet been taken in accordance with this Act;
“probationer” means a child for the time being under supervision by virtue of a probation order;
“probation hostel” means a hostel established or appointed as a place of residence for children required to reside there under section 187;
“probation officer” means a person who holds a qualification recognised by the responsible Minister and includes auxiliary probation officer and shall by virtue of such status be an officer of court.
“probation period” means the period in which a probationer is placed under supervision by a probation order;
“recognisance” means a communication to the child by a police officer or social worker to appear at assessment on a specified date and at a specified place and time, or by a magistrate to appear at a preliminary inquiry or at a Children’s Court;
“sentence involving residential element” means a sentence referred to under section 162 (3) or a programme referred to under section 162 where part of that sentence or programme involves compulsory residence in a residential facility or a place other than the child’s home.
“ social worker” means a person who holds a qualification recognised by the National Council of Social Workers and includes auxiliary social workers and shall by virtue of such status be an officer of court.
“trafficking” means the recruitment, transportation, transfer, sale, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation.
PART II
RIGHTS OF THE CHILD AND RESPONSIBILITIES OF PARENTS AND THE STATE
The best interests of the child
3. (1) All actions concerning the child shall take full account of his or her
best interests.
(2) The best interests of the child shall be the primary consideration for
all courts, persons, including parents, institutions or other bodies in any matter concerning a child.
Evolving Capacity
4. (1) All actions concerning a child shall take full account of his or her evolving capacities.
Non-discrimination
5. A child shall not be discriminated against on the grounds of gender, race, age, religion, disability, health status, custom, ethnic origin, rural or urban background, birth, socio-economic status, refugee status or other status.
Right to name and nationality
6. A child has a right from birth to a decent name and to acquire nationality.
Right to birth registration and citizenship
7. A child has a right to be registered within three months of birth whether a child is born alive or still born.
Right of orphaned and vulnerable children to registration
8. (1) Orphaned and vulnerable children shall have a right to vital registration.
(2) The Department responsible for births and deaths registration shall maintain and administer a systematic and comprehensive desegregated, quantitative and qualitative data in relation to all groups of orphaned and vulnerable children.
(3) The Bureau of Statistics shall put in place mechanisms and strategies for the collection, analysis and dissemination of data in respect of orphaned and vulnerable children.
Right to knowledge of and grow with parents and in family environment
9. A child has a right to know and live with his/her parents and family and grow up in a caring and peaceful environment unless it is proved in court that living with his/her parents would-
(a) lead to significant harm to the child; or
(b) subject the child to abuse and neglect; or
c) not be in the best interests of the child.
Right to education and Health
10. (1) A child has a right to access education, preventive health services, adequate diet, clothing, shelter, medical attention, social services or any other service required for the child’s development.
(2) A child shall not be denied or hindered from medical treatment by reason of religious or other beliefs.
(3) A child has a right to education regardless of the type or severity of the disability he/she may have.
(4) No child shall be expelled or denied the right to education by any education institute on account of pregnancy, circumcision, initiation, or other cultural rituals.
Right to social activity
11. A child shall not be deprived or hindered to participate in sports, or in positive cultural and artistic activities or other leisure activities except where it is not in the best interests of the child.
Rights of children with disabilities
12. A child with disability has a right to special care, medical treatment, rehabilitation, family and personal integrity, sports and recreation, education, and training to help him / her enjoy a full and decent life in dignity and achieve the greatest degree of self-reliance and social integration possible.
Right of opinion
13. (1) A child has the right to express his / her opinion freely and to have that opinion taken into account in any matter or procedure affecting the child.
(2) The opinion of the child shall be given due weight in accordance with the age and maturity of the child.
Right to protection from exploitative labour
14. A child has a right to be protected from exploitative labour as provided for under section 233 of this Act and other international instruments on child labour.
Right to protection from torture and degrading treatment
15. (1) A child shall have the right to be protected from torture or other cruel, inhumane or degrading treatment or punishment including any cultural practice which dehumanises or is injurious to the physical, psychological, emotional and mental well-being of a child.
(2) A child shall be chastised in accordance with his/her age, physical, psychological, emotional and mental condition and no discipline is justifiable if by reason of tender age or otherwise the child is incapable of understanding the purpose of the discipline.
Right to refuse betrothal, marriage and other harmful cultural rites
16. A child has a right to refuse to be -
(a) betrothed;
(b) the subject of a dowry transaction;
c) married;
(d) circumcised, abducted or be subjected to other cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, welfare, dignity or physical, emotional, psychological, mental and intellectual development.
Right to be protected from harmful substances
17. A child has a right to be protected from the use of hallucinogens, narcotics, alcohol, tobacco products or psycho- tropic drugs and any other substances declared harmful and from being involved in their production, trafficking or distribution.
Right to parental property
18. A child has a right to a reasonable provision out of the estate of a parent whether or not born in wedlock or orphaned.
Parents’ and guardians’ duties and responsibilities
19. (1) A parent or guardian, whether -
(a) married or not; or
(b) the parents of the child continue to live together or not,
shall not deprive a child of his / her welfare.
(2) Parent(s) or guardian(s) have responsibilities whether imposed by law or otherwise towards the child which include the responsibility to-
(a) protect the child from neglect, discrimination, violence, abuse, exploitation, exposure to physical and moral hazards and oppression;
(b) provide good guidance, care, assistance and maintenance for the child to ensure his / her survival and development;
c) ensure that during temporary absence, the child shall be cared for by a competent person;
(d) exercise joint primary responsibility for raising the children, except where the parent or guardian has surrendered his/her rights and responsibilities in accordance with the law.
(3) A parent or guardian shall be responsible for the registration of the birth of his or her children and the name(s) of the parent(s) or guardian shall appear on the birth certificate.
(4) Where a parent or guardian is unknown , the relevant institution shall cause the registration of birth of the such a child.
Penalty
20. Any person who contravenes a provision of section 19 commits an offence and on conviction to community service and the court shall direct the offending party to register the child.
Children’s duties and responsibilities
21. In the application of the provisions of this Act, a child shall have due regard to his / her duties and responsibilities to -
(a) respect the parents, guardians, superiors and elders at all times and assist them in cases of need;
(b) serve the community by placing physical and intellectual abilities at its service;
(c) preserve and strengthen social and national solidarity; and
(d) uphold the positive values of the community in the child’s relations with other members of that community:
provided that due regard is paid to the age and ability of such child and to such limitations as are contained in this Act.
State duties and responsibilities
22. The state has a duty to -
(a) protect children from any form of discrimination and to take positive action to promote their rights;
(b) provide appropriate assistance for raising children when parents, or others charged with that responsibility, fail to do so;
c) ensure the child’s survival and development;
(d) take action to raise awareness in society about children with disabilities, their rights, their needs, their potential and their contribution;
(e) ensure the provision of rehabilitation services including community based rehabilitation, support services including assistive devices, equal education opportunities in an integrated setting, full participation in family life, equal opportunities in recreation and sports for children with disabilities;
(f) respect the child’s right to freedom of thought, conscience and religion, subject to appropriate parental guidance;
(g) ensure the accessibility to children of information and materials from a diversity of sources, and it shall encourage the mass media to disseminate information which is social and cultural benefit to the child, and take steps to protect him / her from harmful information and material;
(h) protect the child from all forms of maltreatment by parents or others responsible for the care of the child and establish appropriate social programmes for the prevention of abuse and the treatment of the victims;
(I) provide special protection for a child deprived of family environment and ensure that appropriate alternative family care or institutional placement is available in such cases;
(j) place special emphasis on the provision of primary and preventive health care, public health education, reduction of infant mortality and ensure that no child is deprived of access to effective health services;
(k) ensure that primary education is free and compulsory, make different forms of secondary education accessible, make higher education available on the basis of capacity and that school discipline is consistent with the child’s rights and dignity;
(l) set minimum ages for employment and regulate working conditions;
(m) protect children from sexual exploitation and abuse, including commercial sex and involvement in pornography;
(n) make every effort to prevent the sale, trafficking and abduction of children;
(o) ensure that children do not take part in hostilities; that children are not recruited into armed forces and ensure the protection and care of children who are affected by armed conflict;
(p) ensure that child victims of armed conflicts, torture, neglect, maltreatment or exploitation receive appropriate treatment for their recovery and social reintegration; and
(q) ensure that every child alleged as, or recognised as having infringed the penal law is treated in a manner consistent with his or hers sense of dignity or worth and that he or she is reintegrated into society.
PART III
CHILD IN NEED OF CARE AND PROTECTION
Child in need of care and protection
23. (1) A child is in need of care and protection if -
(a) a child has been or there is substantial risk that the child will be physically, psychologically or emotionally injured or sexually abused by the parent or guardian or a member of the extended family or any other person;
(b) the child has been or there is substantial risk that the child will be physically injured or emotionally injured or sexually abused and the parent or guardian or any other person, knowing of such injury or abuse or risk, has not protected or is unlikely to protect the child from such injury or abuse;
c) the parent or guardian of the child is unfit, disabled or has neglected, or is unable, to exercise proper supervision and control over the child and the child is falling into bad association;
(d) the parent or guardian of the child has neglected or is unwilling to provide for the child’s adequate care, food, clothing and shelter, education and health;
(e) the child -
(i) has no parent or guardian; or
(ii) has been abandoned by the parent(s) or guardian(s) and after reasonable inquiries the parent(s) or guardian(s) cannot be found, and no other suitable person is willing and able to care for the child;
(f) the child needs to be examined, investigated or treated-
(i) for the purpose of restoring or preserving the child’s health; and
(ii) the parent(s) or guardian(s) neglects or refuses to have the child so examined, investigated or treated;
(g) the child behaves in a manner that is, or is likely to be, harmful to himself/herself or to any other person and the parent(s) or guardian(s) is unable or unwilling to take necessary measures to remedy the situation or the remedial measures taken by the parent(s) or guardian(s) fail and as result the child cannot be controlled by his/her parent(s) or guardian (s);
(h) there is such a conflict between the child and the parent(s) or guardian(s), or between the parent(s) or guardian(s), that family relationships are seriously disrupted, thereby causing the child emotional injury;
i) the child is in the custody of a person who has been convicted of committing an offence in connection with that child;
(j) the child frequents the company of any immoral or vicious person, or is living in circumstances calculated to cause or induce his/her seduction, corruption or prostitution;
(k) the child is caused to be on any street, premises or place for the purpose of -
(i) begging or receiving alms, whether or not there is any
pretence of singing, playing, performing or offering anything for sale and as a result the child becomes a habitual beggar;
(ii) carrying out illegal hawking, illegal lotteries, gambling or other illegal activities detrimental to the health and welfare or retard the educational advancement of the child.
(l) the child is affected or infected by HIV/ AIDS and other life threatening conditions;
(m) the child cannot be controlled by his / her parent (s) or guardian (s) or the person (s) in whose custody he / she is; and
(n) the child is below the age of fifteen years and is engaged in regular economic activity detrimental to his/her health, educational advancement and development.
(2) For the purposes of this Part, a child is -
(a) physically injured if there is injury to any part of the child’s body as a result of the non-accidental application of force or an agent to the child’s body that is evidenced by, amongst other things, a laceration, a contusion, an abrasion, a scar, a fracture or other bone injury, a dislocation, a sprain, a haemorrhaging, the rupture or a viscus, a burn, a scald, the loss or alteration or consciousness or physiological functioning or the loss of hair or teeth;
(b) emotionally and psychologically injured if there is impairment of the child’s mental or emotional functioning that is evidenced by, among other things, a mental or behavioural disorder, including anxiety, depression, withdrawal, aggression or delayed development;
c) sexually abused if he or she has taken part, whether as a participant or an observer, in any activity which is sexual in nature for the purposes of -
(I) any pornographic, obscene or indecent material, photograph, recording, film, videotape or performance; or
(ii) sexual exploitation by any person for that person’s or other person’s sexual gratification or for commercial gain.
Taking child into place of safety
24. Any police officer, social worker, chief or any member of the community who is satisfied on reasonable grounds that a child is in need of care and protection may take a child and place the child into places of safety.
Presentation before Children’s Court
25. (1) Subject to section 26, a child who is taken into a place of safety under section 24 shall be brought before a Children’s Court within forty- eight hours exclusive of the time necessary for the journey from the place the child was so taken into custody to the Children’s Court.
(2) If it is not possible to bring a child before a Children’s Court within the time specified under subsection (1), the child shall be brought before a magistrate who may direct that the child be placed in -
(a) a place of safety; or
(b) the care of a fit and proper person,
until such time as the child can be brought before Children’s Court.
(3) If a child is in a place of safety or in the care of a fit and proper person under subsection (2) -
(a) the person in charge of the place of safety or such fit and proper person shall have the like control over, and responsibility for the maintenance of the child as the parent or guardian of the child would have had; and
(b) the child shall continue in the care of the person referred to in paragraph (a) notwithstanding that the child is claimed by the parent or guardian or any other person.
(4) A social worker, police officer, chief or any member of the community who takes a child into a place of safety under this section shall, immediately upon such taking, cause the parent or guardian of the child to be notified of such taking.
(5) A police officer, chief or any member of the community who takes a child into temporary care under this section shall, immediately upon such taking, notify the social worker of such taking.
Child in need of medical examination or treatment
26. (1) If a social worker, police officer, chief or any member of the community who takes a child into a place of safety under section 24 is of the opinion that the child is in need of medical examination or treatment, the social worker, police officer, chief or any member of the community may, instead of bringing the child before the Children’s Court or magistrate, as the case may be, present the child before a medical officer.
(2) If a social worker, police officer or chief does not take a child into a place of safety under section 24 but is satisfied on reasonable grounds that the child is in need of medical examination or treatment, he/she may direct in writing the person who appears to him/her to have the care of the child for the time being to immediately take a child to a medical officer.
(3) If the person referred to under subsection (2) fails to comply within forty-eight hours with a direction made under that subsection, a social worker, police officer or chief may take the child into temporary care for the purpose of presenting the child before a medical officer.
Medical examination and treatment
27. (1) A medical officer before whom a child is presented under section 26 (1) or (3) -
(a) shall conduct or cause to be conducted an examination of the child;
(b) may, in examining the child and if so authorised by a social worker or police officer, administer or cause to be administered such procedures and tests as may be necessary to diagnose the child’s condition;
(c) may provide or cause to be provided such treatment as the medical officer considers necessary as a result of the diagnosis.
(2) The child who is presented before a medical officer under subsection (1) shall be exempted from medical fees with the authority of a social worker.
Authorisation of hospitalisation
28. (1) If the medical officer who examines a child under section 26 is of
the opinion that the hospitalisation of the child is necessary for the purposes of medical care or treatment, a social worker or police officer may authorise the child to be hospitalised.
(2) Where a police officer authorises the child to be hospitalised, he or she shall inform a social worker where an exemption for medical expenses is necessary.
Control over hospitalised children
29. If a child is hospitalised under section 28, the Director of Social Welfare shall have the same control over, and responsibility for the maintenance of, that child as the person in charge of a place of safety would have had if a child had been placed in that place of safety.
Authorisation of medical treatment
30. (1) If, in the opinion of the medical officer, the child referred to under section 26 requires treatment for a minor illness, injury or condition, a social worker or police officer may authorise such treatment.
(2) If, in opinion of the medical officer, the child referred to in section 26 is suffering from a serious illness, injury or condition or requires surgery or psychiatric treatment, a social worker or police officer -
(a) shall immediately notify or take reasonable steps to notify and consult the parent(s) or guardian (s) of the child or any person (s) having authority to consent to such treatment; and
b) may, with the written consent of the parent(s) or guardian(s) or such person, authorise such medical or surgical or psychiatric treatment as may be considered necessary by a medical officer.
(3) If a medical officer has certified in writing that there is immediate risk to the health of a child, a social worker or police officer may authorise, without obtaining the consent referred to in subsection (2), such medical or surgical or psychiatric treatment as may be considered necessary by the medical officer but only under any of the following circumstances -
(a) that the parent or guardian of the child or any person having authority to consent to such treatment has unreasonably refused to give, or abstained from giving, consent to such treatment;
(b) that the parent or guardian or the person referred to in paragraph (a) is not available or cannot be found within a reasonable time; or
a) the social worker believes on reasonable grounds that the parent or guardian or the person referred to in paragraph (a) has ill-treated, neglected, abandoned or exposed, or sexually abused, the child.
Steps to be taken after medical examination or treatment
31. (1) A child who is taken into a place of safety under section 24 and is medically examined or treated under section 27 shall be brought before Children’s Court within forty- eight hours -
(a) of the completion of such examination or treatment; or
(b) if the child is hospitalised, on his/her discharge from the hospital.
(2) If it is not possible to bring the child before a Children’s Court within the time specified in subsection (1), the child shall be brought before a magistrate who may direct that the child be placed in -
a) a place of safety; or
b) the care of a fit and proper person,
until such time as the child can be brought before Children’s Court.
(3) A child who -
(a) is taken into care under section 25 (3); and
(b) subsequently undergoes medical examination or treatment,
shall be returned to the person from whose care the child was taken -
(I) upon the completion of such examination or treatment; or
(ii) if the child is hospitalised, upon discharge from the hospital.
No liability incurred for giving authorisation
32. (1) If a child is examined or treated pursuant to section 27 or 30 -
(a) the social worker or police officer who authorises such examination or treatment;
b) the medical officer who examines or treats the child; and
c) all persons acting in aid of the medical officer,
shall not incur any civil or criminal liability at law by reason only that a child is examined or treated pursuant to that section.
2) Nothing contained in subsection (1) relieves a medical officer from liability in respect of any negligent medical examination or treatment of a child.
Duty of medical officer
33. (1) If a medical officer believes on reasonable grounds that a child he/she is examining or treating is physically, psychologically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, he/she shall immediately inform a social worker or police officer.
(2) Any medical officer who fails to comply with subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding ten thousand maloti or to imprisonment to a term not less than six months or to both.
Duty of member of the family
34. (1) If any member of the family of a child believes on reasonable grounds that the child is physically, psychologically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, he/she shall immediately inform a social worker.
2) Any member of the family who fails to comply with subsection (1) commits an offence and shall on conviction be released on a binding agreement on conditions to be determined by the court.
Duty of child care provider
35. (1) If a child care provider believes on reasonable grounds that a child
is physically, psychologically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, he/she shall inform a social worker or the police officer.
2) Any child care provider who fails to comply with subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding five thousand maloti or to imprisonment for a term not exceeding three months or to both.
Duty of member of the community
36. (1) If any member of the community believes on reasonable grounds that the child is physically, psychologically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, he or she shall immediately inform a chief, police or social worker.
(2) Any member of the community who fails to comply with the subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding three thousand Maloti or to imprisonment for a term not exceeding two months or to both.
Functions of Children’s Court in cases of children in need of care
37. (1) If a Children’s Court established under section 137 is satisfied that any child brought before the Children’s Court under section 25 or 31 is a child in need of care and protection, a Children’s Court may -
a) order the parent(s) or guardian(s) to enter into a binding agreement to exercise proper care and guardianship for a period specified by a Children’s Court;
b) make an order placing the child in the custody of a fit and proper person for a period specified by Children’s Court;
c) without making any other order or in addition to an order made under paragraph (a) or (b), make an order placing the child under the supervision of -
(i) a social worker; or
(ii) some other person appointed for the purpose by the Children’s Court, for a period specified by the Children’s Court;
(d) make an order placing the child in a place of safety for a period of two years from the date of the order or until he/she attains the age of eighteen years, whichever is the shorter; or
(e) in the case of a child who has no parent or guardian or who has been abandoned, make an order placing the child in the care, custody and guardianship of a foster parent found to be suitable by the Director of Social Welfare for a period of two years or until the child attains the age of eighteen years, whichever is the shorter, and pending that, place the child in a place of safety.
2) If the Children’s Court makes an order under subsection (1) (e), the Director of Social Welfare shall, in order to give effect to the order, immediately endeavour to place the child in the care, custody and control of foster parent.
3) If at any subsequent time the foster parent intends to return the child who has been placed in his care, custody and guardianship under subsection (1) (e), he/she shall report in person to the social worker and bring the child before the social worker, and the social worker shall place the child temporarily in a place of safety and inform the Children’s Court.
4) If during the period mentioned under subsection (1) (e) the parent or guardian of the child concerned has not claimed the child or made any appearance, the Children’s Court may -
(a) at the expiry of that period; and
(b) if the Children’s Court is satisfied that reasonable steps have been taken by the social worker to trace the parent or guardian of the child,
make an order placing the child for adoption by the foster parent or any person who wishes to adopt the child, and in any such case, the parent’s or guardian’s consent for the adoption of the child shall be dispensed with.
5) Before making an order under subsection (1) or (4), the Children’s Court shall consider and take into account a report prepared by the social worker which -
(a) shall contain such information as to the social background, general conduct, home surrounding, school record and medical history of a child as may enable the Children’s Court to deal with the case in the best interests of the child; and
b) may include any written report of a registered medical practitioner or any other person whom the court thinks fit to provide a report on the child.
(6) In order to enable a social worker to prepare and submit the report referred to in subsection (6), the Children’s Court may -
(a) adjourn the case for a period not exceeding two months; and
(b) make in respect of the child, as an interim order having effect only during the period of adjournment, any order which the Children’s Court could have made under subsection (1).
(7) A Children’s Court may, in making any order under subsection (1), impose such conditions or give such directions as the Children’s Court may deem fit for the purpose of ensuring the safety and well-being of the child in respect of whom such order is made, and such conditions or directions may include the following -
(a) that the parent or guardian of the child accompanied by the child shall attend interactive workshops organised at designated places;
(b) if the child is placed at a place of safety, the social worker shall accompany the parent or guardian for the first visit to see the child and thereafter the parent or guardian shall visit the child on a regular basis as determined by the Children’s Court; or
(c) if the child is in an educational institution, that the parent or guardian shall consult with the child’s teacher and principal once a month.
(8) Any parent or guardian who fails to comply with any of the conditions imposed or directions given under subsection (7) commits an offence and shall on conviction be liable to a fine not exceeding twenty five thousand maloti or to imprisonment for a period not exceeding two years or to both.
(9) An order under subsection (1) shall not be made without giving the child, parent or guardian of the child an opportunity to attend the proceedings and be heard.
(10) Notwithstanding subsection (9), an order under subsection (1) may be made if the Children’s Court is satisfied on information given by a social worker that the parent or guardian of the child, having been required to attend, has failed to do so, or is not available or cannot be found within a reasonable time.
(11) If the Children’s Court is not satisfied that a child brought before it under subsection (5) or (10) is in need of care and protection, the Children’s Court shall order the child to be returned to the care and custody of his/her parent or guardian with close monitoring by the social worker.
(12) The Children’s Court may, on the application of -
(a) a social worker;
(b) the person in charge of a place of safety;
(c) the parent or guardian of a child;
(d) the child; or
(e) any person who has information,
amend, vary or revoke any order made under this section -
(I) if the Children’s Court is satisfied that it is in the best interests of the child to do so; or
(ii) upon proof that the circumstances under which the order was made have since changed after the making of the order.
PART IV
ADMINISTRATION OF PROPERTY OF CHILDREN BY OFFICE OF THE MASTER OF HIGH COURT
Reporting of estate to the office of the Master of the High Court
38. Where a parent is survived by minor children, the surviving parent, guardian, closest relative, or any member of the community shall report the estate to the office of the Master of the High Court within two months after the death of the parent.
Seeking permission of the office of the Master of High Court for alienation, disposal off or sale of children’s property
39. (1) A surviving parent, guardian, closest relative or any member of the community shall seek permission of the office of the Master of the High Court when alienating, disposing off or selling children’s property.
(2) A surviving parent, guardian , closest relative or any member of the community who fails to comply with the provisions of this section, commits an offence and shall on conviction be liable to a fine not exceeding ten thousand maloti or to imprisonment for a term not exceeding five years.
Duties of the office of the Master of the High Court
40. The office of the Master of the High Court shall-
(a) in administering the child/ children’s share of parental property, ensure that the best interests of the child/ children are met.
(b) where the assets of the estate are being alienated, disposed off or
sold, ensure that permission has been granted and the children are not left destitute and/or homeless.
c) have power to administer and confiscate property belonging to children and to delegate such powers to any person or institution.
(d) where the office of the Master of the High Court discovers that the property belonging to children has been negligently used by the successful heir or any person , request the concerned person to pay that property failing which the Office of the Master of the High Court shall make an application to court for such a person to pay that property or writ of execution has to be issued by the court.
(e) where parents married in community of property desert, neglect or abandon children, hear evidence to determine the contribution of the surviving spouse towards maintenance of such children.
(f) where the surviving spouse is found not to have made any contribution under paragraph (e)-
(I) give to such spouse a child’s share only;
(ii) exercise discretion to award any amount of money depending on the circumstances of the case; or
(iii) divide the half share of the abandoning spouse between his/her children.
(g) have power to invest the money brought to his/her office with any financial institution.
Duties of the District secretary in the administration of the property of children
41. The District Secretary before whom the successful heir(s) is
presented shall -
(a) make sure that the names of minor children of the deceased appear in all the documents; and
(b) liaise with the office of the Master of the High Court.
Duty of employer in relation to property belonging to children
42. (1) It shall be the duty of any employer, after the death of his/her employee who has minor children, to send all the property to the office of the Master of the High Court who will administer and invest such property where necessary.
(2) An employer who fails to comply with the provisions of this section, commits an offence and shall on conviction be liable to a fine not exceeding twenty thousand Maloti or to imprisonment for a term not exceeding ten years.
Duties of the financial institutions
43. (1) No financial institution shall open and operate any account in respect of an orphaned child without prior consent of the Master of the High Court.
(2) Any financial institution which contravenes the provisions of this section commits an offence and shall on conviction be liable to a fine not exceeding ten thousand Maloti.
PART V
OFFENCES IN RELATION TO HEALTH AND WELFARE OF
CHILDREN
Ill-treatment, neglect, abandonment or exposure of children to abuse
44. (1) Any person who, being a person having the care of a child -
(a) abuses, neglects, abandons or exposes the child in a manner likely to cause the child physical, psychological or emotional injury or causes or permits the child to be so abused, neglected, abandoned or exposed; or
(b) contravenes any provisions of the sexual offences Act ,2004;
commits an offence and shall on conviction be liable under-
(I) subparagraph (a) to a community based sanction or to imprisonment for a term not less than five years; or
(ii) penalties under the Sexual Offenses Act .
2) The Children’s Court -
(a) may, in addition to any punishment specified in subsection (1) (a), order the person convicted of an offence under that subsection to enter into a binding agreement with sureties to be of good behaviour for such period as the court thinks fit; and
(b) may include in the binding agreement under paragraph (a) such conditions as the court thinks fit.
(3) If a person who is ordered to execute a binding agreement to be of good behaviour under subsection (2) fails to comply with any of the conditions of such bond, he/she shall be liable to a further term of imprisonment not exceeding five years.
(4) A parent or guardian or other person legally obliged to maintain a child shall be deemed to have neglected the child in a manner likely to cause the child physical, psychological or emotional injury if, being able to so provide from his/her own resources, he/she fails to provide adequate food, clothing, medical treatment, lodging, care, guidance and protection to the child.
Children not to be used for begging
45. Any person who causes or procures any child or, being a person having the care of a child, allows that child to be on any street, premises or place for the purposes of -
(a) begging, receiving alms, whether or not there is any pretence of singing, playing, performing or offering anything for sale; or
(b) carrying out illegal hawking, lotteries, gambling or other illegal activities detrimental to the health, welfare and educational advancement of the child, commits an offence and shall on conviction be liable to a fine not exceeding ten thousand maloti or to imprisonment for a term not exceeding two years or to both.
Leaving a child without supervision and care
46. Any person who, being a parent or guardian or a person for the time being having the care of a child, leaves that child -
(a) without making provision for the supervision and care of the child;
(b) for a period which is unreasonable having regard to all the circumstances; or
c) under conditions which are unreasonable having regard to all the circumstances,
commits an offence and shall on conviction be liable to a community based sanction or to a fine not exceeding five thousand Maloti or to imprisonment for a term not exceeding two years or to both.
PART VI
CONDITIONS FOR TAKING A CHILD INTO CARE
Conditions for taking a child into care
47. (1) If a person takes a child into his/her care or guardianship -
(a) that person; and
(b) the person in whose care the child was at the time of such taking, shall, not later than one week thereafter, notify the chief or social worker of such taking.
(2) On receiving any notification under subsection (1), the social worker shall make such inquiry as he/she thinks fit as to -
(a) the circumstances and the reasons for the taking; and
(b) the suitability for that purpose of the person who has taken the child into his/her care or guardianship.
(3) If, after the inquiry referred to under subsection (2), the social worker deems it expedient to do so in the best interest of the child, he/she may either -
(a) order that the child be returned to the care of his/her parent or guardian or the person in whose care, the child was at the time of taking; or
(b) permit the taking of the child on such terms and conditions as the social worker may require.
(4) If the taking of a child by any person has been permitted under subsection (3) (b) subject to any term or condition and default is made in complying with such term or condition, the social worker may by warrant under his/her hand order that the child -
(a) be taken out of the care or guardianship of such person; or
(b) be placed in a place of safety or under the guardianship of a relative or other fit and proper person on such terms and conditions as the social worker may require until the child attains the age of eighteen years or for the shorter period.
(5) For the purposes of this section, a “person” includes informal, formal and traditional structures -
(a) not maintained by government; or
(b) not formally established for purposes of care.
(6) A social worker shall, on receiving any notification under this section, record the particulars of such notification in a register in such form as may be prescribed.
(7) Any person who fails to comply with subsection (1) commits an offence and shall on conviction be liable to a community based sanction or a fine not exceeding ten thousand Maloti or to imprisonment for a term not exceeding five years or to both.
Application
48. (1) The provisions of this Part shall not apply to the taking of a child -
(a) into the care or guardianship of any person-
(i) in accordance with an order of court; or
(ii) by any social worker or police officer acting under this Act;
(b) who is in a place of safety or an orphanage, institution or centre -
(i) maintained by government; or
(ii) approved by the Minister;
(c) as a boarder at an educational institution; and
(d) who is regularly attending an educational institution into the care of a friend or relative of the parent or guardian with the consent of the parent or guardian.
(2) For the purposes of this Part, a “guardian” of a child means -
(a) a person lawfully appointed by a will or any other legal document of a similar nature or by the order of a court to be the guardian of the child;
(b) a person who has lawfully adopted the child; or
c) a relative who has been formally elected and left with up-bringing of orphaned children and any other children left by parents for various reasons.
Subsequent obligations
49. (1) If the taking of a child has been notified to and permitted by a social worker under section 47, the person who has taken the child shall, if at any subsequent time -
(a) he intends to return the child to the care, custody or control of the parent or guardian of the child or any other person from whom the child was taken; or
(b) without his knowledge or consent, the child has left his care, custody or control, report in person to the social worker and shall, whenever practicable, bring or cause to be brought before the social worker the child and the parent or guardian of the child or any other person from whom the child was taken.
(2) On receiving a report under subsection (1), the social worker shall make a note of the report and shall if -
(a) the child and the parent or guardian of the child or any other person from whom the child was taken are present at the time such report is received, return the child to the parent or guardian or such person, as the case may be; or
(b) the parent or guardian of the child or any other person from whom the child was taken is not present at the time such report is received -
(i) take the child into temporary care until the child can be returned to the parent or guardian or such person; and
(ii) immediately send written information to the last known place of residence of the parent or guardian or such person.
Presentation of child before social worker
50. (1) If a social worker or any other designated person such as chiefs has reason to believe that there is, within the area of his/her jurisdiction, a child in respect of whose taking no notification has been made pursuant to section 47, he/she may, by written notice or summons under his/her hand addressed to the person who has or is believed to have the care or guardianship of the child, require that person to appear and to present the child before him/her at the time and place specified in the written notice or summons for the purposes of an inquiry under subsection (4).
2) If a person to whom a written notice or summons has been served under subsection (1) fails to present a child at the time and place specified in the written notice, the social worker or any other designated person charged with similar responsibility may apply to a magistrate for a search warrant to search for the child and to produce the child before the social worker.
(3) Any child named or described in such warrant may be temporarily-
(a) placed in a place of safety; or
(b) placed in the care of a relative or other fit and proper person on such terms and conditions as the social worker may require,
until the social worker has completed his/her inquiry under this Part.
(4) A social worker shall make such inquiry as he/she thinks fit as to -
(a) the circumstances and the reasons for the taking of the child referred to in subsection (1); and
(b) the suitability of the person who has taken the child into his/her care or guardianship.
(5) If, after the inquiry mentioned under subsection (4), the social worker deems it expedient in the best interests of the child, he/she may -
(a) order that the child be returned to the care of the parent or guardian or the person in whose care the child was at the time of such taking; or
(b) permit the taking of the child on such terms and conditions as the social worker may require.
(6) If the taking of a child by any person has been permitted under subsection (5) (b) subject to any term or condition and default is made in complying with such term or condition, the social worker may by warrant under his/her hand order that the child -
(a) be taken out of the care or guardianship of such person; and
(b) be placed in a place of safety or in the care of a relative or other fit and proper person on such terms and conditions as the social worker may require until the child attains the age of eighteen years or for any shorter period.
PART VII
FOSTERAGE AND ADOPTION
Person who can foster or adopt
51. (1) Any person above the age of twenty-five years of good behaviour, proven integrity, sufficient means of livelihood and with no criminal record may be a foster or adoptive parent to a child.
(2) Any person who is a relative of a child who meets the conditions specified under subsection (1) and is at least nineteen years can foster a child.
Establishment of foster care placement and adoption committee
52. The Minister shall establish, under the Department of Social Welfare, district committees for foster care placement and adoption.
Membership of foster care placement and adoption committee
53. The foster care placement and adoption committee shall consists of a -
(a) the District secretary who shall be the Chairperson;
(b) social worker who shall be the secretary;
©) probation officer;
(d) a representative of the Non-governmental Organisations;
e) two other people from the community with interest in the welfare of children selected by the Department of Social Welfare; and
(f) a representative of Child Protection and Gender Unit of the police.
Duties of foster care placement and adoption committee
54. The foster care placement and adoption committee shall screen applications of potential foster and adoptive parents and monitor the situation of children under foster care or adoption.
Meetings of foster care placement and adoption committee
55. Members of the foster care placement and adoption committee shall meet as and when there are applications of potential foster and adoptive parents to screen.
Application to foster or adopt a child
56. An application to foster or adopt a child shall be made to the Director of Social Welfare or the designated social worker at district level.
Parental rights and responsibilities of foster parent
57. A foster parent in whose care a child is placed shall have the same rights and responsibilities in respect of the child’s care and guardianship as the parent of the child while the child remains in his/her care.
Duties of the Department of Social Welfare
58. (1) The Department of Social Welfare shall facilitate assessment of the potential foster and adoptive parents and the conditions surrounding the child to be fostered or adopted.
(2) In the case of adoption, after the assessment referred to under subsection (1), the Department of Social Welfare shall present an application in respect of the child to the High Court.
Application for adoption
59. (1) An application for an adoption order may be made jointly by a husband and wife.
(2) Where an application for an adoption order is made jointly by a husband and a wife, there shall be a written proof to that effect.
(3) An adoption order may be granted to an individual person provided he/she meets the conditions set under section 51.
(4) Where application for an adoption order is made in respect of a child who has attained the age of ten years and is open for adoption, the consent of the child shall be sought and if the child is below ten years, his/her opinion shall be taken into consideration.
(5) An adoption order can be terminated by the High Court if the adoption is proved not to be in the best interests of the child.
(6) No payment shall be given to the person who gives away his/her child for adoption.
Effect of adoption on parental rights
60. (1) Where an adoption order is made -
(a) the rights, duties, obligations and liabilities including those under customary law of the parents of the child or of any other person connected with the child of any nature whatsoever shall cease; and
(b) the adoptive parent(s) of the child shall assume the parental rights, duties, obligations and liabilities of the child with respect to care, guardianship and education as if the child were born to the adoptive parent(s).
(2) Where an adoption order is made jointly to a husband and wife, they shall assume the parental responsibilities jointly and the child shall relate to them as parents as if born naturally to them as husband and wife.
(3) Where an adoption order is made by an individual person, he/she shall assume the parental responsibilities and the child shall relate to him/her as a parent as if born naturally to him/her.
(4) The adopted child shall be a member of the clan, lineage or other group, and as such will give the child all rights to the family rituals in accordance with customary law.
Restriction on making adoption orders
61. An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants -
(a) is twenty-five years of age and is at least twenty one years older than the child; or
(b) is a relative of the child and is twenty-five years of age.
Consent of parents or guardians
62. (1) An adoption order shall only be made with the consent of the parent(s) or guardian of the child.
(2) The High Court may dispense with the consent of any parent or guardian of the child if satisfied that the parent or guardian has neglected or persistently ill-treated the child, or the person cannot be found or is incapable of giving consent or that the consent is unreasonably withheld.
(3) Any consent under this section may be given without the knowledge of the identity of the applicant for the order and where the consent is subsequently withdrawn only because the identity of the applicant was not known, the consent shall be considered to have been unreasonably withheld.
(4) Any parent or guardian of a child who has given consent for the adoption order shall not be entitled to remove the child from the care and guardianship of the applicant except with the permission of the High Court and in recognition of the best interests of the child.
(5) The High Court may require the consent of any person for an adoption order if it considers that the person has any rights or obligations in respect of a child such as under an agreement, a court order or under customary law.
(6) Where an application for adoption is made in respect of a child who is born out of wedlock, the natural father of the child, if known and available, shall be consulted.
(7) Where an application for adoption is made in respect of a child who was abandoned and his/her parents or guardian could not be traced, the parents or guardian shall have no power to claim back the child from the adoptive parents.
Conditions for adoption order
63. (1) Before the High Court makes an adoption order, the High Court shall be satisfied that -
(a) the consent required under this Part for adoption order has been obtained and that the parent or guardian of the child understands that the effect of the adoption order will mean permanent deprivation of parental rights;
(b) it is in the best interests of the child and that the wishes of the child have been considered if the child is capable of forming an opinion;
c) if the child is under ten years of age, the child’s opinion has been sought and considered;
(d) if the child is a at least ten years of age, the child’s consent to the adoption has been obtained unless it is impossible for the child to grant such consent; and
(e) the applicant has not received or agreed to receive any payment and that no person has made or agreed to make any payment or given or agreed to give any reward to the applicant for the adoption except where the High Court has ordered otherwise.
(2) The High Court may impose conditions when granting an adoption order and may require the applicant to enter a binding agreement and make such provisions in respect of the child as the High Court considers necessary.
3) The adoption order shall include the following particulars if known-
(a) date, place and country of birth of the child;
(b) name, gender and surname of the child before and after the adoption;
c) name, surname, age, address, citizenship and occupation of the adoptive parent(s); and
(d) date of the adoption order, unless the High Court directs otherwise.
Knowledge of adoption by child
64. (1) An adoptive parent shall, under the guidance of a social worker, inform the adopted child of the fact that the child is adopted and the child’s parentage but this disclosure shall only be made if it in the best interests of the child and if the child is of an understanding age.
(2) No person other than the adoptive parent shall disclose adoption to the adopted child.
(3) Subject to subsection (1), the adopted child shall, where possible, have access to photos, letters or any form of artifacts that might help the child understand his /her roots better.
(4) If the adopted child has any siblings, the child should be informed of any siblings and be helped to maintain a link with the siblings, either through visits, letters or other communication channels.
(5) Any person who fails to comply with the provisions of this section, commits an offence and shall on conviction be liable to a fine not exceeding hundred thousand maloti or to imprisonment for a term not exceeding two years or to both.
Inter-country adoption
65. (1) A person who is not a citizen of Lesotho may adopt a Mosotho child, if he/she-
(a) has stayed in Lesotho for at least three years;
(b) has fostered a child for at least two years under the supervision of a social worker;
c) does not have a criminal record;
(d) has a recommendation concerning his/her suitability to adopt a child from his/her country’s social welfare office or other competent authority; and
(e) has satisfied the High Court that his/her country of origin will respect and recognise the adoption order and will grant resident status to the child.
(2) For the purposes of an application under this section, the social worker referred to under subsection (1) (b), shall be required to submit a report to assist the High Court in considering the application, and the High Court may, in addition, require some other person to make a report in respect of the application.
(3) The restrictions and conditions under sections 61 and 63 shall apply in respect of an application under this section.
(4) The High Court shall make an interim adoption order for a period not less than two years on condition that supervision of the child be done by social workers of the country where the adoptive parents reside and postpone the determination of the application.
(5) Where a foreign child has been adopted by a Mosotho who is residing in Lesotho, that person shall report the matter to the Department of Social Welfare which shall provide the High Court with such information relevant to the adoption.
(6) Where a foreign child has been adopted by a Mosotho who is residing in Lesotho, that child shall be afforded all citizenship rights in Lesotho.
(7) Where a person who is not a citizen of Lesotho has adopted a Mosotho child while residing in Lesotho, such a person shall on departure report to the Department of Social Welfare which shall arrange that the supervision of the child. This will be done by the Social workers of the country to which the adoptive parents are departing.
(8) For the purposes of subsection (5), the High Court shall order the Department of Social Welfare to report regularly on the welfare status of the concerned child.
Devolution of property on adoption
66. (1) Where an adoptive parent dies intestate, his/her property shall devolve in all respects as if the adopted child is the natural child of the adoptive parent.
(2) An adopted child shall not inherit from the natural parents on intestacy.
(3) If it appears to the High Court on a claim made that the disposition of the property devolving on an intestacy has been exercised unfairly against the adopted child, the High Court may order such provisions as the High Court thinks equitable to be made to the adopted child out of the property devolving on the intestacy in accordance with the law.
Testamentary disposition
67. (1) In a testamentary disposition of property, whether or not in writing made after the date of an adoption order -
(a) any reference whether expressed or implied to the child of the adoptive parent shall unless the contrary intention appears, be construed as a reference to the adopted child;
(b) where a disposition made by the adoptive parent prior to adoption order makes no provision for the adopted child, the adopted child may apply to the High Court to vary the disposition to provide for the adopted child from the estate of the adoptive parent;
(c) any reference to a child of the adopted child’s natural parents in a will shall not be construed as including a reference to the adopted child unless the contrary intention appears;
(d) any reference to a person related to the adoptive parent shall unless the contrary intention appears be construed as a reference to a person as if he/she were the relative of the adopted child.
Register of adopted children
68. (1) The Director of Social Welfare shall maintain a register of adopted children, whether adopted inside or outside Lesotho, in which shall be recorded particulars of the adoption orders or interim orders as the High Court may direct to be made under this Part.
(2) Every adoption order or interim order made by a High Court shall be served on the Director of Social Welfare by the Registrar of the High Court within seven days of the making of the order.
Procedure in adoption proceedings
69. (1) When the High Court hears adoption applications, the High Court shall –
(a) proceed in camera unless open proceedings will be in the best interests of the child;
(b) admit documentary evidence relating to the consent required for the order;
(c) require a social worker to represent the interests of the child in the proceedings relating to an adoption order or an interim order;
(d) require a social worker to prepare a social enquiry report to assist the court to determine whether the adoption order is in the best interests of the child or not; and
(e) request for any other information that the High Court may need.
PART VIII
TRAFFICKING AND ABDUCTION OF CHILDREN
Unlawful transfer of possession, custody or control of child
70. (1) Any person who takes part in any transaction the object or one of the objects of which is to transfer or confer, wholly or partly, temporarily or permanently, the possession, custody or control of a child for any valuable consideration, commits an offence and shall on conviction be liable to imprisonment for a term not less than twenty years.
(2) Any person who without lawful authority or excuse harbours or has in his/her possession, custody or control a child with respect to whom the temporary or permanent possession, custody or control has been transferred or conferred for valuable consideration by any person within or outside Lesotho, commits an offence and shall on conviction be liable to imprisonment for a term not less than twenty years.
(3) For the purposes of subsection (2), if any person harbours or has in his/her possession, custody or control a child without lawful authority or excuse, the child shall, until the contrary is proved, be presumed to be a child with respect to whom the temporary or permanent possession, custody or control has been transferred or conferred for valuable consideration.
Trafficking of child by false pretences
71. Any person who -
(a) by or under any false pretence or representation made; or
(b) by fraudulent or deceitful means,
used either within or outside Lesotho, brings or assists in bringing a child who is not his/hers into Lesotho, commits an offence and shall on conviction be liable to imprisonment for a term not less than twenty years.
Examination of child and person in charge
72. A social worker or any person authorised in writing by a social worker
may require -
(a) a child who has entered or been brought into Lesotho; and
(b) any person who may appear to have custody or control of such child, to appear with the child before the social worker, at any reasonable time and at any convenient place to be examined.
Security required by a social worker
73. (1) If a social worker has reasonable cause to believe that a child -
(a) has been brought into Lesotho either -
(i) after having been transferred for valuable consideration; or
(ii) by fraud, misrepresentation or any false pretence;
(b) has been transferred to the custody or control of any person for valuable consideration either within or outside Lesotho; or
(c) is being detained against his/her will by some person other than his/her parent or guardian, the social worker must immediately cause the arrest of the person(s) suspected and assist the police in investigating the matter.
(2) The social worker shall place such a child into a place of safety.
Taking a child without appropriate consent
74. (1) Any person, parent or guardian who -
(a) does not have the lawful custody of a child; and
b) takes a child, without appropriate consent, whether within or outside Lesotho, commits an offence and shall on conviction be liable to imprisonment for a term not less than five years.
(2) A person has lawful custody of a child under this section if he/she has been conferred custody of the child by virtue of any written law or by an order of a Children’s Court.
(3) It shall be a defence under this section if a person takes or sends a child away without the consent of the person having lawful custody of the child if-
(a) the person-
(i) does it in the believe that the other person consented, or would have consented, if he/she was aware of all the relevant circumstances; or
(ii) has taken all reasonable steps to communicate with the other person but has been unable to communicate with him/her;
(b) the person has reasonable grounds to believe that the child has been abused, neglected, abandoned or exposed in a manner likely to cause a child physical, psychological or emotional injury; or
(c) the other person has unreasonably refused to consent although he/she was aware of all the relevant circumstances.
Inquiries and placement of a child bought or acquired under false pretences
75. (1) If a social worker has reasonable cause to believe that a child-
(a) has been brought into or is to be sent out of Lesotho and the custody of the child has been acquired either-
(I) after having been procured; or
(ii) by fraud, false representation or false pretence,
whether or not for the purpose of prostitution;
(b) has been procured either within or outside Lesotho for the purpose of being used, trained or disposed of as a prostitute; or
c) is being detained against his/her will for the purposes of -
(I) prostitution or immoral purposes; or
(ii) being sent out of Lesotho for the purposes of prostitution or for immoral purposes, the social worker may order the child to be removed to a place of safety and the child shall be temporarily placed in such place of safety.
(2) Any child who is temporarily placed under subsection (1) shall be brought before Children’s Court within forty - eight hours exclusive of the time necessary for the journey from the place where the child was so removed to the Children’s Court.
(3) If it is not possible to bring a child before Children’s Court within the time specified under subsection (2), the child shall be placed in a place of safety until such time as the child can be brought before a Children’s Court.
(4) The Children’s Court before whom a child is brought shall order the child to be detained in a place of safety until-
(a) an inquiry into the circumstances of the child’s case has been completed; and
(b) a report of the inquiry has been submitted to the Children’s Court by the social worker under subsection (6).
(5) An inquiry referred to under subsection (4) (a) shall be made by the social worker.
(6) The social worker shall complete the inquiry and submit the report of the inquiry to the Children’s Court within a period not exceeding one month from the date of the admission of the child into the place of safety.
(7) If after considering the report submitted under subsection (6) the Children’s Court is satisfied that the child brought before it is in need of protection and rehabilitation, the Children’s Court may-
(a) order the child to be kept in a place of safety for such period not exceeding three years from the date of the order as the Children’s Court may in the best interest of the child deem fit; or
(b) make an order placing the child under supervision of the social worker for a period not exceeding three years from the date of the order as the Children’s Court may in the best interests of such child deem fit.
(8) The order made under subsection (7) may have the effect of extending the period of such placement or supervision, as the case may be, until the date on which the child attains the age of eighteen years.
(9) If the Children’s Court is not satisfied that the child brought before it is in need of protection and rehabilitation, the Children’s Court shall order the child to be returned to the care and custody of the parent or guardian.
Recovery order
76. (1) If it appears to the Children’s Court that there is reason to believe that a child had been taken or send away without the consent of the person who has lawful custody of the child as described in section 74, the Children’s Court may make a recovery order.
(2) A recovery order may be made by the Children’s Court on application being made by or on behalf of any person who has the lawful custody of the child.
3) For the purposes of this section, a “recovery order” may -
(a) direct any person who is in a position to do so to produce the child on request to any authorised person;
(b) authorise the removal of the child by any authorised person;
(c) require any person who has information as to the child’s whereabouts to disclose that information to the authorised person;
(d) authorise any police officer to enter into any premises specified in the order and search for the child.
(4) Any person who intentionally obstructs an authorised person from exercising the powers under subsection (3) commits an offence and shall on conviction be liable to imprisonment for a term not exceeding fifteen years.
PART IX
CHILD IN NEED OF REHABILITATION AND URGENT PROTECTION
Child in need of rehabilitation
77. A child is in need of rehabilitation if the child -
(a) is being induced to perform any sexual act, or is in any physical or social environment which may lead to the performance of such act;
(b) lives in or frequents any brothel or place of assignation;
(c) is habitually in the company or under the control of brothel- keepers or procurers or persons employed or directly interested in the business carried on in brothels or in connection with prostitution; or
(d) is a victim of sexual violence or labour exploitation or is denied access to education; or
(e) is a habitual substance abuser.
Removal of a child in need of rehabilitation to a place of safety
78. (1) Any social worker, police officer or chief who is satisfied on reasonable grounds that a child is in need of rehabilitation may order the child to be removed to a place of safety and the child shall be temporarily kept in such place of safety.
(2) Any child who is temporarily kept under subsection (1) shall be brought before Children’s Court within forty-eight hours exclusive of the time necessary for the journey from the place where the child was so removed to the Children’s Court.
3) If it is not possible to bring a child before Children’s Court within the time specified in subsection (2), the child shall be kept in a place of safety for a period not exceeding seven days within which the child shall be brought before a Children’s Court.
(4) If the Children’s Court is satisfied that the child brought before it is in need of rehabilitation, the Children’s Court may order the child to be kept in a place of safety until -
(a) an inquiry into the circumstances of the child’s case under section 75 has been completed; and
(b) a report of the inquiry has been submitted to the Children’s Court by the social worker under section 75 (4).
5) If the Children’s Court is not satisfied that a child brought before it is in need of rehabilitation, the Children’s Court shall order the child to be returned to the care of the parent or guardian.
Orders upon completion of an inquiry
79. (1) An inquiry referred to under section 78 (4) shall be made by a social worker.
(2) A social worker shall complete the inquiry and submit a report to the Children’s Court within a period not exceeding one month from the date of admission of a child to a place of safety under section 78 (1).
(3) If after considering the report submitted under subsection (2), the Children’s Court is satisfied that any child brought before it is a child in need of rehabilitation, the Children’s Court may, subject to the other provisions in this section -
(a) order the child to be kept in a place of safety for a period not exceeding three years from the date of the admission of the child into a place of safety under section 78 (1) and the order shall be an authority for his/her admission into a place of safety;
(b) make an order placing the child for such period not exceeding three years from the date of the order in the care of the person whether a relative or not who is willing and whom the Children’s Court considers to be a fit and proper person to undertake care of such child;
(c) make an order requiring the parent or guardian of a child to enter into a binding agreement, with or without sureties, as the Children’s Court may determine, for such period not exceeding three years from the date of the order subject to such conditions as the Children’s Court thinks fit for the proper care and guardianship of the child; or
(d) make an order placing the child under the supervision of a social worker, subject to such conditions as the Children’s Court thinks fit and for such period not exceeding three years from the date of the order.
(4) The order made under subsection (3) (a) or (d) may have the effect of extending the period of such placement or supervision, as the case may be, until the child attains the age of eighteen years.
(5) The Children’s Court may, on its own or on an application by or on behalf of the child, parent, guardian, social worker or person in charge of a place of safety, reduce the period of placement upon evidence of material change in the circumstances that give rise to the order of placement.
(6) The Children’s Court shall, when making an order under subsection (3) (a) or (d), order the parent or guardian of a child to enter into a binding agreement for the duration of the order with such conditions which may include-
(a) in the case of the provisions of subsection (3) (a), regular visits to the place of safety where the child is kept; and
(b) in the case of the provisions of subsection (3) (d), ensuring that the child remains indoors within stipulated times.
(7) Any person who is ordered to enter into a binding agreement under subsection (3) or (7), as the case may be and fails to comply with any of the conditions for the agreement, commits an offence and shall on conviction be liable to a fine of not less than ten thousand Maloti or to imprisonment for a period of not less than six months or to both.
(8) A child who is kept in a place of safety under subsection (3) (a) shall, on the expiration of the period of placement whether by-
(a) lapse of time; or
(b) reason of any reduction made pursuant to subsection (6), be placed under the supervision of a social worker or other person appointed by the Director of Social Welfare for such purpose.
(9) The period of supervision for the purpose of subsection (8) shall be determined by the Children’s Court after hearing the recommendations of the social worker and consulting with the child, parent or guardian but the period of such supervision shall not in any case exceed one year from the date of expiration of the period of placement of the child.
(10) The Children’s Court may on the application of the child, parent or guardian exempt the child from the application of subsection (8) if satisfied that the case warrants such exemption.
Child in need of urgent protection
80. (1) A child is in need of urgent protection if there is reasonable cause to believe that-
(a) that child is being threatened or intimidated for purposes of prostitution or for purposes of having sexual intercourse with another or for any immoral purpose;
(b) the child is being forced to marry;
(c) the child is pregnant and suicidal or rejected by the family due to this condition;
(d) the child is subjected to hazardous conditions of labour;
(e) the child is forced to undergo cultural or spiritual rituals;
(f) the child is compelled to leave school; or
(g) the child is confined or detained by another person in contravention of this Part.
(h) the well being of the and development of the child is in eminent danger;
(2) Any person or the affected child who is in need of urgent protection may, on his/her own make an application to a social worker, chief or police officer for admission into a place of safety.
(3) A social worker at the place of safety shall satisfy himself/herself that the child brought under subsection (1) is in need of urgent protection, and if the circumstances so warrant, admit the child.
(4) If the person in charge of the place of safety receives any child under subsection (3), that child shall be attended to by a social worker within forty-eight hours of admission and the social worker shall make an assessment and produce a full report of the circumstances.
(5) A child admitted under subsection (3) shall reside in the place of safety for as long as the social worker is satisfied that the child is in need of urgent protection under subsection (4).
(6) The social worker-
(a) who receives a child under subsection (3); or
(b) to whom the child is brought under subsection (4), shall immediately inform the Children’s Court of such admission with a full report of the circumstances and shall, in the like manner, inform the Children’s Court of the child’s departure.
Offences
81. (1) Any person who-
(a) sells, lets for hire or otherwise disposes of, or procures or hires or otherwise obtains possession of, a child with intent that the child is to be employed or used for the purpose of commercial sexual exploitation, either within or outside Lesotho, or knowing or having reason to believe that the child will be so employed or used;
(b) procures a child for purposes of commercial sexual exploitation or for purposes of having sexual intercourse with any other person, either within or outside Lesotho;
(c) by or under any false pretence, false representation, or fraudulent or deceitful means made or used, either or within or outside Lesotho, brings or assists in bringing into, or takes out of or assists in taking out of Lesotho, a child with intent that the child is to be employed or used for the purposes of commercial sexual exploitation, either within or outside Lesotho or knowing or having reason to believe that the child will be so employed or used;
(d) brings into Lesotho, receives or harbours a child knowing or having reason to believe that the child has been procured for purposes of commercial sexual exploitation or for the purposes of having sexual intercourse with any other person, either within or outside Lesotho, and with intent to aid such purpose;
(e) knowing or having reason to believe that a child has been brought into Lesotho in the circumstances as set out in paragraph ©) or has been sold, let for hire, or hired or procured in the circumstances as set out in paragraph (a), or in contravention of any other written law receives or harbours the child with intent that he/she is to be employed or used for purposes of commercial sexual exploitation either within or outside Lesotho;
(f) detains or confines a child in a brothel or similar place;
(g) detains or confines a child in any place with intent that the child is to be employed in hazardous labour or used for purposes of commercial sexual exploitation or for any unlawful or immoral purpose;
(h) by means of any advertisement or other notice published in any manner or displayed in any place offers a child for purposes of commercial sexual exploitation or seeks information for that purpose or accepts such advertisements or notice for publication or display;
(i) acts as an intermediary on behalf of a child or exercises control or influence over the movements of a child in such a manner as to show that the person is aiding or abetting or controlling the commercial sexual exploitation of that child;
(j) engages or hires a child to provide services for that person’s sexual gratification;
(k) attempts to do any act in contravention of this section, commits an offence and shall on conviction-
(I) in the case of offences under paragraphs (a) to (j), be liable to imprisonment for a term not less than twenty years; and
(ii) in the case of an offence under paragraph (k), be liable to imprisonment for a term of not less than fifteen years.
Presumptions under section 81
82. For the purposes of section 81, it shall be presumed, until the contrary is proved, that a person-
(a) who takes or causes a child to be taken into a brothel or similar place, has disposed of the child with the intent or knowledge mentioned in section 81 (1) (a);
(b) who receives a child into a brothel or harbours a child in a brothel or similar place has obtained possession with the intent or knowledge mentioned in section 81 (1) (a);
(c) has detained a child in any brothel or in any place with intent that the child is to be employed in hazardous labour or used for the purposes of commercial sexual exploitation or for any unlawful or immoral purpose, if that person-
(i) withholds from the child any wearing apparel or any other property belonging to the child or any wearing apparel commonly or last used by the child;
(ii) threatens the child with legal proceedings, violence or makes threats of harm or denial of food, if the child takes away any wearing apparel or any other property which has been lent or hired out or supplied to the child;
(iii) threatens the child, parent or guardian with legal proceedings for the recovery of any debt or alleged debt or uses any other threat;
(iv) refuses or hinders access to the place by the child’s parent, guardian or social workers; or
(v) without any lawful authority detains the child’s identity card issued under the law relating to national registration or the child’s passport.
PART X
CHILDREN IN CONFLICT WITH THE LAW
AGE OF CRIMINAL RESPONSIBILITY AND AGE DETERMINATION
Age of criminal responsibility and prosecution requirements
83. (1) No child below the age of ten years shall be prosecuted for a criminal offence.
(2) No prosecution for a criminal offence may be instituted against a child between the ages of ten and fourteen until the inquiry magistrate is satisfied that the child possesses the capacity to appreciate the difference between right and wrong and has the ability to act in accordance with that appreciation.
(3) An inquiry to establish whether a child appreciates the difference between right and wrong and is able to act in accordance with that appreciation must be conducted by the inquiry magistrate.
(4) It must be presumed that a child between the ages of ten and fourteen lacks the capacity to appreciate the difference between right and wrong, and cannot act in accordance with full appreciation, unless the Crown proves beyond reasonable doubt that such child, as a matter of fact has that appreciation and is able to act in accordance with that appreciation.
(5) Evidence of the intellectual, emotional, psychological and social development of a child is relevant to any enquiry into whether such child possesses the capacity to appreciate the difference between right and wrong and has the ability to act in accordance with that appreciation.
(6) The evidence referred to under subsection (5) must be supported by a report from a person with expertise in child development or child psychology, who must testify before an inquiry magistrate in person as to the content and findings of the report.
(7) The evidence referred to in subsection (5) may be challenged by any person present at the inquiry and any evidence in rebuttal may be adduced.
Purposes of assessment of age
84. (1) The purposes of assessment are to-
(a) establish the probable age of the child;
(b) establish the prospects of the child being able to be diverted by a probation officer;
(c) establish the prospects for diversion by a prosecutor or inquiry magistrate;
(d) provide information to support recommendations to the prosecutor and the inquiry magistrate regarding release of the child into the care of a parent or guardian or placement in a place of safety;
(e) in the case of children below the minimum age of prosecution, to establish what measures, if any, need to be taken.
(2) Assessment is effected by a probation officer and may take place at a magistrate’s court, the offices of the Department of Social Welfare, a private house, a police station or any other suitable place identified by the probation officer concerned.
(3) No person other than the following is entitled to attend assessment of a child as referred to under this section-
(a) the child in respect of whom the assessment is conducted;
(b) the child’s parent or guardian;
c) the prosecutor in whose district the assessment is being conducted;
(d) a legal representative;
(e) the police officer responsible for arresting the child;
(f) a medical officer; and
(g) any person whose presence is necessary or desirable for the completion of the assessment process.
Duties of police officer in relation to age assessment
85. If a police officer is uncertain about the exact age of the person suspected of having committed an offence, but has reason to believe that the age of that person would render that person subject to protections under this Act, he/she must take such person to a probation officer for assessment into the age within the periods prescribed under or, if a probation officer is not readily available, to a medical officer:
Provided that where a police officer has reasonable grounds to believe that a child is below the minimum age of prosecution as described under section 83, he/she shall not arrest the child.
Age assessment by probation officer
86. (1) The probation officer referred to under section 85 must receive, obtain or request any evidence relevant to assessment into the age of a child or person.
(2) Upon receipt of information referred to under subsection (1), the probation officer must make an assessment in respect of the age of the person brought before him/her and must for this purpose , consider the evidence received in the following order of cogency-
(a) a valid birth certificate, identity document or passport;
(b) any other form of registration of birth, identity or age acknowledged by the office of the District Secretary;
(c) statements from a parent, guardian, or person likely to have knowledge of the age of the child or a statement made by the child or person who alleges that he/she is a child;
(d) an estimation of age made by a medical practitioner;
(e) a previous determination of age by a magistrate under this Act;
(f) secondary documentary evidence, such as a hospital birth record, baptismal certificate, school registration forms, school reports, and other evidence of a similar nature if relevant to establishing a probable age.
(3) The probation officer must make an assessment as to the probable age of the child or person concerned.
(4) Where the probation officer, after making the assessment, concludes that a child or person referred to him/her by a police officer in terms of section 85 is over the age of eighteen years or is below the minimum age of prosecution as referred to under section 83, such child or person is not subject to the provisions of this Act:
Provided that the conclusions of the probation officer will not remain valid after evidence to the contrary before the inquiry magistrate.
(5) Where the probation officer concludes that a child is, by virtue of his/her age, subject to the provisions of this Act, he/she must proceed with the assessment of the child, and the age assessment can form the basis of-
(a) the decisions of the probation officer referred to under section 93; and
(b) the recommendations of the probation officer referred to under section 94.
(6) Where the probation officer is uncertain as to the probable age of the child or person, or where the age of a child or person is in dispute , the probation officer must cause the child or person to be taken to a medical officer for assessment of age unless the child or person has already been taken to the medical officer by the police under section 85, in which case the provisions of section 87 apply.
Age estimation by medical officer
87. (1) Any police officer or probation officer may refer a child to the medical officer for an estimation of the age of the child.
(2) Where a medical officer concludes that a child or person referred to him/her for estimation of age is -
(a) over the age of eighteen years, that person is deemed to be an adult and is not subject to the provisions of this Act, or
(b) below the minimum age of prosecution as referred to under section 83, that child must be referred back to the probation officer for further attention in terms of section 93; or
(c) over the minimum age of prosecution as referred to under section 83 and under the age of eighteen years, that child must be referred back to the probation officer concerned, together with the record of the estimation of age for further procedures under this Act.
(3) Where a medical officer concludes that he/she is unable to make accurate assessment of the person’s age and it is not clear as to whether that person is subject to the provisions of this Act, he/she must refer such person back to the probation officer concerned for the purposes of determination of age by an inquiry magistrate.
Age determination to be effected at preliminary inquiry
88. (1) The probation officer to whom a child has been referred by a medical officer under section 87 (3), must cause that child or person to appear before an inquiry magistrate for purposes of the determination of the age of that child or person and must place such inquiry magistrate in possession of a completed age assessment together with relevant documentation referred to under section 86 (1).
(b) The inquiry magistrate must, on the available evidence and with due regard to the provisions of section 86 (2), make a determination as to the age of a child or person which must be entered into the record as the age of the child, and must be considered to be the correct age until such time as any contrary evidence is placed before the court in which the inquiry magistrate presides or any other court.
(3) For the purposes of the determination referred to under subsection (2), the inquiry magistrate may require any documentation, evidence or statements relevant to age determination from any person, body or institution to be placed before him/her.
(4) If an inquiry magistrate determines that a person is over the age of eighteen years, he/she must close the preliminary inquiry and direct that the matter be transferred to a court other than Children’s Court for criminal proceedings.
(5) Where an inquiry magistrate makes a determination under subsection (2), he/she must cause a record of the determination to be forwarded to the office of the Minister of Home Affairs for the purposes of issuing relevant identification documents.
(6) Where necessary, an inquiry magistrate may cause a subpoena to be served on any person to produce the documentation, evidence or statements referred to under subsection (3).
Age assessment and determination by officer presiding in criminal court
89. (1) Where a person appearing in criminal court other than a preliminary inquiry or Children’s Court alleges that he/she is below the age of eighteen years at any stage in a criminal trial before sentence, or where it appears to such court that, that person may be below the age of eighteen years, the officer presiding in that court may conduct an inquiry as to the age in accordance with the provisions of section 88 (2) and (3).
(2) If the age of the person referred to under subsection (1) is found to be below eighteen years and the trial has not yet commenced, the presiding officer concerned must transfer the matter to the inquiry magistrate for further proceedings under this Act.
(3) If the age of the person referred to under subsection (1) is found to be below the age of eighteen years and the trial has commenced, the proceedings must continue to be conducted before the presiding officer concerned, but the remainder of the proceedings must be conducted under the provisions of this Act.
(4) The presiding officer concluding a trial under subsection (3) may, after conviction, deal with the matter in a manner similar to which a Children’s Court would do.
Parent or guardian to attend assessment
90. (1) Any parent or guardian who has been issued with a written notice or a summons to appear at an assessment of the child, must attend such an assessment unless exempted from the obligation to do so under subsection (3).
(2) If a person referred to under subsection (1) has not been notified to attend the assessment, the probation officer concerned may at any time before such assessment direct a police officer to issue a written notice to such person to appear at an assessment.
(3) A person who has been notified under subsection (1) or (2), may apply to the probation officer concerned for exemption from the obligation to attend the assessment in question, and if such probation officer exempts such person, he/she must do so in writing.
(4) A person who has been notified under subsection (1) or (2) and who has not been exempted from the obligation to attend the assessment under subsection (3) and who fails to attend the assessment in question, commits an offence and shall on conviction be liable to a community base sanction.
Duties of probation officer in relation to social assessment
91. (1) A probation officer must assess all children-
(a) who have been arrested and who remain in detention in police custody within forty -eight hours of such arrest subject to the proviso under section 101(1)(a).
(b) who have been arrested and released from detention in police custody under section 108, within forty-eight hours of arrest;
(c) in respect of whom an alternative method of securing attendance at assessment has been effected under section 98, within seventy-two hours of such an alternative having been employed.
(2) The probation officer must make every effort to locate a parent or a guardian for the purposes of concluding the assessment process of the child:
Provided that where all reasonable efforts to locate such person or persons have failed, the probation officer may conclude the assessment in the absence of such person or persons.
(3) The probation officer must explain to the child in language that the child understands-
(a) the purposes of the assessment; and
(b) that the child has the right to-
(i) contradict or challenge any information against the child;
(ii) remain silent;
(iii) have the parent or guardian contacted;
(iv) have a person referred to under paragraph (iii) or a legal representative present during the noting by a police officer or a magistrate of a confession, admission, pointing out or during an identification parade;
(v) choose and to be represented by a legal practitioner at the child’s own cost; and
(vi) be provided with legal representation by the state or court.
(4) The probation officer must interview the child, the child’s parents or guardian in order to effect the necessary assessment.
(5) The probation officer may contact or consult with any other person who has any information relevant to the assessment of the child.
(6) The probation officer must obtain evidence relevant to the age assessment referred to under section 86.
(7) Unless the child is the child below the minimum age of prosecution as referred to under section 83, the probation officer must make a report with the following recommendations-
(a) the prospects of diversion;
(b) the possible release of the child into the care of a parent or guardian; or
(c) the placement, where applicable, of a child in a place of safety.
(8) Transfer or conversion of a matter to the Children’s Court must be considered by the probation officer.
(9) If the probation officer recommends that the matter be transferred to Children’s Court the report must reflect his/her recommendation and reasons as well as recommendations as to the temporary placement of the child pending the opening of the children’s court inquiry.
(10) The report mentioned in subsection (7) must be submitted to the prosecutor for the opening of the preliminary inquiry.
Powers of probation officer to obtain relevant evidence or secure attendance of relevant persons
92. A probation officer may, by issuing a notice, require the arresting officer or any other police officer to-
(a) bring a child forthwith from police custody for assessment;
(b) obtain documentation relevant to proof of a child’s age from a specified place or a specified person;
(c) notify a specific parent or guardian to appear at an assessment.
Powers of probation officer in relation to children below the minimum age of prosecution
93. (1) After assessment under section 84 (1) (a) and (d) of a child below the minimum age of prosecution, the probation officer concerned may-
(a) refer the child or the family of the child for counselling or therapeutic intervention;
(b) arrange the provision of support services to the child or family of the child;
c) arrange a conference, which must be attended by the child, parents or an appropriate adult, and which maybe attended by any other person likely to be able to provide information material for the purposes of the conference; or
(d) decide to take no action.
(2) The purpose of the conference convened by the probation officer under subsection (1) ©) is to assist such probation officer to -
(a) establish fully the circumstances surrounding the allegations against the child;
(b) formulate a written plan appropriate to the child and relevant to the circumstances; or
c) make an order in terms of this section.
(3) The written plan under subsection (2) (b) must-
(a) specify the objectives to be achieved for the child concerned and the period within which those objectives should be achieved;
(b) contain details of the service and assistance to be provided for the child and for any parent or guardian;
c) specify the persons or organisations who will provide such services and assistance;
(d) state the responsibilities of the child and of such child’s parent or guardian;
(e) state personal objectives for the child and of such child’s parent or guardian; and
(f) contain such other matters relating to the education, employment, recreation and welfare of the child as are relevant.
(4) The probation officer must record the outcome of the assessment and the decision made or given under subsection (1), as well as the reasons for such decision or order.
Powers of probation officer in respect of children above the minimum age of prosecution alleged to have committed offences referred to in schedule 1
94. (1) After assessment under section 84 (1) (a), (b),(d) and (e) of a child of ten years or above as referred to under section 83, the probation officer concerned may, where the child is alleged to have committed an offence referred to in schedule 1-
(a) refer the child to the Children’s Court for appropriate action;
(b) take no further action; or
(c) if the child acknowledges responsibility for the alleged offence, refer the child to a diversion option referred to under section 133 (2) or (3), where there are no factors mitigating against such decision.
(2) A decision taken by a probation officer under subsection (1) may be effected in his/her sole discretion.
(3) The probation officer concerned must record any decision taken under subsection (1), as well as the reasons for such decision.
(4) If the probation officer does not make a decision under subsection (1), he/she may recommend that the matter be referred to the prosecutor for the opening of the preliminary inquiry in which case the probation officer must make an age assessment and produce an assessment report.
Powers of probation officer in respect of children above the age of prosecution alleged to have committed offences not referred to in schedule 1
95. (1) After assessment under section 84 (1) (a), (c),(d) and (e) of a child of ten years of age or above as referred to under section 83, the probation officer concerned must, where the child is alleged to have committed an offence not referred to in schedule 1, make an age assessment and an assessment report, which together with supporting information, must be submitted to the prosecutor for the opening of the preliminary inquiry.
(2) If it appears to the probation officer that the child concerned does not intend to accept responsibility for the alleged offence, that fact must be indicated in the assessment report referred to under subsection (1).
(3) After an assessment referred to under subsection (1), the probation officer may recommend-
(a) the diversion of the child to a specified process, programme or appropriate alternative order mentioned under section 133;
(b) that no further action be taken in respect of the alleged offence;
(c) that the matter be transferred to the Children’s Court for appropriate action;
(d) that the matter not be diverted and be referred to the prosecutor ;
(e) that the child be released to a parent or guardian, or on his/her own recognisance;
(f) an appropriate placement, including placement in the care of a fit and proper person ; or
(g) detention in a secure care facility or prison with due regard to the circumstances referred to under section 119.
PART XI
POLICE POWERS AND DUTIES
Meaning and purpose of arrest
96. (1) An arrest, for purposes of this Act, may be made by a police officer with or without a warrant unless the child to be arrested submits to custody.
(2) The effect of an arrest, for the purposes of this Act, is that the child arrested is in lawful custody until lawfully discharged or released from such custody.
(3) The purpose of arrest under this Act, is to bring the child before a preliminary inquiry or for assessment under section 91.
(4) An arrest must be made with due regard to the dignity and well-being of the child.
(5) Subject to subsection (6), if it is clear that the child cannot be arrested without the use of minimum force, the police officer arresting the child may use such force as may be reasonably necessary and proportional in the circumstances, to overcome any resistance.
(6) Where the use of minimum force is placed in dispute in civil matters, the onus of proving that the minimum force was used rests on the person so alleging.
(7) The police officer arresting or attempting to arrest a child under this section is not justified in using deadly force that is intended or is likely to cause death or serious bodily harm to such child, except if he/she on reasonable grounds believes-
(a) that the force is immediately necessary for the purposes of protecting him/herself, any person lawfully assisting him/her or any other person from eminent death or serious bodily harm;
(b) that there is a substantial risk that the suspect will cause eminent death or serious bodily harm if the arrest is delayed; or
(c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life-threatening violence or a strong likelihood that it will cause serious bodily harm.
Powers of arrest and arrest by police officer without warrant
97. (1) A police officer may, subject to subsections (2) and (3), without warrant arrest any child -
(a) who commits or attempts to commit any offence in his or her presence;
(b) whom he/she reasonably suspects of having committed an offence, including the offence of escaping from lawful custody;
c) who willfully obstructs him/her in the execution of his/her duty;
(d) who is reasonably suspected of having failed to observe any condition imposed in the passing of sentence or in postponing or suspending the operation of any sentence under this Act.
(2) Any police officer may arrest any child referred to under subsection (1) whose age is above the minimum age of prosecution referred to under section 83 but below the age of eighteen years for the purposes of bringing that child for assessment by a probation officer as referred to under section 91.
(3) In deciding whether to effect an arrest, a police officer is obliged to consider whether an alternative method of securing the appearance of the child at assessment, as referred to under section 98, can be used, or whether an informal caution referred to under section 105 (1) can be used.
Alternatives to arrest
98. (1) Alternatives to arrest shall include the following-
(a) requesting the child in language that the child understands to accompany the police officer to the place where assessment can be effected;
(b) written notification to the child and, if available, the parents, guardian or family of that child to appear for assessment at a place and on a date and at a time specified in the written notice;
(c) granting of a recognisance by a police officer at the place of arrest, to be noted in the pocket book of the police officer concerned, informing the child to appear at the assessment at a specified date, time and place:
Provided that the police officer must as soon as is reasonably possible inform the probation officer of the granting of such recognisance;
(d) accompanying the child to his/her home, where a written notice referred to under paragraph (b) can be given to the child and parents, guardian or family; and
(e) opening a docket for the purposes of consideration by the Director of Public Prosecutions as to whether the matter should be set down for the holding of a preliminary inquiry or whether the child should be charged.
(2) Subject to the provisions of subsection (1), a child may be summoned to appear at assessment at a place on a date and a time specified in the summons upon application by a prosecutor to the clerk of the Children’s Court.
(3) Where an alternative to arrest as referred to under subsection (1) has been employed, a child must be required to appear for assessment within 72 hours of such alternative being employed, or in the case of the issuing of a summons, within 72 hours of the summons being served on the child.
Arrest by private person without warrant
99. (1) Any private person may without warrant arrest any child whom
he/she reasonably believes to be ten years of age and above as referred to under section 83, and below the age of eighteen years-
(a) who commits or attempts to commit in his/her presence or whom he/she reasonably suspects of having committed an offence;
(b) whom he/she reasonably believes to have committed any offence and to be escaping from and being freshly pursued by a person whom such private person reasonably believes to have authority to arrest that person for that offence;
(c) whom he/she is by any law authorised to arrest without warrant in respect of any offence specified in that law.
(2) Minimum force, where necessary, must be used in effecting an arrest under this section.
(3) The provisions of section 96 (5) and (6) relating to the use of force and deadly force, with the changes required by the context, apply to this section.
(4) Any private person who has effected an arrest as referred to in this section must hand the child over to the chief, police or probation officer as soon as possible.
Issue of warrant of arrest
100. (1) Any inquiry magistrate or presiding officer in a Children’s Court may issue a warrant for the arrest of any child presumed to be below the age of eighteen years and above the minimum age of prosecution as referred to under section 83 upon the written application of the Director of Public Prosecutions or a police officer which-
(a) sets out the offence alleged to have been committed;
(b) alleges that such offence was committed within the area of jurisdiction of such a magistrate or where such offence was not committed within such area of jurisdiction, which alleges that the child in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction; and
(c) states that from information taken upon oath, there is a reasonable suspicion that the child in respect of whom the warrant is applied has committed the alleged offence.
(2) A warrant of arrest issued under this section must direct that the person described in that warrant be arrested by a police officer in respect of the offence set out in the warrant and that he/she must be brought before a probation officer for assessment as referred to under section 91.
(3) A warrant of arrest may be issued on any day and must remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed.
(4) A warrant of arrest may be suspended by any inquiry magistrate or presiding officer in a Children’s Court, and the officer required to execute such warrant, may, instead of arresting a child, employ one of the alternatives to arrest as referred to under section 98.
Duties of police officer upon arrest with or without warrant
101. (1) Where an arrest of a child above the minimum age of prosecution has taken place, the police officer must-
(a) if the child is in detention in police custody, bring such child to the probation officer in whose area of jurisdiction the arrest of the child has taken place promptly for assessment, but not later than 48 hours after arrest:
Provided that if by the expiry of this period a probation officer cannot practically be traced, the police officer must request the prosecutor to set the matter down for the holding of a preliminary inquiry as soon as possible.
(b) inform the child in a language that the child understands of the allegation against him/her; and
c) inform the child in language that the child understands of the following rights-
(I) the right to remain silent;
(ii) the right to ask that his or her parent, guardian, chief or any appropriate adult be contacted;
(2) Rights in relation to confessions, admissions, pointing out or identification parade:
(i) by a legal the police officer shall contact the parent guardian chief or any appropriate adult ;
(ii) the right to have a person referred to under subparagraph (i) or a legal representative present during the noting of such ;
(iv) the right to choose and to be represented representative at his/her own cost; and
(v) the right to be provided legal representation by state or court.
(2) Where an alternative to arrest as referred to under section 98 has been used, the police officer must explain the rights set out in paragraph ©) of subsection (1) to the child.
(3) Where an arrest has been effected, the arresting officer must provide an inquiry magistrate with a written report within 48 hours, giving reasons why alternatives to arrest as referred to under section 98 could not be employed.
Duty of police officer to inform probation officer
102. (1) The police officer must inform the probation officer in whose area of jurisdiction the arrest of a person under the age of eighteen years has taken place, of such arrest within 12 hours.
(2) If an alternative method of securing the attendance of the child at assessment as referred to under section 98 has been used, the probation officer concerned must inform the police officer in whose area the assessment will take place as soon as possible and not later than 72 hours after the procedures referred to under section 98 have been effected.
Duty of police officer to notify parents, guardian or family member
103. (1) Where a child has been arrested, the police officer who has arrested the child, must notify the child’s parents, guardian or a family member of the arrest, and give the relevant person or persons a written notice requiring such person to attend an assessment at a specified time and place.
(2) If one of the persons referred to under subsection (1) is not available, or cannot be traced, the police officer must request the child to identify another appropriate adult, and if such adult is identified, the police officer must request that person to attend the assessment at a specified time and place.
(3) Where an alternative method to arrest as referred to under section 98 has been effected, the person employing such alternative must, as soon as possible thereafter, notify the child’s parent, guardian or a member of the family of the use of the procedure referred to under section 98, and give the relevant person notice requiring the person to attend the assessment at a specific time, place and date.
(4) If one of the persons referred to under subsection (3) is not available, or cannot be traced, the person employing an alternative method to arrest must request the child to identify another appropriate adult, and if such adult is identified, the police officer must request that person to attend the assessment at a specific time and place.
Duties of police upon request
104. An arresting officer or another police officer may be required by a probation officer, as a matter of urgency, to -
(a) notify a specific person of the appearance of a child under the age of eighteen years at the assessment;
(b) give the relevant person a written notice to attend the assessment at a specified time and place;
c) obtain documents relevant to proof of age from a specified address or place; or
(d) transport a specified person or persons to the place where assessment is to be effected.
Cautioning by police
105. (1) A police officer may apply an informal caution instead of arresting a child.
(2) A formal caution, where recommended by a probation officer, prosecutor or an inquiry magistrate, may be administered by a police officer to a child in the presence of the parent or guardian and victim of the child’s unlawful conduct.
(3) A formal caution must be administered in private, whether in a police station or elsewhere, in the presence of a probation officer, if available, and the persons mentioned in subsection (2).
(4) The police officer referred to in subsection (2) must cause a record of the caution to be kept at the applicable police station and must forward a record to the Commissioner of Police who must cause a register of cautions to be kept.
(5) The record of a formal caution referred to in subsection (4) must be expunged after a period of two years from the date of which the caution was administered.
(6) The register referred to under subsection (4) may be made available to -
(a) any member of the police;
(b) any probation officer;
(c) any inquiry magistrate;
(d) Director of Public Prosecutions; and
(e) any person for bona fide research purposes with the permission of the Commissioner of Police.
Pre-trial procedures and presence of parent or guardian
106. (1) No confession, admission or pointing out by a child may be
admitted as evidence in a Children’s Court where such confession, admission or pointing out was made to a police officer or inquiry magistrate unless a legal representative, parent or guardian of such child was present at the time of such procedure.
(2) No evidence obtained at an identification parade may be admitted as evidence in the Children’s Court unless a legal representative, parent or guardian was present at the time of such procedure.
(3) Fingerprinting of children should be regarded as a measure which should not be resorted to before the finalisation of a preliminary inquiry:
Provided that the fingerprints of a child may be taken during period after arrest and before appearance of the child before the preliminary inquiry if -
(a) it is essential for the investigation of the case;
(b) it is required for the purposes of establishing the age of the person in question; or
(c) it is necessary to establish the prior convictions of a child for the purposes of making a decision on diversion, release from detention in police custody or placement in a particular place of safety.
Detention in police custody before appearance at assessment
107. (1) Detention of a child in police custody, whether in a police cell, police vehicle, lock-up or other place must be used as a measure of last resort and for the shortest possible period of time.
(2) The station commander of each police station must cause a separate register to be kept, in which details regarding the detention in police cells of all persons under the age of eighteen years must be recorded.
(3) The register referred to under subsection (2) may be examined by a parent, guardian, legal representative, prosecutor, magistrate, social worker, probation officer, health worker or any other person authorised by the station commander to examine the register.
(4) Whilst in detention in police custody, a child must -
(a) be held in conditions and treated in a manner that takes account of his/ her age;
(b) be held separately from adults and boys must be held separately from girls;
(c) be held, as far as possible, in conditions which will minimise the risk of harm to that child, including the risk of harm from other children;
(d) have the right-
(i) to adequate food;
(ii) to medical treatment/services when required;
(iii) of access to reasonable visits by parents, guardians, legal representatives, registered social workers, probation officers, health workers and religious counsellors;
(iv) of access to reading material;
(v) to adequate exercise; and
(vi) of access to adequate clothing, including sufficient blankets and bedding.
(5) No child may be held in detention in police custody for longer than forty-eight hours prior to appearing before an inquiry magistrate.
(6) A child may only be remanded to detention in police custody for a period of 48 hours and for one further period of a maximum of 48 hours where no alternative action can be taken.
(7) No police officer may admit, or allow a child to remain, in detention in the police custody after the expiry of the periods of time set in subsections (5) and (6), and any police officer admitting or allowing such child to remain in police custody longer than the said periods of time, commits an offence and on conviction is personally liable for damages incurred.
(8) Where a child in police custody makes a complaint regarding injury sustained by that child during arrest or whilst in detention, the police officer to whom such complaint is made, must report the complaint to the station commander who must, within a reasonable time cause the child to be taken to the medical officer for examination and treatment and attach the report of the medical officer to the police docket relating to the child concerned.
(9) A police officer or station commander who fails to comply with the provisions of subsection (8) commits an offence and on conviction is civilly liable for the injuries incurred after being made aware of the complaint.
(10) A police officer shall not have an unlawful physical contact with a child in detention.
(11) A child in detention shall not be searched by a police officer of a different sex.
(12) A police officer who contravenes the provisions of subsection (10) and (11) commits an offence and on conviction is liable to a fine of not less than two thousand maloti or to imprisonment or both .
Powers of police to release a child from detention before preliminary inquiry
108. (1) In respect of a child accused of offences listed in schedules 1 and 2 consideration should be given to the release of such child from detention in police custody pending a preliminary inquiry.
(2) A child must, unless there are substantial reasons not to do so, be released from detention in police custody by a police officer on own recognisances, or into the care of a parent or guardian on one or more conditions as set out under subsection (4).
(3) Where a child is alleged to have committed an offence in respect of which the court has no jurisdiction, a child may be released from police custody by a police officer in consultation with the Director of Public Prosecutions on one or more conditions as set out under subsection (4).
(4) Conditions of release of a child for the purposes of this section include the
following-
(a) the obligation to appear at a specified time and place for assessment not later than forty- eight hours after the arrest;
(b) the obligation to report periodically to a specified person or place;
(c) the prohibition not to interfere with witnesses, to tamper with evidence or to associate with a person, persons or group of specified people; and
(d) the obligation that the child has to return to his/her home or to a specified address.
(3) Where a child has not been released from detention in police custody prior to the holding of a preliminary inquiry, the arresting officer must provide the relevant inquiry magistrate with a written report giving reasons why such child could not be released from detention in police custody.
(4) The Commissioner of Police must provide-
(a) transport costs or transport assistance in respect of a child who is released from police custody on own recognisances; and
(b) recovery of transport costs from a child to whom such costs had been provided if it appears that such child or his/her family is able to pay for such costs.
Child not charged until matter entered on roll of Children’s Court
109. For the purposes of proceedings under this Act, a child is deemed not to be charged until, after the finalisation of the preliminary inquiry, the prosecutor enters the matter on the roll of a Children’s Court under the provisions of this Act and formally puts the charges to the child.
PART XII
PRELIMINARY INQUIRY
Nature and purposes of preliminary inquiry
110. (1) For the purposes of this Act and any other Act, the proceedings of a preliminary inquiry must be regarded as the proceedings of the Children’s Court.
(2) The place where a child must appear for purposes of the holding of the preliminary inquiry, must be determined and be presided over by the inquiry magistrate.
(3) The purposes of the preliminary inquiry are to enable the inquiry magistrate to -
(a) ascertain whether an assessment of a child has been effected by a probation officer, and if not , whether compelling reasons exist as to why an assessment can be dispensed with;
(b) order that assessment be effected, if it has not yet been done;
(c) establish whether the matter can be diverted before charges are being instituted in the Children’s Court or any other court under the provisions of this Act;
(d) refer the matter to the prosecutor for charges to be instituted in the Children’s Court where the child does not admit responsibility for the alleged offence or where diversion of the matter is not possible;
(e) transfer the matter to the Children’s Court;
(f) assess whether there is sufficient evidence to warrant a prosecution; and
(g) determine release or placement of the child pending -
(i) the finalisation of the preliminary inquiry;
(ii) referral to the Children’s Court; or
(iii) transfer to the Children’s Court.
Procedure in preliminary inquiry
111. (1) A preliminary inquiry must be held-
(a) if a child has been arrested as referred to under section 96, within forty- eight hours of such arrest; and
(b) if an alternative to arrest as referred to under section 98 has been effected, within seventy-two hours of such alternative having been employed.
(2) At the commencement of the preliminary inquiry the prosecutor must ensure that the inquiry magistrate is in the possession of -
(a) the age assessment report, save where assessment has not been effected; and
(b) any further supporting documentation that the prosecutor deems relevant to the preliminary inquiry or that is required under this Act.
(3) At the commencement of the preliminary inquiry, the inquiry magistrate must inform the child in the language that the child understands of the following rights-
(a) the right to challenge evidence and the right to adduce evidence;
(b) the right to remain silent;
c) the right to have the child’s parents or guardian present at the preliminary inquiry;
(d) the right to choose and to be represented by a legal practitioner at his / her own cost; and
(e) the right to legal assistance by a lawyer appointed by the state or the Children’s Court.
(4) No persons other than the following are entitled to attend the preliminary inquiry-
(a) the child and the parents or guardian;
(b) the prosecutor;
(c) the probation officer;
(d) the arresting officer or other police officer;
(e) the child’s legal representative; and
(f) any other person served with a subpoena, requested or permitted to attend the preliminary inquiry as referred to under section 113 (1) (a) or (b).
(5) The preliminary inquiry may not be held in the absence of the child concerned.
(6) The preliminary inquiry may be held in a room, office, chamber, closed court but may not be held in an open court.
(7) The proceedings must be conducted in an informal manner, and the inquiry magistrate is responsible for conducting the proceedings, asking the necessary questions, interviewing any person or persons attending the inquiry and eliciting any information that is required.
(8) Evidence of a previous diversion or previous charge proved may be elicited or adduced at the preliminary inquiry by any person.
(9) The inquiry magistrate must keep a record of the proceedings of the preliminary inquiry or cause such a record to be kept.
(10) A decision of the inquiry magistrate presiding at the preliminary inquiry is not subject to appeal, save for a decision to remand a child in custody referred to under section 119.
Separation and joinder of preliminary inquiry
112. (1) If the child in respect of whom the holding of a preliminary inquiry
is contemplated, is co-accused of an alleged offence with an adult, the case of the adult concerned may n the directive of the Director of Public Prosecutions be separated from that of the child and will not be subject to the provisions of this Act.
(2) If the child in respect of whom the holding of a preliminary inquiry is contemplated, is co- accused with one or more other children, a joint preliminary inquiry may be held in respect of all children concerned, provided that the inquiry proceedings may be separated at any time where this is in the best interests of any of the children.
General powers and duties of the inquiry magistrate
113. (1) The inquiry magistrate may-
(a) cause a subpoena to be served on any person whose presence is necessary for the finalisation of the preliminary inquiry;
(b) request or permit the attendance of any person, who, in his/her opinion can contribute to the proceedings of the preliminary inquiry;
(c) request the production of any further documentation or may elicit any further information to supplement that referred to under section 111 (2), which is relevant or necessary to the proceedings;
(d) make a determination of age referred to under section 88;
(e) after consideration of the information contained in the assessment report, elicit any information from the persons attending the inquiry to supplement or clarify the information contained in the assessment report, and which is necessary in order to enable him/her to make the decision referred to under section 114 (4); and
(f) take such steps as he/she deems necessary to establish the truth of any statement or submission that may be in dispute.
(2) Where a social assessment has not been effected, the inquiry magistrate must instruct the prosecutor to refer the child to a probation officer in order for an assessment to be effected:
Provided that the inquiry magistrate may decide that assessment may be dispensed with if compelling reasons for doing so exist, and if it is in the best interests of the child.
(3) An inquiry magistrate must apprise him/herself of diversion programmes available as well as their aims and content.
Decisions of inquiry magistrate and factors to be considered
114. (1) In regard to all matters brought before the preliminary inquiry, the inquiry magistrate must, before referring the matter to the prosecutor for the institution of charges in the Children’s Court under subsection (4) (b), satisfy him/herself that diversion of the matter is not possible.
(2) In order to establish whether or not diversion is possible, the inquiry magistrate must have regard to-
(a) the assessment report, unless the assessment of the child has been dispensed with under section 113 (2);
(b) the views of any person present at the preliminary inquiry;
(c) any further information provided by any person present at the preliminary inquiry; and
(d) any further information requested by him/her in the cause of conducting the preliminary inquiry.
(3) In taking a decision under subsection (4), the inquiry magistrate must take account of the principle that the child has the right to participate in all decisions affecting him/her:
Provided that where a child does not acknowledge the responsibility of the offence, the child must not be required to answer any question which may infringe upon his/her rights to be presumed innocent and to remain silent.
(4) After consideration of the social assessment report, if the assessment has not been dispensed with under section 113 (2), and submissions by the prosecutor, the child or any other party to the inquiry, the inquiry magistrate may-
(a) divert the matter in accordance with the standards and requirements set out under section 131 and section 132 and in terms of any of the options set out under section 133; or
(b) refer the matter to the prosecutor for charges to be instituted in the Children’s Court or any other court acting under the provisions of this Act.
(5) After an inquiry magistrate has made a decision to divert the matter in terms of subsection (4) (a), and if formal programmes for diversion are not available, or are not appropriate to the circumstances of a child, his/her family or the alleged offence, the inquiry magistrate must, as far as is possible, develop a diversion strategy which meets the standard and requirements of diversion set out under sections 131 and 132 and which is appropriate to the circumstances of a particular child, his/her family, community of origin and the alleged offence.
(6) The inquiry magistrate must-
(a) if he/she has taken a decision that the matter should be referred to the Children’s Court in terms of subsection (4) (b), record written reasons for such decision; and
(b) receive and consider the reports regarding arrest of the child and detention in police custody provided by the arresting police officer under sections 101 (3) and 108 (5) respectively, and if, in the opinion of the inquiry magistrate, an arrest or detention in a police cell, as the case may be, was necessary, he/she must forward a copy of the record referred to in those sections to the parent, guardian or legal representative of the child.
Sufficiency of evidence in a preliminary inquiry
115. (1) An inquiry magistrate who intends to refer the matter to the prosecutor for charges to be instituted in the Children’s Court or other court in terms of section 114 (4) (b), must satisfy him/herself that there is sufficient evidence to sustain the prosecution, and for this purpose he/she may request the prosecutor, the investigating officer or any other relevant person to provide an oral report concerning the sufficiency of such evidence.
(2) If the inquiry magistrate has substantial and compelling reasons to
believe that there is insufficient evidence to support the institution of charges against the child, he/she must close the preliminary inquiry and -