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 -

 

(a)        order that the child, if in detention, be released; or

 

(b)        a child be released with an order for appropriate intervention by a probation officer.

 

(3)               If at any stage of the preliminary inquiry it appears that the child concerned does not intend to accept responsibility for the alleged offence as referred to under 132 (1) (a), the inquiry magistrate must, subject to the provisions of subsection (1) regarding sufficiency of evidence, refer the matter to the prosecutor for charges to be instituted in the Children’s Court or any other court acting in terms of the provisions of this Act.

 

Inquiry magistrate’s duty where child previously released or alternatives to arrest used

 

116.     Where a child has been previously released from detention, or where an alternative to arrest under section 98 has been used, and the matter is to be transferred to the prosecutor for charges to be instituted in the Children’s Court or any other court in terms of section 114 (4) (b), the inquiry magistrate-

 

(a)        must warn the child in language that the child understands to appear on a specified date at a specified place and at the specified time at such Children’s Court inquiry; and

 

(b)        may extend or confirm any conditions of release that were in operation by virtue of the provisions of section 108 (3) prior to the child’s appearance at the preliminary inquiry.

 

Inquiry magistrate’s duty to inquire into possible release of child from detention

 

117.     (1)        Where a child who appears at a preliminary inquiry has been arrested, and has not been released previously from detention under section 108, the inquiry magistrate, when-

 

(a)                remanding the matter under section 118 (1) or (2); or

 


(b)               referring the matter to the Children’s Court or other court for charges to be instituted in terms of section 114 (4) (b); must establish whether the child can be released from detention pending-

 

(i)                 finalisation of the preliminary inquiry; or

 

(ii)               the institution of charges in the Children’s Court or any other court .

 

(2)               The inquiry magistrate must, in making the determination referred to in subsection (1), have regard to the recommendation of the probation officer in respect of release from detention contained in the social assessment report, as well as any further evidence which has been placed before him/her by the child or any other person .

 

(3)               Release of a child into the care of a parent or guardian on one or more of the conditions set out in subsection (5) must be considered as a measure of first resort.

 

(4)               A child may be released on own recognisance with or without conditions as set out in subsection (5).

 

(5)        Conditions of release of a child for the purposes of this section include-

(a)                the obligation to appear before a Children’s Court or any other court acting in terms of the provisions of this Act at a specified place on a specified date and at a specified time;

 

(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)               if the preliminary inquiry  has been remanded under section 118, the obligation to appear at further proceedings of the preliminary inquiry at a specified place on a specified date and at a specified time.


 

(6)               Where a decision is made at the preliminary inquiry to divert a child under the provisions of section 114 (4) (a), the child must be released from custody.

 

Remanding of preliminary inquiry

 

118.     (1)       The inquiry magistrate may remand the preliminary inquiry for a period of forty-eight hours, if it is necessary for the purposes of-

 

(a)                securing the attendance of a person necessary for the finalisation of the inquiry;

 

(b)               obtaining information necessary for the finalisation of the inquiry;

 

(c)                establishing the attitude of the victim to diversion;

 

(d)               furthering the development of a diversion option; or

 

(e)                finding alternatives to pre-trial residential detention.

 

(2)               The preliminary inquiry may be remanded for a further period of forty- eight hours, after which the matter may be referred to the prosecutor for charges to be instituted in the Children’s Court or any other court acting in terms of the provisions of this Act.

 

(3)               Where the preliminary inquiry is remanded for purposes of noting of a confession, admission, pointing out or the holding of an identity parade, the inquiry magistrate must inform the child of his/her right to have a parent, guardian or legal representative  present during such proceedings.

 

(4)               Where the matter has not been referred to the Children’s Court or any other court as referred to in subsection (2), the preliminary inquiry must be closed and-

 

(a)        the child be released from custody; or

 

(b)        the child be released and an alternative intervention by a probation officer be applied.


(5)               Where a child cannot be released into the care of a parent or guardian, such child may, subject to section 117 (2), be remanded to a place of safety or a secure care facility, or if a place of safety or secure care facility is not available, and subject to the provisions of section 107 (7), to a police cell pending finalisation of the preliminary inquiry.

 

Circumstances under which a child may be remanded in detention after finalisation of preliminary inquiry

 

119.     (1)        Subject to the remainder of the provisions of this section, a  child who is accused of having committed an offence may, after finalisation of the preliminary inquiry, be detained in a place of detention, secure care facility or prison pending plea and trial in the Children’s Court or any other court acting in terms of the provisions of this Act , provided that-

 

(a)                the inquiry magistrate must consider the granting of bail to ensure that the deprivation of liberty of such child is a measure of last resort; and

 

(b)               such child may not be detained in a police cell or lock-up.

 

(2)               Where an inquiry magistrate has established that a child cannot be released from detention after the finalisation of the preliminary inquiry because-

 

(a)                it is not in the interests of justice;

 

(b)               a remand in detention is required in order to locate the child’s parent or guardian;

 

(c)                there are compelling reasons to believe that the child will abscond or will fail to attend a trial;

 

(d)               of the seriousness of the offence;

 

(e)                of the likelihood that the child will interfere with the witnesses; or

 

(f)                 of the likelihood that the child will be exposed to threats or danger by any person, the child may be remanded to a place of safety, secure care facility or prison pending the hearing of the matter before the Children’s Court or any other court acting in terms of the provisions of this Act, subject to the provisions of subsections (3), (4), (5) and (6).

 

(3)               In making a determination as to whether the placement of the child should be in a place of safety or a secure care facility as referred to in subsection (2), the inquiry magistrate must have regard to the recommendations of the probation officer as contained in such officer’s assessment report.

 

(4)        Where a child is fourteen but has not attained the age of eighteen years of age, and charged with murder, unlawful sexual act, indecent assault involving the infliction of grievous bodily harm, robbery with aggravated circumstances, or theft of stock, theft of motor vehicle, drug trafficking, counterfeit goods, counterfeit currency, laundering of money, offences relating to sale of liquor and gambling, if it is alleged that the value of the dependence- producing substance in question is more than M50 000 or any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or armaments, and release or referral to a secure care facility is not possible because-

 

(a)                there is no such facility within a reasonable distance from the court in which the child is appearing;

 

 

(b)               there is such a facility within a reasonable distance from the court, but written or oral evidence has been provided by a social worker that there is no vacancy at the time of making the decision; or

 

(c)                the inquiry magistrate is satisfied, or evidence placed before him/her, that there is a  substantial risk that the child may cause harm to other children in a place of safety or secure care facility,

the child may be remanded to a prison, provided that such remand to a prison must only be possible after finalisation of the preliminary inquiry, and the matter has been referred to the Children’s Court or any other court for charges to be instituted.

 

(5)               In making an order that the child be remanded to prison as referred to in subsection (2), the inquiry magistrate must enter the reasons for such remand on the record of the proceedings.


(6)      Where a child is remanded to a place of safety, secure care facility or prison in                      terms of subsection (2)-

 

(a)                the child must appear every 14 days before the Children’s Court or any other court acting in terms of the provisions of this Act, which court must-

 

(i)                 inquire whether detention in a place of safety, secure care facility or prison remains necessary;

 

(ii)               if ordering further detention of the child, enter the reason for such further detention on the record of the proceedings ; and

 

(iii)             consider the reduction of any amount of bail that has been granted in respect of such child;

 

(b)               the officer presiding in the Children’s Court must be satisfied that the child is being treated in a manner and kept in conditions that take account of the child’s well-being; and

 

(c)                the plea and trial in the Children’s Court or any other court acting in terms of the provisions of this Act must be finalised as speedily as possible.

 

Failure of child above the minimum age of prosecution to attend assessment or preliminary inquiry

 

120.     (1)        If a child above the minimum age of prosecution as referred to under section 83 fails to appear at an assessment or breaches any conditions of release from detention in police custody, the probation officer in whose district the assessment was to have taken place, may request the inquiry magistrate to issue a warrant of arrest.

 

(2)               If a child fails to appear at the preliminary inquiry, the prosecutor concerned may request the inquiry magistrate to issue a warrant of arrest.

 

(3)               If a child appears at an assessment or at the preliminary inquiry, as the case may be, after the execution of the warrant of arrest referred to in subsections (1) and (2), the matter must, in the case of an assessment, forthwith be set down for the holding of the preliminary inquiry or, in the case of appearance at the preliminary inquiry, be proceeded with.

 

(4)               Where the preliminary inquiry referred to under subsection (3) takes place, the inquiry magistrate must inquire into the reasons for the child’s failure to appear at the assessment or at the preliminary inquiry.

 

(5)               Where the inquiry magistrate finds  that the failure of  the child to appear at an assessment or at the preliminary inquiry was due to fault on the part of the child, he/she may take that fact into account when making a decision under section 114 (4).

 

Failure to comply with diversion conditions

 

121.     (1)        Where a child has been diverted by a probation officer or prosecutor and fails to comply with a condition of diversion, or with any other order, or fails to attend a programme, the probation officer or the prosecutor concerned may request the inquiry magistrate to issue a warrant of arrest or written notice to appear in respect of such child.

 

(2)               If a child appears after the execution of a warrant of arrest or as result of the issue of a written notice to appear as referred to under subsection (1), the matter must be set down for holding of a preliminary inquiry where the inquiry magistrate must inquire as to the circumstances surrounding the failure of the child to comply with the conditions of a diversion option.

 

(3)               Where a child has been diverted by an inquiry magistrate as referred to in section 114 (4) (a) and fails to comply with the conditions of diversion, or with any other order, or fails to attend a specified programme, the inquiry magistrate concerned may issue a warrant of arrest or written notice to appear in respect of such child.

 

(4)                 When a child appears before an inquiry magistrate after a warrant of arrest or written notice to appear has been issued in terms of subsection (3) and the child, at the time of such appearance is still below the age of eighteen years, the inquiry magistrate must inquire as to the circumstances surrounding the failure of the child to comply with the conditions of the diversion option.

 

(5)               The inquiry magistrate may, at the inquiry referred to under subsections (2) and (4), decide to-


(a)                divert the matter;

 

(b)               divert the matter to the same programme with altered conditions;

 

(c)                apply any other diversion option as described under section 133;

 

(d)               refer the matter to the prosecutor for charges to be instituted in the Children’s Court or in any other court acting under the provisions of this Act; or

 

(e)                make an appropriate order which will assist the child and his/her family to comply with the diversion initially applied.

 

(6)               The execution of a warrant of arrest referred to in this part may be suspended by the inquiry magistrate, 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.

 

(7)               When a person who has been arrested on a warrant issued pursuant to subsections (1) and (3) is no longer below the age of eighteen years at the time of appearance, that person should appear before the inquiry magistrate, who must inquire as to the circumstances surrounding the failure of the person to comply with the conditions of the diversion option.

 

(8)               In circumstances referred to under subsection (7), the inquiry magistrate may take any of the steps referred to in subsection (5) (a),(b),(c), or (e) or refer the matter to a court other than the Children’s Court for prosecution on the original set of facts.

 

Procedure upon referral of matter to be instituted

 

122.     (1)        Upon finalisation of the preliminary inquiry, if diversion has not taken place, and if the inquiry magistrate has found that there is sufficient evidence to sustain a prosecution of a child as referred to under section 115, the inquiry magistrate must-

 

(a)                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 as referred to under section 109;

 


(b)               warn any parent or guardian of such child to attend the proceedings referred to under paragraph (a) at a specified place and  on a specified date and time; and

 

(c)                ensure the provision of legal representation for such child in terms of the provisions of section 152.

 

(2)               Where the child concerned is not in detention after finalisation of the preliminary inquiry, the inquiry magistrate may-

 

(a)                alter or extend any condition imposed under section 108 or section 117;

 

(b)               alter or extend any order made under section 117 (3) and must warn any parent or guardian in whose care the child has been released to appear in the Children’s Court or any other court acting under the provisions of this Act at a specified place and on a specified date and time; and

 

(c)                warn the child, his or her parent or guardian to appear in the Children’s Court or any other court acting under the provisions of this Act at a specified place and on a specified date and time.

(3)               An inquiry magistrate must recuse him/herself and may not preside in a Children’s Court in relation to that matter if such magistrate has, during the course of such preliminary inquiry, heard any information prejudicial to the impartial determination of the matter.

 

Application for release from detention

 

123.     (1)        Nothing contained in this Act must be construed as precluding a child who is in detention in respect of an offence from applying for release from detention at any stage prior to the passing of the sentence in respect of that offence.

 

(2)        A court, in hearing an application referred to under subsection (1), must have regard to the circumstances referred to section 119 (3).

 

(3)        An appeal against the decision of a court hearing an application referred to under subsection (1) may be lodged to the High court.

 

                                                                   PART XIII


                                      RESTORATIVE JUSTICE AND DIVERSION

 

Restorative Justice

 

124.     The purposes of restorative justice in terms of this Act are to-

 

(a)        provide an opportunity to the person or persons or community affected by the harm caused to express their views regarding the impact of such harm;

 

(b)        encourage restitution of a specified object or symbolic restitution;

 

c)         promote reconciliation between the child and the person or community affected by the harm caused; and

 

(d)        empower communities to address children at risk of offending without resorting to criminal justice.

 

Establishment of Village Child Justice Committee

 

125.     (1)        There shall be established a committee that shall be known as the

Village Child Justice Committee.

 

(2)        The Village Child Justice Committee shall be responsible for handling all restorative justice processes at village level.

 

(3)        The Village Child Justice Committee shall comprise of village chief and six other members elected by the community.

 

(4)        The Village Child Justice Committee shall elect a chairperson from among its members.

 

(5)        Four members of the Village Child Justice Committee shall form a quorum at any meeting of the Village Child Justice Committee.

 

(6)        Subject to this Act, the Village Child Justice Committee shall determine its own procedure.

 

(7)        The Village Child Justice Committee shall meet as and when it is necessary or there is a case to be dealt with.

 

Restorative justice processes

 

126.     The restorative justice processes include-

 

(a)        families

 

(b)        family group conference;

 

(c)        open child  justice forum;

 

(d)        victim - offender mediation; and

 

(e)        any other restorative justice processes.

 

Family Group Conference

 

127.     (1)        A family group conference shall be convened by the Chairperson of the Village Child Justice Committee in consultation with the families of children concerned.

 

(2)        The Chairperson of the Village Child Justice Committee  who convenes a family group conference shall notify all persons who are entitled to attend the conference of the date, the time and the place at which the conference is to be held.

 

(3)        No notice is required to be given pursuant to subsection (1) to any person whose whereabouts cannot, after reasonable enquiries, be ascertained.

 

(4)        A notice required under subsection (2) shall be given a reasonable time before the conference is to be held.

 

(5)        Failure to notify any person in accordance with the provisions of this section shall not affect the validity of the proceedings of a family group conference unless it is shown that the failure is likely to have materially affected the outcome of that conference.  

 

(6)        The following persons are entitled to attend the family group  conference-


(a)        the children  in respect of whom the conference is held;

 

(b)        the parent(s) or guardians;

 

(c)        members of the families of the children concerned;

 

(d)        a probation officer, where the conference has been convened on the basis of a report from a probation officer;

 

(e)        any relevant body or organisation which the concerned families  may recommend as appropriate to attend the conference; and

 

(f)        any person, body or organisation whose attendance at the conference is recommended by the Chairperson of the Village Child Justice Committee working in consultation with the concerned families.

 

(7)        The Chairperson of the Village Child Justice Committee  who convenes a family group conference shall take all reasonable steps to ensure that all information and advice required by the conference to carry out its functions are made available to the conference.

 

(8)        Where it is appropriate and with the permission of the conference, any person may attend a family group conference for the purpose of conveying to that conference any information or advice required by that conference to carry out its functions.

 

(9)        A family group conference shall regulate its own procedure in such manner as it thinks fit.

 

(10)      The Chairperson of the Village Child Justice Committee  shall provide such administrative services as may be necessary to enable a family group conference to discharge its functions.

 

(11)      The functions of the family group conference are the following-

 

(a)        to consider in relation to the child(ren) in respect of whom the conference was convened such matters relating to the care and protection of those child(ren) as the conference thinks fit;

 


(b)        where the conference considers that the child(ren)in respect of whom the conference was convened is in need of care or protection , to make such decisions or recommendations and to formulate plans as the conference considers necessary in the best interests of that/those child(ren).

 

c)         to review from time to time the decisions and recommendations made and the plans formulated by that conference and their implementation.

 

(12)      The Chairperson of the Village Child Justice Committee who convenes a family group conference shall cause to be made a written record of the details of the decisions and recommendations made and the plans formulated by the conference pursuant to this section.

 

(13)      The Chairperson of the Village Child Justice Committee who has convened a family group conference shall communicate the decisions, recommendations and the plans made by the family group conference to every person that will be directly involved in the implementation of decision, recommendation or plan and seek their agreement. 

 

(14)      Where the Chairperson of the Village Child Justice committee  is unable to secure an agreement to a decision, recommendation or plan referred to under subsection (13), the Chairperson of the Village Child Justice Committee may, for the purpose of enabling the conference to reconsider that decision, recommendation or plan, reconvene that conference.

 

(15)      A family group conference reconvened under subsection (14) may confirm, rescind or modify its previous decision, recommendation or plan.

 

(16)      Any decision, recommendation or plan confirmed or modified under subsection (15), and any new decision, recommendation or plan made or formulated under that subsection, shall be deemed to have been made in the previous conference.

 

(17)      The Chairperson of the Village Child Justice Committee  who convenes a family group conference shall ensure that copies of the proceedings of the conference, where the proceedings were recorded, are given to all persons present at the conference.

 


(18)      Information, statement or admission made or disclosed in the course of a family conference shall not be admissible in any court.

 

(19)      No person shall publish any report of the proceedings of a family group conference.

 

(20)      Nothing under subsection (19) applies to the publication of statistical information relating to family conferences or bona fide research relating to family group conferences.

 

Open Village Healing Circle

 

 

128. (1) Open village Healing circle shall be convened by the chairperson of the Village Child                     Justice Committee in consultation with families of the victim(s) and offender(s).

 

       (2) An open village healing circle may be held where delinquent act(s) include:

            (a) two or more acts of anti-social behaviour;

            (b) the acts impact almost equally on all members of community e.g. burning of grass, acts                  of vandalism, etc.

             ©) two or more children are involved;

             (d) group related conflict such as that between two villages;

              (e) there is a high probability that the anti-social behaviour or offence will be replicated.

         

    (3) The following groups of people shall attend

         (a)  the children concerned and their families.

         (b)  a Probation Officer where the circle is convened on the basis of a recommendation of a                  Probation Officer.

         ©)  representation of children of the concerned village(s)

        (d)   any relevant body or organization including Youth Organisations, whose attendance at                    the  circle is recommended by the Village Child Justice Committee in consultation with                  the concerned parties;

        (e)    a representation of the concerned village(s).

 

   (4) The village Child Justice Committee shall determine the size of the representatives in 3 ©),           (d) & (e).

 


     (5) The Village Child Justice Committee shall make necessary arrangements/preparations that              shall ensure safety and security as well as orderly procedures for the Village Healing Circle.   

Victim - offender  mediation

 

129.     (1)        Victim-offender mediation shall be convened by the Chairperson of the Village Child Justice Committee in consultation with the victim and offender.

 

(2)        The victim and the offender shall meet in a safe and structured setting with the assistance of a trained mediator or Chairperson of the Village Child Justice Committee.

 

(3)        The functions of the victim-offender mediation are to -

 

(a)        to enable the victim and offender to talk about the crime, express their feelings and concerns;

 

(b)        to participate directly in developing options for trying to make thongs right; and

 

c)         to afford the offender an opportunity to make apologies, provide information and develop reparative plans and gain insight for personal growth.

 

(4)        The Chairperson of the Village Child Justice Committee who convened a victim-offender mediation shall cause to be made a written record of the details of the decisions and recommendations made and the plans formulated in the victim-offender mediation.

 

(5)        The Chairperson of the Village Child Justice Committee who has convened a victim-offender mediation shall communicate the decisions, recommendations and the plans made by the victim-offender mediation to every person that will be directly involved in the implementation of decisions, recommendation or plan and seek their agreement.

 

Referral to restorative justice process

 

130.     (1)        Referral to restorative justice process may be made by the-

 

(a)        child or his/her parent, guardian or any appropriate adult;


(b)        chief;

 

c)         police;

 

(d)        prosecutor; and

 

(e)        Children’s Court.

 

(2)        Where the case is referred to restorative justice process by the Children’s Court, the police or probation officer, and the victim and offender do not agree on the decision to be made at such a forum, the case shall go back to the Children’s Court, the police or probation officer for further action.

 

(3)        A child or children who persist(s) in engaging in anti - social behaviour that render him/her a child at risk of offending may be referred to any restorative justice process by:

 

         (a)  his/her parent(s), guardian(s) or any appropriate adult

                     (b) any chief who is concerned with anti-social behaviour of any child                                                     residing in his/her village, the parents of whom are considered

                            unable to control.

                    © a commissioned officer of the police, acting under section 133(2) c

                   (d) a prosecutor, acting under section 134(3) (a).

                   (e) a Probation Officer, acting under section 93 ©) .

                   (f) an inquiry magistrate under section 114(1) and (4) (a).          

 

 

 

Diversion

 

131.     (1)        The purposes of diversion in terms of this Act are to-

 

(a)        encourage the child to be accountable for the harm caused by him/her;

 

(b)        promote an individualised response to the harm caused which is appropriate to the child’s circumstances and proportionate to the circumstances surrounding the harm caused;

 

(c)                promote the reintegration of the child into the family and community;

 


(d)        prevent stigmatisation of a child which may occur through contact with the criminal justice system.

 

(2)        Where possible and appropriate, diversion shall include restorative justice elements which aim at healing relationships, including the relationships of the victim (s) and offender(s).

 

(3)        In making a decision whether to or not to divert a child, consideration must be given to whether, this would be in the best interest of the child.

 

(4)        No child may be unfairly discriminated against on the basis of race,gender, sex, ethnic or social origin, colour, sexual orientation, religion, conscience, belief, culture, language, birth or socio-economic status in the selection of a diversion programme, process or option and all children must have equal access to diversion options.

 

(5)        Corporal punishment and public humiliation shall not be elements ofdiversion.

 

(6)        A child under the age of thirteen years must not be required or permitted to perform community service or other work as an element of diversion.

 

(7)        Diversion programmes must- 

 

(a)        promote the dignity and well- being of the child, and the development of his/her sense of self- worth and ability to contribute to society;

 

(b)        not be exploitative, harmful or hazardous to a child’s physical or mental health;

 

c)                  be appropriate to the age and maturity of the child;

 

d)                  not interfere with a child’s schooling;

 

e)                  where possible and appropriate, impart useful skills;

 


f)                   where possible and appropriate, include an element which seeks to ensure that the child understands the impact of his/her behaviour on others, including the victims of the offence, and may include compensation or restitution; and

 

g)                  where possible and appropriate, be presented in a location reasonably accessible to children, and children who do not have the means to afford transport in order to attend a selected diversion programme, should be provided with the means to do so.

 

(8)        No child must be required to pay for admission to a diversion

programme.

 

Circumstances to be considered for diversion

 

132.     (1)        A child suspected of having committed an offence may only be

referred for diversion by a probation officer,  prosecutor, an inquiry magistrate or an officer presiding in a Children’s Court as referred to in this Act, if-

 

(a)        such child acknowledges responsibility for the alleged offence and consents to diversion;

 

b)                  there are reasons to believe that there is sufficient evidence for the matter to proceed to trial; 

 

c)                  there is no risk of infringement of the child’s procedural rights; and

 

d)                  the child has a fixed address.

 

(2)        Where circumstances as referred to in subsection (1) exist, diversion must be considered as a matter of first resort.

 

Diversion options

 

133.       (1)      A probation officer, prosecutor, inquiry magistrate or officer

presiding in the Children’s Court, in selecting a diversion under this section, must ensure that-

 

(a)                due regard is given to a child’s cultural, religious and linguistic context, the child’s community of origin and the child’s age;

 


(b)               the option recommended or selected is proportionate to the circumstances of the child, the nature of the offence and the interests of the society; and

 

(c)                due regard is had to the various levels of diversion options.

 

(2)        Diversion options that may be applied in respect of the child in the

first instance are not limited to but may include-

 

(a)        an oral or written apology to a specified person or persons or institution;

 

b)                  referral to a commissioned officer of the police for purposes of the administration of a police caution without conditions;

 

c)                  referral to a commissioned officer of the police for the purposes of the administration of the police caution with conditions;

 

d)                  placement under a supervision and guidance order for a period not exceeding three months or as determined by the circumstances of the case;

 

e)                  placement under a reporting order for a period not exceeding three months;

 

f)                   issuing of a compulsory school attendance for a period not exceeding three months;

 

g)                  issuing of a family time order for a period not exceeding three months;

 

h)                  issuing of a positive peer association order in respect of a specified person or persons or specified place for a period not exceeding three months;

 

i)                    issuing of a good behaviour order with conditions;

 

j)                    issuing of an order prohibiting the child from visiting , frequenting or appearing at a specified place;

 


k)                  compulsory attendance at a specified centre or place for a specified vocational or educational purpose and for a period not exceeding five hours each week, for a maximum of eight weeks;

 

l)                    symbolic restitution in respect of a specified object to a person, persons, group or institutions; and

 

m)                restitution of a specified object to a specified victim or victims of the alleged offence where the object concerned can be returned or restored.

 

(3)        Diversion options that may be applied in respect of a child in the

second instance are not limited to but may include-

 

(a)                placement under a supervision and guidance order for a period longer than three months but not exceeding six months;

 

(b)               placement under reporting order for a period longer than three months but not exceeding six months;

 

(c)                issuing of compulsory school attendance order for a period longer than three months but not exceeding six months;

 

(d)               issuing of a family time order for a period longer than three months but not exceeding six months;

 

(e)                issuing of a positive peer association order in respect of a specified person or persons or a specified place for a period longer than three months but not exceeding six months;

 

(f)                 compulsory attendance at a specified centre or place for a specified vocational or educational purpose for a period not exceeding five hours each week, for a maximum of twelve weeks;

 


(g)                performance without remuneration of some service for the benefit of the community under the supervision or control of an organisation or institution, or a specified person or group identified by the probation officer when effecting the assessment for a maximum period of twenty- five hours, and to be completed within a maximum period of three months;

 

(h)               restitution of the specified object to a specified victim or victims of the alleged offence where the object concerned can be returned or restored or payment of compensation to a maximum of M5000. 00 to a specified person, persons, group or institution where the child or his/her family is able to afford this;

 

(i)                 referral to appear at the victim-offender mediation, a family group conference or other restorative justice process at a specified time, on a specified date and at a specified place; and

 

(j)                 one or more of the options set out in paragraphs (a) to (i) of this subsection or in paragraphs (a), (i) or (l) of subsection (2) used in combination, with due regard to the age of the child concerned, the circumstances of the child and his/her family, and the nature of the offence.

 

(4)               Diversion options that may be applied in respect of a child in the

third instance are not limited to but may include-

 

(a)                placement under a supervision and guidance order for a period longer than six months but not exceeding one year in duration;

 

(b)               compulsory attendance at a specified centre or a place for a specified vocational or educational purpose for a period of not more than twenty hours each week for a maximum of six months;

 

(c)                performance without remuneration of some service for the benefit of the community under the supervision and control of an organisation or institution, or specified person or group identified by a probation officer when effecting the assessment for a period exceeding twenty-five hours but not exceeding hundred hours to be completed within a maximum period of six months;

 

(d)               referral to appear at the victim-offender mediation, a family group conference or other restorative justice process at a specified time, on a specified date and a specified place;

 


(e)                restitution of a specified object to a victim or victims of the alleged offence where the object concerned can be returned or restored or payment of compensation to a maximum of M10,000,00 to a specified person, persons, group or institution where the child or his/her family is able to afford this;

 

(f)                 referral to a programme with a residential element, where the duration of the programme does not exceed three months, and no portion of the residence requirement exceeds twenty-one consecutive nights with a maximum of thirty-five nights; and

(g)                one or more of the above options used in combination, or combined with one or more of the orders referred to in paragraphs (b), (c), (d), or (e) of subsection (3) or in paragraph (a) of subsection (2).

 

(5)               Diversion options that may be applied in respect of a child over the

age of fourteen years in the fourth instance, which must be imposed only by an inquiry magistrate or other officer presiding in proceedings in terms of the provisions of this Act if he/she has reason to believe that a Children’s Court, in relation to the circumstances of the child and the offence, would impose a term of imprisonment exceeding six months or a reform school sentence, are not limited to but may include-

 

(a)                referral to a programme with a residential element, where the duration of the programme does not exceed six months, and no portion of the residence requirement exceeds twenty-one consecutive nights with a maximum of sixty nights during the operation of the programme;

 

(b)               performance without remuneration of some services for the benefit of the community under the supervision and control of an organisation or institution, or a specified person or group identified by the probation officer effecting the assessment for a maximum period of 250 hours, to be completed within a maximum period of twelve months;

 

(c)                where a child is over the age of compulsory school attendance, and is no longer attending formal schooling, compulsory attendance at a specified centre or place for a specified vocational or educational purpose for a maximum period of not more than 35 hours per week, to be completed within a maximum period of six months; and


 

(d)               any of the options referred to in paragraphs (a), (d), (e) and (g) of subsection (4) in combination with any of the options referred to in this subsection.

 

(6)        A victim-offender mediation, family group conference or other

restorative justice process referred to in subsections (3) (i) and (4) (d) may apply any option referred to under subsections (2), (3) or (4) to a child referred to such mediation, conference or process, or reach another resolution appropriate to the child , his/her family and to local circumstances, provided that such mediation, conference or process may not, in the case of another resolution, contravene any applicable principle under this Act.

 

Referral and powers of prosecution in respect of children above the minimum age of prosecution with respect to diversion

 

134.     (1)        Subject to the provisions of section 94 (1) and (2), where a

probation officer, in relation to a child above the minimum age of prosecution, has recommended that-

 

(a)                such child be diverted to a specified process, programme or appropriate alternative order mentioned under section 95 (3) (a);

 

(b)               the matter involving such child be transferred to the Children’s Court in terms of section 95 (3) ( c);

 

(c)                no further action be taken in terms of section 95 (3) (b); or

 

(d)               the matter involving such child should not be diverted,

 

the matter must be submitted to the prosecutor.

 

(2)        Upon consideration of the recommendations of the probation officer

as referred to in subsection (1) (a), (b) and (c) the prosecutor may-

 

(a)        concur with the recommendation of the probation officer and divert the matter, arrange for the transfer of the matter to the Children’s Court, or decline to charge the child concerned; or

 


(b)               disagree and state reasons why he/she disagrees with the recommendation of the probation officer, and arrange for the opening of a preliminary inquiry.

 

(3)               Upon consideration of the recommendations of the probation officer

as referred to in subsection (1) (d) the prosecutor may-

 

(a)        disagree with the recommendations of the probation officer and divert the matter, arrange for the transfer of the matter to the Children’s Court inquiry as referred to under subsection (2) (a), or decline to charge the child concerned; or

 

(b)        concur with the recommendation of the probation officer, and arrange for the opening of a preliminary inquiry.

 

(4)               Where a prosecutor takes one of the steps outlined in subsection (2)

(a) or (3) (a), no charges against the child must be instituted in accordance with section 109, provided that where a child fails to comply with a condition of diversion,  the provisions of section 121 will apply.

 

(5)               Where an assessment has not been effected, the prosecutor to whose

notice the case involving a child under the age of eighteen years has been brought, must arrange that assessment be effected, or, if this is not possible, arrange for the opening a preliminary inquiry.

 

                                                                   PART XIV

                                       BAIL AND DETENTION PENDING TRIAL

 

Bail

 

135.     (1)        Where a child appears before a Children’s Court charged with an

offence, the magistrate or presiding officer shall inquire into the case and unless there is a serious danger to the child, release the child on bail-

 

(a)        on a court bond on his/her own recognisance; or

 

(b)        with sureties, preferably, the child’s parents, guardian, family member or responsible person on a court bond.

 

(2)        If bail is not granted , the Children’s Court shall record the reasons

for refusal and inform the child of his/her right to appeal or review to the High Court.


Remand

 

136.     (1)        Where a child is not released on bail, the Children’s Court may

make an order remanding or committing him/her in a remand home.

 

(2)        If there is no remand home within a reasonable distance from the

Children’s Court, the Children’s Court shall make an order as to the detention of the child in a place of safe custody as it deems fit.

 

(3)        For the purposes of this section, a place of safe custody shall be a

place which the Children’s Court considers suitable to ensure that the child shall be brought to the Children’s Court when required and shall not associate with any adult detainee.

 

(4)        Remand in custody shall be for the shortest period possible and shall

not exceed three months.

 

(5)        No child shall be remanded in custody with an adult.

 

(6)        A child who escapes from a remand home or other place of safe

custody in which he/she is detained may be arrested with or without a warrant and be returned to that place.

 

(7)        Pending the establishment of a remand home, the Minister may

declare by notice in a Government Gazette any establishment as a remand home.

 

(8)        Notwithstanding anything to the contrary herein contained, the

Children’s Court shall consider alternatives to remand such as close supervision or placement with a fit and proper person determined by the Children’s Court on the recommendation of a probation officer.

 

                                                                    PART XV

                                                         CHILDREN’S COURT

 

Jurisdiction of Children’s Court

 

137.     (1)        Every Subordinate Court shall be a Children’s Court within its area

of jurisdiction and shall have jurisdiction to hear and determine cases of children in need of care, protection  and rehabilitation and charges as appears in schedules 1and 2 and against adults in part v.


 

(2)        A  presiding in proceedings in a Children’s Court

must  be designated by the Chief justice and the Children’s Court must, as far as possible, be staffed by specially trained personnel.

 

(3)        The court room, where practicable, should be located and designed

in a way which is conducive to the dignity and protection of children and  the  proceedings shall be informal, child - friendly and allow the active participation of all persons who need to be involved in the proceedings.

 

Proceedings under this Act by  court other than Children’s Court

 

138.     (1)        A court, other than a Children’s Court, has jurisdiction to try the

case of an accused child where such child is charged with murder,  treason or sedition  or where he/she is charged with any other offence and-

 

(a)        the likely sentence will exceed the jurisdiction of the Children’s Court;

 

b)                  there are multiple charges in respect of the child concerned and any other court other than the Children’s Court has jurisdiction in respect of one or more of those charges; or

 

c)                  a decision has been made under section 144 that there will be a joinder of trials.

 

(2)               Where the Director of Public Prosecution is satisfied that the

circumstances referred to under subsection (1) (a) or (b) exist in respect of the matter involving a particular child, he/she may, prior to the commencement of the trial, refer the matter to the appropriate court for plea and trial.

 

(3)               A Subordinate Court and a Children’s Court have concurrent

jurisdiction in respect of matters in which a child is charged together with an adult and a successful application for joinder of the trials has been made under section 144.

(4)               The court hearing the matter under this section must conduct the

proceedings in accordance with the provisions of this Act and with due regard to the best interests of the child.

 

(5)               If the Children’s Court has proved a charge against a child and the


Children’s Court is of the view that exceptional circumstances exist which indicate that the appropriate sentence may exceed the sentencing jurisdiction of the Children’s  Court, the Children’s Court may refer the matter to the Subordinate Court if it has more penal powers or the High Court for sentencing, and cause a copy of the record of the proceedings to be made available to the Children’s Court.

 

Assistance to the children who appear in court

 

139.     (1)        At the commencement of the proceedings in the Children’s Court,

the presiding officer must inform the child appearing before such court in a language that the child understands of the following rights-

 

(a)        the right to challenge testimony of witnesses;

 

(b)        the right to remain silent;

 

c)         the right to have the child’s parents or guardian present at the proceedings;

 

(d)        the right to choose and to be represented by a legal representative at his or her own cost; and

 

(e)        the right to be represented by a legal representative chosen by the Court or provided by the State.

 

(2)               A child who is under the age of eighteen years must be assisted by

his/her parent or guardian at criminal proceedings, and this requirement may be dispensed with where-

 

(a)                all efforts to locate such person have been exhausted and any further delay would be prejudicial to the best interests of the child; or

 

(b)               the child is charged with an offence under schedule 1 and the sentence referred to under section 158 (a) (i), (ii) or (iii), (b), (c) or (k) is likely to be imposed.

 

Parent or guardian to attend proceedings

 

140.     (1)        A parent or guardian of a child who has been warned by an


inquiry magistrate to attend proceedings involving such child under section 122 (1) (b), must attend such proceedings unless exempted from the obligation to do so under subsection (3).

 

(2)               If a person referred to under subsection (1) has not been warned to

attend the relevant proceedings, the court before which the  proceedings are pending may at any time during the proceedings direct any person to warn a person referred to under subsection (1) to attend such proceedings.

 

(3)               A person who has been warned in terms of subsection (1) or (2),

may apply to the officer presiding in the court in which the child is to appear for exemption from the obligation to attend the proceedings in question, and if such presiding officer exempts such person, he/she must do so in writing.

 

(4)               A person who has been warned under subsection (1) or (2) and

who has not been exempted from the obligation to attend the relevant proceedings under subsection (3), and a person who is present at proceedings and who is warned by the court to remain in attendance, must remain in attendance at the relevant  proceedings, whether in that court or any other court, unless excused by the court before which such proceedings are pending.

 

(5)               A person who has been warned in terms of subsection (1) or (2) and

who fails to attend the proceedings in question or who fails to remain in attendance at such proceedings in accordance with the provisions of subsection (4), commits an offence and on conviction is liable to a fine not exceeding twenty thousand maloti or to imprisonment to a term not exceeding one year.

 

Charge sheet and withdrawal of charge

 

141.     (1)        The allegations contained in any charge sheet must be formulated in

language that the child can read and/ or understand.

 

(2)        A legal representative, parent or guardian of a child offender shall be

provided with a copy of a charge sheet at the beginning of the proceedings.

 

(3)        Nothing contained in this Act must be construed as precluding the

prosecuting authority from exercising the discretion to withdraw a charge at any stage of the proceedings.

 

Conduct of proceedings in Children’s Court

 


142.     (1)        The officer presiding in the Children’s Court may, if it would be in

the best interests of the child, actively participate in eliciting evidence from any person involved in the proceedings.

 

(2)        All proceedings conducted in the Children’s Court must be held in

camera and the privacy of the child concerned and other child witnesses, subject to the provisions of section 149, must be protected at all times.

 

(3)        The proceedings of the Children’s Court must, with regard to the

child’s procedural rights, be conducted in an informal manner to encourage the maximum participation of the child, his/her parent or guardian and other child witnesses.

 

(4)        Where the presence of a parent, guardian or any other person who is

not an officer of the Children’s Court  is likely to discourage the maximum participation of the child, the Children’s Court shall order that person to recuse himself/herself from the proceedings.        

 

(5)        The children must be permitted to speak in their own language with

the assistance, where necessary, of an interpreter and the presiding officer must ensure that they are addressed in language that they understand.

 

(6)        In the case of a child with speech or hearing impairment, the

Children’s Court shall order that a person with expertise in sign language be engaged to assist the child and the court.

 

(7)        The presiding officer must ensure that the conduct of all proceedings

and the conduct of all court personnel are conducive to the protection of all the children participating in the proceedings.

 

(8)        In cases involving children in conflict with the law, no handcuffs,

leg-irons or other restraints may be used when a child appears in the Children’s Court, unless an imminent danger exists that the safety of any person may be endangered if such restraints are not used.

 

(9)        A child held in a lock-up, cell or at the court on suspicion of having

committed an offence or who is being transported to court must be kept separately from adults and be treated in a manner and kept in conditions which take account of his/her age.

 


(10)      Subject to the provisions of subsection (7) a female child offender

must be kept separately from any male child offender and must be under the care of an adult woman.

 

(11)      The proceedings of the Children’s Court may, at the discretion of

the presiding officer, be held in a place other than a court.

 

(12)      The presiding officer must protect a child offender and other child

witnesses  from hostile or intimidating cross-examination where such cross-examination is regarded by the presiding officer as being prejudicial to the well-being of the child or the fairness of the proceedings.

 

Evidence in cases involving child offenders

 

143.     (1)        Evidence of admissions, confessions and pointing out made under

coercive circumstances and /or in the absence of a child’s parent,  guardian or legal representative is inadmissible in proceedings in a Children’s Court or any other court acting under the provisions of this Act.

 

(2)        No evidence of an admission or confession made by a child during

an assessment or during the course of a preliminary inquiry is admissible at proceedings in the Children’s Court.

 

Separation and joinder of trials involving children and adults

 

144.     (1)        If a child appearing in a Children’s Court is co-accused with an

adult, the case of the adult concerned must be separated from that of the child and is not subject to the provisions of this Act unless any person (s) involved in the proceedings, including the child, his/her parent, such child’s legal representative and the prosecutor, before the commencement of the trial, may make an application to the court in which the adult is due to appear for a joinder of the trials concerned.

 

(2)               A person making an application for joinder of trials to the court in

which the adult concerned is to appear must give notice to all parties concerned. 

 

(3)               The rules of the court to which an application as referred to in

subsection (1) is made, relating to applications, time periods for applications and opposition of applications, apply to the provisions of this section.

 

(4)                 If a person making an application under this section has shown, on


a balance of probabilities, that a miscarriage of justice or prejudice to the victim or victims of the alleged offence would otherwise occur, the court to which the application is directed, may order a joinder of the trials of the child and adult concerned, provided that the best interests of the child are duly considered.

 

(5)               If the court makes a finding under subsection (4), the matter before

the Children’s Court must be transferred to the court in which the adult is to appear.

 

(6)               The court to which the matter has been transferred to under

subsection (5), must act in accordance with the provisions of this Act in relation to the proceedings involving the child concerned.

 

Separation and joinder of trials involving children only

 

145.     (1)        A prosecutor may join the trial of a child offender with that of any

other accused child in the same proceedings at any time before evidence has been led in respect of the charge in question.

 

 

(2)               Where two or more children are charged jointly, whether with the

same offence or different offences, the Children’s Court may at any time during the trial, upon the application of the prosecutor or by or on behalf of any of the children, direct that the trial of any one or more of the children must be held separately from the trial of the other children, and the Children’s Court may abstain from giving judgement in respect of any such children.

 

Adjournment of proceedings

 

146.     (1)        The Children’s Court or any other court acting under the provisions

of this Act must finalise all trials of accused children as speedily as possible and must ensure that remands are limited in number and in period between remands.

 

(2)               A court other than Children’s Court acting under the provisions of

this Act must ensure that trials of accused children receive priority on the roll of such court.

 

(3)               Where the child has been remanded to custody, the presiding officer

must ensure that the requirements set out under section 119 (6) regarding remands to places of safety or prison are complied with.

 


(4)               Where a child has been remanded to custody pending trial in the

Children’s Court or any other court acting under the provisions of this Act, the plea and trial of such child must be finalised within a period not exceeding three months, after which period the child must be released from detention.

 

Powers of officer presiding in Children’s Court

 

147.     (1)        If, at any time before conviction, or after conviction and before

sentence, the child accepts responsibility for an offence and the Children’s Court in which the child appears is of the opinion that the matter should be diverted, the court may refer the child to any diversion option referred to under section 119, provided that any finding of guilt must be considered not to have been made.

 

(2)               If, at any time before conviction, or after conviction and before

sentence, the Children’s Court is of the opinion that substantial grounds exist that an alternative dispute resolution mechanism may be appropriate to the resolution of the matter before the court, the court may stop the proceedings and order that the matter be referred to a victim-offender mediation, a family group conference or other restorative dispute resolution or make any other order as it may deem necessary to resolve the matter.

 

(3)               If the matter is referred to victim-offender mediation, family group

conference or other restorative dispute resolution process, the written recommendations emanating from such mediation, conference or process must be re-submitted to the Children’s Court within 14 days if the child is not in custody.

 

(4)               If the child is in custody the written recommendations emanating

from such mediation, conference or process must be re-submitted to the Children’s Court within five days after referral of the matter upon which such court may-

 

(a)                confirm the recommendations by making such recommendations an order of the court;

 

(b)               substitute or amend the recommendations and make an appropriate order; and

 

(c)                reject the recommendations and proceed with the trial.

 

(5)        Where the Children’s Court acts under the provisions of subsection


(4) (a) or (b), any finding of guilt made in relation to the matter before the Children’s Court must be considered not to have been made.

 

Failure to attend court proceedings

 

148.     (1)       If a child fails to appear at any proceedings in the Children’s Court

or any other court acting in terms of the provisions of this Act, the prosecutor may request the presiding officer in such proceedings to issue a warrant of arrest in respect of such child.

 

(2)               If the presiding officer, upon the appearance of a child in the

Children’s Court or any other court acting under the provisions of this Act, after the execution of a warrant of arrest , finds that the failure of the child to appear at the proceedings concerned was due to fault on the part of the child, he/she

may take that factor into account when making a decision as to how the matter should proceed.

 

Privacy and confidentiality

 

149.     (1)        Where a child appears before a Children’s Court or any other court

acting under the provisions of this Act, no person other than the persons referred to under sections 84 (3) and 111 (4) may be present unless such person ‘s presence is necessary in connection with such proceedings or is authorised by the court on good cause shown.

 

(2)               No person, institution or organisation may publish in any manner

whatsoever, any information which reveals or may reveal the identity of the child under the age of eighteen years appearing at an assessment, a preliminary inquiry or before Children’s Court or any other court acting in terms of the provisions of this Act, or of a witness under the age of eighteen years appearing at any proceedings referred to in this Act who is under the age of eighteen years.

 

(3)               Subject to the provisions of subsection (4), no prohibition or

direction under this section may prevent-

 

(a)                any person, institution or organisation from gaining access to information pertaining to a child or children governed by this Act if such access would be in the interests, safety or welfare of any such child or of children in general;

 

(b)               the publication, in the form of a bona fide law report, of-


 

(i)                 information for the purpose of reporting any question of law relating to the proceedings in question; or

 

(ii)               any decision or ruling given by any court on such question, and

 

(c)                the publication, in the form of any report of a bona fide professional or technical nature, of research results and statistical data pertaining to a child or children governed by this Act if such publication would be in the interests, safety or welfare of any such child or of children in general.

 

(4)               The reports referred to under subsection (3)(b)and (c) shall not

mention the name of the child charged or of the child against whom or in connection with whom the offence in question was alleged to have been committed or of any child witness at such proceedings, and may not mention the name of a person accused with the child or place where the offence in question was alleged to have committed if this may reveal the name of the child.

 

(5)        Nothing under this section prevents publication of information

or making of reports that expose the identity and names of persons, institutions and organisations that are involved in the commission or aiding and abetting the commission of offences involving children.

 

(6)        Any person who publishes any information in contravention of this

section or contrary to any direction or authority under this section or who in any manner reveals the identity of a child witness in contravention of a direction under this section, commits an offence and on conviction is liable to a fine not exceeding twenty thousand maloti or to imprisonment term not exceeding two years.

 

Evidence through intermediaries

 

150.     (1)        Whenever  proceedings involving children are pending before any

court and it appears to such court that it would expose any witness under the age of eighteen years to undue mental stress or suffering if he/she testifies at such proceedings, the court may, subject to subsection (5), appoint a competent person as an intermediary in order to enable such witness to give evidence through an intermediary.

 


(2)        Except for examination by the court, examination, cross-

examination or re-examination of any witness in respect of whom a court has appointed an intermediary under subsection (1), shall take place in any manner other than through that intermediary.

 

(3)        The appointed intermediary may, unless the court directs

otherwise, convey the general purport of any question to the relevant witness.

 

(4)        If a court appoints an intermediary under subsection (1), the

court may direct that the relevant witness may give his/her evidence at any place-

 

(a)        which is formally arranged to set that witness at ease;

 

(b)        which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and

 

c)         which enables the court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through the medium of any electronic or other devices, that intermediary as well as that witness during his/her testimony.

 

(5)        The Minister may by notice in the Gazette determine the

persons or the category or class of persons who are competent to be appointed as intermediaries.

 

(6)        An intermediary who is not in the full-time employment of the

State shall be paid such travelling and subsistence and other allowances in respect of the services rendered by him/her as the Minister of Finance, may determine.

 

(7)        No oath, affirmation or admonition which has been

administered through an intermediary shall be invalid and no evidence which has been presented through an intermediary shall be inadmissible solely on account of the fact that such intermediary was not competent to be appointed as an intermediary under subsection (5), at the time when such oath, affirmation or admonition was administered or such evidence was presented.

 

(8)        If at any proceedings it appears to a court that an oath,


affirmation or admonition was administered or that evidence has been presented through an intermediary who was appointed in good faith but, at the time of such appointment, was not qualified to be appointed as an intermediary under subsection (5), the court must make a finding as to the validity of that oath, affirmation or admonition or the admissibility of that evidence, as the case may be, with due regard to-

(a)        the reason why the intermediary concerned was not qualified to be appointed as an intermediary, and the likelihood that the reason concerned will affect the reliability of the evidence so presented adversely;

 

(b)        the mental stress or suffering which the witness, in respect of whom that intermediary was appointed, will be subjected to if that evidence is to be presented anew, whether by the witness in person or through another intermediary; and

 

c)         the likelihood that real and substantial justice will be impaired if that evidence is admitted.

(9)        Nothing under this section prevents the prosecution from

presenting anew any evidence which was presented through an intermediary referred to under  subsection (7).

 

(10)      The provisions of subsection (7) shall also be applicable in

respect of all cases where an intermediary referred to in that subsection has been appointed, and in respect of which, at the time of the commencement of that subsection ,the trial court or the court considering an appeal or review,

has not delivered judgement.

 

                                                                   PART XVI

                                                   LEGAL REPRESENTATION

 

Principles relating to legal representation

 

151.     (1)        A child has a right to legal representation in any legal proceedings.

 

(2)               A legal representative appearing on behalf a child under this Act

must-

(a)                allow the child to give independent instruction on the manner in which the case is to be conducted;

 


(b)               clearly explain the child’s rights and responsibilities in relation to any proceedings under this Act and which the child is involved to him/her in language which he/she can understand;

 

(c)                encourage informed decision- making by explaining possible options and the consequences of decisions;

 

(d)               promote diversion where appropriate whilst ensuring that the child is not unduly influenced to acknowledge guilt;

 

(e)                ensure that all time periods or delays throughout the case are kept to the minimum and that remands are limited in number and period of time between each remand;

 

(f)                 ensure that the child is able to communicate in his/her language, and in cases where the legal representative does not speak the same language as the child, ensure that an interpreter is used who should also be apprised of these principles; and

(g)                become acquainted with the local options for diversion and alternative sentencing.

 

Appointment of a legal representative

 

152.     (1)        A child may have legal representation at any stage of proceedings

under this Act.

 

(2)               A child must be advised by a social worker, police officer, a

probation officer, the inquiry magistrate and the officer presiding in the Children’s Court that he/she has the right to legal representation.

 

(3)               The child, his/her parent or guardian may appoint a legal

representative of their choice and they are responsible for the payment of such services.

 

(4)               Where a child exercises his/her right to have a legal representative

appointed at state expense, a social worker, police officer, probation officer or prosecutor or officer presiding in the Children’s Court must request the Legal Aid to represent the child.

 

(5)               After the appointment of the legal representative referred to under

subsection(4), the Children’s Court must refer the matter to the Legal Aid for evaluation and report thereon.


(6)               The Legal Aid must, evaluate the matter and compile a report, which

report must be in writing and must include-

 

(a)                particulars of the financial circumstances of the child, his/her parents or guardian;

 

(b)               whether any other legal representation at the expense of the state is available or has been provided;

 

(c)                any other particulars which, in the opinion of the Legal Aid, have to be taken into account.

 

(7)               The report referred to under subsection (6) must be submitted by the

Legal Aid to the Children’s Court which must make a copy available to the Children’s Court.

 

(8)               After consideration of the report referred to under subsection (6),

the Children’s Court may order that the costs of the legal representation be recovered from the parent or guardian.

 

(9)               After the finalisation of the preliminary inquiry, if a legal

representative has not yet been appointed and the child, his/ her parent or guardian has indicated that they do not intent to select a legal representative of their own choice as referred to under subsection (3), such child must be represented by Legal Aid if-

 

(a)                the child is remanded in detention;

 

(b)               charges are to be instituted in the children’s court or any other court acting under the provisions of this Act in respect of any offence.

 

(10)           The inquiry magistrate must cause a child referred to under

subsection (9) to be made aware on the same day that the preliminary inquiry is finalised of availability of Legal Aid  for purposes of appointment of a legal representative.

 

(11)           The legal representative referred to under subsection (10) must be

appointed in writing and the Chief Legal Aid Officer must-

 


(a)                furnish the child concerned with the name and contact details of such legal representative; and

 

(b)               make an appointment for the child to consult with such legal representative as soon as possible.

 

(12)           Where a child is in detention as referred to under subsection (9) (a),

the legal representative appointed in terms of that subsection must , within seven days of receiving instructions to represent such child, consult with the child at the place where he/she is being held, provided that such place is within a reasonable distance from the court in which the child is appearing.

 

Waiver of legal representation in some circumstances

 

153.     (1)        A child requiring legal representation under the provisions of section

152 (9) (a) and (b) may not waive the legal representation, except where the child is charged with an offence listed in schedule 1 and such child is not in detention.

 

(2)               Where a child mentioned under section 152 (9) (a) and (b) declines

to give instructions to his/her appointed legal representative, this factor must be brought to the attention of the inquiry magistrate or the officer presiding in the Children’s Court, as the case may be, whereupon the court must question the child to ascertain the reasons for the child’s declining to give instructions to the legal representative and  note such reasons on the record of the proceedings.

 

(3)                 If, after questioning the child under subsection (2), the Children’s

Court is of the opinion that such application will be appropriate, the child may be given the opportunity to make a fresh application to Legal Aid.

 

(4)               If the questioning under subsection (2) reveals that the child does

not wish to have the assistance of any legal representative, the court must instruct a legal representative appointed by Chief Legal Aid Counsel to attend all future hearings, address the court on the merits of the case and note an appeal or review if, at the conclusion of the trial, an appeal or review is considered by the legal representative to be necessary.

                                                                   PART XVII

                                                               SENTENCING

 

Power to impose sentence after a charge is proved

 


154.     A Children’s Court or any other court acting under the provisions of this

Act may, after proving a charge against the child, impose a sentence in accordance with the provisions of this Part.

 

Pre-sentence report

 

155.     (1)        A Children’s Court, or any other court imposing a sentence under

the provisions of this Act, must require the preparation and placement of a pre-sentence report, whether written or verbal by a probation officer, before court of a pre-sentence report by a probation officer prior to the imposition of sentence or the court may dispense with the pre-sentence report where the proof of charge  is of an offence listed in schedule 1 or where requiring such a report would cause undue delay in the finalisation of the case, and which delay would be prejudicial to the best interests of the child.

 

(2)               A Children’s Court or any other court sentencing a person under

the age of eighteen years shall not impose a sentence with a residential element, unless a pre-sentence report has been placed before such court.

 

(3)               A Children’s Court or any other court acting under the provisions of

this Act which imposes any sentence involving detention in any residential facility, must certify on the warrant of detention that such pre-sentence report has been placed before the court prior to the imposition of the sentence.

 

(4)               Where the certification referred to under subsection (3) does not

appear on the warrant of detention issued under the provisions of this Act, the persons admitting such child to the residential facility in question must remit the matter back to the court.

 

(5)               No person may admit a child under the age of eighteen years to

any facility under this Act unless the warrant of detention  contains the certification referred to under subsection (3), and a person who admits a child without the necessary certification commits an offence and on conviction is liable to a fine not exceeding M5000.00 or to imprisonment term not exceeding two years.

 

Evidence of previous diversion and other evidence relevant to sentence

 

156.     (1)        Evidence that a child has been previously diverted, and has attended


a programme or completed community service or other diversion option may be adduced after conviction and before the imposition of sentence, provided that such evidence of previous diversion may not be considered in aggravation of the sentence.

 

(2)               The evidence of the previous diversion referred to under subsection

(1) may be considered relevant to the selection of a particular programme, community service option or other sentence option referred to under sections 158, 159, 160 or 161.

 

(3)               A Children’s Court or any other court imposing a sentence under the

provisions of this Act may consider written or oral evidence from the victim or victims of the offence about the impact of the offence as evidence relevant to the sentence.

 

(4)               A Children’s Court or any other court imposing a sentence under the

provisions of this Act may consider any other written or oral evidence relevant to sentence.

(5)               The Children’s Court  must request the child concerned and his/her

parents or guardian to address the court on sentence, and, where a pre-sentence report has been submitted, must allow the child and his/her parents or guardian an opportunity to place in dispute any finding or recommendation made in such report.

 

(6)               The prosecution may, after conviction, prove any previous

convictions against the child, and the court must establish whether the child admits or denies any such previous convictions, provided that the prosecution may lead evidence to prove any convictions denied by the child.

 

(7)               For the purposes of subsection (6), a document relating to the finger

prints of a child which emanates from the office of the Commissioner of Police is admissible as preliminary proof of the facts contained therein.

 

Nature of sentences

 

157.    A presiding officer imposing a sentence under this Act may impose any

one of the options referred to under section 133 (2), (3),(4) or (5), or any of the sanctions referred to in sections 158, 159, 160 and 161.

 

Sentences not involving residential element

 

158.    A sentence not involving a residential element which is available as a

sentence for the purposes of this Act includes-

 


(a)                (i)         restitution of a specified object to a specified victim or victims of the alleged offence where the object concerned can be returned or restored, or payment of compensation to a specified person, persons, group or institution in an amount which the child or his/her family is able to afford;

(ii)        in a matter where there is  no identifiable person or persons whom compensation or reparation could be paid or provided to in terms of paragraph (i), payment of a sum of money or restitution of specified goods to a community organisation, charity or welfare organisation concerned with activities which benefit children, identified by the child who is to be sentenced; or

 

(iii)     any form of symbolic restitution;

 

(b)               an oral or written apology to a specified person or institution;

 

(c)                a correctional reprimand;

 

(d)               placement under a good behaviour order for a period not exceeding six months;

 

(e)                placement under a family time order for a period not exceeding six months;

 

(f)                 placement under a compulsory school attendance order for a period not exceeding six months;

 

(g)                placement under a positive peer association order for a period not exceeding six months;

 

(h)               that the child and members of his/her family attend guidance or counselling with a specified provider of such services, for a period not exceeding 12 months ;

 

(i)                 placement under the care and control of an appropriate adult specified by the court;

 

(j)                 placement under a supervision and guidance order for a period not exceeding 12 months;


 

(k)               compulsory attendance at a specified centre or place for a specified programme for a specified vocational or educational purpose for a period not exceeding 20 hours each week, for a maximum of six months:

 

Provided that where a child is over the age of compulsory school attendance and is no longer attending formal schooling, compulsory attendance at a specified centre or place for a specified educational or vocational purpose for a maximum period of not more than 35 hours per week to be completed within a maximum period of 12 months may be imposed;

 

(l)      performance without remuneration of some service for the benefit of the community under the supervision or control of an organisation or an institution, or a specified person or group identified by the presiding officer, or by the probation officer of the district in which the Children’s Court is situated for a maximum period of 250 hours and to be completed within 12 months:

 

Provided that this sentence may not be-

 

(i)                 imposed upon a child under the age of thirteen years; or

 

(ii)               harmful to a child’s health or development and may not prejudice school attendance.

 

Postponement or suspension of sentence

 

159.     (1)        The passing of any sentence may be postponed , with or without one

or more of the conditions referred to under subsection (2) for a period not exceeding three years.

(2)               The conditions of postponement referred to under subsection (1)

may include-

(a)                restitution, compensation or symbolic restitution;

 

(b)               an apology;

 

(c)                the obligation not to re-offend;

 

(d)               being of good behaviour;


 

(e)                school attendance for a specified period;

 

(f)                 attendance at a victim-offender mediation, a family group conference or other restorative dispute resolution process;

 

(g)                the attendance of guidance or counselling with a specified provider of such services for a specified period by the child and members of his/her family;

(h)               submitting to supervision and guidance for a specified period; or

(i)                 any other condition appropriate to the circumstances of the child and in keeping with the principles of this Act, which promotes the children’s reintegration into society.

 

(3)               The whole or any part of a sentence referred to under section 158

may be suspended, without conditions, or with one or more of the conditions referred to under subsection (4).

 

(4)               The conditions of suspension referred to under subsection (3)

include-

(a)                the obligation not to re- offend;

 

(b)               restitution, compensation or symbolic restitution; and

 

(c)                any other measure, including a sanction referred to under section 158 if such sanction has not been imposed as the sentence to be suspended, which is appropriate to the circumstances of the child and in keeping with the principles of this Act, and which promotes the children’s reintegration into society.

 

(5)               Where a Children’s Court has postponed the passing of sentence

under subsection (1) for a specified period and the Children’s Court is, after expiry of the period, satisfied that any conditions imposed have been fulfilled, the Children’s Court may decline to impose a sentence and may discharge the child:

 

Provided that the conviction may be recorded as a previous conviction or the presiding officer may act in accordance with the provisions of section 147 (1).

 

Sentences with restorative justice element

 


160.     (1)        A sentence involving a restorative justice element which is available

as a sentence for the purposes of this Act includes-

 

(a)        referral of the child concerned to appear at a victim-offender mediation;

 

(b)        family group conference; or

 

c)         other restorative justice process,

 

at a specified time on a specified date and at a specified place.

 

(2)               The decisions or agreements reached at the process referred to

under subsection (1) and instituted under this section must be referred back to the Children’s Court or any other court acting under the provisions of this Act-

 

(a)                within 14 days if the child concerned is in detention; or

 

(b)               within 21 days if the child concerned is not in detention

 

to be taken into account in the consideration of an appropriate sentence.

 

(3)               Where the presiding officer in the Children’s Court or any other

court passing sentence under this Act does not agree with the terms of the decision or agreement reached at the process referred to under subsection(1) and imposes a sentence which differs in a material respect from that agreed to or decided upon, he/she must note the reasons for deviating from the agreement or decision on the record of the proceedings.

 

(4)               Where an agreement or a decision is not reached at a process

referred to under subsection (1), the matter must be referred back to the presiding officer in the Children’s Court or other court acting under the provisions of this Act for imposition of a sentence.

 

Sentences involving imprisonment

 

161.     (1)        Imprisonment for a maximum period of three years may be imposed

as a sentence for the purposes of this Act provided that this sentence may not be imposed on a child below the age of 14 years.

 


(2)               The whole or any part of a sentence referred to under subsection (1)

may be postponed or suspended with or without conditions as referred to under section 159 (2), on condition that the child performs a service for the benefit of the community or on condition that the child attend a specified centre for a specified purpose as referred to under section 158 (k).

 

Sentences involving  residential element

 

162.     (1)        No sentence involving a residential element may be imposed upon a

child unless the presiding officer is satisfied that-

 

(a)                the seriousness of the offence justifies such a sentence;

 

(b)               the protection of the community justifies such a sentence;

 

(c)                the severity of the impact of the offence upon the victim was of such magnitude that such a sentence is justified; and

(d)               the child has failed to respond previously to non-residential alternatives.

 

(2)               The presiding officer imposing any sentence involving a residential

element on a child must note the reasons for handing down such sentence on the record of the proceedings and communicate such reasons to the child in language that he/she can understand.

 

(3)               A sentence involving a residential element which is available as

sentence for the purposes of this Act includes-

 

(a)                referral to a programme with a periodic residential requirement where the duration of the programme does not exceed 12 months, and no portion of the residence requirement exceeds 21 nights, with a maximum of 60 nights for the duration of the programme; and

 

(b)               referral to a facility, and subject to the conditions set out under section 164.

Contribution order

 

163.     (1)        Where an order has been made by a Children’s Court placing a child


in the custody of some other person or sending a child to an approved school, the Children’s Court may -

 

(a)        order the parent or guardian of the child to make contributions towards the maintenance of the child;

 

(b)        order a child who has attained the age of 16 years and is engaged in remunerative work to make contributions towards his/her maintenance; or

 

c)         from time to time vary or revoke an order made under paragraph (a) or (b).

 

(2)        A contribution order may be made on the application of the person

in whose custody the child is placed or who is named in the approved school order.

 

(3)        A contribution order shall remain in force so long as the committal

order or approved school order is in force.

 

(4)        A person on whom a contribution order is made shall, if he changes

his/her address, forthwith give notice thereof to the person who was, immediately before the change, entitled to receive the contributions.

 

(5)        A person who fails to give notice under subsection (4) commits an

offence and shall on conviction be liable to a fine of not less than one thousand maloti.

 

Referral to residential facility

 

164.     (1)        Where a sentence referred to under section 162 is a referral to an

approved school, such sentence may be imposed for a period not less than six months and, subject to subsection (2), a period not exceeding two years.

 

(2)               A sentence to an approved school for longer than two years may be

imposed where the child is a child below the age of 16 years who would otherwise have been sentenced to imprisonment, and where the offence is so serious as to warrant such sentence.

 

(3)               A child referred to under subsection (2) who, at the time of the

sentence is below the 16 years, may not be permitted to reside in an approved school beyond the age of 18 years.


(4)               A child referred to under subsection (1) who is 16 years or older at

the time of sentence, may be permitted to reside in an approved school until expiry of his/her sentence.

 

(5)               A sentence to an approved school may not be extended by

administrative action and any application for the extension of the duration of the sentence should be considered by the court which imposed the original sentence.

 

(6)               Where a sentence referred to under section 162 is a sentence to

imprisonment, such sentence may not be imposed unless-

 

(a)                the child is 16 years of age or above; and

 

(b)               substantial and compelling reasons exist for imposing a sentence of imprisonment because a charge against the child has been proved which is both serious and violent or because the child has previously failed to respond to alternative sentences, including residential sentences other than imprisonment.

 

(7)               No sentence of imprisonment may be imposed on a child in respect

of an offence listed in Schedule 1.

 

(8)               Where a sentence referred to under section 162 is a sentence of

imprisonment, the whole or any part of that sentence may be suspended on one of the conditions referred to under section 162 (2), on condition that the child perform service for the benefit of the community as referred to under section 158 (l), or on condition that the child attend a specified centre for a specified purpose referred to under section 158 (k), or on condition that the child is send to prison as referred to under section 161.

 

(9)               No sentence of imprisonment may be imposed on a child under the

provisions of this Act for a period exceeding 15 years on any charge, and where a child is sentenced to periods of imprisonment on more than one charge and the sentences cumulatively amount to more than 15 years the sentences must be served concurrently.

 

(10)           Subject to subsection (10), where a child fails to comply with any

condition imposed in relation to any other sentence, such child may be brought before the Children’s Court for reimposition of an appropriate sentence, which may include a sentence of imprisonment.


(11)           Any period of time that a child has spent in prison while awaiting

trial must be deducted by the presiding officer from any period of imprisonment imposed as a sentence.

 

Monetary penalties

 

165.     No monetary penalty payable to the state may be imposed as a sentence by

Children’s Court or any other court acting under the provisions of this Act, provided that if a penalty involving a fine and imprisonment in the alternative as prescribed for an offence, the presiding officer may impose a sentence referred to under section 158 (a) (i), (ii) or (iii), but not the alternative of imprisonment.

 

Prohibition of certain forms of punishment

 

166.     (1)        No sentence of life imprisonment or death may be imposed on a

child or any person who was 18 years or below at the time the offence was committed.

 

(2)        No sentence of corporal punishment or any form of punishment

that is cruel, inhumane  or degrading may be imposed on a child.

 

(3)        A child who has been sentenced to attend an approved school may

not be detained in prison whilst awaiting designation of the place where the sentence will be served.

                                                                  PART XVIII

                                                                 PROBATION

Probation order

 

167.     (1)        If a Children’s Court before which a child a charge against a child is

proved is of the opinion that having regard to the circumstances, including the nature of the offence and the character of the child, it is appropriate to do so, the Children’s Court may make a probation order.

 

(2)               The Children’s Court, before making the probation order under

subsection (1), shall explain to the child in a language that the child understands-

 

(a)                the effect of the order; and

 

(b)               that if he/she-

 


(i)                 fails to comply with the probation order; or

 

(ii)               commits another offence,

 

he/she shall be liable to be dealt with for the original offence as well as for the other offence.

 

(3)               A probation order shall have effect for such period not more than

one year from the date of the order as may be specified in the probation order.

 

(4)               For the purposes of securing the good conduct and supervision of

the probationer or preventing a repetition by him/her of the same offence or the commission of other offences, a probation order shall-

 

(a)                require the probationer to comply during that period to the supervision of a probation officer;

 

(b)               specify that the probationer is not to commit any offence during the term of probation order; and

 

(c)                contain such other requirements, as the Children’s Court having regard to the circumstances of the case considers necessary including any one or more of the following-

 

(i)                 that the probationer shall reside at the probation hostel, at the home of his/her parent or guardian or relative or at some other place;

 

(ii)               that the probationer shall attend an educational institution to be recommended by the probation officer;

 

(iii)             that the probationer shall remain indoors at his/her place of residence, be it at the probation hostel or at a home, during hours to be specified.

 

(5)               Without prejudice to the powers of the Children’s Court to make

orders, the payment of sums by way of damages for injury or compensation for loss shall not be included amongst the requirements of a probation order.

 

(6)               The Children’s Court, before making a probation order containing


requirements as to residence-

 

(a)                shall consider the home environment of the child; and

 

(b)               if the order requires a child to reside in a probation hostel, shall specify in the order the period for which he/she is so required to reside, but that period shall not extend beyond 12 months from the date of the order.

 

(7)               The Children’s Court which makes a probation order shall-

 

(a)                immediately give a copy of the order-

 

(i)                 to the probationer;

 

(ii)               to the probation officer or another person under whose supervision the probationer is placed; and

 

(iii)             to the person in charge of the probation hostel or other place in which the probationer is required by the order to reside; and

 

(b)               send to the Children’s Court for the district or area named in the order in which the probationer is required to reside during the probation period a copy of the order together with such documents and information relating to the case as it considers likely to be of assistance to the court.

 

(8)               A Children’s Court in making a probation order may, if it thinks it is

expedient for the reformation of the probationer, place the probationer to the charge of any person who consents to accept the probationer, on that person’s giving security for the good behaviour of the probationer.

 

Failure to comply with probation order

 

168.     (1)        If at any time during the probation period it appears to the

Children’s Court that a probationer has failed to comply with any of the requirements of the probation order, the Children’s Court may issue-

 


(a)                a summons requiring the probationer to appear at the place and time specified in the summons; or

 

(b)               a warrant of his/her arrest.

 

(2)               A warrant under subsection (1) shall not be issued except on

information in writing and on oath submitted by the probation officer.

 

(3)     A summons or warrant issued under this section shall direct the

probationer to appear or be brought before the Children’s Court.

 

(4)     A probationer when arrested under subsection (1) may, if not brought immediately before the Children’s Court under subsection (3)-

 

(a)                be placed under detention; or

 

(b)               be released on bail, with or without sureties,

 

until such time as he/she can be brought before the Children’s Court.

 

(5)               If it is proved to the satisfaction of the Children’s Court that a

probationer has failed to comply with any of the requirements of the probation order under section 167 (4)(a) or (c) the Children’s Court may, without prejudice to the continuance of the probation order deal with the probationer for the offence in respect in which the probation order was made in any manner in which the Children’s Court could deal with him/her if the children’s court had just found him/her guilty of that offence.

 

Effects of probation

 

169.     (1)       The finding of guilt for an offence for which an order was made

under this Part placing the child in conflict with the law on probation shall be deemed not to be a proved charge for any purpose other than for the purposes of-

 

(a)                the proceedings in which the order was made; and

 

(b)               any subsequent proceedings which may be taken against a child under this Part.

 

(2)               The provisions of subsection (1) shall not affect-

 


(a)                the right of any such child-

 

(i)                 to appeal against the finding of guilt; or

 

(ii)               to rely on a finding of guilt in bar of any subsequent proceedings for the same offence.

 

Variation of probation order

 

170.     (1)        If the Children’s Court is satisfied that a probationer proposes to

change or has changed his/her residence from the district or area named in the probation order to another district or area, the Children’s Court may, and if an application is made by the probation officer, shall, by order vary the probation order by substituting for the district or area named therein the district or area where the probationer proposes to reside or is residing.

 

(2)        If the probation order contains requirements which, in the opinion of

the Children’s Court cannot be complied with unless the probationer continues to reside in the district or area named in the order, the Children’s Court shall not vary the order except in accordance with subsection (4).

 

(3)        If a probation order is varied under subsection (1), the Children’s

Court shall send to the Children’s Court for the new district or area named in the order a copy of the order together with such documents and information relating to the case as it considers likely to be of assistance to that Children’s Court.

 

(4)        Without prejudice to subsections (1) and (3) the Children’s Court

may on the application made by the probation officer or by the probationer vary the probation order by-

 

(a)        revoking any of the requirements in the probation order; or

 

(b)        inserting in the probation order, either in addition to or in substitution for any such requirement, any requirement which could be included in the order if the order were then being made by the Children’s Court in accordance with section 167.

 

(5)        The Children’s Court shall not vary a probation order under

subsection (4) by-

 


(a)        reducing the probation order; or

 

(b)        extending that period such that the probation period becomes more than three years.

 

Discharge of probation order

 

171.     (1)        The Children’s Court by which a probation order was made may, on

an application made by a probation officer, the parent or guardian of the probationer or the probationer, discharge the probation order.

 

(2)        The Children’s Court shall not deal with an application under

subsection (1) without summoning the probationer unless the application is made by the probation officer.

 

(3)        If-

(a)        the Children’s Court discharges a probation order under subsection (1); or

 

(b)        a probationer is dealt with under section 168 for the offence for which he/she was placed on probation,

 

            the probation order shall cease to have effect.

 

Children’s court to give copies of varying or discharging order to probation officer

 

172.     On the making of an order varying or discharging a probation order under

section 170 or 171 respectively-

 

(a)        the Children’s Court shall forthwith give sufficient copies of the varying or discharging order to the probation officer;

 

(b)        the probation officer shall give a copy of the varying or discharging order to-

 

(i)         the probationer; or

 


(ii)        the person in charge of the probation hostel or place in which the probationer is or was required by the order to reside.

 

                                                                   PART XIX

                                                        APPEAL AND REVIEW

 

Appeal by  child against whom a charge has been proved

 

173.     Any child against whom a charge has been proved  by the Children’s Court

or any other court acting under the provisions of this Act has the right to appeal to an upper court.

 

Automatic review in certain cases

 

174.     (1)        Any sentence which involves a residential element imposed on a

child under sections 162 and 164 and any sentence involving imprisonment imposed on a child under section 160, must be subjected in the ordinary course to review by an upper court.

 

(2)               Any sentence involving a residential element imposed under the

provisions of this Act which is wholly or partially suspended, is subject to review under subsection (1).

 

(3)               The review procedure referred to under subsections (1) or (2) must

be deferred where a child has appealed against a proven charge  or sentence and has not abandoned the appeal, and must cease to apply with reference to such an accused when judgement is given.

 

(4)               Each sentence on a separate charge must be regarded as a separate

sentence for the purposes of rendering a sentence subject to the provisions of this section.

 

(5)               Proceedings which fall within the ambit of this section for the

purposes of review must be reviewed whether or not the accused was legally represented at any stage of the proceedings.

 

(6)                   A judicial officer conducting a review under this section has the

power to-

 

(a)                confirm, alter or quash the proven charge;

 


(b)               in the event of several proven charges being quashed, where the charge was proved  on one of two or more alternative charges, on the other alternative charge or on one or other of the alternative charges;

 

(c)                confirm, alter or set aside the sentence or any other order of the lower court;

 

(d)               set aside or correct the proceedings of the lower court;

 

(e)                generally give such judgement or impose such sentence or make such order as the lower court ought to have given,       imposed or made on any matter which was before it at the trial of the case in question; or

 

(f)                 increase the sentence imposed by the lower court or impose  any form of sentence.

 

(7)               A judicial officer exercising powers under this section may receive

any evidence or cause a subpoena to be served on any person to appear for the purposes of giving evidence.

 

Review in other instances

 

175.     (1)        Nothing contained in this Act must be construed as depriving the

High Court of its inherent right to review irregularities in proceedings of lower courts.

 

(2)               If, in any case of a child in conflict with the law in which the

Children’s Court or any other court acting under the provisions of this Act has imposed a sentence which is not subject to automatic review in the ordinary course, it is brought to the notice of the judge of the High Court that the proceedings in which the sentence was imposed were not conducted in accordance with justice, such court or judge has the same powers as if the matter has been laid before that court or the judge concerned under section 174.

 

Review of proceedings after proving a charge but before sentence

 

176.     (1)        If the presiding officer after a charge has been proven but before


sentence is of the opinion that the proceedings have not been conducted in accordance with justice, he/she may, without sentencing the accused, record reasons for this opinion and transmit them, together with the record of the proceedings, to the registrar of the High Court, who must cause the matter to be set down before a judge in chambers for review.

 

(2)               The review referred to under subsection (1) must be conducted in

the same way as automatic review under section 174.

 

Suspension of execution of sentence

 

177.     (1)        The execution of any sentence may not be suspended by the noting

of an appeal against a proven charge or sentence or pending review unless the court which imposed the sentence releases the child concerned on conditions referred to under section 117 (3), (4) and (5) or, in the case of a sentence not involving a residential element, suspends the operation of the sentence pending the finalisation of the appeal or review.

 

(2)               Where execution of a sentence has been suspended in terms of

subsection (1), it may be a further condition, where appropriate, that the child against whom a charge has been proven must report at a specified place and time upon service, in the manner prescribed by the rules of court, of a written order upon him/her in order that effect may be given to any sentence in respect of the proceedings in question.

 

                                                                    PART XX

                                          CHILDREN AT RISK OF OFFENDING

 

Children at risk of offending

 

178.     (1)        If the parent or guardian of a child requests the Children’s Court

orally or in writing to detain a child in an approved school, probation hostel or centre on the  grounds that the parent or guardian is unable to exercise proper control over the child, the Children’s Court-

 

(a)        shall immediately inquire into the circumstances of the parent(s) or guardian(s ) request;

 


(b)        shall direct the probation officer to submit a social inquiry report to the Children’s Court for the court to determine whether an order under subsection (2) may be made in respect of the child; and

 

c)         after hearing the child may order the child to be temporarily detained in an approved school,  probation hostel or centre if it deems it necessary to do so.

 

(2)        If after considering the report referred to in paragraph (1)(b) and the

comments of the child thereon,  the Children’s Court is satisfied that-

 

(a)        it is expedient so to deal with the child; and

 

(b)        the parent or guardian understands the results which will follow from and consents to the making of the order,

 

the Children’s Court may, on the recommendation of the probation officer, order that the child-

 

(i)         be sent to an approved school,  probation hostel or centre, as may be appropriate; or

 

(ii)        be placed for such period not exceeding three years under the supervision of-

 

(aa)      a probation officer; or

 

(bb)      some other person appointed for the purpose by the Children’s Court,

 

and any such order may require the child to reside for a period not exceeding 12 months in a probation hostel, approved school or other appropriate institution.       

 

Supervision by probation officer

 

179.     (1)        If a Children’s Court makes an order under section 178(2) (ii)

placing a child under the supervision of a probation officer or some other person, that officer or other person-

 

(a)        shall, while the order remains in force, visit, guide and counsel the child; and


 

(b)        may, if it appears necessary to do so, at any time while the order remains in force, bring the child before the Children’s Court. 

 

(2)        The Children’s Court before whom a child is brought under

subsection (1) (b) may, if it deems it expedient to do so, amend the order made under section 178 and-

 

(a)        send the child, subject to the consent of the child’s parent or guardian, to an approved school, place of safety or centre, which ever is appropriate; or

 

(b)        place the child in the care of a fit and proper person, whether a relative or not, who is willing to undertake the care of the child, for the unexpired period of the order.

 

                                                                   PART XXI

                                                               INSTITUTIONS

 

Places of safety for children in need of welfare

 

180.     (1)          The Minister may by notice in the gazette, designate, establish or

appoint any place, institution or centre to be a place of safety for the care and  protection of children.

 

(2)        The Minister shall determine conditions and requirements to be met

by all places of safety and shall not register any place of safety unless and until it has met those conditions and requirements.

 

(3)        The Department of Social Welfare shall-

 

(a)        maintain a directory of all registered places of safety; and

 

(b)        be responsible for monitoring and supervision of the places of safety.

 

(4)        The Director of Social welfare shall advice the Minister on the

designation, establishment or appointment of any place, institution or centre to be a place of safety for the care and protection of children.

 


(5)        The Minister shall have powers to appoint commission (s) of

enquiry on any place (s) of safety should need arise.

 

(6)        The Minister shall have the power to revoke a gazette mentioned

in subsection (1) if the person who runs a place of safety does not comply with the provisions of subsection (2).

 

Escape or removal of child from  place of safety

 

181.     (1)        A child who escapes or is removed from a place of safety without

lawful authority -

 

(a)        may be apprehended by a social worker, police officer and shall be brought to the place of safety; and

 

(b)        shall be kept for such period which is equal to the remaining term of his stay under the order originally made by the Children’s Court.

 

(2)        The social worker or police officer who apprehended the child shall

investigate the case so as to find out why the child escaped.

 

Removing or helping a child to escape from  place of safety

 

182.     A person who -

 

(a)        removes a child from a place of safety without lawful authority;

 

(b)        assists or induces, directly or indirectly, a child to escape from a place of safety; or

 

(c)                harbours or conceals a child who has so escaped, or prevents him from returning to the place of safety,

 

commits an offence and shall on conviction be liable to a fine not less than ten thousand  maloti or to imprisonment for a term not exceeding five years or to both.

 

 

 

 


Places of detention or custody for children in conflict with the law

 

183.     (1)        The Minister may, by notice in the Gazette, designate, establish or

appoint such places of detention as may be required for the purposes of this Act.

 

(2)        The Minister shall determine conditions and requirements to be met

by all places of detention or custody for children in conflict with the law and shall not register any institution unless and until it has met those conditions and requirements.

 

(3)        The Probation Unit shall-

 

(a)        maintain a directory of all places of detention and custody for children in conflict with the law; and

 

(b)        be responsible for monitoring and supervision of places referred to under paragraph (a).

 

(4)        The Director of Probation shall advise the Minister on the

designation, establishment or appointment of any place, institution or centre to be a place of detention or custody for the care and protection of children in conflict with the law.

 

(5)        The Minister shall have powers to appoint commission (s) of inquiry

on any place of detention or custody should need arise.

 

(6)        The Minister shall have the power to revoke a gazette mentioned in

subsection (1) if the person, institution or organisation which runs a place of detention or custody does not comply with the provisions of subsection (2).

 

Remanding children to places of detention or custody

 

184.     (1)        A child shall ordinarily be remanded in custody in a place of

detention designated, established or appointed under this Act and situated in the same area as the Children’s Court by which the child is remanded.

 

(2)        The order or judgement in pursuance of which a child is committed

to custody in a place of detention shall be -

 

 


(a)        delivered with the child to the person who is in charge of the place of detention; and

 

(b)        an authority for his/her detention in the place of detention in accordance with the terms of the order or judgement.

 

(3)        A child while being detained and while being conveyed to and from

the place of detention shall be deemed to be in lawful custody. 

 

(4)        The Minister-

 

(a)        shall cause places of detention or custody to be inspected; and

 

(b)        may make regulations-

 

(i)         as to the classification, treatment, employment and control of children detained in such places of detention or custody; and

 

(ii)        to provide for the appointment of fit and proper persons to visit periodically children detained in such places of detention.

 

Escape or removal from place of detention or custody

 

185.     (1)        A child who escapes or is removed from a place of detention or

custody without lawful authority-

 

(a)        may be arrested without a warrant by a probation officer or a police officer and be brought back to the place of detention; and

 

(b)        shall be kept in a place of detention or custody for the remaining term of his/her term of detention under the order ordinarily issued by the Children’s Court.

 

(2)        The probation officer or police officer who apprehended the child

shall investigate the case so as to find out why the child escaped.

 

 

 

Removing or helping  child to escape from place of detention or custody


186.     Any person who -

 

(a)        removes a child from a place of detention or custody without lawful authority;

 

(b)        assists or induces, directly or indirectly, a child to escape from a place of detention or custody; or

 

c)         harbours or conceals a child who has so escaped, or prevents him/her from returning to the place of detention or custody,

 

commits an offence and on conviction shall be liable to a fine of not less than ten thousand maloti or to imprisonment for a term not exceeding five years or to both.

           

Probation Hostel

 

187.     (1)        The Minister may, by notice in the Gazette, designate, establish or

appoint such probation hostels as may be required for the purposes of this Act.

  

(2)        The Minister shall mandate the Probation Unit to make regulations

for the  management and inspection of probation hostels.

 

Child under thirteen years not to be sent to probation hostel

 

188.     A  child under the age of thirteen years shall not  be sent to a probation

hostel.

 

Child who escapes or is removed from probation hostel

 

189.     A child who escapes or is removed from a probation hostel without

lawful authority-

 

(a)        may be arrested without a warrant by any probation officer or police officer; and

 

(b)        be brought back to the hostel or before the Children’s Court,

 

 


and the Children’s Court may deal with him/her for the offence for which he/she was sent to the probation hostel in the same manner in which the Children’s Court could deal with him/her if it had just proven a charge against him/her.

 

Removing or helping  child to escape from probation hostel

 

190.     Any person who -

 

(a)        removes a child from a probation hostel without lawful authority;

 

(b)        assists or induces, directly or indirectly, a child to escape from a probation hostel; or

 

c)         harbours or conceals a child who has so escaped, or prevents him/her from returning to the probation hostel,

 

commits an offence and shall on conviction be liable to a fine of not less than ten thousand maloti or to imprisonment for a term not exceeding five years or to both.

      

Approved school

 

191.     (1)        The Minister may, by notice in the Gazette designate, establish or

appoint such approved schools as may be required for the education, training and detention of children to be sent there in pursuance of this Act.

 

(2)        The Minister may classify such approved schools-

 

(a)        according to the ages of the persons for whom they are intended; and

 

(b)        in such other ways as he may think fit so as to ensure that a child sent to an approved school is sent to a school appropriate for his case.

 

Child under thirteen years not to be sent to an approved school

 

192.     A child under thirteen years shall not be sent to an approved school.

 

 

 

 

When  child can be sent to approved school


193.     (1)        If-

 

(a)        a child is found guilty of an offence;

 

(b)        the probation report submitted to the Children’s Court shows that-

 

(i)         the parents or guardian of the child can no longer exercise or is incapable of exercising any proper control over him/her; and

 

(ii)        the child is in need of institutional rehabilitation; and

 

c)         it appears to the Children’s Court that although the offence committed is not serious in nature but it is expedient that the child be subjected to detention for such term and under instruction and discipline as appears most conducive for his/her reformation, the Children’s Court shall, on the recommendation of the probation officer, send the child to an approved school.

 

(2)        If the Children’s Court orders a child to be sent to an approved

school, the order shall be an authority for his/her placement in that approved school for a period of three years from the date of the order.

 

(3)        Notwithstanding subsection (2), the management of an approved

school to which a child is sent may, in their discretion-

 

(a)        shorten the period of detention for reasons which appear to them to be sufficient;

 

(b)        permit any such child to be released for such period and upon such conditions as they may deem fit to impose;

 

c)         report to the Probation Unit on the action taken; or

 

(d)        where the Probation Unit is not in agreement with the action taken, the matter shall be referred to the Children’s Court for determination.

 

(4)        A child shall not be permitted to be released under subsection (3) (b)


during the first twelve months of the period of detention without the written consent of the Minister.

 

Delivery of approved school order to the person in charge of approved school

 

194.     (1)        The Children’s Court which makes an approved school order shall

cause the order to be delivered to the person who is in charge of the approved school.

 

(2)        The Children’s Court which makes an approved school order shall

cause all such information in the possession of the Court with respect to a child as is in the opinion of the Children’s Court should be known by the person who is in charge of the approved school, to be transmitted to the person who is in charge of the approved school.

 

(3)        If a child has been ordered to be sent to an approved school,  any

person who knowingly harbours or conceals him/her after the time has come for him/her to go to the approved school, commits an offence and on conviction shall be liable to a fine not less than ten thousand Maloti or to imprisonment for a term not exceeding five years or to both.

 

(4)        If a person authorised to take a child to an approved school is, when

the time has come for him/her to go to the approved school, unable to -

 

(a)        find the child; or

 

(b)        obtain possession of the child,

 

the Children’s Court may, if satisfied by information on oath or affirmation that

there is reasonable grounds for believing that some person named in the information can produce the child, issue a summons requiring the person so named to attend at the court on such day as may be specified in the summons and produce the child.

 

(5)           If the person referred to under subsection (4) fails to comply with

the requisition under that subsection without reasonable excuse he/she shall, in addition to any other liability to which he/she may be subject to under this Act, on conviction be liable to a fine not exceeding ten thousand Maloti.

 

 

Further placement in approved school

 


195.     If the person who is in charge of an approved school is satisfied that a

child-

 

(a)        whose period of placement in the approved school is about to expire needs further care or training; and

 

(b)        cannot be placed in suitable employment without such further care and training,

 

he/she may, if the management of the approved school consent, place him/her for a further period not exceeding six months but any such period shall not extend beyond the date the child attains the age of eighteen years.

 

After care of child released from approved school

 

196.     If a child is sent to an approved school, the Children’s Court making the

order shall, at the same time, make an order that after the expiration of the period of his placement he/she shall, for a period not exceeding one year, be under the supervision of-

            (a)        a probation officer; or

 

(b)        such other person as the Children’s Court may appoint.

 

Escape from approved school or failure to return to approved school after expiry of leave

 

197.     (1)        Any child who-

 

(a)        escapes from the approved school in which he/she is placed, or from any hospital, home or place in which he/she is receiving medical attention;

 

(b)        being absent from the approved school on temporary leave of absence or with permission -

 

(i)         runs away from the person in whose charge he/she is; or

 

(ii)        fails to return to the approved school upon the expiration of his/her leave, or upon the revocation of such permission; or


c)         being absent from the approved school under supervision, fails to return to the approved school upon being recalled,

 

may be arrested without a warrant and be brought before the Children’s Court where the child is found or the approved school is situated.

 

(2)        If a child brought before a Children’s Court under subsection (1) is

under the age of fourteen years, the Children’s Court shall order the child to be brought back to the approved school or to be sent to another approved school for-

 

(a)        a period which is equal to the period during which he/she was unlawfully at large; or

 

(b)        the remainder of his/her period of placement; and

 

c)         such period not exceeding six months as the Children’s Court may direct, in addition to the periods mentioned in subsection (2) (a) and (b).

 

(3)        If a child brought before the Children’s Court under subsection (1)

has attained the age of fourteen years, the Children’s Court may order the child to be brought back to the approved school or to be sent to another approved school for-

 

(a)        a period equal to the period during which he/she was unlawfully at large; or

 

(b)        the remainder of the period of his/her placement; and

 

c)         such further period not exceeding six months as the Court may direct.

 

Supervision of approved school

 

198.     Every approved school shall be under the supervision of the Director of

Probation.

 

Removing or helping  child to escape from approved school

 

199.     Any person who-

 


(a)        removes a child from an approved school without lawful authority;

 

(b)        assists or induces, directly or indirectly, a child to escape from an approved school; or

 

c)         harbours or conceals a child who has so escaped, or prevents him/her from returning to the approved school,

 

commits an offence and on conviction is liable to a fine not less than ten thousand maloti or to imprisonment for a term not exceeding five years or to both.

 

Other  facilities for children in conflict with the law

 

200.     (1)        The Minister may, by notice in the Gazette, establish or appoint

other facilities as may be required for temporary accommodation or day-training without institutionalising children in conflict with the law pursuant to this Act.

 

(2)        A child placed in a  facility referred to under subsection (1), shall be

under the supervision of a probation officer.

 

(3)        The Director of Probation may grant leave of absence to any child

who is in temporary accommodation at the facility referred to under subsection (1),  for such periods and on such conditions as he/she may be prescribe.

 

(4)        Where it is deemed appropriate, the Director of Probation may

transfer a child to any other suitable  facility.

 

(5)        A child who is placed at a specific facility and who absconds shall

be arrested with or without a warrant and be brought before a Children’s Court in the area in which he/she is found.

 

(6)        The Children’s Court shall enquire into the absconding and make an

appropriate decision basing itself on the best interests of the child.

 

Standards for monitoring and supervision of children’s institutions established under this Act

 

201.     (1)        The Department of Social Welfare and the Probation Unit shall

facilitate the setting of standards for monitoring and supervision of all children’s institutions established under this Act.


(2)        There shall be established  under the Department of Social Welfare

and the Probation Unit a body to monitor and supervise all institutions providing care and protection to children under this Act.

 

                                                                   PART XXII

                                  PARENTAGE, CUSTODY AND GUARDIANSHIP

 

Parentage

 

202.     (1)        The following persons may apply to a Children’s Court for an order

to confirm the parentage of a child -

 

(a)        the child;

 

(b)        the parent of a child;

 

c)         the guardian of a child;

 

(d)        a probation officer;

 

(e)        a social worker; or

 

(f)        any other interested person as the Children’s Court may deem fit.

 

(2)        The application for parentage may be made -

 

(a)        before the child is born;

 

(b)        within three years after the death of the father or mother of a child; or

 

c)         before a child is eighteen years of age or after the child has attained that age with special leave of Children’s Court.

 

Evidence of parentage

 

203.     The following shall be considered by a Children’s Court as evidence of

parentage -

 

(a)        the name of the parent entered in the register of births;


(b)        performance of customary ceremony by the father of the child;

 

c)         refusal by the parent to submit to medical test;

 

(d)        public knowledge of parentage; and

 

(e)        any other matter that the Children’s Court may consider relevant.

 

Medical test

 

204.     The Children’s Court may order the alleged parent to submit to a medical

test and the Children’s Court shall, on the basis of the evidence before it, make such order as it considers appropriate.

 

Custody and access

 

205.     (1)        A parent, family member or any other person may apply to a

Children’s Court for custody of a child.

 

(2)        A parent, family member or any other person may apply to a

Children’s Court for periodic access to the child.

 

(3)        The Children’s Court shall consider the best interests of the child

and the importance of the young child being with his/ her mother when making an order for custody or access.

 

(4)        Subject to subsection (3), a Children’s Court shall also consider - 

 

(a)        the age of the child;

 

(b)        that it is preferable for a child to be with his/her parents except if his rights are persistently being abused by his/her parents;

 

c)         the views of the child;

 

(d)        that it is desirable to keep siblings together;

 

(e)        the need for the continuity in the care and control of the child and

 

(f)        any other matter that the Children’s Court may consider relevant.


Non - custodial parent to have access to child

 

206.     A non-custodial parent in respect of whom an application is made to the

Children’s Court for an order of parentage or custody under this Part, shall have access to the child who is the subject of the order.

 

Offence

 

207.     Any person who unlawfully removes a child from a person who has lawful

custody of a child commits an offence and shall be liable to a fine not exceeding ten thousand Maloti or to imprisonment for a term not exceeding five years or to both.

 

 Appointment of guardian

           

208.     (1)        For the purposes of this section “guardian” means a person

appointed to assume parental responsibility over the child by-

 

(a)        will made by a parent of the child;

 

(b)        an order of the Children’s Court;

 

c)         by the family; or

 

(d)        Master of the High Court.

 

(2)        A guardian may be appointed by any of the parties referred to under

subsection (1) acting alone or in conjunction with the surviving parent of the child where one of the parents is deceased, or the father of a child born out of wedlock who has acquired parental responsibility for the child, or one of the parents where parents of the child are no longer living together.

 

(3)        A guardian may be appointed in respect of any child who is resident

in Lesotho whether or not the child was born in Lesotho or is a citizen of Lesotho.

 

(4)        A guardian appointed under this Act need not be a Lesotho citizen

or resident in Lesotho.

 

(5)        A guardian may be appointed in respect of the person or estate of

the child or both.

 


(6)        Where the guardian is appointed only in respect of the estate of the

child, he/she need not have actual custody of the child but shall, with the authority of the Master of the High Court, have -

 

(a)        the power and responsibility to administer the estate of the child and in particular to receive and recover and invest the property of the child in his/her own name for the benefit of the child;

 

(b)        the duty to take all reasonable steps to safeguard the estate of the child from loss or damage;

 

c)         the duty to produce and avail accounts in respect of the child’s estate to the parent or custodian of the child or to such other person as the Children’s Court may direct, or to the Children’s Court, as the case may be, on every anniversary of the date of his/her appointment; and

 

(d)        to produce any account or inventory in respect of the child’s estate when required to do so by the Children’s Court.

 

Rights of surviving parent to guardianship

 

209.     (1)        On the death of the father of a child, the mother if surviving, shall

subject to the provisions of this Act, be the guardian of the child.

 

(2)        On the death of the mother of a child, the father if surviving, shall

subject to the provisions of this Act, be the guardian of the child.

 

Appointment of testamentary guardian

 

210.     (1)        A parent of a child may, by will  appoint any person to be a

guardian of the child after that parent’s death.

 

(2)        A guardian of a child may by will or deed appoint another individual

to take his/her place as the guardian of the child in the event of his/her death.

 

(3)        Any appointment made under subsection (1) or (2) shall not have

effect unless will or deed is dated and is signed by the person making the appointment.

 


(4)        A guardian so appointed shall act as such after the death of the

surviving parent unless the surviving parent has requested otherwise.

 

(5)        If the child, member of the family or guardian appointed

considers that the parent is unfit to have legal custody of the child, they may apply to the Children’s Court which may - 

 

(a)        refuse to make any order in which case the parent shall remain the only guardian; or

 

(b)        make an order that the guardian shall act jointly with the parent; or

 

c)         make an order appointing a relative of the child or a person who is willing to act, a guardian of the child, to act jointly with the parent or guardian or both of them; or

 

(d)        make an order that the guardian shall be the only guardian of the child, in which case the Children’s Court may order the parent to pay the guardian a financial provision towards the maintenance of the child having regard to the means of the parent, as the Children’s Court may consider reasonable:

 

            Provided that the Children’s Court shall not appoint the guardian, only guardian for the child if he/she is not a relative of the child, unless circumstances exist with regard to the welfare of the child.

 

 

(6)        Where guardians are appointed by both parents, the guardians so

appointed shall, after the death of the surviving parent, act jointly.

 

(7)        Subject to subsection (5), a guardian who has been appointed to act

jointly with the surviving parent, shall continue to act as guardian after the death of the parent, but if the surviving parent has appointed a guardian, the guardian appointed by the Children’s Court shall act jointly with guardian appointed by the parent.

 

Appointment of guardian by the Children’s Court

 

211.     The Children’s Court may appoint a guardian on the application made by


any person where the child’s parents are no longer living, or cannot be found and the child has no guardian and there is no other person having parental responsibility for him/her or where the parents of the child are no longer living together.

 

Guardianship revocation

 

212.     An appointment made under section 196 revokes an earlier appointment

made by the same person in respect of the same child, unless it is clear that the purpose of the latter appointment is to appoint an additional guardian.

 

Extension of guardianship beyond child’s eighteenth birthday

 

213.     (1)        The appointment of a guardian shall be terminated upon the child

attaining the age of eighteen years, unless exceptional circumstances exist that would require a Children’s Court to make an order that the appointment be extended.

 

(2)        Where an order is made under subsection (1), it shall be made prior

to the child’s eighteenth birthday.

 

(3)        A Children’s Court making an order under this section may attach

such conditions as to the duration of the order and containing directions as to how it shall be carried out, imposing such other conditions that must be complied with and with such incidental, supplemental or consequential provisions as the Children’s Court thinks fit.

 

(4)        A Children’s Court shall have power to vary, modify or revoke any

order made under this section on the child’s eighteenth birthday on the application made by the child, the parent or guardian of the child, a relative of the child or the Director of Social Welfare or where the child marries on his eighteenth birthday, his spouse.

 

Disputes between guardians

 

214.     Where two or more persons act as joint guardians to a child, or

where the surviving parent and a guardian act jointly and are unable to agree on any question affecting the welfare of the child, any of them may apply to the Children’s Court for its direction, and the Children’s Court may make orders regarding the matters of difference as it may think proper.

 

Neglect or misapplication of assets by the guardian of the estate of the child


215.     Where a guardian of the estate of a child, whether or not that the guardian

is also a guardian of the person of the child, neglects to recover or safeguard, or misplaces any asset forming part of the estate of the child, or subjects the estate to loss or damage, commits an offence and on that account be liable to make good any loss or damage so occasioned.

 

Offences by guardians of the estate of a child

 

216.     Any guardian of the estate of a child who -

 

(a)        neglects to receive and safeguard any asset forming part of the estate, misapplies any such asset to loss, waste or damage; or

 

(b)        fails to produce to the Children’s Court or the parent or guardian of the child any account or inventory required by the Children’s Court; or

 

c)         produces any such inventory or account which is false,

 

commits an offence and on conviction shall be liable to a fine not less than five thousand Maloti or to imprisonment for a term not exceeding two years or to both.

 

                                                                  PART XXIII

                                                MAINTENANCE OF CHILDREN

 

 Duty to maintain a child

 

217.     (1)        A parent(s) or any other person (s) who is legally liable to maintain a child

or contribute towards the maintenance of the child is under a duty to supply the necessities of food, clothing, health, life, basic education and reasonable shelter for the child.

 

(2)        For the purposes of this section basic education means primary up to

secondary education or its equivalent.

 

Application for maintenance order

 

218.     (1)        The following persons may apply to the Children’s Court for

maintenance order of a child-


(a)        a child;

 

(b)        a parent of a child;

 

(c)        a guardian of the child;

 

d)         relatives of the child;

 

(e)        a social worker; and

 

(f)        any other person.

 

(2)        The application for maintenance may be made against any person

who is liable to maintain a child or contribute towards the maintenance of the child.

 

Consideration for maintenance orders

 

219.     The Children’s Court shall consider the following when making a

maintenance order-

 

 

(a)        the source (s) income and wealth of both parents of the child or of the person legally liable to maintain the child;

 

(b)        any impairment of the earning capacity of the person with a duty to maintain the child;

 

c)         the financial responsibility of the person with respect to the maintenance of other children;

 

(d)        the cost of living in the area where the child resides;

 

(e)        the rights of the child under this Act; and

 

(f)        any other matter which the Children’s Court considers relevant.

 

Request for social enquiry report

 

220.     A Children’s Court may request that a social worker prepares a social


enquiry report on the issue of maintenance and submit it to the Children’s Court for consideration before the Children’s Court makes a maintenance order.

 

Maintenance order

 

221.     (1)        A Children’s Court may award maintenance to the child whether

the parents are married or not and the maintenance order shall include the following-

 

(a)        medical expenses for the child;

 

(b)        a periodic allowance for the maintenance of the child; and

 

c)         the payment of a reasonable sum to be determined by the Children’s Court for the education of the child.

 

(2)        A Children’s Court may order a periodic payment or lump sum

payment for the maintenance of a child and the earnings, salary or property of the person liable may be attached.

 

(3)        The attachment order shall be applicable in all cases of failure to

pay maintenance.

 

(4)        A maintenance order may be directed to the employer to deduct

the sum of maintenance money every time payment of the salary or other earnings is made.

 

(5)        When considering an application for maintenance, a Children’s

Court may make a maintenance order which it considers reasonable for any child in the household.

 

(6)        A Children’s Court may make an order for arrears of maintenance

against any person liable to pay maintenance.

 

Persons entitled to maintenance order

 

222.     (1)        Any person who has custody of a child who is the subject of a

maintenance order is entitled to receive and administer on behalf of the child the maintenance order made by a Children’s Court.

 

(2)        If a parent, guardian or whoever has custody of the child ceases to


be a fit person, the Children’s Court of the area where the child is resident may appoint another person to have custody of the child and administer the maintenance order and that person shall act as if originally appointed by the Children’s Court.

 

Duration of order

 

223.     (1)        A maintenance order issued by the Children’s Court shall expire

when the child attains the age of eighteen years or dies before that age.

 

(2)        A maintenance order shall lapse before the child attains the age of

eighteen years if before that age the child is gainfully employed as referred to under section 235.

 

Continuation of maintenance orders

 

224.     (1)        Notwithstanding the provisions of section 222, a Children’s Court

may continue a maintenance order after a child has attained eighteen years if the child is

 engaged in a course of secondary education or training after that age.            

(2)        An application made under this section may be brought by a parent

of the child, any person who has custody of the child or the child himself/herself.

 

 

 

Variation or discharge of orders

 

225.     A Children’s Court may, if satisfied, vary or discharge a maintenance order

on the application of a parent or guardian, or the person who has custody of the child or the young person himself/herself or any other person legally liable to maintain the child.

 

Enforcement of maintenance orders

 

226.     Maintenance order shall be enforced after thirty days  the order is made.

 

Non-custodial parent to have access to child

 

227.     A non -custodial parent in respect of whom an application is made to the

Children’s Court for an order of maintenance under this Part, shall have access to the child who is the subject of the order.            

 

Offence

 

228.     Any person who fails to supply the necessities of food, clothing, health,


life, basic education and reasonable shelter for a child when legally liable to do so, commits an offence and -

 

(i)         on first conviction is liable to pay maintenance due;

 

(ii)        on the second or every subsequent conviction for continuous refusal to maintain a child is liable to a sentence to be determined by a Children’s Court.

 

Joint maintenance of child

 

229.     Unless the Children’s Court otherwise directs, and subject to any financial

contribution ordered to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child-

 

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

 

 

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

 

c)         where two or more custodians have been appointed in respect of the child it shall be the joint responsibility of all custodians to maintain a child; and

 

(d)        where the mother and father of a child were not married to each other at the time of the birth of a child and have not subsequently married, but the father of the child has acquired the parental responsibility of the child, it shall be the joint responsibility of the mother and father of the child to maintain that child.

 

Maintenance during matrimonial proceedings

 

230.     The Children’s Court shall have power to make a maintenance order,

whether or not proceedings for nullity, judicial separation, divorce or any other matrimonial proceedings have been filed by the parent of a child or during proceedings or after a final decree is made in such proceedings.


Financial provisions

 

231.     The Children’s Court may order the person against whom a maintenance

order is made to make financial provisions for the child by periodical payments or such lump sum payment as the Children’s Court shall deem fit to the person in whose favour the order is made or to any other person appointed by the Children’s Court.

 

Power to make maintenance monies to be paid to the person other than the applicant

 

232.     Whenever a maintenance order is made under this section, the Children’s

Court may, at the time of making the order, or from time to time thereafter, on being satisfied that the person in whose favour the order is made-

 

(a)        is not a fit or proper person to receive any maintenance monies specified in the order in respect of a child; or

 

(b)        has left the jurisdiction of the Children’s Court for an indefinite period, or is dead, or is incapacitated or has become of unsound mind, or has been imprisoned or has been declared insolvent; or

 

c)         has misappropriated, misapplied or mismanaged any maintenance monies paid to him/her for the benefit of the child,

 

appoint any other person it considers fit and responsible to receive and administer any maintenance monies required to be paid under a maintenance order, or order the person required to make a payment of the maintenance monies under this section to secure the whole or any part of it by vesting the sums or any other property and subject thereto in trust for the child.

 

                                                                  PART XXIV

                                                EMPLOYMENT OF CHILDREN

 

Exploitative child labour

 

233.     (1)        No person shall engage a child in exploitative labour.

 

(2)        For the purposes of this Act, labour is exploitative if it deprives or

hinders the child access to health, education or development.

 


Prohibition of child labour at night and in industrial undertakings

 

234.     (1)        No person shall engage a child in night work or work in industrial

undertakings.

 

(2)        For the purposes of this Act, night work constitutes work between

the hours of six o’clock in the evening to six o’clock in the morning.

 

Minimum age for child labour

 

235.     The minimum age for admission of a child to employment shall be fifteen

years.

 

Minimum age for light work

 

236.     (1)        The minimum age for the engagement of a child in light work shall

be thirteen years.

 

(2)        For the purposes of this Act, light work constitutes work which is

not likely to be harmful to the health or development of the child and does not affect the child’s attendance at school or the capacity of the child to benefit from school.

 

Minimum age for hazardous employment

 

237.     (1)        No child below the age of eighteen years shall be engaged in any

form of hazardous work.

 

            (2)        Work is hazardous when it poses a danger to the health,development safety or

morals of a person. 

 

(3)        Hazardous work includes-

 

(a)        mining and quarrying;

 

(b)        porterage of heavy loads;

 

(c)        manufacturing industries where chemicals are produced or used;

 

(d)        work in places where machines are used;


(e)        work in places such as bars, hotels and places of entertainment where a person may be exposed to immoral behaviour;

 

(f)        herding after the animals at the cattle posts;

 

(g)        commercial sexual work; or

 

(h)        tobacco production and trafficking.

 

Non - engagement of children and young persons in industrial undertakings

 

238.     (1)        No employer in an industrial undertaking shall engage a child in

employment without satisfactory proof of the child’s age.

 

            (2)        An employer in an industrial undertaking shall keep a register of the

children and young persons employed by him/her and of the dates of their births.

 

 

(3)        An industrial undertaking is an undertaking other than one in

commerce or agriculture and includes-

 

(a)        mines, quarries and other works of the extraction of minerals from the earth; or

 

(b)        undertakings in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adopted for sale; broken up or demolished, or in the generation, transformation or transmission of electricity or motive power of any kind;

 

(4)        Any person who or organisation which has a reasonable suspicion

that a child is engaged in an industrial undertaking shall report to the Ministry of Labour and Employment.

 

(5)        The Ministry of Labour and Employment shall investigate cases of

children engaged in industrial undertakings and take appropriate action.

 

(6)        The Ministry of Labour and Employment shall in the investigation of

cases referred to under subsection (5), request medical officers, social workers and other professionals to provide any expert information necessary.

 


Offences

 

239.     (1)        Any person who contravenes the provisions of this Part commits an

offence and on conviction is liable to a fine of not less than fifteen thousand or to imprisonment for a term not less than two years or to both.

 

(2)        Notwithstanding subsection (1), any person who contravenes the

provisions of sections 233 (1), 235 and 237 commits an offence and shall-

 

(a)        on first conviction be liable to a fine not less than hundred  thousand Maloti or to imprisonment for a term not less than five years or both;

 

(b)        on second or subsequent conviction to imprisonment for a minimum term of ten years without option of a fine.

 

 

 

                                                                   PART XXV

                      PROTECTIVE MEASURES RELATING TO THE HEALTH OF

                                                   CHILDREN

 

Consent to medical treatment or surgical operation

 

240.     (1)        A child may be subjected to medical treatment or surgical operation

only if the child consent for such treatment has been given in terms of either subsection (2) or (3), or alternatively (4) or (5).

 

(2)        A child may consent, to medical treatment provided the child

is-

 

(a)        at least 12 years of age; and

 

(b)        of sufficient maturity and has the mental capacity to understand the benefits , risks, social and other implications of the treatment or operation.

 

(3)        A child may not consent to a surgical operation without the

assistance of -

 


(a)        the parent or guardian of the child; or

 

(b)        the care-giver of the child.

 

(4)        The parent, guardian or care-giver of the child may consent to the

medical treatment or surgical operation of the child if the child is-

 

(a)        under the age of 12 years; or

 

(b)        over that age but is of insufficient maturity or does not have the mental capacity to understand the benefits, risks and social implications of the treatment or operation.

 

(5)        The superintendent of a hospital or the person in charge of a hospital

in the absence of the superintendent, shall consent to the medical treatment or surgical operation on a child if-

 

 

(a)        the treatment is necessary to preserve the life of the child or to save the child from serious or lasting physical injury or disability; and

 

(b)        the need of the treatment or operation is so urgent that it cannot be deferred for the purposes of obtaining consent that would otherwise have been required.

 

(6)        A Children’s court may consent to the medical treatment or surgical

operation on a child if-

 

(a)        the child has been abandoned; or

 

(b)        the parent, guardian or care-giver of the child-

 

(i)         unreasonably refuses to give consent or to assist the child in giving consent;

 

(ii)        is physically or mentally incapable of giving consent or assisting the child in giving consent;

 

(iii)       is deceased; or


(iv)       cannot readily be traced.

 

(7)        No parent, guardian or care-giver of a child may refuse to assist a

child under subsection (2) (b) or withhold consent under subsection (3) by reason only of religious, cultural or other beliefs, unless the parent, guardian or care-giver can show that there is medically accepted alternative choice to the medical treatment or surgical operation concerned.

 

HIV Testing

 

241.     (1)        No child may be tested for HIV except when this is in the best

interests of the child and consent has been given under subsection (2).

 

(2)        Consent for HIV test on a child may be given by-

 

(a)        the child , if the child is 12 years or older;

 

(b)        the parent, guardian or care-giver, if the child is under the age of 12 years or is not of sufficient maturity or does not have the mental capacity to understand the benefits, risks and social implications of such a test;

 

c)         a social worker arranging the placement of the child, if the child is under the age of 12 years or is not of sufficient maturity or does not have mental capacity to understand the benefits, risks and social implications of such a test;

 

(d)        the head of a hospital, if-

 

(i)         the child is under the age of 12 years or is not of sufficient maturity or does not have the mental capacity to understand the benefits, risks and social implications of such a test;

 

(ii)        the child has no parent or guardian and there is no designated child protection organisation arranging the placement of the child; or

 

(e)        a Children’s Court, if -

 


(i)         consent under paragraph (a), (b), c) or (d) is unreasonably withheld; or

 

(ii)        the child or the parent or guardian of the child is incapable of giving consent.

 

HIV testing for adoption and placement purposes

 

242.     If HIV testing of a child is done for  adoption or placement purposes, the

Crown must pay the cost of such test.

 

Counselling before and after HIV testing