Child Care and Protection Act, 2015

Primary tabs

Coat of Arms


Child Care and Protection Act, 2015

Act 3 of 2015

  • Published in Government Gazette no. 5744 on 29 May 2015

  • Assented to on 22 April 2015
  • Commences on 30 January 2019 unless otherwise noted

ACTTo give effect to the rights of children as contained in the Namibian Constitution and international agreements binding on Namibia; to set out principles relating to the best interests of children; to set the age of majority at 18 years; to provide for the establishment of a National Advisory Council on Children; to provide for the appointment of a Children’s Advocate; to provide for the establishment of a Children’s Fund; to provide for appointment and designation of social workers, social auxiliary workers, community child care workers and probation officers; to provide for designation of private social workers and child protection organisations for certain purposes; to make provisions relating to children’s courts, court procedures and court orders; to provide for residential child care facilities, places of care and shelters; to provide for the status and matters relating to certain children; to provide for proof of parentage and parental responsibilities and rights in respect of children born outside marriage and children of divorced parents; to provide for custody and guardianship of children on the death of the person having custody or guardianship; to provide for parental responsibilities and rights, parenting plans and their formalisation; to provide for kinship care of children; to provide for prevention and early intervention services in relation to children; to provide for measures relating to children in need of protective services; to provide for foster care; to provide for the issuing of contribution orders; to provide for the domestic adoption and inter-country adoption of children; to combat the trafficking of children; to provide for additional measures for the protection of children; to provide for provisions relating to persons unfit to work with children; to provide for grants payable in respect of certain children; to create new offences relating to children; to repeal certain laws, including the Children’s Act, 1960, Children’s Status Act, 2006 and the Age of Majority Act, 1957; to amend the Combating of Domestic Violence Act, 2003, the Combating of Immoral Practices Act, 1980, the Liquor Act, 1998, the Administration of Estates Act, 1965, the Marriage Act, 1961 and the Criminal Procedure Act, 1977; to give effect to the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and other international agreements binding on Namibia; and to provide for incidental matters.BE IT ENACTED as passed by the Parliament, and assented to by the President, of the Republic of Namibia as follows:

Chapter 1
DEFINITIONS


1. Definitions

In this Act, unless the context indicates otherwise -abandoned”, in relation to a child, means a child -(a)who has obviously been deserted by the parent, guardian or care-giver;(b)who has for no apparent reason, had no contact with the parent, guardian or care-giver for a period of at least three months;(c)who has been left at any of the premises contemplated in section 227(1)(a) and not been claimed after the expiry of the period referred to in section 227(6); or(d)in respect of whom the whereabouts of the parents are unknown or the parents cannot be traced;abuse”, in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, including -(a)assaulting a child or inflicting any other form of deliberate injury to a child;(b)sexually abusing a child or allowing a child to be sexually abused;(c)bullying by another child;(d)a labour practice that exploits a child;(e)exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally, including intimidation or threats;(f)depriving a child of his or her rights to the basic conditions of living contemplated in section 6; or(g)exposing or subjecting a child to a social, cultural or religious practice which is detrimental to his or her well-being;access” includes all forms of electronic and telephonic contact conducive to fostering and maintaining a sound relationship between a child and the parent not having custody;adopted child” means a child adopted under this Act or any other law;adoption order” means an adoption order issued in terms of section 177;Adoption Register” means a register referred to in section 183;African Charter on the Rights and Welfare of the Child” means the African Charter on the Rights and Welfare of the Child, a copy of the English text of which is set out in Schedule 2;age of majority” means the age of majority referred to in section 10;alternative care” means care of a child, temporarily or long term -(a)in foster care;(b)in kinship care in terms of an order of the children’s court; or(c)in a place of safety, place of care, shelter, children’s home or child detention centre.[The full stop at the end of paragraph (c) should be a semicolon.]board” means a board of management of a children’s home or a child detention centre;care-giver” means any person other than a parent or guardian, who takes primary responsibility for the day-to-day care of a child and includes -(a)a foster parent;(b)a kinship care-giver;(c)a primary caretaker;(d)a person who cares for a child while the child is in a place of safety;(e)the person who is the head of a facility where a child has been placed; and(f)the child who is the head of a child-headed household;child” means a person who has not attained the age of 18 years;child detention centre” means a facility referred to in section 69, and a reference in any other law to a “place of detention” or a “reform school” for juvenile offenders is deemed to be a reference to a child detention centre;child-headed household” means a household recognised as such in terms of section 225;cluster foster care” means a service, operated and managed by a non-profit organisation registered in terms of this Act, and providing support, mentoring, supervision and advice to foster parents;Children’s Advocate” means the Children’s Advocate appointed in terms of section 25;Children’s Act” means the Children’s Act, 1960 (Act No. 33 of 1960);children’s commissioner” means a magistrate contemplated in section 38;children’s court assistant” means a children’s court assistant referred to in section 38(10) and (11)(b);children’s court” means the children’s court referred to in section 38(1);Children’s Fund” means the Children’s Fund established in terms of section 26;children’s home” means a facility referred to in section 68;child protection hearing” means a hearing, contemplated in section 141, which is held to determine whether a child is in need of protective services;community child care worker” means a community child care worker contemplated in section 34;contribution order” means an order referred to in section 160(2), and includes a provisional contribution order referred to in section 161(2);Convention” means the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption, the text of which is set out in Schedule 5;Council” means the National Advisory Council on Children established in terms of section 11;Criminal Procedure Act” means the Criminal Procedure Act, 1977 (Act No. 51 of 1977);debt bondage” means the involuntary status or condition that arises from a pledge by a person of -(a)his or her personal services; or(b)the personal services of another person under his or her control,as security for a debt owed, or claimed to be owed, including any debt incurred or claimed to be incurred after the pledge is given;designated child protection organisation” means a child protection organisation designated by the Minister in terms of section 33;designated social worker” means a social worker in the employment of the State or a social worker in private practice appointed or designated by the Minister in terms of section 33(1)(a) or (b) for a specific purpose or purposes or a social worker in the employment of a child protection organisation designated by the Minister in terms of section 33(1)(c) for a specific purpose or purposes;district” means the area of jurisdiction of a magistrate’s court;early childhood development centre” means a facility referred to in section 66;early intervention services” means services referred to in section 130(2);family meeting”, for purposes of sections 36(1)(b), 44(1)(b), 126(a) and 130(4)(h) means a structured meeting of family members convened and presided over by a skilled facilitator, at which the family members attempt to find solutions to a problem involving the care or protection of a child, and which includes an opportunity for private discussion in the absence of the facilitator, with due regard to the principles set out in this Act on child participation;family member” in relation to a child, means -(a)a parent of the child;(b)any other person who has parental responsibilities and rights in respect of the child;(c)a grandparent, step-parent, brother, sister, uncle, aunt or cousin of the child; or(d)any other person with whom the child has developed a significant relationship, based on psychological or emotional attachment, which resembles a family relationship;foster care” means care of a child by a person who is not the parent, guardian or family member or extended family member of the child, in terms of an order of the children’s court as contemplated in section 145(3)(f)(i);foster parent” means a person who has foster care of a child;inter-country adoption” means the adoption of a child as contemplated in Part 2 of Chapter 13;in need of protective services”, in relation to a child, means a child who is in a situation contemplated in section 131(1);kinship care” means care of a child by a member of the child’s family or extended family as contemplated in section 123;kinship care-giver” means a person who has kinship care of a child;legal practitioner” means a legal practitioner as defined in section 1 of the Legal Practitioners Act, 1995 (Act No. 15 of 1995);magistrate” means a magistrate as defined in section 1 of the Magistrates Act, 2003 (Act No. 3 of 2003);Magistrates’ Courts Act” means the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944);magistrate’s court” means a magistrate’s court as defined in the Magistrates’ Courts Act;Magistrate’s Commission” means the Magistrate’s Commission established by section 2 of Magistrates Act, 2003 (Act No. 3 of 2003);marriage” means a marriage in terms of any law of Namibia and includes a marriage recognised as such in terms of any tradition, custom or religion of Namibia and any marriage in terms of the law of any country, other than Namibia, where such a marriage is recognised as a marriage under the laws of Namibia;medical intervention” includes dental, physiological, psychological and psychiatric interventions;medical practitioner” means a medical practitioner as defined in section 1 of the Medical and Dental Act, 2004 (Act No. 10 of 2004);member of the police” means a member of the Namibian Police Force as defined in section 1 of the Police Act, 1990 (Act No. 19 of 1990), and a member of a municipal police service contemplated in section 43C of the Police Act, 1990 (Act No. 19 of 1990);migrant” means a child who is unlawfully within the territory of Namibia, because of illegal entry into Namibia or because of expiry of a legally acquired permit;Minister” means the Minister responsible for protection of children;Ministry” means the Ministry responsible for protection of children;neglect”, in relation to a child, means a failure by a person who is taking care of a child to provide for the child’s basic physical, intellectual, emotional or social needs;order” includes -(a)a refusal to make any order;(b)a variation or withdrawal of any order made in terms of this Act; and(c)a certificate of guardianship issued in terms of section 101 or a refusal to issue such a certificate.organ of state” means -(a)any office, ministry or agency of State or administration in the local or regional sphere of government; or(b)any other functionary or institution -(i)exercising a power or performing a function in terms of the Namibian Constitution; or(ii)exercising a public power or performing a public function in terms of any law,but does not include a court or a judicial officer;orphan” means a child who has no surviving parent caring for him or her;parent”, in relation to a child, means a woman or a man in respect of whom parentage has been acknowledged or otherwise established in terms of Part 2 of Chapter 6 and includes the adoptive parent of a child, but excludes -(a)the biological father of a child conceived through the rape of or incest with the child’s mother;(b)any person who is biologically related to a child by reason only of being a gamete donor for purposes of artificial fertilisation; or(c)a parent whose parental responsibilities and rights in respect of a child have been terminated;parental responsibilities and rights”, in relation to a child, means the responsibilities and rights conferred on a person at common law, including those referred to in sections 6(2), 7 and 118;parenting plan” means a plan referred to in section 119;permanent alternative care” means alternative care which is expected to last until the child reaches the age of majority;Permanent Secretary” means the Permanent Secretary of the Ministry;place of care” means a place of care referred to in section 65;place of safety” means a home or facility referred to in section 64;prevention services” means services referred to in section 130(1);prescribed” means prescribed by regulation made under this Act;primary caretaker” means a person other than the parent or other legal care-giver of a child, whether or not related to the child, who takes primary responsibility for the daily care of the child with the express or implied permission of the person who is the custodian of the child;probation officer” means a person appointed or designated by the Minister as a probation office in terms of section 35 or a person who is considered to be a probation officer in terms of section 35;protective services” means services aimed at providing care, protection or both care and protection for a child to safeguard his or her safety, security and well-being or improving such care, protection or both care and protection;rape” means the common law crime of rape and the crime of rape referred to in section 2 of the Combating of Rape Act, 2000 (Act No. 8 of 2000), where the perpetrator has been convicted of the crime;refugee” means a refugee as contemplated in section 3 of the Namibia Refugees (Recognition and Control) Act, 1999 (Act No. 2 of 1999);regulation” means a regulation made under this Act;residential child care facility” means a place of safety, children’s home or a child detention centre;school” means -(a)a state school as defined in section 1 of the Education Act, 2001 (Act No. 16 of 2001); and(b)a private school as defined in section 1 of the Education Act, 2001 (Act No. 16 of 2001);secure care” means the care of a child which involves the physical containment of children who require such containment to prevent potential harm to themselves or others, including the physical containment of children awaiting trial or sentence;shelter” means a facility referred to in section 67;slavery” means reducing a person by any means to a state of submitting to the control of another person as if that other person were the owner of that person;social auxiliary worker” means a person, contemplated in section 34, who is registered or deemed to be registered as a social auxiliary worker in terms of sections 22 and 61 of the Social Work and Psychology Act, 2004 (Act No. 6 of 2004);social worker” means a social worker registered or deemed to be registered as a social worker in terms of the Social Work and Psychology Act, 2004 (Act No. 6 of 2004);this Act” includes regulations and a notice made or issued in terms of this Act;[The definition of “this Act” should be placed after the definition of “temporary safe care” for correct alphabetical order.]temporary safe care”, in relation to a child, means care of a child in a residential child care facility or by a person approved as a foster parent in terms of section 155 or by a family member of the child where the child can safely be accommodated pending a decision or court order concerning the placement of the child, but excludes care of a child in a prison or police cell;unaccompanied foreign child” means a child who is not a citizen or resident of Namibia, including a refugee or migrant child, who has been separated from both parents or other adult family members and is not being cared for by an adult who, by law or custom, is responsible for doing so;United Nations Protocol to Prevent Trafficking in Persons” means the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention against Transnational Organised Crime, 2000, a copy of the English text of which is set out in Schedule 4;United Nations Convention on the Rights of the Child” means the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989, a copy of the English text of which is set out in Schedule 3;victim of child trafficking” includes a child who is suspected on reasonable grounds to have been trafficked.

Chapter 2
OBJECTS OF ACT, GENERAL PRINCIPLES AND AGE OF MAJORITY


2. Objects of Act

(1)The objects of this Act are to -(a)protect and promote the well-being of all children;(b)give effect to children’s rights as contained in the Namibian Constitution;(c)give effect to Namibia’s obligations concerning the well-being, development and protection of children in terms of the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and other international agreements binding on Namibia;(d)promote the protection of families and actively involve families in resolving problems which may be detrimental to the well-being of the children in the family;(e)develop and strengthen community structures which can assist in providing care and protection for children;(f)establish, promote and co-ordinate services and facilities designed to advance the well-being of children and prevent, remedy or assist in solving problems which may place children in need of protective services;(g)provide protective services to children who are in need of such services;(h)protect children from discrimination, exploitation and other physical, emotional or moral harm or hazards;(i)ensure that a child does not suffer any discrimination or disadvantage because of the marital status of his or her parents; and(j)recognise the special needs that children with disabilities or chronic illnesses may have.
(2)The objects referred to in subsection (1) must be given due consideration in the interpretation and application of any provision of this Act.

3. Best interests of the child

(1)This Act must be interpreted and applied so that in all matters concerning the care, protection and well-being of a child arising under this Act or under any proceedings, actions and decisions by an organ of state in any matter concerning a child or children in general, the best interests of the child concerned is the paramount consideration.
(2)In determining the best interests of the child, the following factors must be taken into consideration, where relevant -(a)the child’s age, maturity and stage of development, sex, background and any other relevant characteristics of the child;(b)the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;(c)views or opinions expressed by the child with due regard to the child’s age, maturity and stage of development;(d)the right of the child to know and be cared for by both parents, unless his or her rights are persistently abused by either or both parents or continued contact with either parent or both parents would be detrimental to the child’s well-being;(e)the nature of the personal relationship between the child and other significant persons in the child’s life, including each of the child’s parents, any relevant family member, any other care-giver of the child or any other relevant person;(f)the attitude of each of the child’s parents towards the child and towards the exercise of parental responsibilities and rights in respect of the child;(g)the capacity of the parents or any specific parent or of any other care-giver or person to provide for the needs of the child, including emotional and intellectual needs;(h)the desirability of keeping siblings together;(i)the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from -(i)both or either of the parents; or(ii)any brother or sister or other child or any other care-giver or person, with whom the child has been living;(j)the practical difficulty and expense of a child having contact with the parents or any specific parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents or any specific parent on a regular basis;(k)the need for the child to maintain a connection with his or her family, extended family, culture or tradition;(l)any disability that the child may have;(m)any chronic illness from which the child may suffer;(n)the need for the child to be brought up within a stable family environment and where this is not possible in an environment resembling as closely as possible a caring family environment;(o)the need to protect the child from any physical or psychological harm that may be caused by -(i)subjecting the child to maltreatment, abuse, neglect, exploitation or degradation;(ii)exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person; or(iii)any family violence involving the child or a family member of the child;(p)the need to avoid or minimise further legal or administrative proceedings in relation to the child; and(q)any other relevant factor.

4. Child participation

(1)Every child that is of an age, maturity and stage of development as to be able to participate in any matter concerning that child in terms of this Act must participate in an appropriate way and the views expressed by the child, verbally or non-verbally, must be given due consideration.
(2)Every child has the right to choose not to participate in a matter concerning that child in terms of this Act, but must be given all necessary information and advice to enable that child to make a decision on participation which is in his or her best interests.
(3)The following principles must be followed with respect to any child who is able to participate in terms of subsection (1), whether or not that child chooses to exercise his or her right to participate:(a)the child must be informed of the circumstances under which she or he will be asked to express her or his views, of the impact of his or views on the outcome of any decision and of services that can potentially be provided to the child;(b)all necessary and reasonable measures must be taken to ensure that the child is not punished or victimised for expressing his or her views;(c)the child must be informed of any decision concerning the child in terms of this Act;(d)the child must be given an opportunity to complain if he or she feels that his or her right to participate is not respected; and(e)the right of child participation must be promoted in respect of any child who may experience barriers to participation for any reason, including disability, language or any form of discrimination.

5. General principles

(1)The principles set out in this section guide -(a)the implementation of this Act; and(b)all proceedings, actions and decisions by an organ of state in any matter concerning a child or children in general.
(2)All proceedings, actions or decisions in matters concerning a child must -(a)respect, protect, promote and fulfil the children’s fundamental rights and freedoms set out in the Namibian Constitution, the best interests of the child standard set out in section 3 and the rights and principles set out in this Act, subject to any lawful limitation;(b)respect the child’s inherent dignity;(c)treat the child fairly and equitably;(d)protect the child from direct or indirect discrimination on grounds of -(i)the race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, language or birth of the child or of his or her parents, guardian, care-giver or any other family member of the child; or(ii)the family status, health status, socio-economic status, HIV-status, residence status or nationality of the child or of his or her parents, guardian, care-giver or of any of his or her family members;(e)recognise a child’s need for development and to engage in play and other recreational activities appropriate to the child’s age; and(f)respond to any special needs that the child may have as a result of a disability or chronic illness.
(3)If it is in the best interests of the child any person with parental responsibilities and rights in respect of the child including the child’s care-giver, if applicable, must be given the opportunity to express his or her views in any matter concerning the child, if the whereabouts of that person can be reasonably ascertained.
(4)In any matter concerning a child -(a)an approach which is conducive to conciliation and problem-solving must be followed and conflict must be avoided where appropriate and to the extent possible; and(b)delays in any action or decision to be taken must be avoided as far as possible.
(5)A child, having regard to his or her age, maturity and stage of development and a person who has parental responsibilities and rights in respect of that child, including the child’s care-giver, if applicable, must, where appropriate, be informed of any action or decision taken in a matter concerning the child which significantly affects the child, if the whereabouts of that person can be reasonably ascertained.

6. Children’s rights to basic conditions of living

(1)A child has the right to conditions of living necessary for his or her development, including adequate -(a)food;(b)shelter;(c)clothing;(d)care and protection, which includes adequate health care and immunisation;(e)education; and(f)play and leisure.
(2)It is the duty of a child’s parents, guardian or other care-giver to secure, within their abilities and financial capacities, the conditions of living set out in subsection (1).

7. Duties in respect of children

Every person with parental responsibilities and rights towards a child and any other person legally responsible for a child, has the duty to -(a)ensure that the best interests of the child are that person’s paramount concern at all times;(b)guide and direct the child in the exercise of all of that child’s rights under this Act or any law in a manner consistent with the child’s evolving capacities;(c)protect the child from neglect, discrimination, violence, abuse and harm; and(d)ensure that in the temporary absence of a parent or care-giver, the child is cared for by a competent person.

8. Children’s duties and responsibilities

In the application of this Act and in any proceedings, actions and decisions by an organ of state concerning any child, there must be due regard to the duties and responsibilities of a child to -(a)work for the cohesion of the family, respect the rights of his or her family members and assist his or her family members in times of need;(b)serve his or her community, respect the rights of all members of the community and preserve and strengthen the positive cultural values of his or her community in the spirit of tolerance, dialogue and consultation;(c)serve his or her nation, respect the rights of all other persons in Namibia and preserve and strengthen national solidarity; and(d)contribute to the general moral well-being of society,but, due regard must be given to the age, maturity, stage of development and ability of a child and to limitations as are contained in this Act.

9. Children with disabilities

(1)Every person, authority, institution or body must treat a child with disabilities in a manner which respects the child’s dignity.
(2)A child with disabilities is entitled to appropriate care and protection and must have effective access, insofar as reasonably possible and in the best interests of the child, to inclusive and non-discriminatory education, training, health care services, support services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to enabling the child to achieve the fullest possible social integration and individual development, ensuring his or her dignity and promoting his or her self-reliance and active participation in the community.

10. Age of majority

(1)A person attains the age of majority on attaining the age of 18 years.
(2)If, on the commencement of this section, a person has already attained the age of 18 years but has not yet attained the age of 21 years, that person is considered to have attained the age of 18 years on the date of commencement of this section.
(3)The time at which a person attains a particular age expressed in years is on the commencement of the relevant anniversary of the date of his or her birth.
(4)In the absence of any indication of a contrary intention, subsection (1) applies to the interpretation of the expressions “age of majority”, “major”, “majority”, “full age”, “minor” and similar expressions when used in a -(a)statutory provision, whether enacted or made before on or after the commencement of this section; and(b)will, document or other instrument, made on or after the commencement of this section.
(5)Nothing in this section affects the construction of a document or other instrument executed or made before the commencement of this section or a will of a testator who died before the commencement of this section.
(6)Nothing in this section affects a reference in a law or document or instrument to an age expressed in years.
(7)In any order or direction of a court made before the commencement of this section, in the absence of an indication of a contrary intention, a reference to the age of 21 years or to any age between 18 and 21 years or to any of the expressions referred to in subsection (4) and any similar expression must be read as a reference to the age of 18 years.
(8)If, on the commencement of this section, a person had -(a)attained the age of 18 years but had not attained the age of 21 years, and(b)a right of action in respect of which the period of limitation applicable to the bringing of the action would have commenced to run on the person attaining the age of 21 years had this Act not been enacted,the period of limitation in respect of that right of action commences to run on the person attaining the age of 21 years.
(9)This section does not affect the liability of any person to pay maintenance under any agreement or order which is in force before the commencement of this section.
(10)Despite subsection (1), a person who is under the age of 21 years requires the consent of his or her parents or guardian to enter into a marriage, unless that person has been previously married or emancipated by an order of court.
(11)This section does not affect the payment of any claim under the Motor Vehicle Accident Fund Act, 2007 (Act No. 10 of 2007), where such claim arose before the commencement of this section.

Chapter 3
ADMINISTRATION


Part 1 – NATIONAL ADVISORY COUNCIL ON CHILDREN


11. Establishment of National Advisory Council on Children

A council to be known as the National Advisory Council on Children is established.

12. Functions of Council

The functions of the Council are to -(a)encourage cross-sectoral cooperation on matters relating to children;(b)advise government on matters relating to the protection and care of children under this Act and any other law relating to children;(c)advise, where appropriate, an organ of state in the carrying out of its functions under this Act and any other law relating to children;(d)advise the Minister and where appropriate an organ of state on the need for law reform on any issue relating to children;(e)encourage and facilitate, as far as is practicable, the involvement of non-governmental organisations and members of the community at large in the establishment and promotion of facilities and services to advance the well-being of children;(f)design and recommend programmes of prevention, protection or care, as the Council considers necessary in the best interests of children, for consideration by the Minister and where appropriate, organs of state;(g)study, investigate and monitor the implementation of this Act and other laws related to it for the purpose of making recommendations for improvement to the Minister or any other relevant organ of state, as the Council considers to be in the best interests of children; and(h)perform any other function assigned to it by the Minister.

13. Access to information

The Council may obtain access to information held by organs of state, including courts that serve children, subject to laws on confidentiality, where that information may be necessary to enable the Council to carry out its functions in terms of this Act.

14. Composition of Council

(1)In this section “stakeholder” means a person or an organisation who or which has an interest in the well-being of children or may be affected by it.
(2)The Council consists of the following 16 members:(a)the Permanent Secretary of the Ministry who is the chairperson of the Council;(b)the Children’s Advocate who is the deputy chairperson of the Council;(c)the Permanent Secretaries of the ministries responsible for health, education, youth, justice, labour, home affairs, foreign affairs and safety and security;(d)the Registrar of the Social Work and Psychology Council established under the Social Work and Psychology Act, 2004 (Act No. 6 of 2004);(e)the Executive Chairperson of the National Youth Council established under the National Youth Council Act, 2009 (Act No. 3 of 2009);(f)the Chairperson of the National Disability Council established under the National Disability Council Act, 2004 (Act No. 26 of 2004); and(g)three persons, appointed by the Minister, of whom -(i)one must be a staff member of the Office of the Prime Minister designated by the Prime Minister; and(ii)two must be persons representing different stakeholders in civil society, including non-governmental organisations, faith-based organisations and the community and who have particular knowledge of and experience in matters relating to functions of the Council.
(3)If a designation in terms of subsection (2)(g)(i) becomes necessary the Minister must in writing request the Prime Minister to designate within a specified period the person required to be designated in terms of that subsection.
(4)Before appointing the persons contemplated in subsection (2)(g)(ii), the Minister must invite nominations from stakeholders by -(a)publishing the invitation in at least two nationally distributed newspapers;(b)announcing the invitation in such public media as the Minister may consider appropriate; and(c)sending the invitation by way of written notice to such stakeholders as the Minister may consider appropriate.
(5)If, in terms of subsection (4), no nominations or insufficient nominations are made the Minister may appoint any suitable person to be a member of the Council and a person appointed under this subsection holds office as if he or she was nominated in accordance with that subsection.
(6)The Minister must make known in the Gazette the names of persons appointed as members of the Council under subsection (2)(g), their term of office and date of appointment.

15. Disqualification for appointment

A person does not qualify to be appointed as a member of the Council under section 14(2)(g) if he or she -(a)is not a Namibian citizen or permanent resident and domiciled in Namibia;(b)is a member of Parliament or a regional council or a local authority council;(c)is an unrehabilitated insolvent;(d)has been declared mentally ill by a competent court under any law relating to mental health; or(e)has been convicted in Namibia or elsewhere of an offence and sentenced to imprisonment without the option of a fine.

16. Tenure and vacation of office of members of Council

(1)Subject to subsection (2), a member of the Council appointed in terms of section 14(2)(g) holds office for a period of three years and may be re-appointed at the end of that period.
(2)The office of a member of the Council contemplated in subsection (1) becomes vacant if that member -(a)becomes subject to a disqualification referred to in section 15;(b)through a written notice addressed to the Minister resigns as a member of the Council;(c)is absent from three consecutive meetings of the Council without permission from the Council; or(d)is for any other reasonable cause removed from office by the Minister.
(3)Before removing a member from office in terms of subsection (2)(d), the Minister must -(a)notify the member, in writing, of the grounds on which the member is to be removed from office;(b)give the member an opportunity to make oral or written representations on the matter to the Minister or to any person designated by the Minister; and(c)consider any representations made in terms of paragraph (b).
(4)If a member of the Council dies or vacates office before the expiry of member’s term of office, the vacancy must be filled by the appointment of another person in accordance with section 14 for the unexpired portion of the term for which that member was appointed.

17. Allowances

(1)The Minister must pay members of the Council or members of a committee of the Council who are not in the full-time employment of the State allowances, for their services, as the Minister with the concurrence of the minister responsible for finance may determine.
(2)Allowances determined under subsection (1) may differ according to the office held by the member of the Council concerned or the duties performed by the member.

18. Committees

The Council may, with the approval of the Minister, establish committees consisting of members of the Council only or consisting of members of the Council and other persons, to perform such functions as the Council may assign to such committee, subject to the Council’s directions.

19. Meetings

(1)The Council must meet at least twice every year.
(2)The first meeting of the Council must be held at a time and place determined by the Minister and after that meeting the Council must meet at times and places determined by the chairperson of the Council.
(3)The chairperson must, on the request of the Minister or on a written and motivated request of at least four members of the Council, call a special meeting of the Council.
(4)The chairperson of the Council or in the absence of the chairperson, the deputy chairperson, presides at meetings of the Council or if both the chairperson and deputy chairperson are absent from the meeting or are unable to preside at the meeting, the members of the Council must elect a member to preside at the meeting.
(5)At any meeting of the Council -(a)a quorum is eight members of the Council, but every member of the Council must have been notified of the meeting in advance;(b)a decision of a majority of members of Council present at a meeting is the decision of the Council; and(c)if there is an equality of votes, the person presiding at the meeting has a casting vote in addition to that person’s ordinary vote.
(6)The Council must determine the procedures to be followed at its meetings.
(7)The Council may invite any person whose presence is in its opinion desirable to attend and to participate in the deliberations of a meeting of the Council, but that person does not have a vote.
(8)A decision taken by the Council or an act performed under the authority of the Council is not invalid by reason only of a vacancy in the membership of the Council or by reason only of the fact that a person who is not entitled to sit as a member of the Council was present when the decision was taken or the act was authorised, if the decision was taken or the act was authorised by the requisite majority of the members of the Council who were present at the time and entitled to vote.
(9)The Council must cause minutes of the proceedings to be kept at its meetings and the chairperson must provide a copy of the minutes to the Minister as soon as is practicable after each meeting.

20. Performance of administrative work of Council

(1)The Permanent Secretary must -(a)make staff members in the Ministry available to perform the clerical work for the Council in the performance of its functions; and(b)designate a staff member to serve as secretary to the Council.
(2)The expenditure resulting from the performance of the functions of the Council in terms of subsection (1) must be paid from the State Revenue Fund from moneys appropriated for that purpose by Parliament.

21. External advisors

(1)The Council may, after consultation with the Permanent Secretary and on conditions as may be agreed on, obtain the services of such persons as it may consider necessary to advise the Council in connection with the performance of its functions and the carrying out of its duties.
(2)The expenditure in obtaining any services in terms of subsection (1) must be paid from the Children’s Fund, supplemented, if required, by the State Revenue Fund from moneys appropriated for that purpose by Parliament.

22. Consultation with Council

The Minister and, where appropriate, an organ of state exercising functions which may affect the well-being of children, may consult with the Council before -(a)proposing any repeal or amendment of a provision of this Act or any other law that may affect this Act; and(b)making, repealing or amending a regulation made in terms of this Act or affecting the operation of this Act.

23. Annual reports by ministries

The Permanent Secretary of each government ministry exercising functions affecting children and identified and notified in writing by the Minister must, within one month after the end of each financial year, submit or cause to be submitted to the chairperson of the Council a report on the implementation of laws and policies affecting children in the ministry of which he or she is the Permanent Secretary.

24. Annual report by Council

(1)The Council must within three months after the end of each financial year, prepare an annual report, that includes -(a)a report on the activities of the Council;(b)reports by the ministries referred to in section 23;(c)a report by the Ombudsman referred to in section 25; and(d)any other matter the Minister may consider necessary to be included in the report.
(2)The chairperson of the Council must cause a copy of the report referred to in subsection (1) to be submitted to the Minister as soon as is practicable after its finalisation.
(3)The Minister must, within 28 days of receipt of the report referred to in subsection (2), table the report in the National Assembly if Parliament is then in ordinary session or if Parliament is not then in ordinary session, within 28 days after the commencement of its next ordinary session.

Part 2 – CHILDREN’S ADVOCATE


25. Establishment of Children’s Advocate in Office of Ombudsman

(1)There must be a Children’s Advocate in the Office of the Ombudsman, established in terms of Article 89 of the Constitution and regulated by the Ombudsman Act, 1990 (Act No. 7 of 1990), who must assist the Ombudsman in the performance of its functions relating to children by -(a)receiving and investigating complaints, from any source, including a child, concerning children who receive services under this Act or any other law or relating to services provided to children under this Act or any other law or concerning any violation of the rights of children under the Namibian Constitution or any law, and where appropriate, attempting to resolve such matters through negotiation, conciliation, mediation or other non-adversarial approaches;(b)monitoring the implementation of the United Nations Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and any other international instruments relating to child protection which are binding on Namibia;(c)monitoring the implementation of this Act and any other law pertaining to children;(d)bringing proceedings in a court of competent jurisdiction as contemplated in section 5(1)(a)(ii)(dd) of the Ombudsman Act, 1990 (Act No. 7 of 1990) to further the interests of children; and(e)raising awareness throughout Namibia of the contents of this law and the protection of children generally.
(2)The Council may request the Ombudsman to provide it with an annual report on the activities of the Children’s Advocate contemplated in subsection (1), which report must contain -(a)details of the nature of any complaints received and investigations undertaken in respect of children;(b)findings of any monitoring activities undertaken;(c)details of any court appearances to further children’s interests in terms of this Act;(d)an overview of awareness-raising activities; and(e)information about any other activities linked to his or her functions under this Act.

Part 3 – CHILDREN’S FUND


26. Establishment of Children’s Fund

(1)A fund to be known as the Children’s Fund is established.
(2)The Children’s Fund consists of -(a)moneys as may be appropriated by Parliament for this purpose;(b)grants, donations or bequests received by the Council with the approval of the Minister;(c)income derived from the proceeds of investments; and(d)such other moneys or assets as may vest in or accrue to the Council, whether in the course of its operations or otherwise.

27. Use of money in Fund

The Children’s Fund may be used for funding -(a)activities of the Council and the Children’s Advocate;(b)prevention and early intervention programmes;(c)early childhood development programmes;(d)the training of persons who implement this Act and any other law relating to children, such as the social workers, social auxiliary workers, community child care workers, magistrates, clerks of the courts and the members of the Police;(e)the establishment, maintenance or upgrading of facilities for children contemplated in Chapter 5 or programmes for children at such facilities;(f)the appointment of external advisors contemplated in section 21; and(g)any other activities relating to the implementation of this Act and other laws relating to children.

28. Administration of Fund

The Permanent Secretary must administer the Children’s Fund with the concurrence of the Minister in accordance with an estimate of revenue and expenditure approved by the Minister and the minister responsible for finance, in respect of every financial year of the Children’s Fund, which ends on 31 March of each year.

29. Banking accounts

(1)The Permanent Secretary must open a bank account in the name of the Children’s Fund with a banking institution or building society registered in terms of the laws governing banking institutions or building societies in Namibia and approved by the Council and into which must be deposited all moneys accruing to the Children’s Fund.
(2)The Council may, with the approval of the Minister, invest moneys of the Children’s Fund that are not immediately required for the purposes of the Children’s Fund -(a)with a banking institution registered under the Banking Institutions Act, 1998 (Act No. 2 of 1998) or with a building society registered under the Building Societies Act, 1986 (Act No. 2 of 1986);(b)with the Post Office Savings Bank established by the Posts and Telecommunications Companies Establishment Act, 1992 (Act No. 17 of 1992); or(c)any other institution approved by the Minister and the minister responsible for finance.
(3)Any unexpended balance in the Children’s Fund at the end of a financial year must be carried forward as a credit to the next financial year.

30. Accountability, accounts and audits

(1)The Permanent Secretary is the accounting officer of the Children’s Fund and charged with the responsibility of accounting for all moneys received by and paid from the Children’s Fund.
(2)The accounting officer referred to in subsection (1) must cause such records of account to be kept as are necessary to represent fairly the state of affairs and business of the Children’s Fund and to explain the transactions and financial position of the Children’s Fund.
(3)The Auditor-General must annually audit the books of account, accounting statements and annual financial statements of the Children’s Fund and must submit a copy of his or her report on such audit to the Council.

31. Annual report and other reports

(1)The Council must submit to the Minister an annual report of the Children’s Fund’s activities within six months of the end of each financial year or such longer period as the Minister may determine, which report must be accompanied by -(a)the audited financial statements of the Fund, referred to in section 30, for that financial year; and(b)the Auditor-General’s report referred to in section 30.
(2)The Minister must, within 28 days of receipt of the report referred to in subsection (1), table the report in the National Assembly if Parliament is then in ordinary session or if Parliament is not then in ordinary session, within 28 days after the commencement of its next ordinary session.
(3)The Council must, if the Minister at any time so requires, provide the Minister with a report and particulars relating to the Children’s Fund in relation to any matter as the Minister may require.

32. Exemption from payment of tax, duty or other charges

Despite anything to the contrary in any law, the Children’s Fund is not liable to pay -(a)tax or charge on its income; or(b)transfer duty or stamp duty in any transaction for which such duty is payable.

Part 4 – APPOINTMENT OR DESIGNATION OF SOCIAL WORKERS, CHILD PROTECTION ORGANISATIONS, SOCIAL AUXILIARY WORKERS AND PROBATION OFFICERS


33. Appointment or designation of social workers and child protection organisations

(1)The Minister must -(a)appoint social workers or designate social workers in the Ministry or in the employment of the State with the agreement of the ministry of which such social workers are staff members;(b)designate social workers in private practise; or(c)designate child protection organisations, which meet the prescribed requirements,in numbers sufficient to perform the functions assigned to designated social workers and child protection organisations under this Act or any other law and the Minister may, by regulation, specify the functions to be performed in terms of this Act by any of the functionaries contemplated in paragraphs (a), (b) or (c).
(2)The Minister must provide, a social worker or a child protection organisation appointed or designated in terms of subsection (1) and who or which complies with the prescribed requirements and who or which, in the opinion of the Minister, is fit and proper to be entrusted with the performance of functions and duties in terms of this Act, with a certificate indicating the functions which such social worker or organisation is authorised to perform.[The comma after the opening phrase “The Minister must provide” is extraneous.]
(3)A certificate provided in terms of subsection (2) must be submitted to the Minister for renewal every two years.
(4)The Minister may, despite subsection (3), at any time alter or revoke a certificate provided in terms of subsection (2) if the Minister is satisfied, after having given the relevant social worker or child protection organisation the opportunity to be heard orally or in writing, that there is sufficient cause, based on the conduct or circumstances of such social worker or organisation, to alter or revoke such certificate.
(5)The Minister must inform the Social Work and Psychology Council, if the Minister refuses to renew a certificate in terms of subsection (3) or alters or revokes a certificate in terms of subsection (4).
(6)A social worker or a child protection organisation contemplated in subsection (1) who is unable to or refuses to produce a certificate as referred to in that subsection on the request of any person who can demonstrate that he or she has a direct interest in being provided with such a certificate or who fails to renew such certificate as contemplated in subsection (3), commits an offence and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
(7)A social worker who -(a)produces a report in compliance with section 47(2)(g) or 139(1); or(b)is requested by the children’s court to submit a report,must submit that report, in the prescribed manner and within the prescribed period, to a staff member in the Ministry designated by the Minister to examine such reports for compliance with the provisions of this Act or with any request made by the children’s court before such report is submitted to such court.
(8)If a report contemplated in subsection (7) is found to be deficient, the staff member contemplated in that subsection must refer the report in question back to the social worker concerned to rectify such deficiencies within the period stated by that staff member.

34. Appointment or designation of social auxiliary workers and community child care workers

The Minister may appoint a sufficient number of social auxiliary workers or may designate social auxiliary workers in the Ministry or in the employment of the State with the agreement of ministry of which such social auxiliary workers are staff members or may designate community child care workers, to work under the direct supervision of designated social workers and assist with functions assigned to designated social workers under this Act or any other law, but the persons appointed or designated under this section are prohibited from -(a)facilitating adoptions in terms of Chapter 13;(b)preparing court reports in terms of section 47(2)(g) or 139(1);(c)removing children or alleged offenders in terms of section 135 or 136; or(d)performing any other functions under this Act as may be prescribed.

35. Appointment or designation of probation officers

(1)The Minister may designate a sufficient number of social workers in the Ministry or in the employment of the State with the agreement of the ministry of which such social workers are staff members and who comply with the prescribed requirements, as probation officers or may appoint sufficient number of social workers complying with such prescribed requirements as probation officers, to deal with persons who are alleged to have committed offences or have been convicted of offences and to exercise the powers and to perform the functions conferred or imposed by or under this Act or any other law on a probation officer.
(2)A probation officer is an officer of the High Court, every children’s court and every magistrate’s court.
(3)A person appointed as a probation officer under the Children’s Act, 1960 (Act No. 33 of 1960) is considered to have been appointed as a probation officer under this section.

36. Powers and functions of probation officers in relation to certain children

(1)The powers and functions of probation officers in relation to children who are alleged to have committed offences or have been convicted of offences include -(a)the investigation of the circumstances of such children with a view to -(i)reporting to the court on their treatment and committal to an institution;(ii)providing a pre-trial report recommending to the Office of the Prosecutor-General the desirability or otherwise of prosecution;(iii)providing information to a court on an appropriate sentence; and(iv)rendering assistance to such children and their families;(b)the reception, assessment and referral of such children and the rendering of early intervention services and programmes, including mediation and family meetings;(c)the giving of evidence before the court;(d)the supervision or control of children convicted of offences and placed under the supervision of the probation officer;(e)the rendering of assistance to such children in complying with their probation conditions in order to improve their social functioning;(f)the immediate reporting to the court or to the children’s commissioner when such children in any manner deviate from or fail to comply with their probation conditions; and(g)the reporting to the court or the children’s commissioner, in such manner and at such time as the court or the children’s commissioner may determine, on the progress and supervision of, and the compliance with the probation conditions in question, by such children.
(2)A person who hinders or obstructs a probation officer in the exercise of his or her powers or the performance of his or her functions commits an offence and is liable on conviction to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

Part 5 – REGULATIONS


37. Regulations

(1)The Minister may make regulations relating to -(a)the form of certificates to be issued to designated social workers in terms of section 33;(b)the qualifications and requirements to be complied with by designated social workers who are to perform such functions in terms of this Act or any other law;(c)the procedure to be employed when considering conduct or circumstances that may lead to the refusal to renew a certificate in terms of section 33(3) or alteration or revocation of certificates contemplated in section 33(4);(d)the fees payable to social workers or child protection organisations, except social workers in the employment of the State, designated in terms of section 33(1);(e)the qualifications and requirements to be complied with by social workers appointed or designated as probation officers in terms of section 35 who are to perform functions in terms of this Act or any other law;(f)the procedure for examination of a social worker’s report by a staff member in the Ministry contemplated in section 33(7) and the powers of such staff member in relation to such report;(g)the designation of probation officers for different purposes in different categories;(h)any other matter required or permitted to be prescribed under this Chapter; and(i)any other incidental administrative or procedural matter that is necessary to be prescribed for the proper implementation or administration of this Chapter.
(2)Regulations made under subsection (1) may -(a)create an offence for any contravention of a regulation or a failure to comply with a provision of a regulation; and(b)prescribe penalties in respect of an offence contemplated in paragraph (a) not exceeding a fine of N$4 000 or imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

Chapter 4
CHILDREN’S COURTS AND COURT PROCEEDINGS


Part 1 – CHILDREN’S COURTS AND CHILDREN’S COMMISSIONERS


38. Children’s courts, children’s commissioners and children’s court assistants

(1)For the purpose of this Act, every magistrate’s court is a children’s court and has jurisdiction in any matter arising from the application of this Act for its area of jurisdiction.
(2)The law as applicable to magistrates’ courts applies to a children’s court when it is exercising jurisdiction in respect of matters it may adjudicate on.
(3)A children’s court is a court of record and has a similar status to that of a magistrate’s court at a district level.
(4)Every magistrate appointed for a district is a children’s commissioner for that district.
(5)For the purposes of this Act, the Magistrate’s Commission may assign magistrates as dedicated children’s commissioners for a specific children’s court or for more than one children’s court.
(6)A children’s commissioner is subject to the Magistrates Act, 2003 (Act No. 3 of 2003).
(7)A children’s commissioner must preside over every session of a children’s court.
(8)A children’s commissioner must promote and protect the best interests of a child who comes before a children’s court in terms of this Act or any other law.
(9)A children’s commissioner must perform such functions as may be assigned to him or her under this Act or any other law.
(10)Any officer delegated by the Prosecutor-General to conduct prosecutions before the magistrate’s court of any district is ex officio a children’s court assistant of any children’s court held within that district.
(11)The minister responsible for justice -(a)must ensure that children’s commissioners receive training regarding the implementation of this Act and in their specific duties and functions; and(b)may appoint dedicated children’s court assistants for any children’s court to assist such court in the manner contemplated in section 58(6).
(12)The functions of a children’s court assistant are as prescribed.

39. Clerks of children’s court

(1)The minister responsible for justice may, for every children’s court, appoint sufficient number of persons or designate staff members of the ministry responsible for matters relating to justice as clerks of the children’s court, who must -(a)at any proceedings of the children’s court to which they are attached, perform the functions as may be prescribed or assigned to them by this Act or any other law; and(b)generally assist that court in performing its functions.
(2)If a clerk contemplated in subsection (1) is for any reason unable to act as such or if a clerk has not been appointed or designated under that subsection for any children’s court, the presiding children’s commissioner of that court may assign, after consultation with the Chief Magistrate, a competent staff member in the ministry responsible for justice, to act as a clerk for as long as the appointed or designated clerk is unable to act as such or until a clerk is appointed or designated under that subsection.
(3)For purposes of giving full effect to this Act, persons may, under subsection (1), be appointed or designated as clerks of the children’s court for one or more children’s courts.
(4)The minister responsible for justice must ensure that clerks of the children’s court contemplated in subsection (1) receive training regarding the implementation of this Act and in their specific duties and functions.

40. Assessors

(1)A children’s commissioner may, subject to subsection (2), request the assistance of one or more persons (hereinafter referred to as assessors) who in his or her opinion, may be of assistance in any matter to be considered at the court proceedings at which the children’s commissioner is presiding.
(2)Assessors may only be summoned if it is in the interest of the administration of justice to do so, but the minister responsible for justice with the concurrence of the Minister, may from time to time prescribe the matters in respect of which the assistance of an assessor or assessors is compulsory.
(3)An assessor referred to in subsection (1) must have the necessary knowledge of, and experience in matters relating to the proceeding for which his or her assistance is required.
(4)In considering whether summoning assessors in terms of subsection (2) is in the interest of the administration of justice, the children’s commissioner must take into account -(a)the best interests of the child concerned; and(b)any other matter or circumstance which he or she may consider to be indicative of the desirability of summoning an assessor or assessors.
(5)An assessor may not hear any evidence unless he or she takes an oath or makes an affirmation, administered by the relevant children’s commissioner, to the effect that he or she assists the court in a truthful and honest manner, based on the evidence placed before the court.
(6)Subject to subsections (7) and (8), an assessor who takes an oath or makes an affirmation becomes a member of the children’s court.
(7)A decision or finding of fact of the majority of the children’s commissioner and assessors is the decision or finding of the children’s court, but when the children’s commissioner sits with only one assessor, the decision or finding of the children’s commissioner is, in the case of a difference of opinion, the decision or finding of the children’s court.
(8)The presiding children’s commissioner alone must decide on any question of law or on any question as to whether a matter constitutes a question of law or a question of fact and for this purpose the children’s commissioner may sit alone.
(9)The minister responsible for justice, with the concurrence of the minister responsible for finance, must determine the allowances payable to an assessor who is not in the full time employment of the State in respect of expenses incurred by him or her in connection with his or her attendance at the trial and in respect of his or her services as assessor.
(10)An assessor who is in the full time employment of the State is entitled to payment for expenses as he or she may be required to incur in connection with his or her attendance at the trial.
(11)Section 147 of the Criminal Procedure Act applies with necessary changes if an assessor dies or becomes, in the opinion of the relevant children’s commissioner, incapable of continuing to act as an assessor.

41. Geographical area of jurisdiction of children’s court

(1)The children’s court that has jurisdiction in a particular matter is -(a)the court of the area in which the child involved in the matter is ordinarily resident or happens to be; or(b)if more than one child is involved in the matter, the court of the area in which any of those children is ordinarily resident or happens to be.
(2)If it is unclear which court has jurisdiction in a particular matter, the children’s court before which the child is brought has jurisdiction in that matter.
(3)A matter may be transferred from one children’s court to another children’s court in accordance with the prescribed procedure if such transfer would be in the best interests of the child who is the subject of such matter.

42. Referral of children by other court for investigation

(1)If it appears to any court in the course of any proceedings that a child involved in or affected by those proceedings is or may be in need of protective services, the court must order that the matter be referred to a designated social worker for an investigation contemplated in section 139.
(2)If in the course of any proceedings before any court relating to matrimonial proceedings, maintenance or domestic violence or in the case of proceedings before the children’s court relating to custody, access to a child or guardianship of a child, the court forms the opinion that a child of any of the parties to the proceedings has been abused or neglected, the court -(a)may suspend the proceedings pending an investigation contemplated in section 139 into whether the child is in need of protective services; and(b)must request the Prosecutor-General to attend to any allegations of criminal conduct.
(3)A court issuing an order in terms of subsection (1) or suspending the proceedings in terms of subsection (2) may also order that the child be placed in a place of safety if it appears to the court that this is necessary for the safety and well-being of the child.
(4)The best interests of the child must be the determining factor in any decision on whether a child in need of protective services must be removed and placed in a place of safety and all relevant facts must for this purpose be taken into account including -(a)the safety and well-being of the child as the first priority;(b)if appropriate, the views of the child in question; and(c)the possible alternative of removing the alleged offender in terms of section 135(1)(b) or 137 from the home or place where the child resides.

43. Pre-hearing conferences

(1)If a matter brought to or referred to a children’s court is contested, the court may order that a pre-hearing conference be held with the parties involved in the matter in order to -(a)settle disputes between the parties to the extent possible; and(b)define the issues to be heard by the court.
(2)The child involved in the matter has the right to participate in a pre-hearing conference unless the children’s court decides otherwise.
(3)A children’s court ordering the holding of a pre-hearing conference, must(a)determine how and by whom the conference must be set up, conducted and by whom it may be attended;(b)determine the manner in which a record is to be kept of any agreement or settlement reached between the parties and of any fact emerging from the conference which ought to be brought to the notice of the court;(c)determine the period within which the pre-hearing conference must be concluded; and(d)consider the report on the conference when the matter is heard.

44. Lay-forums

(1)The children’s court may, subject to subsections (2) and (5), if circumstances permit, refer a matter brought or referred to the court, to a lay-forum proceeding which may include -(a)mediation by a social worker or other person with the prescribed qualifications; or(b)a family meeting convened by a person with the prescribed qualifications; or(c)a referral to a traditional authority in whose area of jurisdiction the child involved in such matter resides and is subject to,in an attempt to settle the matter out of court.
(2)Lay-forums may not be held in respect of a matter involving the alleged abuse or sexual abuse of a child.
(3)Before referring parties to a lay-forum, the children’s court must take into account all relevant factors, including -(a)the vulnerability of the child concerned;(b)the ability of the child to participate in the proceedings;(c)the power relationships within the family; and(d)the nature of any allegations made by parties in the matter.
(4)A children’s court ordering the referral of a matter to a lay-forum must -(a)direct the manner in which a record must be kept of any agreement or settlement reached between the parties and of any fact emerging from the lay-forum process which ought to be brought to the notice of the court;(b)determine the period within which the lay-forum process must be concluded;(c)determine how and by whom the lay-forum proceedings must be set up, conducted and by whom it must be attended; and(d)consider the report on the proceedings before the lay-forum when the matter is heard.
(5)A children’s court may not refer a matter to a lay-forum unless it is satisfied that an appropriate cost-free option is available or that the parent, guardian or care-giver of the child concerned or any other person involved in the proceedings has the financial ability to bear any costs involved.

45. Settling of matters out of court

(1)If a matter is settled out of court in terms of section 44 and the settlement is accepted by all parties involved in the matter, the clerk of the children’s court must submit the settlement to the children’s court for confirmation or rejection.
(2)The court must consider the settlement contemplated in subsection (1) and may -(a)confirm the settlement and make it an order of court if it is in the best interests of the child concerned;(b)before deciding to confirm or reject the settlement, refer the settlement back to the parties for reconsideration of any specific issues; or(c)reject the settlement if it is not in the best interests of the child and order that the matter be brought before the children’s court.

46. Appeals

(1)A party involved in a matter before a children’s court may appeal against any order made or any refusal to make an order or against the variation, suspension or rescission of any order of the court to the High Court.
(2)An appeal in terms of subsection (1) must be dealt with as if it were an appeal against a civil judgment of a magistrate’s court.

Part 2 – CHILDREN’S COURT PROCEEDINGS AND RULES


47. Children’s court proceedings, rules and general orders

(1)Except where otherwise provided for in this Act, the Magistrates’ Courts Act and the rules made in terms of that Act, including the rules made by the Rules Board under section 25 of that Act, apply, with necessary changes, to the children’s court with regard to the -(a)appointment and functions of staff members and officers of the court;(b)issue and service of process;(c)appearance in court of legal practitioners;(d)conduct of proceedings;(e)execution of judgements; and(f)imposition of penalties for non compliance with orders of court, obstruction of execution of judgements and contempt of court.
(2)A children’s court may, in addition to the orders it may make in terms of this Act -(a)grant interdicts and auxiliary relief in respect of any matter it may adjudicate on in terms of this Act;(b)extend, withdraw, suspend, vary or monitor any of its orders;(c)impose or vary time deadlines with respect to any of its orders;(d)make appropriate orders as to costs in matters before the court;(e)order the removal of a person from the court after noting the reason for the removal on the court record;(f)appoint a curator ad litem in respect of any particular child if the appointment would, in the opinion of the court, be in the best interests of the child, despite the fact that the child may have legal representation;(g)order a designated social worker, medical practitioner, psychologist, educational practitioner or any other person with appropriate expertise to carry out a further investigation into the circumstances of a child and compile a written report addressing such matters as the court may require; and(h)order the ministry responsible for administration of matters relating to home affairs to issue a birth certificate in respect of a particular child despite any inability on the part of that child or his or her parent, guardian or care-giver to comply with any requirements of that ministry.
(3)For the purposes of this Act a children’s court may in the prescribed manner estimate the age of a person who appears to be a child.

48. Reports ordered by court

(1)A written report ordered by the children’s court in terms of section 47(2)(g) must be submitted to the court within five court days after the order was made, unless the court has determined a longer period for purposes of practicality.
(2)A copy of the report referred to in subsection (1) must, immediately on the submission of the report to the children’s court, be served in the prescribed manner on the parties to the hearing, including a person designated in terms of section 143(2).
(3)The person who compiled the report in terms of section 47(2)(g) may -(a)obtain supplementary evidence or reports from other suitably qualified persons; and(b)be required by the court to present the findings of the investigation to the court by testifying before the court.
(4)Any person ordered to compile a written report in terms of section 47(2)(g) who is not in the full-time employment of the State or a designated child protection organisation, must be compensated for services rendered in connection with the investigation or assessment from State funds in accordance with a tariff determined by the minister responsible for justice with the concurrence of the minister responsible for finance.

49. Status of reports

(1)A written report, purported to be compiled and signed by a medical practitioner, psychologist, designated social worker or other professional person, which on the face of it forms an authoritative opinion in respect of a child or the circumstances of a child involved in a matter before a children’s court or in respect of another person involved in the matter or the circumstances of the other person, is, subject to the decision of the presiding children’s commissioner, on its mere production to the children’s court hearing the matter, admissible as evidence of the facts stated in the report.
(2)A report contemplated in subsection (1) is admissible as evidence even if it contains hearsay or matters which would be hearsay if testified to in court, but a report containing hearsay is not admissible as evidence in any criminal matter on which the report may have a bearing.
(3)If a person’s rights are affected or prejudiced by a report contemplated in subsection (1) the court must -(a)if the person is not a party to the proceedings before the court, cause such person to be brought before the court; and(b)give that person the opportunity -(i)to question or cross-examine the author of the report in regard to a matter arising from the report;(ii)to question any other person who has made a statement, as contained in the report, which is prejudicial to the person whose rights are affected or prejudiced; or(iii)to refute any statement contained in the report.

50. Adjournments

(1)The proceedings of a children’s court may be adjourned only -(a)on good cause shown, taking into account the best interests of the child; and(b)for a period of not more than 30 days at a time.
(2)A children’s commissioner may excuse any person from appearing at adjournment proceedings.

51. Monitoring of court orders

(1)A children’s court may monitor -(a)compliance with an order made by it in any matter; or(b)the circumstances of a child following an order made by it.
(2)For purposes of monitoring compliance with an order made by a children’s court or the circumstances of a child following an order, the court -(a)when making that order, may direct -(i)any person involved in the matter to appear before it at any future date; or(ii)that reports by a designated social worker be submitted to the court within a specified period or from time to time as specified in the order;(b)at any time after making an order or when a report of non-compliance mentioned in subsection (4) is referred to it, may call or recall any person involved in the matter to appear before it.
(3)When a person appears before the court in terms of subsection (2), the court may -(a)inquire whether the order has been or is being complied with and if not, about the reasons for non-compliance;(b)confirm, vary or withdraw the order; or(c)enforce compliance with the order, if necessary by referring the matter to the Prosecutor-General for a decision on a criminal prosecution.
(4)Any person may report any alleged non-compliance with an order of a children’s court or any alleged worsening of the circumstances of a child following a court order, to the clerk of the children’s court, who must refer the matter to a presiding children’s commissioner for a decision on possible further action.
(5)A person referred to in subsection (4) is not subject to civil liability for making a report permitted in terms of that subsection, unless the person makes the report or provides information knowing it to be false or misleading.

52. Who may approach children’s court

(1)Except where otherwise provided in this Act, any person listed in subsection (2) may bring a matter which falls within the jurisdiction of the children’s court, to a clerk of the children’s court for referral to the children’s court.
(2)The persons who may approach a children’s court, are -(a)a child who is affected by or involved in the matter to be adjudicated;(b)any person holding or exercising parental responsibilities and rights in respect of a child;(c)the care-giver of a child;(d)any person acting in the interest of a child;(e)any person acting on behalf of a child who cannot act in his or her own name;(f)any person acting as a member of, or in the interest of, a group or class of children;(g)any person acting in the public interest, including the Minister or a staff member of the Ministry who is authorised by the Minister; and(h)the Children’s Advocate acting on behalf of a child or children generally.

53. Parties in children’s court proceedings

(1)The Minister, a staff member of the Ministry who is authorised by the Minister and the Children’s Advocate have the right to be a party to any proceedings before a children’s court in terms of this Act involving a particular child or children in general.
(2)Any child who is affected by a matter to be adjudicated in the children’s court is automatically a party to the proceedings in question.

54. Children’s court environment

Children’s court hearings must, as far as is practicable, be held in a room which is -(a)furnished and designed in a manner aimed at putting children at ease;(b)conducive to the informality of the proceedings and the active participation of all persons involved in the proceedings without compromising the dignity of the court;(c)not ordinarily used for the adjudication of criminal trials; and(d)accessible to disabled persons and persons with special needs.

55. Private nature of proceedings and vulnerable witnesses

(1)Proceedings of a children’s court are closed and may be attended only by -(a)the child involved in the matter before the court and any other party in the matter;(b)a person who has been directed in terms of this Act by the clerk of the children’s court to attend the proceedings;(c)the legal practitioner of a party to the proceedings, including the legal practitioner of the child involved in the proceedings;(d)a person who has obtained permission to be present from the children’s commissioner presiding at the proceedings;(e)a person performing official duties in connection with the work of the court or whose presence is otherwise necessary for the proceedings; and(f)the designated social worker.
(2)Having regard to the vulnerability of a particular child involved in any matter before a children’s court, the court may -(a)exercise its power to order the removal of any person from the court in terms of section 47(2)(e);(b)on the request of any party to the court proceedings, the child concerned or on its own initiative, apply any of the special arrangements provided for in section 158A of the Criminal Procedure Act, in which case the relevant provisions of that section apply with necessary changes to proceedings in a children’s court;(c)apply any of the provisions in section 166(3) to (6) of the Criminal Procedure Act, in which case the relevant provisions of those subsections apply with necessary changes to proceedings in a children’s court;(d)admit any previous statements by a child younger than 14 years as provided for in section 216A of the Criminal Procedure Act, in which case the relevant provisions of that section apply with necessary changes to proceedings in a children’s court;(e)allow a party to the proceedings to give an opinion or to participate, in the manner determined by the children’s commissioner, without being present in court;(f)allow the child concerned, on the request of such child or on its own initiative, to consult privately with the presiding children’s commissioner;(g)intervene in the questioning or cross-examination of a child if the court finds this to be in the best interests of the child; or(h)apply any of the provisions of paragraphs (a) to (g) in combination.

56. Conduct of proceedings

(1)The children’s commissioner presiding in a matter before the children’s court controls the conduct of the proceedings and may -(a)call any person to give evidence or to produce a book, document, photograph or digital or electronically produced material or other written instrument;(b)question or cross-examine that person; or(c)to the extent necessary to resolve any factual dispute which is directly relevant in the matter, allow that person to be questioned or cross-examined by -(i)the child involved in the matter;(ii)the parent of the child;(iii)a person who has parental responsibilities and rights in respect of a child;(iv)a care-giver of the child;(v)a person whose rights may be affected by an order that may be made by the court in those proceedings; or(vi)the legal practititioner of any person involved in the proceedings.[The word “practitioner” is misspelt in the Government Gazette, as reproduced above.]
(2)Children’s court proceedings must be conducted in an informal manner and, as far as possible, in a relaxed and non-adversarial atmosphere which is conducive to attaining the co-operation and participation of everyone involved in the proceedings.
(3)The clerk of the children’s court must, on the directions of the children’s commissioner, by written notice in the prescribed manner, notify the relevant child’s parents, guardian, custodian, care-giver or any person identified by the court or the relevant social worker as having an interest in the matter before the court, including the social worker concerned, to attend the proceedings of the children’s court.
(4)The person in whose physical control the child is must ensure that the child attends the proceedings of the children’s court unless the clerk of the children’s court or the court directs otherwise.
(5)The children’s commissioner presiding at the proceedings of the children’s court must explain to the child and any other person present at the proceedings the nature and significance of the proceedings and the explanation must be in a manner that can be understood by the child or person at whom it is directed so as to ensure participation to the full extent of such child or person’s abilities.
(6)The children’s court -(a)may, at the outset or at any time during the proceedings before the court, order that the proceedings or any issue arising during the proceedings be disposed of separately and in the absence of the child, if it is in the best interests of the child; and(b)must record the reasons for any order in terms of paragraph (a).
(7)A person who fails to comply with the written notice referred to in subsection (3) or who contravenes subsection (4) commits an offence and is liable on conviction to a fine not exceeding N$5 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

57. Recording of non-participation by child

(1)The children’s commissioner presiding in a matter before a children’s court must record the reasons if the court finds that the child is unable to participate in the proceedings or is unwilling to express a view or preference in the matter.
(2)The children’s court -(a)may, at the outset or at any time during the proceedings of the children’s court, order that the proceedings or any issue in the proceedings, be disposed of separately and in the absence of the child, if it is in the best interests of the child; and(b)must record the reasons for any order in terms of paragraph (a).

58. Legal representation

(1)A person who is a party in a matter before a children’s court, including a child, is entitled to appoint a legal practitioner of his or her own choice and at his or her own expense.
(2)The children’s court must, where the child involved in a matter before the court is not represented by a legal practitioner, order that legal representation be provided to the child in the following instances -(a)if it is requested by the child, with due regard to the child’s age, level of maturity and stage of development and the reasonableness of the request;(b)if it is recommended in a report by a social worker;(c)if there is evidence or allegations of sexual, physical or psychological abuse of the child;(d)if any other party besides the child has legal representation; or(e)in any other situation where it appears that the child would benefit substantially from legal representation either as regards the proceedings themselves or as regards achieving the best possible outcome for the child.
(3)If the children’s court has ordered that legal representation be provided for a child as contemplated in subsection (2), the court may -(a)order one or more of the parties to pay the costs of such representation;(b)despite the provisions of the Legal Aid Act, 1990 (Act No. 29 of 1990), order that legal representation referred to in that Act be provided to that child, if the child’s parent, guardian or care-giver is unable to pay the costs of a legal practitioner and if the court is satisfied that substantial injustice would otherwise occur; or(c)order that the child be assisted by a children’s court assistant for that court or by any other person whom the court considers to be qualified to fulfil the functions of a children’s court assistant and who is designated by the court to asist in the proceedings before the court.[The word “assist” is misspelt in the Government Gazette, as reproduced above.]
(4)The children’s court may order that legal representation referred to in the Legal Aid Act, 1990 (Act No. 29 of 1990), be provided to an adult party in any proceedings under this Act if such party is unable to pay the costs of a legal practitioner and if the court is satisfied that substantial injustice would otherwise occur.
(5)A legal practitioner appointed to represent the child or any other party may adduce any relevant evidence and may cross-examine any witness called by any other party to the proceedings.
(6)A children’s court assistant ordered to assist in terms of subsection (3) (c) or acting in terms of section 38(10) or section 38(11)(b) may -(a)adduce any available evidence relevant to those proceedings;(b)cross-examine any witness called by another party to the proceedings; and(c)generally assist the court in the performance of its functions.
(7)The consent or assistance of the child’s parent or guardian is not required in respect of legal representation or assistance to the child in terms of this section.
(8)The parent, guardian or other person with physical control of the child may not prevent reasonable private access to the child by a legal practitioner or children’s court assistant who is representing or assisting the child in terms of this section for purposes of consultation or examination.

59. Witnesses

(1)The clerk of a children’s court must summons a person to give evidence or produce any book, document, photographic or digital or electronically produced material or other written instrument at any proceedings of that court, on request by -(a)the presiding children’s commissioner;(b)a person likely to be affected by any order that may be made by a children’s court;(c)a legal practitioner acting on behalf of a person referred to in paragraph (b); or(d)a children’s court assistant.
(2)A summons referred to in subsection (1) must be served on the person concerned as if it were a summons to give evidence or to produce a book or a document at a criminal trial in a magistrate’s court.
(3)Sections 188 and 189 of the Criminal Procedure Act, apply with necessary changes to a person who has been summonsed in terms of subsection (1) or required by the presiding children’s commissioner to give evidence.

60. Witness fees and allowances

(1)Witness fees and allowances payable to witnesses in criminal proceedings in a magistrate’s court must, subject to subsection (2), be paid out of State funds to a person who is summoned pursuant to a request made in terms of section 59(1)(a) and (d) and who complied with that summons.
(2)A person summonsed in terms of section 59(1)(b) or (c) is not entitled to an allowance from State funds unless the presiding children’s commissioner orders that such allowance be paid.

61. Prohibition on publication or disclosure of child’s identity

(1)A person may not publish or disclose in any manner, except with the permission of the children’s commissioner given in the interest of justice, any information relating to the proceedings of a children’s court, including any image, picture or like material, which reveals or may reveal the name or identity of a child who is or was a party or a witness in the proceedings.
(2)A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding N$100 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

62. Confidentiality of records of children’s court proceedings

Records of the proceedings of a children’s court are confidential and may only be disclosed in the following circumstances:(a)for the purpose of performing official duties in terms of this Act;(b)in terms of a court order if the court finds that disclosure is compatible with the best interests of the child;(c)for the purpose of review or appeal;(d)for the purpose of investigation by the Children’s Advocate; or(e)for the purposes of research carried out on behalf of or authorised by the Minister, the Children’s Advocate or the Council.

Part 3 – REGULATIONS


63. Regulations

(1)The minister responsible for justice, after consultation with the Minister, may make regulations relating to -(a)the procedures to be followed at or in connection with proceedings of children’s courts and the powers, duties and functions of clerks of the children’s court in as far as they relate to the proceedings of children’s courts;(b)the form of any application, authority, certificate, consent, notice, order, process, register or subpoena to be made, given, issued or kept;(c)the holding of pre-hearing conferences in terms of section 43, procedures regulating such conferences and information that must be submitted to the children’s court;(d)the holding and monitoring of lay-forum proceedings in terms of section 44, procedures regulating such proceedings and information that must be submitted to the children’s court;(e)the qualifications and experience of persons facilitating pre-hearing conferences and lay-forum proceedings;(f)documents in connection with matters brought to a children’ court and records of the proceedings of children’s courts, including regulations determining -(i)the person by whom, the period for which and the manner in which those documents and records must be kept; and(ii)access to those documents and records;(g)the keeping of records with regard to matters brought to and dealt with by the children’s court;(h)the payment of persons who are not employed by the State;(i)the circumstances in which the responsibility for the payment of costs to be incurred in order to give effect to an order of the children’s court or to ensure the sufficiency of evidence to be placed for such court may fall on the State or any other person, institution or organisation;(j)the establishment of guidelines regulating the relationship between a child involved in any proceedings under this Act and his or her legal practitioner and the experience or accreditation of legal practitioners appointed to represent children in proceedings under this Act;(k)any other matter required or permitted to be prescribed under this Chapter; and(l)any other incidental administrative or procedural matter that is necessary to be prescribed for the proper implementation or administration of this Chapter.
(2)Regulations made under subsection (1) may -(a)create an offence for any contravention of a regulation or a failure to comply with a provision of a regulation; and(b)prescribe penalties in respect of an offence contemplated in paragraph (a) not exceeding a fine of N$4 000 or imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

Chapter 5
RESIDENTIAL CHILD CARE FACILITIES, PLACES OF CARE AND SHELTERS


64. Places of safety

(1)A place of safety is a facility used for the temporary reception and care of children -(a)removed in terms of section 135 or 136;(b)pending their placement in terms of an order of the children’s court;(c)in terms of an order under the Criminal Procedure Act;(d)awaiting trial or sentence; or(e)for any other prescribed purpose.
(2)For the purpose of subsection (1), a prison or a police cell may not be used as a place of safety.
(3)A residence of a person approved for purposes of foster care may serve as a place of safety.
(4)The Minister may -(a)with the agreement of the owner or management of a facility, approve the use of a private children’s home, a private hospital or any other private facility which the Minister considers suitable, as a place of safety;(b)on application by a person, approve a private home as a place of safety if the applicant can prove that -(i)children will be cared for in a healthy, hygienic and safe environment in line with the reasonable standards of the community in which the home is situated;(ii)children will be provided with adequate nutrition and sleeping facilities;(iii)the person is willing and suitable to provide care to children; and(iv)no person residing in the home has been convicted of an offence contemplated in section 238;(c)with the concurrence of the minister responsible for education, approve the use of a government school hostel as a place of safety; or(d)with the concurrence of the relevant responsible minister, approve the use of any other appropriate State owned building or place as a place of safety.
(5)The Minister must, on approving a place of safety as contemplated in subsection (3) or (4), issue a letter of authorisation and such authorisation must be renewed in the manner and frequency and subject to such conditions as may be determined by the Minister.
(6)The Minister may, out of moneys appropriated by Parliament or from the Children’s Fund, establish and maintain places of safety of varying classifications based on different children’s needs and the interests of community safety that are sufficient to accommodate all children who have to be placed in such places.
(7)A child must be placed in a place of safety -(a)if practicable and consistent with the best interests of the child, in the community or region in which the child normally resides; and(b)if it is consistent with the best interests of the child and the interests of community safety, with an individual or a family approved for the purposes of foster care, in preference to placement in a place of safety approved under subsection (4).
(8)A child accommodated in a place of safety and who is not awaiting trial for a criminal offence or awaiting sentence after being convicted of an offence must, for all purposes and at all times, be kept separate from children in that place of safety who are awaiting trial or awaiting sentence.
(9)A place of safety or a place of detention established or deemed to have been established under section 38 of the Children’s Act, 1960 (Act No. 33 of 1960) and which is in existence at the date of commencement of this Act, is as from that date regarded to be a place of safety established and maintained in accordance with this Act.

65. Places of care

(1)A place of care is a facility used for the care, whether for or without reward, of more than six children on behalf of their parents or care-givers during specific hours of the day or night or for a temporary period, in terms of a private arrangement between the parents or care-givers and the owner or managers of the place of care and includes, but is not limited to a community hostel whether regulated by the minister responsible for education or not, but excludes the care of a child -(a)by a school as part of tuition, training or other activities provided by the school;(b)as a boarder in a school hostel or other residential facility managed as part of a school; or(c)by a hospital or other medical facility as part of the treatment provided to the child.
(2)A place of care, other than one maintained and controlled by the State or one regarded as a place of care in terms of subsection (3), may only be used as a place of care if it -(a)is registered in terms of section 74; and(b)is operated in compliance with the conditions of registration.
(3)A place of care registered or deemed to have been registered under section 42 of the Children’s Act, 1960 (Act No. 33 of 1960), and which is in existence at the date of commencement of this Act, is as from that date regarded to be a place of care registered in accordance with this Act.

66. Early childhood development centres

(1)An early childhood development centre is a facility used to care for children from birth to the age of formal schooling and which offers a structured set of learning activities.
(2)A facility may only be used as an early childhood development centre if it -(a)is registered as such in terms of section 74; and(b)is managed and maintained in accordance with any conditions subject to which the facility is registered.
(3)The minister responsible for education must administer all matters relating to activities at early childhood development centres registered under this Act.

67. Shelters

(1)A shelter is a facility used for the purpose of providing basic services, including overnight accommodation, to -(a)abused adults and children;(b)children living or working on the streets; or(c)children who voluntarily attend the facility but who are free to leave.
(2)A shelter established by an organ of state or a non-governmental organisation only qualifies for funding from money appropriated by Parliament for that purpose if it complies with the requirements of this Act and any standards for shelters prescribed in terms of this Act.
(3)A person may establish or operate a shelter if the shelter -(a)is registered in terms of section 74; and(b)is managed and maintained in accordance with any conditions subject to which the shelter is registered.
(4)An existing shelter registered in terms of a law and operated in accordance with a registration certificate from the relevant authority or authorities is from the date of commencement of this section regarded to have been registered in terms of this Act for a period of one year from the date of commencement of this section, but the operator of the shelter must apply for registration in terms of this Act before the expiry of that period in order to continue operating as a shelter.

68. Children’s homes

(1)A children’s home is a facility, other than the child’s family home, used for -(a)the reception and provision of residential care of children who -(i)have been abandoned or orphaned;(ii)for any reason cannot be placed in kinship care or foster care;(iii)are awaiting trial or sentence;(iv)are placed in such home in terms of an order under the Criminal Procedure Act; or(b)any other purpose that may be prescribed.
(2)A child must, if possible, be placed in a children’s home in the community or region in which the child normally resides.
(3)A child may only be placed in a children’s home for purposes of paragraphs (a)(iii) and (iv) of subsection (1) if such home provides a programme for the reception, development and secure care of children.
(4)The Minister may, out of moneys appropriated by Parliament or from the Children’s Fund, establish and maintain children’s homes sufficient to accommodate all children who have to be placed in such a home and cannot be accommodated in other children’s homes registered under section 74.
(5)A facility, other than one maintained and controlled by the State, may only be used as a children’s home if it is -(a)registered as such in terms of section 74; and(b)managed and maintained in accordance with any conditions subject to which the children’s home is registered.
(6)A children’s home -(a)established and maintained under section 41(3)(a) of the Children’s Act, and which is in existence at the date of commencement of this Act, is from that date regarded to be a children’s home established and maintained in accordance with this Act; or[Paragraph (a) refers to children’s homes established and maintained under section 41(3)(a) of the Children’s Act 33 of 1960. However, that section was repealed by the South African Educational Services Act 41 of 1967 before the Children’s Act was made applicable to South West Africa. This cross-reference was probably intended to refer to section 39(3)(a) of the Children’s Act 33 of 1960, which covered the establishment of government children’s homes.](b)registered or deemed to have been registered under section 42 of the Children’s Act, and which is in existence at the date of commencement of this Act, is as from that date regarded to be a children’s home registered in accordance with this Act.

69. Child detention centres

(1)A child detention centre is a facility used for the reception, care and training of children -(a)in terms of an order under the Criminal Procedure Act;(b)in terms of an order under this Act placing the child in a child detention centre;(c)transferred to such centre in terms of section 82;(d)awaiting trial or sentence;(e)with behavioural and emotional difficulties; or(f)for any other purpose that may be prescribed.
(2)The Minister, after consultation with the minister responsible for education, may, from money appropriated by Parliament or from the Children’s Fund, establish and operate child detention centres for the reception, care and training of children contemplated in subsection (1).
(3)A child detention centre -(a)must be managed and maintained in accordance with this Act; and(b)must comply with the prescribed standards and the structural, safety, health and other requirements prescribed by the law applicable in the area where the centre is situated.
(4)The minister responsible for education must administer all matters relating to learning activities at child detention centres registered under this Act.
(5)A non-profit organisation may establish or operate a child detention centre, if the centre -(a)is registered in terms of section 74;(b)is managed and maintained in accordance with this Act and any conditions subject to which the centre is registered; and(c)complies with the prescribed standards.
(6)A school of industries or a reform school established and maintained under section 39 of the Children’s Act, and which is in existence at the date of commencement of this Act, is from that date regarded to be a child detention centre approved under this Act.

70. Existing places of safety, places of care, children’s homes, places of detention, schools of industries or reform schools

(1)Existing State-operated places of safety, places of care, children’s homes, schools of industries or reform schools which were established in terms of the Children’s Act must be registered under this Act as places of safety, places of care, children’s homes or child detention centres, respectively, within one year from the date of commencement of this Part.
(2)Existing privately-operated places of safety, places of care, children’s homes, schools of industries or reform schools which were registered in terms of the Children’s Act must be registered under this Act as places of safety, places of care, children’s homes or child detention centres, respectively, within one year from the date of commencement of this Part.

71. Minimum standards for residential child care facilities, places of care, early childhood development centres and shelters

(1)Places used as residential child care facilities, places of care, early childhood development centres or shelters must have -(a)a safe area for the children to play;(b)adequate space and ventilation;(c)safe drinking water;(d)hygienic and adequate toilet facilities;(e)access to services for the disposal of refuse or other adequate means of disposal of refuse generated at the facility;(f)a hygienic area for the preparation of food for the children; and(g)appropriate first-aid supplies.
(2)A child accommodated in a residential child care facility, place of care, early childhood development centre or shelter contemplated in subsection (1) and who is not subject to secure care must, for all purposes and at all times, be kept separate from children in that facility who are subject to secure care.
(3)All residential child care facilities, places of care, early childhood development centres and shelters must -(a)provide relevant information to children accommodated at such facilities;(b)provide an opportunity for children accommodated at such facilities to express their views in all decision making processes affecting them, according to their age, maturity, stage of development and experience; and(c)ensure that the views of children accommodated at such facilities about matters affecting them receive due consideration.
(4)The Minister may, after consultation with the minister responsible for health and social services, prescribe additional standards with which residential child care facilities, places of care, early childhood development centres or shelters contemplated in subsection (1) must comply.
(5)In determining how to interpret minimum standards for the purpose of subsection (1) the standards of the surrounding community must be considered.
(6)The Minister may, by notice in the Gazette, determine a period of time, from the date of commencement of this Act, within which facilities, places, centres or shelters contemplated in subsection (1) in rural areas or in informal settlements must comply with subsection (1), (3) or (4).

72. Management boards for children’s homes and child detention centres

(1)Every children’s home and child detention centre must have a management board consisting of not less than five and not more than nine members.
(2)The members of a management board must be appointed -(a)by the Minister, in the case of a children’s home or a child detention centre established by the Minister; and(b)in the case of a privately operated children’s home or child detention centre, by the holder of the certificate of registration in accordance with the prescribed procedures.
(3)When appointing members of the management board, the Minister or the holder of a certificate of registration must ensure fair representation of all stakeholders including the community in which in the children’s home or child detention centre is situated.
(4)A person who is unsuitable to work with children as contemplated in section 238 may not be appointed as a board member of the management board contemplated in subsection (1).
(5)The management board contemplated in subsection (1) may exercise powers and perform duties conferred on it in terms of this Act.

73. Application for registration of places of care, early childhood development centres, shelters, children’s homes and child detention centres

(1)A person or an organisation who or which intends to register a place of care, early childhood development centre, shelter, children’s home or a child detention centre must make an application, in the prescribed form and manner, to the Minister.
(2)The Minister may, before considering any application for registration under subsection (1), require the applicant to -(a)show that there is a reasonable need for a place of care, early childhood development centre, shelter, children’s home or a child detention centre;(c)provide information relating to the applicant’s current and prospective financial position; and(c)provide any information which is relevant to the application.[There are two paragraphs labelled (c) in subsection (2), and no paragraph labelled (b).]

74. Registration of places of care, early childhood development centres, shelters, children’s homes and child detention centres

(1)The Minister -(a)must register a place of care, early childhood development centre, shelter, children’s home or a child detention centre if the Minister has reason to believe that the facility in question will be managed and operated in the best interests of the children who will be accommodated there;(b)may refuse to register a place of care, early childhood development centre, shelter, children’s home or a child detention centre, but the Minister must provide reasons for the refusal;(c)may, in the granting of an application for registration, impose such conditions as he or she considers appropriate to promote the best interests of the child; and(d)must issue a certificate of registration in respect of the facility registered under paragraph (a) which certificate is valid for a period of five years from the date of its issue.
(2)The Minister may at any time amend a certificate of registration referred to in subsection (1)(d) to impose additional conditions or to withdraw certain conditions on the exercise of powers by the place of care, early childhood development centre, shelter, children’s home or child detention centre if appropriate to promote or protect the best interests of children who are or may be accommodated there.
(3)The holder of a certificate of registration referred to in subsection (1)(d) must apply for the renewal of that certificate at least three months before the date of expiry of the certificate and the Minister must renew that certificate if he or she is satisfied that the place of care, early childhood development centre, shelter, children’s home or child detention centre concerned continues to comply with the requirements for registration, unless the holder of such certificate wishes to withdraw the registration in which case the certificate must immediately be returned to the Ministry for cancellation.
(4)The Minister may on application by the holder of a certificate of registration amend the certificate by written notice to that person.
(5)The Minister must annually publish a notice in the Gazette stating the registrations of all facilities under this section and any renewals or cancellations of registrations.

75. Eligibility of registered facilities for State funding and contributions in kind

(1)A residential child care facility, place of care, early childhood development centre or shelter established by an organ of state or a non-profit organisation which is registered as contemplated in this Chapter and which complies with the requirements of this Act and any prescribed standards for such facility, place, centre or shelter may apply for funding from such money as may be appropriated by Parliament or from the Children’s Fund for -(a)upgrading or equipping the residential child care facility, place of care, early childhood development centre or shelter;(b)training of staff or volunteers at the residential child care facility, place of care, early childhood development centre or shelter;(c)programmes for children at the residential child care facility, place of care, early childhood development centre or shelter; and(d)other expenses reasonably related to the residential child care facility, place of care, early childhood development centre or shelter and its purposes.
(2)A residential child care facility, place of care, early childhood development centre or shelter which qualifies for State funding under subsection (1) may receive donations in kind from the State, including but not limited to equipment, toys and food supplements for children.

76. Reporting by children’s homes, shelters and child detention centres

Every children’s home, shelter or child detention centre registered as contemplated in this Chapter must submit an annual report to the Ministry containing information on -(a)the number, age and sex of children accommodated at the home, shelter or centre;(b)in the case of a home, shelter or centre that is not operated by the State, the financial position of the home, shelter or centre; and(c)any other prescribed information.

77. Inspection of facilities

(1)Subject to subsection (3), the Minister or a local authority council or regional council may authorise a person to enter a residential child care facility, place of care, early childhood development centre or shelter registered as contemplated in this Chapter or an unregistered facility used as a residential child care facility, place of care, early childhood development centre or shelter (in this section referred to as a “facility”) without giving notice, in order to -(a)inspect that facility and its management;(b)observe or interview any child or cause a child to be examined or assessed by a medical officer, social worker, psychologist or psychiatrist; or(c)observe any programme being conducted by or at the facility.
(2)Despite subsection (1), a social worker authorised by the Minister must at least once a year and without giving notice to the facility concerned enter and inspect a facility.
(3)A search of a building or structure used as a residence, may not be carried out without a search warrant, unless -(a)the owner or occupier of the residence has consented to the search; or(b)the person authorised under subsection (1) or (2) on reasonable grounds believes -(i)that a search warrant will be granted if applied for; and(ii)that the delay in obtaining such warrant would defeat the objects of the search.
(4)The Minister, the local authority council or the regional council must issue a prescribed identity card to each person authorised in terms of subsection (1) or (2).
(5)When inspecting a facility, a person authorised in terms of subsection (1) or (2) must, on demand, produce the identity card contemplated in subsection (3).
(6)A person authorised in terms of subsection (1) or (2) may, for the purposes of the subsection concerned -(a)determine whether the facility concerned complies with the minimum standards contemplated in section 71;(b)determine whether the facility complies with any requirements of this Act or any other structural, safety, health or other requirements as may be required by any law;(c)require a person to disclose information orally or in writing and alone or in the presence of a witness, about any act or omission which, on reasonable suspicion, may constitute an offence in terms of this Act or a breach of a provision of this Act or of a condition of registration and require that any disclosure be made under oath or affirmation;(d)inspect or question a person about, any record or document that may be relevant for the purposes of paragraph (c);(e)copy any record or document referred to in paragraph (d) or remove such document to make copies or extracts;(f)require a person to produce or to deliver to a place specified by the person authorised in terms of subsection (1) or (2), any record or document referred to in paragraph (d) for inspection;(g)question a person about and if necessary remove, any article or substance which, on reasonable suspicion, may have been used in the commission of an offence in terms in terms of this Act or in breaching a provision of this Act or of a condition of registration;(h)record information by any method, including by taking photographs or making videos; or(i)exercise any other power or perform any other duty that may be prescribed.
(7)A person authorised in terms of subsection (1) or (2) must -(a)provide a receipt for any record, document, article or substance removed in terms of subsection (6)(e) or (g);(b)return anything removed within a reasonable period unless seized for the purpose of evidence.
(8)A person authorised in terms of subsection (1) or (2) must submit a report to the Minister, local authority council or regional council on any inspection carried out by that person in terms of this section.
(9)A person commits an offence, if that person -(a)hinders or interferes with a person authorised in terms of subsection (1) or (2) in the execution of that person’s duties in terms of this section;(b)fails to comply with a request by a person authorised in terms of subsection (1) or (2) in the execution of that person’s duties in terms of this section; or(c)falsely professes to be a person authorised in terms of subsection (1) or (2),and is liable on conviction to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
(10)To the extent that this section authorises the interference with the privacy of persons’ homes, correspondence or communications as contemplated in Article 13(1) of the Namibian Constitution, this section is enacted on the authority of Sub-Article (2) of that Article.

78. Notice of enforcement

(1)The Minister may by written notice instruct -(a)a person operating or managing an unregistered facility used as a place of care, early childhood development centre, shelter, children’s home or a child detention centre to -(i)stop operating such place, shelter, home or centre; or(ii)apply for registration in terms of this Act within a period specified in that notice; and(b)a person operating or managing a place of care, early childhood development centre, shelter, children’s home or child detention centre registered in terms of section 74 in contravention of conditions of registration as may have been imposed, to comply with the conditions.
(2)A written notice issued under subsection (1)(a) must contain reasons for the instructions contained in that notice.
(3)A person who has received an instruction in terms of subsection (1), may be given permission to continue operating during the period of the notice and if that person applies for a certificate of registration, until that person’s application has been dealt with under this Act.
(4)A person who fails to comply with a written notice contemplated in subsection (1) commits an offence and is liable on conviction to a fine of N$100 for each day on which the facility contemplated in that subsection (1) continues to operate.

79. Cancellation of certificate of registration

(1)The Minister may at any time, after giving a written notice to the holder of a registration certificate contemplated in section 74(1)(d), cancel the certificate -(a)if the facility registered in terms of section 74 is not maintained in accordance with this Act or any other law;(b)if the holder of the certificate of registration fails to comply with the condition of the certificate; or(c)for any other reasonable cause.
(2)The Minister may not cancel a certificate of registration unless he or she has given the holder of the certificate a reasonable opportunity to be heard.
(3)The notice referred to in subsection (1) must clearly indicate the reasons for the proposed cancellation and specify the date on which the cancellation takes effect, but the effective date of cancellation may not be earlier than three months from the date of the notice, unless the Minister and the person operating or managing the facility registered in terms of section 74 agree to an earlier date.
(4)The holder of the certificate of registration contemplated in subsection (1) may, during the three months’ period referred to in that subsection, present to the Minister information opposing the proposed cancellation and the Minister must consider such information in deciding whether to cancel the registration or rescind the notice.

80. Voluntary closure of a place of care, early childhood development centre, shelter, children’s home or a child detention centre

The holder of a certificate of registration contemplated in section 74(1)(d), may close the facility in respect of which the certificate is held, by -(a)written notice to the Minister or other person authorised by the Minister; and(b)surrendering the certificate to the Minister.

81. Transfer of child in event of cancellation of certificate of registration

(1)For the purpose of this section and section 82, the expression “child” includes a person who is between the age of 18 and 21 years.
(2)If a children’s home or a child detention centre is closed due to cancellation in terms of section 79 or voluntary closure in terms of section 80, every child placed in that facility must be transferred in accordance with section 82.

82. Transfer of child in foster care or from residential child care facility

(1)The Minister may, subject to subsections (3) and (4), in writing direct, the transfer of a child -(a)from a particular foster care to another foster care or to kinship care; or(b)from a particular residential child care facility to another residential child care facility of the same or less secure type or to foster care or kinship care.
(2)The Minister may, subject to subsections (3) to (5), in writing direct, the transfer of any child -(a)from court-ordered kinship care to foster care;(b)from foster care or court-ordered kinship care to a place of safety, a children’s home or child detention centre; or(c)from a residential child care facility to a more secure residential child care facility,but, the transfer must be ratified by a children’s court in the prescribed manner.
(3)Before the Minister issues a directive in terms under subsection (1) or (2), a designated social worker must submit a written report to the Minister containing an assessment of the best interests of the child, addressing the possible reunification of the child with his or her immediate family or other family members and reporting on consultations held with -(a)the child concerned;(b)the parent or care-giver of the child, if available;(c)the child and the place, home or centre or person in whose care that child has been placed; and(d)the child and the place, home centre or person to whom the child is to be transferred.
(4)A directive issued in terms of subsection (1) or (2) is subject to the condition that -(a)the transfer must be managed under the supervision of a designated social worker to monitor the child’s integration into the new placement;(b)the Minister may at any time revoke the transfer; and(c)the Minister must revoke the transfer if the child and the designated social worker so request.
(5)If the Minister in terms of this section transfers a child from a secure residential child care facility to a less secure facility the Minister must be satisfied that the transfer will not be prejudicial to other children.
(6)A directive issued in terms of subsection (1) to transfer a child does not have the effect of extending the original placement order made by the court in terms of section 145 unless the original placement order has been extended in terms of section 151.
(7)A directive issued in terms of subsection (1) or (2) is considered proof of eligibility for a state maintenance grant, foster parent grant, residential child care facility grant or a child disability grant contemplated in Chapter 16, whichever is applicable.

83. Conditional discharge of child

(1)The Minister may, subject to subsections (2) to (4), in writing direct the conditional discharge of a child from a placement in alternative care in terms of section 145 and transfer such child to the care of the child’s parents, guardian or former care-giver.
(2)A directive issued in terms of subsection (1) must specify the conditions, if any, with which the child and the parent, guardian or care-giver must comply.
(3)Before the Minister issues a directive in terms of subsection (1), a designated social worker must submit a written report to the Minister containing an assessment of the best interests of the child and the prospects for successful reunification of the child with the child’s parents, guardian or former care-giver and reporting on consultations held with -(a)the child concerned;(b)the parent, guardian or care-giver concerned; and(c)the place, home, centre or person who has been caring for the child in terms of the court order contemplated in that subsection.
(4)A directive issued in terms of subsection (1) is subject to the condition that -(a)the conditional discharge must be managed under the supervision of a designated social worker, which must include visits to the child at least once a month during the period of conditional discharge, to monitor the reunification of the child with the child’s parents, guardian or former care-giver;(b)the Minister may at any time revoke the conditional discharge and return the child to the place where the child was before the conditional discharge or place the child in other alternative care of the same type; and(c)the Minister must revoke the conditional discharge if the child and the designated social worker so request.
(5)If any condition referred to in subsection (2) is contravened, the designated social worker concerned may bring the child before a children’s court, which may, after an inquiry, vary the order issued by the Minister or make a new order in terms of section 145.

84. Discharge of child

(1)The Minister may, subject to subsections (2) and (3), in writing direct that a child be discharged from foster care, court-ordered kinship care or a residential child care facility as from the date specified in the notice.
(2)Before the Minister issues a directive in terms of subsection (1), a designated social worker must submit a written report to the Minister containing an assessment of the best interests of the child, addressing the prospects of reunification of the child with his or her immediate family or other family members and reporting on consultations held with -(a)the child concerned;(b)the parent or care-giver of the child, if available;(c)the child and the place, home or centre or person in whose care the child is prior to the contemplated discharge; and(d)the person in whose care the child would be placed upon discharge.
(3)A directive issued in terms of subsection (1) is subject to the condition that the discharge must be managed under the supervision of a designated social worker, which must include visits to the child at least once a month for a period of six months following the discharge if it has not been preceded by a conditional discharge in terms of section 83.
(4)A notice in terms of subsection (1) relieves the foster parent or residential child care facility from any further responsibilities with respect to the child.

85. Appeal and review

(1)A child, a person or an organisation aggrieved by a decision in terms of this Chapter, other than a decision made by a children’s court, may lodge an appeal against that decision in the prescribed form with the children’s court having jurisdiction, and the children’s court must decide on the appeal within 90 days of receipt of the appeal.
(2)A child, a person or an organisation who or which is not satisfied with the outcome of an appeal lodged as contemplated in subsection (1) may apply to the High Court to review that decision, in which case the procedures contemplated in section 98(3) and (4) apply with necessary changes.

86. Death of a child in foster care or registered facility

If -(a)a child who has been placed by a court order or a written directive from the Minister in foster care, a residential child care facility or a place of care, dies while in such care; or(b)a child dies on the premises of a facility registered in terms of this Chapter or if a child dies from injuries received at such facility,the management of that facility or the person in whose care the child has been placed must immediately report the matter to a member of the police and if applicable the designated social worker involved, who must immediately notify the child’s parent, guardian or family and carry out an investigation into the cause of the child’s death.

87. Leave of absence from foster care or residential child care facility

(1)Leave of absence may, subject to subsection (2) and such limitations and conditions as may be prescribed, be granted to a child in alternative care by the -(a)management of a residential child care facility in whose care the child has been placed or by the foster parent or other person in whose care the child has been placed; and(b)Minister in the case of a child placed in a residential child care facility, a shelter or temporary safe care pending a decision or court order concerning the placement of the child, unless the child’s absence will be due to his or her involvement in a cultural, artistic, social or sporting activity for a period not exceeding three days, as evidenced by a signed letter from the person in control of such activity, in which case the leave of absence may be given as provided in paragraph (a).
(2)If a child has been placed under the supervision of a designated social worker, leave of absence may only be granted with the approval of that social worker.
(3)The management, the person, the Minister or the designated social worker referred to in subsection (1) or (2) may at any time cancel any leave of absence granted or approved by them in terms of subsection (1) or (2).
(4)In the case of a foster care placement, the supervising designated social worker may at any time cancel any leave of absence granted in terms of subsection (1).
(5)If a child’s leave of absence is cancelled in terms of this section, the management, the person, the Minister or the designated social worker referred to in subsection (1) or (2) must take all reasonable steps to ensure that the child is returned to the person or facility in whose care such child is.

88. Child in foster care or residential child care facility prohibited from leaving Namibia

(1)A child in foster care or a residential child care facility may not leave Namibia without the permission of the Minister.
(2)In granting the approval in terms of subsection (1) the Minister may impose terms and conditions to protect the child’s best interest.

89. Apprehension of child absent without authorisation from foster care or residential child care facility

(1)A member of the police or a designated social worker may apprehend any child who -(a)has absconded from foster care, a residential child care facility or any other place in which the child has been placed; or(b)has been granted leave of absence by a person contemplated in section 87 and who on cancellation or expiration of such leave of absence fails to return to the person or relevant facility.
(2)If a member of the police or a designated social worker contemplated in subsection (1) has reasonable grounds to believe that a child is in certain premises, the member of the police or designated social worker may, without warrant, enter and search the premises for the purpose of apprehending the child.
(3)A search of a home in terms subsection (2), may not be carried out without a search warrant, unless -(a)the owner or occupier of the home has consented to the search; or(b)the designated social or member of the police concerned on reasonable grounds believes -(i)that a search warrant will be granted if applied for; and(ii)that the delay in obtaining such warrant would defeat the objects of the search.
(4)A member of the police referred to in subsection (1) or (2) may use such force as may be reasonably necessary to overcome any resistance by the child or against the entry or search of the premises as contemplated in subsection (2), including the breaking of any door or window of such premises, but the member of the police must first audibly demand admission to the premises and announce the purpose for which such member seeks to enter the premises.
(5)A child who is apprehended under subsection (1) or (2) must be brought before a children’s commissioner within five days for an enquiry as to the reason for the unauthorised absence.
(6)A child may, depending on his or her best interests, until he or she is brought before a children’s commissioner in terms of subsection (5), be returned to the person from whom or residential child care facility from where he or she left or be kept in a place of safety.
(7)During an enquiry under subsection (5) a children’s commissioner -(a)must give the child an opportunity to explain his or her unauthorised absence; and(b)may, in the best interests of the child, allow the child to give the explanation referred to in paragraph (a) without the presence of his or her parents, a guardian, foster parents or members of or representatives of the management board of the residential child care facility concerned.
(8)A children’s commissioner may, after an enquiry under subsection (5), make an order in the best interests of the child, requiring that the -(a)child be returned, on such conditions as the children’s commissioner may consider necessary, to the person from whom or the residential child care facility from which he or she was absent; or(b)placement of the child be changed, in which case the clerk of the children’s court must notify the child’s parent or guardian and the person or facility in whose care the child had been immediately before the change, of such change, unless such parent, guardian, person or representative of such facility is present at the enquiry.
(9)A person commits an offence if that person -(a)directly or indirectly counsels, induces or aids any child who is absent without authorisation from a residential child care facility, foster care, a court-ordered kinship care placement or an in-home placement not to return to the facility or place of care or placement, unless such person is acting in good faith or in the best interests of the child, or(b)prevents the child from returning to the care of the person from whom or the residential child care facility from which he or she was absent, after the order under subsection (8)(a) has been made,and is liable on conviction to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

90. Delegation

(1)The Minister may, by agreement with a local authority council or regional council, delegate the performance of some or all of the powers or functions contemplated in sections 73, 74, 77, 78, 79 and 80 to a local authority council or regional council if the Minister is satisfied that the local authority council or regional council has the capacity to perform the functions concerned.
(2)The local authority council or regional council referred to in subsection (1) may delegate any power or function conferred or duty assigned to it in terms of this section to its staff members.
(3)A delegation of powers and functions in terms of subsection (1) or (2) -(a)is subject to any limitations, conditions and directions which the delegating authority may impose;(b)must be in writing; and(c)does not divest the delegating authority of the responsibility concerning the exercise of the power or the performance of the function.
(4)The delegating authority may -(a)confirm, vary or revoke any decision taken in consequence of a delegation in terms of this section, subject to any rights that may have accrued to a person as a result of the decision; and(b)at any time withdraw a delegation made in terms of this section.
(5)A person aggrieved by a decision of a local authority council or regional council with regard to matters referred to in sections 73, 74, 77, 78, 79 and 80 may lodge an appeal, with the appeal body designated by the local authority council or regional council, against that decision.

91. Regulations

(1)The Minister may make regulations relating to -(a)the procedure to be followed in connection with the lodging and consideration of -(i)applications for registration of places of care, early childhood development centres, shelters, children’s homes or child detention centres;(ii)applications for renewal or amendment of such registrations; and(iii)objections to applications made in terms of sub-paragraphs (i) and (ii);(b)the conditions and standards with which applicants must comply before, during or after the lodging of their applications;(c)the form and contents of registration certificates;(d)methods and procedures to enforce compliance with registration conditions;(e)matters relating to training, qualifications and experience of staff of places of care, early childhood development centres, shelters, children’s homes or child detention centres;(f)the rights of children in places of care, early childhood development centres, shelters, children’s homes or child detention centres;(g)management, disciplinary and other practices in places of care, early childhood development centres, shelters, children’s homes or child detention centres;(h)the keeping of records of children in places of care, early childhood development centres, shelters, children’s homes or child detention centres;(i)the provision of programmes at places of care, early childhood development centres, shelters, children’s homes or child detention centres to meet the developmental, therapeutic and recreational needs of children;(j)any other matter required or permitted to be prescribed under this Chapter; and(k)any other incidental administrative or procedural matter that is necessary to be prescribed for the proper implementation or administration of this Chapter.
(2)Regulations made under subsection (1) may -(a)create an offence for any contravention of a regulation or a failure to comply with a provision of a regulation; and(a)prescribe penalties in respect of an offence contemplated in paragraph (a), not exceeding a fine of N$4 000 or imprisonment for a period not exceeding one year or to both such fine and such imprisonment.[There are two paragraphs labelled (a) in subsection (2), and no paragraph labelled (b).]

Chapter 6
MATTERS RELATING TO STATUS OF CERTAIN CHILDREN


Part 1 – APPLICATION OF CHAPTER


92. Application of Chapter

(1)Subject to subsection (2), this Chapter applies to all children or persons, where applicable, and to all matters relating to children or persons, where applicable, irrespective of whether the children or persons, where applicable, were born or the matters arose before or after the coming into operation of this Chapter.
(2)Despite subsection (1), this Chapter does not affect any order or decision made by a competent court in respect of a matter governed by this Chapter except that such order or decision may, on application made to a children’s court, be revoked, varied or substituted in terms of this Chapter.

Part 2 – PROOF OF PARENTAGE AND PRESUMPTION OF PATERNITY


93. Procedure for proof of parentage

(1)For the purpose of this section -“putative father” means a man who claims or is alleged to be the father of a person for whom paternity has not yet been established or acknowledged without dispute;“putative mother” means a woman who claims or is alleged to be the mother of a person for whom maternity has not yet been established or acknowledged without dispute; and“putative child” means a person, including an adult who claims or is alleged to be the child of an identified parent or parents.
(2)Proceedings to establish parentage may be brought by -(a)the mother or putative mother of the person whose parentage is in question;(b)the father or putative father of the person whose parentage is in question;(c)the person whose parentage is in question;(d)someone, other than the mother or father of the person whose parentage is in question, who is acting as the primary caretaker of such person; or(e)a person authorised in writing by the Minister to act on behalf of the person whose parentage is in question.
(3)The mother or putative mother and the father or putative father or the person whose parentage is in question are competent and compellable witnesses in any proceedings in which the issue of parentage is raised, but nothing in this section is to be construed as compelling a person to testify against his or her spouse.
(4)Proof on a balance of probabilities is required in order to establish parentage in proceedings brought under subsection (2).
(5)A person who wishes to establish parentage, where the putative mother, putative father or putative child of that person is deceased and who has a reasonable belief that the deceased person may be his or her biological parent or child, may petition a competent court to exhume the body of the deceased for the purpose of carrying out scientific tests relating to parentage, unless -(a)no family member, other interested person or heir, if applicable, disputes the claim or parentage;(b)proof of parentage is already available in the form of a conclusive scientific test, a court order based on parentage or any other form of conclusive proof; or(c)it is possible to establish parentage by carrying out scientific tests on any living family member of the deceased person and such family member consents to the tests.

94. Presumption of paternity

(1)Despite anything to the contrary contained in any law, a rebuttable presumption that a man is the father of a person whose parentage is in question exists if -(a)he was at the approximate time of the conception or at the time of the birth of the person in question or at any time between those two points in time married to the mother of such person;(b)he cohabited with the mother of the person in question at the approximate time of conception of such person;(c)he is registered as the father of the person in question in accordance with the provisions of the Births, Marriages and Deaths Registration Act, 1963 (Act No. 81 of 1963);(d)he admits or it is otherwise proved that he had sexual intercourse with the mother of the person in question at any time when such person could have been conceived; or(e)both he and the mother acknowledge that he is the father of the person in question.
(2)Corroboration of evidence led to establish a presumption of paternity referred to in subsection (1) is not required and no special cautionary rules of evidence are applicable to such evidence.

95. Presumption on refusal to submit to scientific tests

(1)At any legal proceeding at which the parentage of any person has been placed in issue, the refusal by either party -(a)to submit himself or herself; or(b)to cause any child over whom he or she has parental authority to be submitted,to any physical procedure which is required to carry out scientific tests relating to the parentage of the person in question, must be presumed, until the contrary is proved, to be aimed at concealing the truth concerning the parentage of that person.
(2)Despite subsection (1), the High Court as the upper guardian of all children has the power to order that a child, a parent, a putative parent or any potential blood relative of the child be submitted to a physical procedure referred to in subsection (1) if this is in the opinion of that court in the best interests of the child.
(3)To the extent that this section authorises the interference with any individual’s rights to privacy or bodily integrity, it is justified by the right of children to know their parents in terms of Sub-Article (1) of Article 14 of the Namibian Constitution.

Part 3 – PARENTAL RESPONSIBILITIES AND RIGHTS IN RESPECT OF CHILDREN BORN OUTSIDE MARRIAGE AND OTHER CHILDREN


96. Factors to be considered by children’s court in this Part

(1)When making any decision pertaining to custody or guardianship of or access to a child born outside marriage, the children’s court must, when deciding what is in the best interests of the child as set out in section 3, also consider -(a)the degree of commitment and responsibility which the respective parents have shown towards the child, as evidenced by such factors as financial support, maintaining or attempting to maintain contact with the child or being named as a parent on the child’s birth certificate; and(b)the financial positions of the parents, but -(i)the financial positions of the parents are not the decisive factor; and(ii)the court may not approve an application for the custody of a child if the application is based on a motive to avoid the payment of maintenance in respect of that child.
(2)In the interpretation and application of this Part regard must be had to the right of a child to know and be cared for by both parents and the goal of resolving disputes in a non-adversarial manner, if possible.

97. Procedures for certain orders apply to children of divorced or estranged parents

The procedures for orders pertaining to custody in section 100, orders pertaining to guardianship in section 101(3) to (7), orders restricting or denying access to a parent not having custody of a child in section 102(5) to (8), orders for other access in section 103 and orders dealing with the unreasonable denial or restriction of access in section 102(12) and (13) apply with necessary changes to children of divorced or estranged parents.

98. Powers of children’s court in respect of certain High Court orders

(1)Despite anything to the contrary contained in any law, a children’s court may alter an order of the High Court pertaining to custody, guardianship or access made in connection with a divorce or in any other proceedings if circumstances have changed or in order to ensure compliance with such order.
(2)An order which is altered by a children’s court in terms of subsection (1) is subject to automatic review by a judge of the High Court in chambers.
(3)Review proceedings contemplated in this section must be instituted and conducted in the form and manner prescribed and within the prescribed periods.
(4)In review proceedings instituted in terms of subsection (3), the High Court or a judge of the High Court must consider the record of the proceedings together with any other documents submitted in accordance with subsection (3) and any further information or evidence which may at the request of the judge be supplied or taken by the children’s court in question and the High Court or judge of the High Court may -(a)confirm, alter or set aside the decision of the children’s court;(b)make any order which the High Court or judge of the High Court believes ought to have been made by the children’s court in terms of this Part; or(c)remit the case to the children’s court with instructions to deal with the matter in such manner as the High Court or judge of the High Court may consider appropriate.

99. Custody

(1)Both parents of a child born outside marriage have equal rights to custody of the child born outside marriage.
(2)One parent must have custody of the child born outside and both parents may agree on who must have custody and the agreement -[The word “marriage” appears to have been omitted after the phrase “born outside”.](a)must be in writing and signed by both parents in the presence of two witnesses; and(b)may be accompanied by a parenting plan contemplated in section 119.
(3)The parties to a written agreement contemplated in subsection (2) may decide to have such agreement registered, in which case the agreement must be registered in the prescribed manner.
(4)A registered agreement contemplated in subsection (3) constitutes prima facie proof that the parent named in that agreement has custody of the child and has the legal power to act in that capacity.
(5)If there is no agreement as to who must have custody of a child outside marriage, either of the parents or any of the persons referred to under section 100 may, in the manner set out in that section, make an application to the children’s court to be appointed as the person having custody of the child born outside marriage.

100. Procedure for obtaining custody

(1)The following persons may seek an order pertaining to the sole or joint custody of a child born outside marriage and such proceedings may be brought by or on behalf of the person who is seeking custody of the child:(a)the father, regardless of whether he is a major or a minor;(b)the mother, regardless of whether she is a major or a minor; or(c)someone, other than the mother or father of the child, who is acting as the care-giver of the child or who can show that he or she is acting in the best interests of the child.
(2)A person who seeks a court order in terms of subsection (l) must make an application in the prescribed form and manner and the children’s court must consider the application in the presence of the applicant or his or her legal practitioner.
(3)An order for the appointment of a person to have custody in terms of this section must only be made after the prescribed attempts have been made to notify the child’s parents, the child’s care-giver, if applicable, any person or persons with custody or guardianship of the child immediately prior to the application or any other person identified by the court or the social worker concerned as having an interest in the application and that person has or those persons have been given an opportunity to be heard.
(4)On receipt of an objection made in terms of subsection (3) or if no objection is received the children’s court must, in the prescribed manner, hear and determine the matter and make any order which is appropriate in the circumstances having regard to the best interests of the child.
(5)Before deciding on an application for custody and irrespective of whether a hearing took place in terms of subsection (4), the children’s court must order and consider a report by a designated social worker, to be completed within the period specified by the court, on the matter and may institute any investigation that it considers necessary and order any person to appear before it, and may order one or more of the parents or if the applicant is not a parent, such applicant, to pay the costs of such investigation or appearance.
(6)The children’s court may vary or withdraw an order made in terms of this section if the court is satisfied that changed circumstances warrant a variation or withdrawal, on application by any of the persons listed in subsection (1) and subsections (2), (3), (4) and (5) apply to any application for variation or withdrawal.

101. Guardianship

(1)A person with custody of a child born outside marriage in terms of section 99 is also the sole guardian of that child, unless a competent court, on application made to it, directs otherwise.
(2)If a parent of a child born outside marriage is a minor, guardianship of such parent’s child, unless a competent court directs otherwise, vests in the guardian of such parent.
(3)The following persons may, in respect of a child born outside marriage seek a court order granting legal guardianship to one or both parents or to some other person or persons or to one or both parents and another person or persons:(a)either parent;(b)the child;(c)someone, other than the mother or father of the child, who is acting as the care-giver of the child or who can show that he or she is acting in the best interests of the child; or(d)a person authorised in writing by the Minister to act on behalf of the child.
(4)A person who seeks a court order in terms of subsection (2) or (3) must make an application in the prescribed form and manner and the court must consider the application in the presence of the applicant or his or her legal practitioner.
(5)An order for legal guardianship in terms of this section may only be made after the prescribed attempts have been made to notify the child’s parents, the child’s care-giver, if applicable, any person or persons with custody or guardianship of the child immediately prior to the application or any other person identified by the court or the social worker concerned as having an interest in the application and that person has or those persons have been given an opportunity to be heard.
(6)On receipt of an objection made in terms of subsection (5) or if no objection is received the children’s court must, in the prescribed manner, hear and determine the matter and make any order which is appropriate in the circumstances having regard to the best interests of the child.
(7)Before deciding on an application for legal guardianship and irrespective of whether a hearing took place in terms of subsection (6), the children’s court must order and consider a social worker’s report, to be completed within a period specified by the court, on the matter and may institute any investigation that it considers necessary and order any person to appear before it, and may order one or more of the parents or, if the applicant is not a parent, such applicant, to pay the costs of the investigation or appearance.
(8)Unless the children’s court orders otherwise, the written consent of both parents is required for the removal of a child born outside marriage from Namibia.
(9)Despite subsection (8), consent is not required from a parent of a child if -(a)the parent cannot be located through any of the prescribed means of notice within the prescribed period;(b)the parent in question cannot give valid consent because he or she is mentally incapacitated; or(c)in any other circumstances the children’s court finds that the consent requirement would not serve the best interests of the child.
(10)Lack of consent on any matter referred to in subsection (9) may be overruled by a children’s court if the consent is being unreasonably withheld.
(11)Any order made in terms of this section may be varied or withdrawn by the children’s court if the court is satisfied that changed circumstances warrant a variation or withdrawal, on application by any of the persons listed in subsection (3) and subsections (4), (5), (6) and (7) apply to any application for variation or withdrawal.

102. Access

(1)Despite anything to the contrary contained in any other law, the biological father of a child born outside marriage who does not have custody has a right of reasonable access to such child, subject to any parenting plan that may have been agreed on in terms of section 119, unless a competent court, on application made to it, directs otherwise, but the right accrues only where the biological father in question has voluntarily acknowledged parentage of the child -(a)by giving a written acknowledgment that he is the biological father of the child either to the mother or the clerk of the children’s court at any time before the birth of the child or after the birth of the child but before the child reaches the age of six months;(b)by voluntarily paying or offering to pay maintenance in respect of the child;(c)by paying damages in respect of the pregnancy in terms of customary law;(d)by causing particulars of himself to be entered in the registration of birth of the child in terms of the Births, Marriages and Deaths Registration Act, 1963 (Act No. 81 of 1963); or(e)in any other prescribed manner.
(2)The right of access contemplated in subsection (1) does not give the biological father, contemplated in that section, the right to remove the child from the home of the person who has custody or from any other place where the child resides without the consent of the person who has custody.
(3)Any access by the parent who does not have custody is subject to the reasonable control of the person who has custody or any other person who has been entrusted by the person who has custody with responsibility for the care and control of the child.
(4)The following persons may seek a court order restricting or denying access to the parent not having custody of a child born outside marriage:(a)the parent or other person who has custody of the child;(b)the child;(c)anyone, other than the mother or father of the child, who is acting as the care-giver of the child or who can show that he or she is acting in the best interests of the child; or(d)a person authorised in writing by the Minister to act on behalf of the child.
(5)A person who seeks a court order restricting or denying access to the parent who does not have custody of a child outside marriage must make an application in the prescribed form and manner and the children’s court must consider the application in the presence of the applicant or his or her legal practitioner.
(6)An order applied for in terms of subsection (5) may only be made after the prescribed attempts have been made to notify the child’s parents, the child’s care-giver, if applicable, any person or persons with custody or guardianship of the child immediately prior to the application or any other person identified by the court or by a designated social worker as having an interest in the application and that person has or those persons have been given an opportunity to be heard.
(7)On receipt of an objection made in terms of subsection (6) or if no objection is received the children’s court must, in the prescribed manner, hear and determine the matter and make any order which is appropriate in the circumstances having regard to the best interests of the child.
(8)Before making a final decision on an application referred to in subsection (5), the children’s court must order and consider a report by a designated social worker, to be completed within a period specified by the court, on the matter and may institute any investigation that it considers necessary and order any person to appear before it and may order the parent or parents or if the applicant is not a parent, such applicant, to pay the costs of such investigation or appearance.
(9)If, in an application made in terms of subsection (5), the applicant proves that there is a risk of immediate harm to the child from continued access by the parent who does not have custody, the children’s court may make a temporary ex parte order restricting or denying access to the parent not having custody with immediate effect, which order remains in force until such time as the consideration of an application for a court order restricting or denying access to the parent not having custody in terms of subsection (5) is concluded.
(10)A parent who does not have custody and who has not voluntarily acknowledged parentage of a child born outside marriage may, in the prescribed form and manner, apply to the children’s court for an order granting a right of reasonable access to that child and the parent who has custody or any other person who has custody of the child must be made a party to the proceedings.
(11)The court may make an order applied for in terms of subsection (10) and subsections (3) and (4) apply in respect of a parent not having custody who has been granted the right of access to a child.
(12)If a person has the right of access to a child in terms of this Act or a court order issued under this Act or any other law and that access is being unreasonably denied or restricted by the person who has custody, the person with right of access may apply to the children’s court for an order specifying details of such access.
(13)Subsections (5), (6), (7) and (8) apply to an application made in terms of subsection (12).
(14)On application by any of the persons listed in subsection (4), an order restricting or denying access to the parent who does not have custody may be varied or withdrawn by the children’s court if the court is satisfied that changed circumstances warrant a variation or withdrawal and subsections (5), (6), (7) and (8) apply with necessary changes to any application for variation or withdrawal.

103. Other access

(1)The court may, on application by a family member of a child, make an order granting access to the child born outside marriage by that family member.
(2)Subsections (5), (6), (7), (8) and (9) of section 102 apply with necessary changes to an application in terms of subsection (1).
(3)The court may, in making an order contemplated in subsection (1), impose such conditions as it may consider necessary in the best interests of the child concerned.

104. Children born outside marriage as a result of rape

A perpetrator of a rape which results in the conception of a child outside marriage does not have a right to custody, guardianship or access in terms of this Part, unless a competent court, on application made to it, orders otherwise.

105. Inheritance

(1)It must be presumed that the words “children” or “issue” or any similar term used in a will or other testamentary disposition, apply equally to persons born outside marriage and children born inside marriage, unless there is clear evidence of a contrary intention on the part of the testator.
(2)Despite anything to the contrary contained in any statute, common law or customary law, a person born outside marriage must, for purposes of inheritance, either intestate or by will or other testamentary disposition, be treated in the same manner as a person born inside marriage.
(3)Nothing in this section is to be understood or interpreted as affecting the freedom of testamentary disposition.
(4)In relation to rape or incest which results in the conception of a person born outside marriage, the person or in the case of incest, the persons who committed the crime do not have a right to inherit intestate from the person born as a result of the rape or incest, but the person born as a result of the rape or incest may inherit intestate from the perpetrator or in the case of incest, the perpetrators and are considered to be included in the terms “children” or “issue” or any similar term used in a will or other testamentary disposition.

106. Duty to maintain

(1)Despite anything to the contrary contained in any law, a distinction may not be made between a person born outside marriage and a person born inside marriage in respect of the legal duty to maintain a child or any other person.
(2)Despite subsection (1), a person conceived as a result of rape or incest does not have the legal duty to maintain a parent who was convicted of the rape or incest or does not have any legal duty to maintain that parent’s relations, but the person who committed the rape or incest has a duty to maintain the child conceived as a result of that rape or incest.

107. Domicile of children born outside marriage

Despite anything to the contrary contained in any law, a child born outside of marriage is considered to be domiciled at the place or in the country with which he or she has the closest connection.

108. Effect of subsequent marriage of parents

Any child born of parents who marry each other at any time after the child’s birth must be treated as a child born inside marriage in all respects as from the date of birth, regardless of whether the parents could not have legally married each other at the time of the child’s conception or birth.

109. Status of children of void or voidable marriages

The status of any child conceived or born of a void or voidable marriage is not affected by the annulment of that marriage by a competent court.

110. Safeguarding of interests of dependent and minor children of void or voidable marriages

(1)A voidable marriage may not be annulled until the competent court concerned has enquired into and considered the safeguarding of the interests of any child or dependent child of that marriage, and for the purposes of this Chapter or any law relating to divorce, proceedings to annul the marriage must be regarded as proceedings for the granting of a decree of divorce.
(2)In case of a void marriage involving any child or dependant child or children, a competent court must enquire into the best interests of the child or children and make provision for safeguarding the interests of the child or children born of that marriage.[The word “dependant” should be “dependent”, as it is used as an adjective.]
(3)A reference in any law to -(a)a maintenance order;(b)an order relating to the custody or guardianship of, or access to, a child; or(c)the rescission, suspension or variation of such orders,must be construed as including references to any similar orders made in terms of subsection (1) or (2).

111. Status of children born of artificial insemination or in vitro fertilisation

(1)For the purposes of this section -“artificial insemination”, in relation to a woman, means the introduction, other than by natural means, of a male gamete or gametes into the internal reproductive organs of such woman for the purpose of reproduction, otherwise than in accordance with a surrogacy agreement;“in vitro fertilisation”, in relation to a woman, means the placing of the product of a union of a male and female gamete or gametes which have been brought together outside the human body into the womb of such woman for the purpose of reproduction, otherwise than in accordance with a surrogacy agreement; and“gamete” means either of the two generative cells essential for human reproduction.
(2)If the gamete or gametes of any person, other than a married woman or her husband, have been used with the consent of both such woman and her husband for artificial insemination or in vitro fertilisation, any child born as the result of such techniques is, for all purposes, considered to be the biological child of such woman and her husband.
(3)For the purposes of subsection (2), it must be presumed, until the contrary is proved, that both such woman and her husband have granted the relevant consent.

Part 4 – CUSTODY AND GUARDIANSHIP ON DEATH OF PERSON HAVING CUSTODY AND GUARDIANSHIP


112. Custody on death of person having custody

(1)If the person who has custody of a child born outside marriage dies and there is no provision in a written will naming another person to have custody or to be a guardian for the child or where there is for any other reason no competent person to have custody of a child, an application for the appointment of a person to have custody of the child may be made in accordance with section 100.
(2)Section 113(5) and (6) also applies, with necessary changes, for the purposes of an application in terms of subsection (1), but the children’s court must, if a person has been named as guardian in a testamentary disposition other than a written will, give preference to that person as custodian if satisfied of the validity of such testamentary disposition and the suitability of such person to be the custodian of the child in question.
(3)A parent with sole custody of a child born outside marriage may, by a written will appoint any other person to have custody of the child and where a written will appoints a guardian without naming a person to have custody that guardian has custody of the child unless a competent court, on application made to it, directs otherwise.
(4)If a parent shares joint custody with another parent in terms of any law or agreement or because the parents are or were married, the surviving parent acquires sole custody upon the death of the other parent unless a competent court, on application made to it, directs otherwise.
(5)If a person is not appointed by a written will to have custody or to be the guardian of a child a person appointed as a legal guardian in terms of section 113 is the person having custody of the child unless a competent court on application made to it directs otherwise.

113. Guardianship on death of guardian

(1)On the death of one of two equal guardians, the surviving guardian, unless a competent court directs otherwise, acquires sole guardianship over a child born outside marriage.
(2)A person with sole guardianship of a child may, by testamentary disposition, name another person as the legal guardian of that child born outside marriage.
(3)Section 114(1), (2), (3) and (4) relating to the administration of the property of a child applies to a legal guardian nominated or appointed under this section.
(4)If there is no provision in a written will naming a guardian for a child born outside marriage or if there is for any other reason no competent guardian for a child, a legal guardian can be registered for the child by means of the procedure contained in this section, but the children’s court must, if a person has been named as guardian in a testamentary disposition other than a written will, give preference to that person as guardian if satisfied of the validity of such testamentary disposition and the suitability of such person to be appointed as the guardian of the child in question.
(5)Any person who has a genuine interest in a child, whether related to the child and who wants to be appointed as a legal guardian of the child, must in the prescribed form and manner apply for guardianship of the child to the clerk of the children’s court.
(6)If the clerk of the children’s court receives more than one application for legal guardianship of a particular child, such clerk must cause the applications to be considered together.
(7)An application made in terms of subsection (5) must -(a)be supported by such information and documents as may be prescribed including a statement to the effect that the family members of the child have been consulted with an indication as to whether or not the application is disputed;(b)be supported by a certification from the Master of the High Court, in the prescribed form, that there is no valid will of the child’s former guardian or guardians or, if there is such a will, that it contains no provision relating to the appointment of a guardian for the child; and(c)in the prescribed form and manner, be served on the child’s parent, the person having custody, the child’s care-giver, if applicable, or any other person identified by the court or the social worker who compiled the report in terms of subsection (8)(c) as having an interest in the application, requesting such persons to make representations on the application.
(8)On receipt of an application made in terms of subsection (5), the clerk of the children’s court must as soon as reasonably possible, refer the application to the children’s commissioner who -(a)must summon the applicant or applicants for questioning;(b)may summon other relevant persons for questioning; and(c)must order a report by a designated social worker on the matter to be completed within the period specified by the children’s commissioner.
(9)On receipt of an application made in terms of subsection (5), the children’s commissioner must consider the application, any supporting information and documents, the results of the investigation carried out by a social worker in terms of subsection (7)(c) and any representations made, on which the children’s commissioner may -(a)approve the application and direct the clerk of the children’s court to issue a certificate of guardianship to the applicant;(c)in the case of an application for the appointment of a guardian for a child in a child-headed household, refer the matter to the Minister for the possible recognition of such household in terms of section 225; or(c)refuse the application and give written reasons for the refusal.[There are two paragraphs labelled (c) in subsection (9), and no paragraph labelled (b).]
(10)The clerk of the children’s court must cause a copy of the certificate issued in terms of subsection (9) to be filed at the court in question and with the Master of the High Court.
(11)Preference for appointment as legal guardian in terms of this section must be given to close family members of the child, or to a person who has custody or is the primary caretaker of the child, subject to the best interests of the child.

Part 5 – GENERAL PROVISIONS


114. Powers of guardian or tutor appointed under Part 3

(1)A legal guardian of the child appointed in terms of section 101, excluding a person who is also a natural guardian of the child, may not administer any property belonging to the child or take care of the child’s person as tutor unless he or she has been appointed by the Master of the High Court as a tutor in terms of section 72(1) of the Administration of Estates Act, 1965 (Act No. 66 of 1965).
(2)The Master of the High Court may make the appointment of a tutor as contemplated in subsection (1) on application and must give preference to a legal guardian, but the Master may, if he or she considers it to be in the best interests of the child concerned, appoint another suitable person as tutor.
(3)Any tutor appointed to administer the property of a child of which the value, at the date of issuing of the letters of tutorship, does not exceed the value referred to in section 18(3) of the Administration of Estates Act, 1965 (Act No. 66 of 1965), may wholly or partially be exempted from the requirement of security as contemplated in section 77 of that Act.
(4)A tutor referred to in subsection (3) must comply with requirements and is entitled to remuneration as prescribed by section 82 to 84 of the Administration of Estates Act, 1965 (Act No. 66 of 1965) to the extent specified by the Master in the letters of tutorship.

115. Complaints about a child’s guardian or tutor

(1)Any person who has a genuine interest in the well-being of a child may, in the prescribed form and manner, lodge a complaint to the clerk of the children’s court, to alert the court to the fact that a natural or legal guardian or a person appointed as a tutor under letters of tutorship by the Master of the High Court is not acting in the best interests of the child.
(2)When a complaint made in terms of subsection (1) is received, the children’s court must order an investigation to be carried out by a designated social worker within the period specified by the court and the social worker must, subject to the directives or conditions set by the court, investigate the complaint and, in the manner prescribed, report to the court.
(3)After considering the report of the social worker prepared in terms of subsection (2), the children’s court, if of the opinion that a guardian or tutor has not been acting in the best interests of a child -(a)may, in the case of a guardian, alter the appointment of guardianship as it considers appropriate and if necessary issue a new certificate of guardianship in accordance with section 113(9)(a); or(b)must, in the case of a tutor, direct the clerk of the children’s court to notify the Master of the High Court who may alter the appointment of the tutor as the Master considers necessary and if necessary issue new letters of tutorship.

116. Suspension of order pending review or appeal

If an order or a decision of the children’s court is being reviewed in terms of section 98 or if an appeal has been lodged in terms of section 46, the children’s court may, pending the outcome of the review or appeal -(a)suspend the operation of any order or decision of the children’s court or the children’s commissioner; or(b)make any other order which is in the best interests of the child,but in either case, the best interests of the child must be the paramount consideration.

117. Regulations

(1)The Minister may make regulations relating to -(a)fees to be paid for proceedings instituted in terms of this Chapter or for any expense incurred which a party is liable to pay in terms of this Chapter; and(b)the manner of conducting any investigation or hearing in terms of this Chapter;(c)any other matter required or permitted to be prescribed under this Chapter; and(d)any other incidental administrative or procedural matter that is necessary to be prescribed for the proper implementation or administration of this Chapter.
(2)The Minister may, after consultation with the Minister responsible for justice, make regulations relating to -(a)the manner and registration of a written agreement pertaining to custody of children born outside marriage;(b)the form and manner in and time within which reviews as contemplated in section 98 are to be made to the High Court;(c)the manner in which affected persons are to be notified of any proceedings brought in terms of this Chapter;(d)the form and manner in which applications are to be made under this Chapter;(e)any other matter required or permitted to be prescribed under this Chapter; and(f)any other incidental administrative or procedural matter that is necessary to be prescribed for the proper implementation or administration of this Chapter.
(3)Regulations made under subsection (1) may -(a)create an offence for any contravention of a regulation or a failure to comply with a provision of a regulation; and(b)prescribe penalties in respect of an offence contemplated in paragraph (a) not exceeding a fine of N$4 000 or imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

Chapter 7
PARENTAL RESPONSIBILITIES AND RIGHTS AND PARENTING PLANS


118. Parental responsibilities and rights

(1)For purposes of this Chapter the parental responsibilities and rights that a person may have in respect of a child, include the responsibility and right -(a)to have custody of the child, including responsibility for decisions relating to the child’s day-to-day upbringing;(b)to maintain contact with the child;(c)to act as guardian of the child; and(d)to contribute to the maintenance of the child.
(2)More than one person may hold parental responsibilities and rights in respect of the child, in this Act referred to as co-holders of parental responsibilities and rights.
(3)A person may have either full or specific parental responsibilities and rights in respect of a child.

119. Parenting plans

(1)A parenting plan is a plan between co-holders of parental responsibilities and rights in respect of a child determining the exercise of their respective responsibilities and rights in respect of the child.
(2)Co-holders of parental responsibilities and rights in respect of a child may enter into a parenting plan.
(3)An agreement contemplated in section 99(2) is not a parenting plan for the purpose of this Chapter.
(4)A parenting plan must -(a)be in the prescribed form;(b)be in writing and signed by the parties to the plan in the presence of two witnesses and must give due consideration to the views of the child in question; and(c)be in the best interests of the child as set out in section 3.
(5)Before concluding the parenting plan the co-holders of parental responsibilities and rights in respect of a child may seek advice from a legal practitioner, social worker, traditional leader or other suitable professional or make use of mediation through a social worker or other person suitably qualified to do mediation.
(6)A parenting plan may determine details relating to the exercise of parental responsibilities and rights, including -(a)where and with whom the child is to live;(b)the maintenance of the child;(c)contact with or access to the child by -(i)any of the parties to the plan; or(ii)any other person;(d)the responsibility for any costs associated with the contact contemplated in paragraph (c);(e)the schooling and religious upbringing of the child; and(f)responsibility for medical care, medical expenses and medical aid coverage.
(7)A parenting plan concluded in terms of subsection (2) may be registered with the clerk of the children’s court within whose area of jurisdiction the child concerned is ordinarily resident.
(8)The co-holders of parental responsibilities and rights who are parties to a parenting plan concluded in terms of subsection (2), whether such plan is registered with the clerk of the children’s court or not, may lodge an application in the prescribed form for such plan to be made an order of the children’s court within whose area of jurisdiction the child concerned is ordinarily resident.
(9)An order applied for in terms of subsection (8) may only be made after the prescribed attempts have been made to notify any other co-holder of parental responsibilities and rights, the parents of the child concerned if they are not co-holders of such responsibilities and rights, the child’s primary care-taker, any person or persons with custody or guardianship of the child immediately prior to the application or any other person identified by the court or the social worker concerned as having an interest in the application and that person has or those persons have been given an opportunity to be heard.
(10)A parenting plan not registered with the clerk of the children’s court in terms of subsection (7) or not made an order of the children’s court in terms of subsection (9) is not enforceable in relation to a person who is not a party to the agreed plan.
(11)A provision dealing with maintenance of a child or children in a parenting plan registered with the clerk of the children’s court or made an order of the children’s court in terms of subsection (7) or (9) is enforceable under the Maintenance Act, 2003 (Act No. 9 of 2003).

120. Amendment or termination of parenting plan not made an order of court

(1)The co-holders of parental responsibilities and rights who are parties to a parenting plan may at any time, by mutual agreement, amend or terminate a parenting plan not registered with the clerk of the children’s court in terms of section 119(7).
(2)A parenting plan registered with the clerk of the children’s court in terms of section 119(7) may be amended or terminated by the co-holders of parental responsibilities and rights who are parties to the plan, by mutual agreement, in which case such co-holders must register the amended parenting plan with or notify the clerk of the children’s court of its termination within seven court days of the amendment or termination.

121. Amendment or termination of parenting plan made an order of court

(1)A parenting plan that was made an order of court in terms of section 119(9) may be amended or terminated only by that court on application by -(a)one or more of the co-holders of parental responsibilities and rights who are parties to the plan;(b)the child acting with leave of the court; or(c)any other person acting in the interests of the child.
(2)The court hearing an application contemplated in subsection (1) may grant the application unconditionally or on such conditions as it may determine or may refuse the application, but an application may be granted only if it is in the best interests of the child.
(3)When considering an application contemplated in subsection (1) the children’s court must be guided by the principles set out in Chapter 2 to the extent that those principles are applicable to the matter before it.
(4)For purposes of the hearing contemplated in subsection (2), the court may order that -(a)an investigation must be made by a social worker or any other person designated by the court and a report on that investigation submitted to the court;(b)the parties must seek to reach agreement on the amendment or termination of the plan by means of external intervention or mediation as described in section 119(5);(c)a person specified by the court must appear before it to give or produce evidence; or(d)the applicant or any party opposing the application must pay the costs of any such investigation or appearance.

122. Disputes relating to parenting plans

(1)A co-holder of parental responsibilities and rights aggrieved by -(a)the manner of compliance or the non-compliance with any provision of a parenting plan registered with the clerk of the children’s court in terms of section 119(7) or made into an order of court in terms of section 119(8); or(b)the refusal by another party to the plan to agree to an amendment or termination of parenting plan in terms of section 120,may make an application in the prescribed form and manner to the children’s court having jurisdiction for an appropriate order and the children’s court must consider the application in the presence of the applicant or his or her authorised legal practitioner.
(2)Section 121(2) to (4) applies with necessary changes in respect of an application contemplated in subsection (1).

Chapter 8
KINSHIP CARE


123. Kinship care and kinship care agreements

(1)A child is in kinship care if the child has been placed, with the express or implied consent of the child’s parent or guardian or by order of court in terms of section 145(3)(f)(i), in the care of a member of the child’s family or extended family, other than the parent or guardian of the child or a person who has parental responsibilities and rights in respect of the child.
(2)A child’s parent or guardian may conclude a kinship care agreement with the kinship care-giver in terms of subsection (3), and in the absence of a court order placing the child in kinship care, must conclude a kinship care agreement with the kinship care-giver, and must register the agreement with the clerk of the children’s court in terms of subsection (4) before the kinship care-giver is eligible to receive a state maintenance grant contemplated in Chapter 16 or maintenance payment in terms of which the child is a beneficiary.
(3)A kinship care agreement appointing a kinship care-giver for a child must -(a)be recorded in writing and signed by two witnesses;(b)set out information about the delegation of parental rights and responsibilities to the kinship care-giver in relation to the child, subject to section 149(3); and(c)be concluded after due consideration to the views of the child.
(4)A kinship care agreement in terms of subsection (3) may -(a)be facilitated by a legal practitioner, social worker, traditional leader or other suitable professional or a social worker or other person suitably qualified to do mediation;(b)include directions on the duration of the agreement and supervision by a designated social worker;(c)include directions on the termination of the agreement;(d)be registered with the clerk of the children’s court having jurisdiction; and(e)include agreement on the matters specified in section 119(6).
(5)A kinship care agreement must comply with the best interests of the child standard set out in section 3.

124. Parental responsibilities and rights in respect of kinship care by court order

If a court has placed a child in kinship care in terms of section 145 the kinship care-giver of the child has parental responsibilities and rights in respect of the child as contemplated in section 149(2), as well as any additional parental rights and responsibilities set out in -(a)the order of the children’s court placing the child in kinship care with that kinship care-giver; and(b)an order of the children’s court amending the initial order.

125. Amendment or termination of kinship care arrangement and agreement

(1)A parent with custody or guardianship of a child or any other guardian of that child or the kinship care-giver may at any time amend or terminate a kinship care arrangement that is not registered in terms of section 123(4)(d).
(2)A kinship care agreement registered with the clerk of the children’s court in terms of section 123(4)(d) may be amended or terminated by any of the persons who concluded that agreement, in which case such person must register the amended agreement with the clerk of the children’s court or notify the clerk of the children’s court of its termination within seven court days of the amendment or termination.
(3)A children’s court may, on application by a social worker or any other person who has an interest in the well-being of a child, terminate a kinship care agreement contemplated in section 123, whether registered with the clerk of the children’s court or not, if the court finds that the child is or may be in need of protective services as contemplated in section 131 and may make such additional order or orders as it considers appropriate.

126. Disputes relating to kinship care agreements

If there is a dispute relating to the exercise of a kinship care agreement or in respect of its termination or amendment a party to the agreement or a child who is covered by the agreement, may -(a)seek to resolve it by mediation or a family meeting; or(b)in the prescribed manner apply to the children’s court having jurisdiction for the making of an appropriate order, in which case the provisions of section 121(2) to (4) relating to parenting plans apply with necessary changes.

127. Application for access by kinship care-giver after termination of agreement

(1)If a kinship care agreement, whether registered with the clerk of the children’s court in terms of section 123(4)(d) or not, is unilaterally terminated by a parent after the agreement has been in place for a period of at least one year and the child has factually been cared for primarily by the kinship care-giver during this period, the kinship care-giver may apply to the children’s court in the prescribed manner for access to the child in question, in which case section 103 applies with necessary changes.
(2)The children’s court may allow an application for access by a kinship care-giver in terms of subsection (1) after a kinship care agreement has been in place for a shorter period if this is in the best interests of the child concerned.

128. Regulations

(1)The Minister may make regulations relating to -(a)the form of a kinship care agreement contemplated in section 123;(b)any other matter required or permitted to be prescribed under this Chapter; and(c)any other incidental administrative or procedural matter that is necessary to be prescribed for the proper implementation or administration of this Chapter.
(2)Regulations made under subsection (1) may -(a)create an offence for any contravention of a regulation or a failure to comply with a provision of a regulation; and(b)prescribe penalties in respect of an offence contemplated in paragraph (a) not exceeding a fine of N$4 000 or imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

Chapter 9
PREVENTION AND EARLY INTERVENTION


129. Powers and functions of Minister

(1)The Minister may from money appropriated by Parliament or from the Children’s Fund or from any other source -(a)ensure the provision of prevention and early intervention services, including early childhood development programmes, to children and families; and(b)ensure the establishment of facilities and programmes as the Minister considers necessary for the provision of prevention and early intervention services,in order to promote and further the objectives of this Act.
(2)For the purpose of subsection (1), the Minister may, out of money appropriated by Parliament for that purpose, allocate funding to a provider of prevention and early intervention services, who or which complies with the prescribed requirements.

130. Prevention and early intervention services

(1)Prevention services means services -(a)designed to serve the purposes mentioned in subsection (3); and(b)provided to families in order to strengthen and build their capacity and self-reliance to address problems in the family.
(2)Early intervention services means services -(a)designed to serve the purposes mentioned in subsection (3); and(b)provided to families with children identified as being vulnerable to or at risk of harm or removal into alternative care.
(3)Prevention and early intervention services must be aimed at one or more of the following objectives -(a)preserving a child’s family structure;(b)developing appropriate parenting skills and the capacity of parents and care-givers to safeguard the well-being and best interests of their children, including but not limited to the promotion of positive, non-violent forms of discipline and raising awareness about the procedure to be followed in the registration of births and the importance of such registration;(c)developing appropriate parenting skills and the capacity of parents and care-givers to safeguard the well-being and best interests of children with disabilities and chronic illnesses;(d)establishing appropriate interpersonal relationships within the family;(e)providing psychological, rehabilitation and therapeutic programmes for children;(f)preventing the neglect, abuse or inadequate supervision of children and preventing other failures to meet children’s needs in the family environment;(g)preventing the recurrence of problems in the family environment that may harm children or adversely affect their development;(h)preventing developmental delays in young children due to inadequate or inconsistent nutrition, stimulation, physical and emotional care;(i)preventing criminal activities by children and diverting children away from the criminal justice system; or(j)avoiding the removal of a child from the family environment.
(4)Prevention and early intervention programmes may include one or more of the following components:(a)assisting families to obtain the basic necessities of life, including assisting them with an application for a state maintenance grant contemplated in Chapter 16 or empowering them to obtain basic necessities of life for themselves and their children;(b)providing families with information to enable them to access services;(c)providing families with information about the dangers of alcohol and other drugs and assisting them to address abuse of alcohol or drugs by any family member;(d)providing families with information about gambling addiction and assisting them to address such addiction of any family member;(e)supporting and assisting families with a chronically ill or terminally ill family member;(f)assisting families to provide or access appropriate early childhood development opportunities for children who have not attained the school starting age;(g)addressing specific issues affecting or potentially affecting families in the community, such as gender-based violence, health and nutrition issues, reproductive and sexual health issues, child labour, child trafficking or child behaviour problems;(h)providing families with information regarding the resolution of disputes at a family meeting; and(i)promoting the well-being of children and the realisation of their full potential.
(5)Prevention and early intervention programmes must involve and promote the participation of families, parents, care-givers and children in identifying and seeking solutions to their problems.
(6)Prevention and early intervention programmes must involve and promote the participation of traditional leaders where this is appropriate to the community or the family in question.
(7)A children’s court may make an order regarding the provision of prevention and early intervention services, summarily, in terms of section 140(3) or after a child protection hearing in terms of section 145 or 146(b).

Chapter 10
CHILD PROTECTION PROCEEDINGS


131. Child in need of protective services

(1)In this Chapter, a child is in need of protective services, if that child -(a)is abandoned or orphaned and has insufficient care or support;(b)is engaged in behaviour that is harmful or is likely to be harmful to the child or any other person and the parent or guardian or the person with the care of the child, is unable or unwilling to control that behaviour;(c)lives or works on the streets or begs for a living;(d)is being or is likely to be, neglected, maltreated or physically or mentally abused;(e)is addicted to alcohol or another dependence producing drug and is without any support to obtain treatment for such dependency;(f)is below the age of 18 years and is involved in a criminal matter;(g)is an unaccompanied foreign child;(h)is chronically or terminally ill and lacks a suitable care-giver; or(i)is being kept in premises which are extremely overcrowded, highly unsanitary or dangerous.
(2)A child in the following circumstances may be a child in need of protective services and must be referred to a designated social worker for an investigation -(a)a child who is a victim of child labour;(b)a child in a child-headed household;(c)a child who is a victim of child trafficking;(d)a child who lives in or is exposed to or is at risk of living in or being exposed to circumstances which may seriously harm the physical, mental, emotional or social well-being of the child;(e)a child whose parent has been imprisoned and who lacks a suitable care-giver;(f)a child below the age of 16 years who is found to be pregnant;(g)a child who has been the victim of a serious crime against the child’s person;(h)a child who is engaged in commercial sex work or has been subjected to any form of sexual exploitation;(i)a child living in a violent family environment, including a child named in a protection order issued under the Combating of Domestic Violence Act, 2003 (Act No. 4 of 2003);(j)a child below the age of 16 years who is habitually absent from school;(k)a child whose parent, guardian or care-giver unreasonably withholds consent to necessary medical intervention or therapeutic intervention;(l)a child below the age of 16 with any sexually transmitted infection or any child with multiple or repeated sexually transmitted infections;(m)a child involved in a case referred for investigation by the Children’s Advocate; and(n)a child reasonably suspected of falling under subsection (1).

132. Reporting in respect of a child who may be in need of protective services

(1)Despite the provisions of any other law, if a person who performs professional or official duties with respect to children, obtains during the course of performing those duties information that gives rise to a suspicion that a child is or may be in need of protective services as contemplated in section 131, that person must report such information in the prescribed form to a state-employed social worker or a member of the police.
(2)For the purpose of subsection (1), a person who performs professional or official duties with respect to children includes a school principal, teacher, medical or dental practitioner, pharmacist, school counsellor, dentist, psychologist, psychological counsellor, nurse, physiotherapist, speech therapist, occupational therapist, traditional leader, traditional health practitioner, legal practitioner, religious leader, labour inspector, social worker in private practice or employed by a child protection organisation or a member of staff at a place of safety or a facility registered under Chapter 5.
(3)Any person, other than a person referred to in subsection (2), including another child, who reasonably believes that a child is or may be in need of protective services as contemplated in section 131, may report that belief to any state-employed social worker or a member of the police.
(4)Subsection (1) applies irrespective of the fact that the information on which the belief is based is privileged information under any law, but does not apply in the case of legal professional privilege.
(5)A person referred to in subsection (1) or (3) is entitled to have his or her identity kept confidential if the report is made in good faith, unless the interests of justice require otherwise and is not subject to civil liability for making any report required or permitted in terms of this section, unless the person makes the report knowing it to be false or misleading.
(6)A person who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

133. Self-reporting by children

(1)A child may make a report that he or she believes himself or herself or another child to be in need of protective services contemplated in section 131, to a community child care worker, a social auxiliary worker, a social worker or a member of the police.
(2)If a report is made under subsection (1) the person to whom the report is made must follow the prescribed procedures.

134. Immediate response to report that child may be in need of protective services

(1)If a report made under section 132(1) or (3) or section 133 creates a reasonable suspicion that a crime has been or will be committed, the member of the police or social worker receiving the report must take all reasonable actions consistent with his or her duties under any law in respect of the suspected crime in addition to the duties stated in subsections (2) to (4).
(2)A member of the police or a social worker who receives a report in terms of section 132(1) or (3) or section 133 that a child may be in need of protective services must within 24 hours make an initial assessment of the report to establish whether the child’s safety or well-being appears to be at imminent risk and may -(a)if satisfied that it is in the best interests of the child to be removed from his or her home or place where he or she resides, approach a children’s commissioner for the issue of a warrant for the search and removal of the child in terms of section 135 or remove the child without a warrant in terms of section 136 if the circumstances mentioned in section 135(1) require such removal; or(b)if satisfied that it is in the best interests of the child not to be removed from his or her home or place where he or she resides, but that the removal of an alleged offender from such home or place would secure the safety and welfare of the child, take appropriate steps to secure the removal of the alleged offender in terms of section 135 or 137.
(3)If a report of a child who may be in need of protective services is made under section 132(1) or (3) or section 133 to a member of the police or to a social worker who is not a designated social worker, that member of the police or social worker must, in addition to the initial assessment made in terms of subsection (2), submit the report to a designated social worker within 48 hours or if the 48 hours expire on a day which is not a court day, on the first court day thereafter, including information on any steps taken in accordance with subsections (1) or (2).
(4)If a designated social worker receives a report that a child may be in need of protective services in terms of section 42(1), 132(1) or (3), 133(1), 204(1), 217, 227, 234(6) or 249(4) or subsection (3) of this section or if it comes to the attention of a designated social worker that a child may be in need of protective services, the social worker must without delay -(a)report the matter and any steps taken in terms of this section to the Director responsible for child welfare services in the Ministry; and(b)start an investigation in terms of section 139.

135. Removal of child or alleged offender with warrant

(1)If, on evidence given by any person on oath or affirmation before a children’s commissioner it appears that the safety or well-being of a child who resides in his or her area of jurisdiction is at imminent risk, the children’s commissioner may issue a warrant authorising a member of the police, a designated social worker or any other person authorised by the children’s commissioner -(a)to search for and remove a child and place the child in a place of safety or other temporary safe care if the children’s commissioner is satisfied that the removal of the child is necessary for the safety and well-being of the child; or(b)to search for and remove any alleged offender from the home or place in which the child resides pending the appearance of the offender in the children’s court if the children’s commissioner is satisfied that the removal of such offender is necessary for the safety and well-being of the child.
(2)A warrant issued in terms of subsection (1) must identify the child or the alleged offender in sufficient detail to execute the warrant.
(3)A person authorised by a warrant under subsection (1) may, whether alone or accompanied by a member of the police -(a)enter any premises where the child or the alleged offender named in the warrant is believed to be;(b)remove the child or the alleged offender from the premises; and(c)carry out the instructions of the court.
(4)A person authorised by a warrant issued under subsection (1) may use such force as may be reasonably necessary to overcome any resistance against the entry of the premises contemplated in subsection (3)(a) or against the removal of the child or the alleged offender, including the breaking of any door or window of such premises, but must first audibly demand admission to the premises and announce the purpose for which he or she seeks to enter the premises.
(5)The person who has effected a removal of a child or an alleged offender in terms of this section, must -(a)in the case of the removal of a child, without delay, but within 24 hours, inform the child’s parent or guardian and the person in whose care the child had been before the removal if this is not the child’s parent or guardian, of the removal, if that person can be traced; and(b)on or before the next court day inform the clerk of the children’s court which issued the warrant of the removal of the child or the alleged offender and the clerk must record the information in the prescribed form.
(6)The best interests of the child must be the determining factor in any decision on whether a child in need of protective services must be removed and placed in a place of safety or other temporary safe care in terms of this section and all relevant facts must for this purpose be taken into account, including -(a)the safety and well-being of the child as the first priority;(b)where possible, the views of the child in question; and(c)the possible alternative of removing the alleged offender in terms of subsection (1)(b) or section 137 from the home or place where the child resides.
(7)Any person who removes a child in terms of this section must comply with the prescribed procedures.
(8)Any person who hinders or obstructs a member of the police, a designated social worker or other authorised person in the execution of a warrant in terms of this section, commits an offence and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
(9)To the extent that this section authorises the interference with the privacy of persons’ homes as contemplated in Article 13(1) of the Namibian Constitution, this section is enacted on the authority of Sub-Article (2) of that Article.

136. Removal of child without warrant

(1)Despite section 135, a member of the police or a designated social worker may without a warrant enter premises and remove a child and place the child in a place of safety or other temporary safe care, if there is reason to believe -(a)that the child faces a substantial risk of serious harm;(b)that any delay in obtaining a warrant is likely to jeopardise the child’s safety and well-being; and(c)that the removal of the child from his or her home environment is the best way to secure the child’s safety and well-being.
(2)If a member of the police or a designated social worker has removed a child under subsection (1), that member of the police or designated social worker must -(a)without delay, but within 24 hours, inform the child’s parent or guardian and the person in whose care the child had been before the removal if this is not the child’s parent or guardian, of the removal, if that person can be traced; and(b)on or before the next court day submit a sworn statement to the clerk of the children’s court having jurisdiction setting out the reasons for the removal of the child without a warrant and the clerk must record the information in the prescribed form.
(3)The best interests of the child must be the determining factor in any decision on whether a child in need of protective services must be removed and placed in a place of safety or other temporary safe care in terms of this section and all relevant facts must for this purpose be taken into account, including -(a)the safety and well-being of the child as the first priority;(b)where possible, the views of the child in question; and(c)the possible alternative of removing the alleged offender in terms of section 137 from the home or place where the child resides.
(4)Misuse of a power referred to in subsection (1) by a member of the police constitutes grounds for disciplinary proceedings against such member as contemplated in section 28 of the Police Act, 1990 (Act No. 19 of 1990).
(5)Misuse of a power referred to in subsection (1) by a social worker constitutes grounds for disciplinary proceedings against such social worker as contemplated in section 38 of the Social Work and Psychology Act, 2004 (Act No. 6 of 2004).
(6)Any person who removes a child in term of this section must comply with the prescribed procedure.
(7)Any person who hinders or obstructs a member of the police or a designated social worker in the exercise of his or her powers in terms of this section, commits an offence and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
(8)To the extent that this section authorises the interference with the privacy of persons’ homes as contemplated in Article 13(1) of the Namibian Constitution, this section is enacted on the authority of Sub-Article (2) of that Article.

137. Removal of alleged offender by written notice in lieu of removal of offender with warrant

(1)A member of the police to whom a report is made in terms of section 132(1) or (3) or section 133(1) may, if he or she is satisfied that, on the strength of the information contained in the report or the request, it will be in the best interests of the child if the alleged offender is removed from the home or place where the child resides, issue a written notice, in lieu of obtaining a warrant to remove such offender in terms of section 135, which -(a)specifies the names, surname, residential address and occupation of the alleged offender;(b)calls upon the alleged offender to leave the home or place where the child resides and refrain from entering such home or place or having contact with the child until the court hearing specified in paragraph (c);(c)calls upon the alleged offender to appear at a children’s court at a place and on a date and at a time specified in the written notice to advance reasons why he or she must not be permanently prohibited from entering the home or place where the child resides, but the date so specified must be the first court day after the day on which the notice is issued; and(d)contains a certificate under the hand of the member of the police that he or she has handed the original of such written notice to the alleged offender and that he or she has explained to the alleged offender the importance of the written notice.
(2)The member of the police must immediately forward a duplicate original of the written notice contemplated in subsection (1) to the clerk of the children’s court.
(3)The mere production to the court of the duplicate original referred to in subsection (2) is prima facie proof of the issue of the original written notice to the alleged offender.
(4)Section 55 of the Criminal Procedure Act applies with necessary changes to a written notice handed to an alleged offender in terms of subsection (1).
(5)A children’s court before which an alleged offender to whom a written notice in terms of subsection (1) has been issued, appears, may summarily inquire into the circumstances which gave rise to the issuing of the notice.
(6)The children’s court may, after having considered the circumstances which gave rise to the issuing of the written notice contemplated in subsection (1) and after giving the alleged offender an opportunity to be heard -(a)issue an order prohibiting the alleged offender from entering the home or place where the child resides or from having any contact with the child or both from entering such home or place and having contact with the child, for such period of time as the court considers appropriate;(b)order that the alleged offender may enter the home or the place where the child resides or have contact with the child upon such conditions as would ensure that the best interests of the child are served;(c)order that the alleged offender will be responsible for the maintenance of his or her family during the period contemplated in paragraph (a);(d)direct the clerk of the children’s court to notify the relevant police station commander if the court finds that there has been misuse of power by a member of the police under subsection (1); or(e)make such other order with regard to the matter as the court considers appropriate.
(7)Misuse of a power referred to in subsection (1) by a member of the police constitutes grounds for disciplinary proceedings against that police official as contemplated in section 28 of the Police Act, 1990 (Act No. 19 of 1990).
(8)An alleged offender contemplated in this section commits an offence if he or her -(a)fails to appear at a children’s court on the date and at the time specified in the written notice contemplated in subsection (1);(b)refuses to leave the home or the place where the child resides; or(c)has contact with the child in contravention of the written notice,and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
(9)To the extent that this section authorises the interference with the privacy of persons’ homes as contemplated in Article 13(1) of the Namibian Constitution, this section is enacted on the authority of Sub-Article (2) of that Article.

138. Placement of child pending disposition of case

(1)A child removed under section 135 or 136 must be brought before a children’s court as soon as possible after the removal but not later than five days after the removal for purposes of reviewing the placement of the child.
(2)The children’s court must, when reviewing the placement of the child as contemplated in subsection (1), after consideration of the reasons for the placement of the child and such other information as may be provided, on oath or affirmation, by the parent, guardian or care-giver of the child, the social worker concerned or member of the police and any other person with relevant information -(a)confirm the removal of the child and the placement of the child in alternative care;(b)make an order for placement of the child in other alternative care;(c)direct that the child be restored to the custody of his or her parent, guardian or care-giver; or(d)direct the clerk of the children’s court to notify, in the case of a member of the police, the relevant police station commander or in the case of a designated social worker, the authority with whom such social worker is registered, of misuse of the power conferred on such member or social worker in terms of section 136(1),and must, unless the child is returned to the custody of his or her parent, guardian or care-giver, direct the designated social worker to compile a report on whether the child is in need of protective services within 30 days from the date of the review of the placement.

139. Designated social worker’s powers and duties to investigate

(1)A designated social worker who receives a report that a child may be in need of protective services in terms of section 42(1), 132(1) or (3), 133(1), 134(3), 204(1), 217, 227, 234(6) or 249(4), must, within a period of 45 days from the receipt of such report or within a period of 30 days if the court has so ordered in terms of section 138(2), investigate the circumstances of the child and compile a report in the prescribed manner for submission to the children’s court.
(2)A children’s commissioner may, on the written request of a designated social worker and on good cause shown, authorise an extension of the period referred to in subsection (1).
(3)For purposes of an investigation made under this section, a designated social worker may -(a)question any person who may have relevant information in order to establish the facts surrounding the circumstances giving rise to the concern;(b)evaluate the child’s family circumstances;(c)evaluate the child’s environmental circumstances;(d)identify sources who may verify any alleged neglect, maltreatment or abuse of the child;(e)identify the level of risk to the child’s safety or well-being;(f)identify actual and potential protective and supportive factors in the home and broader environment to minimise risk to the child;(g)make an assessment of the child’s developmental, therapeutic and other needs;(h)request entry into any premises in order to obtain relevant information;(i)enter and search any premises without a warrant if there is good reason to believe that the delay involved in obtaining a warrant would prevent the obtaining of relevant information which is critical to the investigation, but search of a building or structure used as residence, may not be carried out without a warrant, unless the owner or occupier of the residence, has consented to the search or the designated social worker on reasonable grounds believes that a warrant will be granted if applied for and that delay in obtaining such warrant would defeat the objects of the search;(j)be accompanied by a member of the police; and(k)recommend any appropriate protective measures or intervention as provided for in this Act.
(4)A designated social worker must, for purposes of an investigation in terms of this section, have due regard to the principles of child participation set out in section 4.
(5)A report made by a designated social worker following an investigation under this section must include an opinion as to whether a child is or is not in need of protective services and the reasons for this opinion.
(6)If the designated social worker concludes that the child is not in need of protective services, the report must include information on -(a)the measures, if any, recommended to assist the family which may include counselling, mediation, early intervention measures, family reconstruction and rehabilitation, behaviour modification, problem solving or referral to another suitably qualified person or organisation; and(b)any other measures which in the social worker’s view would assist the child.
(7)If the designated social worker concludes that the child is in need of protective services, the report contemplated in subsection (1) must include information on -(a)the measures recommended to protect the child;(b)the measures recommended to the family to protect a child who is allowed to remain in the usual home or to allow for eventual reunification where a child is removed from the usual home; and(c)any other measures which in the social worker’s view would assist the child.
(8)A designated social worker must, if he or she has reason to believe, after an investigation in terms of this section, that an offence in relation to the abuse, maltreatment, neglect or trafficking of such child has been committed, immediately report the alleged offence to a member of the police for investigation.

140. Procedure if social worker report concludes that child is not in need of protective services

(1)If, after an investigation in terms of section 139, the designated social worker concludes that the child is not in need of protective services, the social worker must submit the report referred to in that section to a children’s court for review in the prescribed manner.
(2)The children’s court may on review, as contemplated in subsection (1) -(a)find that, contrary to the social worker’s opinion, the child appears to be in need of protective services and in that case the court must proceed in terms of section 142; or(b)confirm the opinion of the designated social worker that the child is not in need of protective services.
(3)If the children’s court in terms of subsection (2)(b) confirms the opinion of the designated social worker that the child is not in need of protective services but determines that the child is living in a situation which is likely to be detrimental to the child’s best interests and which, if not addressed, is reasonably likely to lead to the temporary or permanent removal of that child, the court may summarily make orders relating to the recommendations by the designated social worker, including an order -(a)regarding the provision of specified prevention or early intervention services contemplated in section 130 in respect of the child and such child’s parent, family or care-giver if the court considers the provision of such services appropriate in the circumstances; and(b)obligating the child and his or her parent, family or care-giver to participate in a specified prevention or early intervention programme,and any monitoring of such service provision or programme as it considers necessary.
(4)An order made in terms of subsection (3)(b) must be for a specified period not exceeding six months.
(5)If a case resumes after the expiry of the specified period referred to in subsection (4), the designated social worker dealing with the matter in question must submit to the children’s court a report setting out progress with early intervention programmes provided to the child and his or her parent, family or care-giver.
(6)The children’s court may after considering the report contemplated in subsection (5) -(a)order the removal of the child and placement of the child in alternative care if this would be in the child’s best interests;(b)order the continuation of the early intervention programme for a further period not exceeding six months; or(c)make no further order.
(7)A person aggrieved by a summary order issued in terms of subsection (3) may request the children’s court to conduct a child protection hearing for review of the order.

141. Procedure if social worker report concludes that child is in need of protective services

If, after an investigation contemplated in section 139, a designated social worker concludes that the child who is the subject of the investigation is in need of protective services, that social worker must, in the prescribed manner, apply for a child protection hearing without delay and may, as an interim measure, arrange for early intervention services to be provided to the child or the child’s family.

142. Scheduling of child protection hearing

(1)The children’s court must, on receiving an application for a child protection hearing as contemplated in section 141, determine the date of the hearing as soon as possible but not more than 30 days from the date on which the application has been made.
(2)A child protection hearing must be heard and determined within 60 days from the date on which it starts.
(3)The children’s court may enquire into the reason for any delays by any person in adhering to the time-frames specified in this section and may make any order as it considers appropriate.
(4)The children’s court may, after having enquired into the reasons for the delay in adherence to time-frames contemplated in subsection (3), notify the registrar of Social Work and Psychology Council to take appropriate action.

143. Notice of child protection hearing

(1)The clerk of a children’s court must make all reasonable efforts to cause a written notice of a child protection hearing to be served personally or by registered post on a child’s parents, guardian or care-giver at least 14 days before the hearing, which notice must contain -(a)particulars about the nature of the hearing;(b)the date, time and place of the hearing;(c)the basis of the application by the designated social worker;(d)the reasons for the removal of the child, if any; and(e)the types of orders that may be made under section 145 or 146 at the conclusion of the hearing.
(2)The children’s court may, on written request by any person, including the designated social worker, designate a person as having sufficient interest in the child protection hearing -(a)who is the child’s extended family member; or(b)any other person having a close connection with the child.
(3)A person who has been designated in terms of subsection (2) becomes a party to the child protection hearing and the clerk of the children’s court must make all reasonable efforts to cause a written notice of the child protection hearing to be served personally or by registered post on such person in accordance with subsection (1).
(4)The children’s court must issue a written notice to the child’s parent, guardian or care-giver directing that the child who is the subject of the hearing be brought before the children’s court for the duration of the child protection hearing, in which case section 57(2) applies in respect of a child who is unable to participate in the proceedings or is unwilling to express a view or preference in the matter.

144. Adjournments of child protection hearings

(1)A child protection hearing may not be adjourned for longer than 14 days at a time.
(2)If an adjournment of a child protection hearing is required for any reason, the children’s court may order that the child must -(a)remain in the place of safety where the child is;(b)be transferred to another place of safety;(c)remain in the care of the person who was caring for the child prior to the hearing;(d)be placed in the care of a family member or other extended family member; or(e)be placed in temporary safe care, if the child is not already in such care.

145. Court orders when child in need of protective services

(1)The children’s court must, on the completion of a child protection hearing and subject to section 146, make any order in terms of this section which is in the best interests of the child.
(2)When making a determination whether a child is in need of protective services, the court -(a)must have regard to the designated social worker’s report contemplated in section 139 and any other report requested by the court in terms of section 47(2)(g); and(b)may not consider the occupation, means of income or poverty of the child’s parent, guardian or care-giver alone as indicating that the child is in need of protective services, unless -(i)the occupation or means of income has an effect on the general well-being or development of the child; or(ii)in the case of poverty, the child’s parent, guardian or care-giver is unable or refuses to accept assistance to alleviate the child’s situation.
(3)A children’s court which determines that a child is in need of protective services may make an order -(a)confirming that the person under whose custody the child is may retain custody of the child, if the court finds that that person is a suitable person to provide for the safety and well-being of the child, subject to such conditions as the court considers to be appropriate;(b)that the child be returned to the person under whose care the child had been before the child was placed in alternative care, if the court finds that that person is a suitable person to provide for the safety and well-being of the child, subject to such conditions or supervision as the court considers to be appropriate;(c)that the child be placed in the care of a parent or guardian who did not have care of the child immediately before the proceedings;(d)of supervision, placing a child or the parent or care-giver of a child or both the child and the parent or care-giver, under the supervision of a social worker or other person designated by the court;(e)that the person under whose care the child had been must make arrangements for the child to be taken care of in a place of care at the expense of such person, if the court finds that the child became in need of protective services because such person failed to provide adequate arrangements for such child during his or her temporary absences from home;(f)if the child does not have a parent or care-giver or has a parent or care-giver who is unable or unsuitable to care for the child, that the child be placed in -(i)foster care with a suitable foster parent or in kinship care;(ii)a place of safety, pending an application for, and finalisation of, a foster care placement or adoption of the child;(iii)shared care where different care-givers or centres alternate in taking responsibility for the care of the child at different times or periods; or(iv)a children’s home or a child detention centre that provides a programme suited to the child’s needs;(g)if the child lives in a child-headed household, that the child remain in that household under the supervision of an adult person designated by the court in terms of section 225(2);(h)placing a child in a child-headed household in the care of the child heading the household under the supervision of an adult person designated by the court in terms of section 225(2);(i)interdicting a person from maltreating, abusing, neglecting or degrading the child or from having any contact with the child, instructing that a person be removed from the child’s home or allowing access to or contact with the child by a person only on conditions specified by the court if the court finds that -(i)the child has been or is being maltreated, abused, neglected or degraded by that person;(ii)the relationship between the child and that person is detrimental to the well-being or safety of the child; or(iii)the child is exposed to a substantial risk of imminent harm;(j)giving consent to medical intervention in respect of or to a surgical operation to be performed on a child;(k)directing that the child receive appropriate medical, psychological or psychiatric treatment or attendance, if need be at State expense, if the court finds that the child is in need of such treatment or attendance;(l)instructing a hospital to retain a child who on reasonable grounds is suspected of having been subjected to abuse or neglect, pending further inquiry;(m)directing that the child be admitted as an inpatient or outpatient to an appropriate facility if the court finds that the child is in need of treatment for addiction to a dependence-producing substance;(n)directing that the child be placed in a facility designated by the court which is managed by an organ of state or registered, recognised or monitored in terms of any law, for the care of children with disabilities or chronic illnesses, if the court finds that -(i)the child has a physical or mental disability or chronic illness; and(ii)it is in the best interests of the child to be cared for in such facility;(o)instructing a parent, guardian or care-giver of a child to undergo professional counselling or to participate in mediation, a lay-forum or other appropriate problem-solving forum;(p)instructing a child or other person involved in the matter to participate in a professional assessment;(q)instructing a person to undergo a specified skills development, education, training, treatment or rehabilitation programme;(r)instructing a person who has failed to fulfil a statutory duty towards a child to appear before the court and to give reasons for the failure;(s)relating to the assignment, exercise, extension, restriction, suspension or termination of parental responsibilities and rights in respect of a child, including an order in terms of section 237;(t)instructing an organ of state to assist a child in obtaining access to a public service to which the child is entitled, failing which, to appear through its representative before the court and to give reasons for the failure;(u)of contribution in terms of section 160;(v)temporarily directing a person to make periodic payments in respect of the maintenance of the child, if that person is legally liable to support the child, as an emergency measure where no such maintenance order is already in force;(w)of protection as contemplated in the Combating of Domestic Violence Act, 2003 (Act No. 4 of 2003), if the evidence placed before the court supports the issue of such a protection order;(x)of early intervention as contemplated in section 130; or(y)which in the court’s opinion is appropriate in the circumstances and in the best interests of the child.
(4)The court that makes an order contemplated in subsection (3) may order that the child concerned be kept in a place of safety until such time as effect can be given to the court’s order, but such period may not exceed six months.
(5)An order made by the court in terms of subsection (3) -(a)is subject to such conditions as the court may determine which, in the case of the placement of a child in terms of paragraphs (a), (b) or (f)(i), (ii), (iii), or (iv) of that subsection, may include a condition -(i)rendering the placement of the child subject to supervision services by a designated social worker or other authorised person;(ii)rendering the placement of the child subject to reunification services being rendered to the child and the child’s parents, care-giver or guardian, by a designated social worker or authorised person; or(iii)requiring the person in whose care the child has been placed, to co-operate with the supervising designated social worker or other authorised person or to comply with any requirement laid down by the court, failing which the court may reconsider the placement; and(b)may be reconsidered by a children’s court at any time and be confirmed, withdrawn or amended as may be appropriate.

146. Court orders when child not in need of protective services

If the children’s court, after a child protection hearing contemplated in section 141, determines that a child is not in need of protective services -(a)the court may dismiss the application and order that the child be returned to the person in whose care the child had been, but such order does not constitute an order for the custody of the child; or(b)is living in a situation which is likely to be detrimental to the child’s best interests and which, if not addressed, is reasonably likely to lead to the temporary or permanent removal of that child, the court may issue any of the orders referred to in -(i)section 140(3)(a) or (b), in which case subsections (4) to (7) of that section apply with necessary changes; or(ii)section 145(3), excluding an order for placement in alternative care in respect of the child.

147. Court orders for alternative placement

(1)Before a children’s court makes an order in terms of section 145 for the removal of a child from the care of the child’s parent, guardian or care-giver, the court must -(a)be satisfied that removal of the child is in such child’s best interests with due regard to the child’s need for family preservation and reunification;(b)consider the best way of securing stability in the child’s life and for this purpose consider placement options in the following order of preference unless some special circumstance would justify a departure from this order of preference in the best interests of the child -(i)leaving the child in the care of the parent, guardian or care-giver under the supervision of a designated social worker, but the child’s safety and well-being must receive first priority;(ii)placing the child in the care of a parent or guardian who did not have care of the child immediately before the children’s court proceeding;(iii)referring the child to a designated social worker for consideration of the conclusion of a kinship care agreement contemplated in section 123(2), either temporarily or permanently or making the child available for adoption by the child’s family members;(iv)placing the child in temporary foster care as geographically close to the parent, guardian or care-giver as possible to encourage visiting by the parent, guardian or care-giver;(v)placing the child in permanent foster care or making the child available for adoption by persons who are not extended family members, preferably of similar ethnic, cultural and religious backgrounds or making the child available for adoption by extended family members;(vi)placing the child in a place of safety or a children’s home for a limited period to allow for the reunification of the child and the parent, guardian or care-giver with the assistance of a designated social worker; or(vii)placing the child in a place of safety, a children’s home or a child detention centre with or without terminating parental responsibilities and rights of the parent, guardian or care-giver.
(2)A children’s court may order a designated social worker, if it is in the best interests of a child, to facilitate the reunification of the child with his or her family in the case of a placement contemplated in subsection (1)(b)(i), (ii), (iii), (vi) and (vii) and for this purpose the designated social worker must -(a)investigate the causes of the removal of the child from the family home;(b)address those causes and take precautionary action to prevent a recurrence; and(c)provide counselling to both the child and the family before and after reunification.
(3)When issuing an order involving the removal of the child from the care of the child’s parent or care-giver, the court may, if appropriate in the circumstances, include in the court order instructions for the implementation of a plan for alternative permanent care.

148. Family access to children in alternative placements

A children’s court making an order that a child be placed in alternative care may make an order regarding regular access to the child by any member of the child’s family, including a step-parent or any other person if the court finds that access would be in the child’s best interests, and may impose such conditions relating to such access as it considers appropriate.

149. Transfer of certain parental powers at placement

(1)If a child is placed by a court order in alternative care under this Act or the Criminal Procedure Act, any existing right of custody or control over that child is transferred, subject to subsection (3), to the foster parent, kinship care-giver or the management of the residential child care facility for the duration of the placement.
(2)Custody or control transferred under subsection (1) includes the duty to -(a)promote the child’s well-being and development, particularly as regards education and health;(b)encourage the child to have contact with parents, extended family members and friends, unless such contact is prohibited by an order of the children’s court or would not be in the child’s best interests;(c)inform the child’s parents, guardian or other care-giver immediately prior to the child’s placement of his or her progress;(d)where consistent with the child’s best interests, plan with the social worker concerned that the child be returned home for a specified trial period; and(e)where a child is unable to return to his or her parents, encourage and assist the child to become independent and self-reliant.
(3)Custody or control transferred under subsection (1) does not include the power to deal with the property of the child or to consent to the marriage or adoption of that child and is subject to subsection (4).
(4)A foster parent, kinship care-giver or residential child care facility in whose care a child has been placed must -(a)obtain basic medical intervention for the child if reasonable grounds exist to believe that he or she requires such intervention; and(b)ensure that the child obtains a surgical operation if there are reasonable grounds to believe that -(i)the child urgently requires the operation; and(ii)deferring the operation to permit consultation with the person or persons from whom custody or control has been transferred would prejudice the child’s health or welfare.
(5)The management of a residential child care facility may authorise its manager to exercise any of the powers transferred in terms of subsection (1) to the management of the facility with regard to the care of the child.

150. Discharge of orders

An order made in terms of this Chapter may be discharged in the best interest of the child by the children’s court on good cause shown and on application by -(a)the child;(b)a member of the child’s family;(c)a social worker;(d)a member of the police;(e)a parent, guardian or care-giver of the child; or(f)any person with parental responsibility in respect of the child.

151. Duration, extension and monitoring of orders

(1)An order made by a children’s court in terms of section 145 or 146(b) -(a)lapses on expiry of -(i)two years from the date the order was made; or(ii)such shorter period for which the order was made;(b)may be extended by a children’s court, on its own initiative or on application by a designated social worker in the prescribed manner, for a period not exceeding two years at a time if such extension would be in the best interests of the child; and(c)may be withdrawn, suspended, varied or otherwise dealt with in terms of section 47(2).
(2)Despite subsection (1), a children’s court may, after having considered the need for creating stability in the child’s life, order the placement of a child in kinship care or foster care for more than two years and may order that such placement subsists, subject to subsection (5), until the child reaches the age of majority.
(3)The children’s court must, when deciding on an extension of the period of a court order in terms of subsection (1) or (2), take cognisance of the views of -(a)the child;(b)the parent and any other person who has parental responsibilities and rights in respect of the child;(c)where appropriate, the management of the centre where the child is placed; and(d)the care-giver of a child placed in alternative care.
(4)A court order referred to in subsection (1), except for an order made in terms of section 145(3)(m), may not extend beyond the date on which the child in respect of whom it was made reaches the age of majority.
(5)A child placed in foster care, kinship care, a children’s home or a child detention centre is entitled, after having attained the age of 18 years, to remain in that care until the end of the year in which that person has attained the age of 18 years.
(6)The Minister may on application by a child placed in foster care, kinship care, a children’s home or a child detention centre allow that child to remain in that care until the end of the year in which that person has attained the age of 21 years if -(a)the current alternative care-giver is willing and able to care for that person; and(b)the continued stay in that care is necessary to enable that person to complete his or her education or training.
(7)A children’s court making an order in terms of section 145 or 146(b) may give such directions to any specific person or persons and impose such conditions relating to the supervision or monitoring of the order as the court considers appropriate, but a designated social worker must visit a child subject to an order in terms of section 145 or 146 at least once every six months or less frequently in the case of kinship care which has been extended in terms of subsection (2), and may consult with the child separately from the persons providing his or her care.

152. Unauthorised removal from place of safety, kinship care or residential child care facility

A person commits an offence, if that person without reasonable cause removes a child from alternative care in which the child has been placed in terms of this Chapter without the authority or permission of the person under whose care the child is placed and is liable on conviction to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding 12 months, or to both such fine and such imprisonment.

153. Regulations

(1)The Minister may -(a)with the concurrence of the minister responsible for safety and security, make regulations prescribing the form of a written notice to be issued by a member of the police in terms of section 137;(b)with the concurrence of the minister responsible for justice, make regulations prescribing the form of any order by a children’s court in terms of this Chapter which is considered to be expedient to be prescribed;(c)make regulations prescribing the removal of children with or without a warrant and the issue of authorisations in respect of such removal;(d)with the concurrence of the minister responsible for justice, make regulations prescribing the reasonable efforts to be made in order to serve a written notice contemplated in section 137(1) and (3);(e)make regulations prescribing the form of a report and particulars to be included in the report by a designated social worker in terms of section 139(1);(f)make regulations relating to any other matter required or permitted to be prescribed under this Chapter; and(g)make regulations relating to any other incidental administrative or procedural matter that is necessary to be prescribed for the proper implementation or administration of this Chapter.
(2)Regulations made under subsection (1) may -(a)create an offence for any contravention of a regulation or a failure to comply with a provision of a regulation; and(b)prescribe penalties in respect of an offence contemplated in paragraph (a) not exceeding a fine of N$4 000 or imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

Chapter 11
FOSTER CARE


154. Foster care

(1)A child is in foster care if the child has been placed, in terms of an order of a children’s court under section 145(3)(f)(i) after a child protection hearing contemplated in section 141, in the care of a person who is not the parent, guardian, family member or extended family member of the child.
(2)The Minister may by regulation establish and regulate the registration of cluster foster care services as may be required to assist foster parents in caring for children placed in their care in terms of this section in general and in particular children with special needs or disabilities.
(3)This Chapter applies to both parents, if married or living together, in whose foster care a child has been or is to be placed, unless foster care of such child is awarded to one foster parent only.

155. Application for approval as prospective foster parent

(1)A person or persons who intends to be approved as a prospective foster parent must make an application, accompanied by information as may be prescribed, to a designated social worker.
(2)The designated social worker must, in the prescribed manner, assess prospective foster parents for compliance with section 156(1) and (2).
(3)The Minister may approve a person in respect of whom an assessment has been made in terms of subsection (2) and who complies with the requirements of this Act as a prospective foster parent, subject to such conditions as the Minister may consider necessary to impose.
(4)The Minister must keep a register, to be known as the Register of Prospective Foster Parents, in the form and manner determined by the Minister, of prospective foster parents approved as such in terms of this section.
(5)The Register of Prospective Foster Parents contemplated in subsection (4) must contain information as may be prescribed.

156. Prospective foster parent

(1)A prospective foster parent must be -(a)a fit and proper person to be entrusted with the care of the child concerned;(b)willing and able to undertake the parental rights and responsibilities associated with foster care, and exercise and maintain those rights and responsibilities;(c)properly assessed by a designated social worker for compliance with paragraphs (a) and (b); and(d)in possession of a valid police clearance certificate as contemplated in section 238.
(2)A person who has been convicted of an offence contemplated in section 238 is not a fit and proper person to be entrusted with the foster care of a child.
(3)Registration of a person as a prospective foster parent -(a)is valid for a period of three years;(b)may be renewed as prescribed;(c)ceases -(i)on written notice of withdrawal being given to the Minister;(ii)on the death of the registered person;(iii)on cancellation by the Minister if the registered person is no longer -(aa)a fit and proper person to be entrusted with parental responsibilities and rights in respect of a child; or(bb)willing and able to undertake, exercise and maintain those responsibilities and rights;(iv)if a child is removed from the care of that registered person as contemplated in Chapter 10; or(v)if the registered person is convicted of an offence referred to in section 238.
(4)Subsections (1) and (2) apply with necessary changes to a person employed at or involved in an organisation managing a cluster foster care scheme.

157. Parental responsibilities and rights of foster parent

The foster parent of a child has parental responsibilities and rights in respect of the child as contemplated in section 149, as well as any additional parental rights and responsibilities stated in -(a)the order of the children’s court placing the child in the foster care of that foster parent; and(b)an order of the children’s court amending the initial order.

158. Number of children to be placed in foster care

A child may not be placed in foster care if such placement would cause the total number of children cared for by the prospective foster parent to exceed six children, unless the court determines that exceeding this number would be in the best interests of all the children concerned.

159. Termination of foster care

(1)Foster care may be terminated by a children’s court only if it is in the best interests of the child.
(2)Before terminating the foster care of a child, the court must take into account all relevant factors, including -(a)the bond that exists between the child and the child’s biological parent, if the biological parent reclaims care of the child;(b)the bond that developed between -(i)the child and the foster parent; and(ii)the child and the family of the foster parent; and(c)the prospects of achieving permanency in the child’s life by -(i)returning the child to the biological parent;(ii)allowing the child to remain permanently in foster care with the foster parent;(iii)placing the child in any other care; or(iv)adoption of the child.

Chapter 12
CONTRIBUTION ORDERS


160. Issue of contribution orders

(1)For purposes of this Chapter, “respondent” means any person legally liable to maintain or to contribute towards the maintenance of a child.
(2)A children’s court may on the recommendation of a social worker or on its own initiative make a contribution order instructing a respondent to pay a sum of money or a recurrent sum of money -(a)as a contribution towards the maintenance or treatment of, or the costs resulting from any special needs of, a child -(i)placed in foster care or a residential child care facility by court order; or(ii)temporarily removed by order of the court from the child’s family for treatment, rehabilitation, counselling or another reason;(b)as a short-term emergency contribution towards the maintenance or treatment of, or the costs resulting from, any urgent needs of a child; or(c)as a contribution towards the reimbursement of state expenditure incurred as a result of the payment of a state maintenance grant contemplated in Chapter 16 in circumstances where it is shown that the respondent could have contributed towards the maintenance of a child.
(3)A contribution order takes effect from the date on which it is made unless the court orders that it takes effect from an earlier or later date.
(4)A children’s court may vary, suspend or rescind a contribution order or revive the order after it has been rescinded.
(5)If a court other than the court which made a contribution order varies, suspends, rescinds or revives the order in terms of subsection (4), the clerk of the first-mentioned court must immediately inform the clerk of the last mentioned court of such variation, suspension, rescission or revival.

161. Jurisdiction

(1)A contribution order may be made, varied, suspended, rescinded or revived by the children’s court of the area in which -(a)the respondent is ordinarily resident, carries on business or is employed; or(b)the child involved in the matter is ordinarily resident or has been placed in terms of a court order under section 145.
(2)A provisional contribution order may be made by a children’s court having jurisdiction in terms of subsection (1)(b) against a respondent resident in any country which is a proclaimed country within the meaning of the Reciprocal Enforcement of Maintenance Orders Act, 1995 (Act No. 3 of 1995).

162. Contribution order

(1)A contribution order must direct the person against whom it is made to pay, in such manner and at such times as the court concerned may determine, the amount specified in that order to an officer of the court granting or confirming the order, or to such other officer as the court may determine.
(2)A children’s court may, in such circumstances and subject to such conditions as may be prescribed, grant a contribution order for the maintenance of a person who is 18 years of age or older.

163. Effect of contribution order

(1)A provisional contribution order and a contribution order have the effect of a provisional maintenance order and a maintenance order in terms of the Maintenance Act 2003 (Act No. 9 of 2003) and the Reciprocal Enforcement of Maintenance Orders Act, 1995 (Act No. 3 of 1995).
(2)Sections 33 and 39 of the Maintenance Act, 2003 (Act No. 9 of 2003), apply with necessary changes to a person who refuses or fails to comply with a contribution order.

164. Attachment of wages of respondent

(1)For purposes of subsection (2) “remuneration” includes any salary, wages, allowances or any other form of remuneration or any other income which is paid periodically to any person.
(2)A children’s court which has made a contribution order against a respondent may order the employer of the respondent -(a)to deduct the amount of the contribution which that respondent has been ordered to pay, from the respondent’s remuneration; and(b)to pay such amount to a person or institution specified in the order.
(3)A person who fails to comply with subsection (2) commits an offence and is liable on conviction to a fine not exceeding N$4 000.

165. Change of residence or work by respondent

(1)A respondent against whom a contribution order is in force must -(a)give notice, in writing, to the clerk of the children’s court which made the order, of any change in that person’s residential address or place of work; and(b)state in that notice the new residential address or the name and address of the new employer, as the case may be.
(2)Any person fails to comply with the provisions of subsection (1) commits an offence and is on conviction liable to a fine not exceeding N$2 000.

166. Minister as respondent in appeals

If an appeal in terms of section 46 is brought by a person against whom a contribution order was made, the Minister must be cited as the respondent in the appeal.

167. Service of process, execution of contribution orders and costs

(1)A summons, a subpoena or a notice in connection with any proceedings under this Chapter may be served by a member of the police without charging any fee in the manner provided for by the rules made under the Magistrates’ Courts Act, for the service of similar documents in civil proceedings in magistrates’ courts, unless any other manner of service has been prescribed.
(2)A writ of attachment in execution of a contribution order must be executed by the messenger of the magistrate’s court of the district in which the property to be attached is situated, and the messenger’s fees and charges for the execution must be paid out of the proceeds of the sale of any such property attached in execution and must be levied in addition and in preference to the amount payable under the contribution order, and if no such sale in execution is held, such fees are payable by the respondent.
(3)Except as provided in subsection (2), a party to the proceedings under this Chapter, including a party to an appeal, may not recover any costs from any other party, and must not pay any court fee in connection with the issue or furnishing of any document in any such proceedings.

Chapter 13
ADOPTION OF CHILDREN


Part 1 – DOMESTIC ADOPTIONS


168. Adoption orders

The adoption of a child is effected by an order of the children’s court of the district in which the adopted child resides, granted on application as provided for in this Chapter.

169. Adoptable children

(1)A child is adoptable if -(a)the child does not have a parent and does not have a suitable guardian or care-giver willing to care for him or her;(b)the whereabouts of the child’s parent or guardian cannot be established and the child does not have a suitable guardian or care-giver willing to care for him or her;(c)the child has been abandoned;(d)the child is to be adopted by a step-parent;(e)the child is in need of a permanent alternative care; or(f)the child’s parent or guardian has consented to the adoption.
(2)A designated social worker must make an assessment of whether a child may be adopted.
(3)For the purposes of subsection (1)(e), a child who is in permanent foster care or stable kinship care is not in need of a permanent alternative care.

170. Persons who may adopt a child

(1)A child may be adopted by -(a)the spouses in a marriage, jointly;(b)the spouse of a parent of the child; or(c)a widower, widow, divorced or an unmarried person, including the foster parent, kinship care-giver or primary caretaker of the child.
(2)A prospective adoptive parent must be -(a)fit and proper to fulfil parental responsibilities and rights;(b)willing and able to exercise, undertake and maintain parental responsibilities and rights;(c)living in circumstances which are suitable for the adoption of a child;(d)25 years of age and older, unless the applicant or applicants can show grounds why he, she or they are suitable to adopt a child at a younger age, but a child may be adopted by a married couple jointly where at least one of the spouses is 25 years of age or older;(e)properly assessed by a designated social worker for compliance with paragraphs (a), (b) and (c), and any proposed exception to the age limit in paragraph (d);(f)in possession of a valid police clearance certificate as contemplated in section 238; and(g)habitually resident in Namibia or if a married couple each of them must be habitually resident in Namibia.
(3)The social worker conducting the assessment in terms of subsection (1), may require, if he or she considers it to be in the best interest of the child to be adopted, that other members of the household where the child is to live be in possession of a valid police clearance certificate contemplated in section 238.[Note that subsection (3) contains an erroneous cross-reference. The social worker assessment referred to is conducted in terms of subsection (2)(e), not subsection (1).]
(4)A prospective adoptive parent who is not a Namibian citizen but who is habitually resident in Namibia may only be registered as a prospective adoptive parent if the Minister is satisfied -(a)that the country of which that person has citizenship recognises the adoption;(b)that the child may enter the country contemplated in paragraph (a) and remain there permanently; and(c)with any prescribed additional information which has been submitted.
(5)A person who wishes to be approved as a prospective adoptive parent must in the prescribed manner make an application to a designated social worker for an assessment contemplated in subsection (2).
(6)A designated social worker must assess a prospective adoptive parent for compliance with subsection (2).
(7)A person may not be disqualified from adopting a child by reason of that person’s financial status, but the prospective adoptive parent must be able to provide for the adoptive child’s basic needs.
(8)A person who has been convicted of an offence contemplated in section 238 is not a fit and proper person, within the meaning of subsection (2)(a), to be an adoptive parent.

171. Register of Adoptable Children and Prospective Adoptive Parents

(1)The Minister must keep a register of children who may be adopted and of prospective adoptive parents, to be known as the Register of Adoptable Children and Prospective Adoptive Parents (hereinafter referred to as the RACAP).
(2)The name and other identifying information of a child must be entered into the RACAP if the child is adoptable.
(3)If the child contemplated in subsection (2) has been adopted the name and other identifying information of the child must remain in the RACAP and an entry must be made in the RACAP that the child has been adopted.
(4)The name and other identifying information of a person approved as a prospective adoptive parent, including that person’s citizenship and residency status, must be entered in the RACAP.
(5)Registration of a person as a prospective adoptive parent -(a)is valid for a period of three years;(b)may be renewed as prescribed;(c)ceases -(i)on written notice of withdrawal being given to the Minister;(ii)on the death of the registered person;(iii)on cancellation by the Minister if the registered person is no longer -(aa)a fit and proper person to be entrusted with full parental responsibilities and rights in respect of a child; and(bb)willing and able to undertake, exercise and maintain those responsibilities and rights.(iv)if a child is removed from the care of the person registered as a prospective adoptive parent as contemplated in Chapter 10;(v)if the person registered as a prospective adoptive parent is convicted of an offence referred to in section 238; or(vi)if an adoption arising from the registration has been concluded.
(6)Only the Minister and staff members of the Ministry designated by the Minister have access to the RACAP.

172. Consent to adoption

(1)The children’s court must only make an adoption order, if consent for the adoption has been given by -(a)each parent of the child regardless of whether the parents are married or not and regardless of whether the parent is a major or minor, but a minor parent who has a parent or guardian must be assisted by that parent or guardian, if available, unless the children’s court dispenses with such assistance with due regard to the best interests of the minor parent and the child whose adoption is under consideration;(b)any other person who holds guardianship in respect of the child to be adopted, excluding the guardian of a minor contemplated in paragraph (a);(c)the child to be adopted, if the child is 10 years of age or older; and(d)the child to be adopted, if the child is under the age of 10 years, but of sufficient maturity and stage of development to understand the effect of giving consent.
(2)Subsection (1) does not include a parent or a person contemplated in subsection (12) or (13) and a child may be adopted without the consent of such parent or person.
(3)Before consent for the adoption of the child is granted in terms of subsection (1), the designated social worker facilitating the adoption of the child must counsel the parents of the child and depending on the child’s age, maturity and stage of development the child on the decision to make the child available for adoption.
(4)If the parent or guardian of a child wishes the child to be adopted by a particular person the parent must state the name of that person in the consent contemplated in subsection (1).
(5)The eligibility of the person contemplated in subsection (4) must be determined in terms of section 170(2) and the children’s commissioner must be satisfied that the expression of wishes in terms of subsection (4) was not a result of undue pressure or inducement.
(6)If a person named in terms of subsection (4) is not habitually resident in Namibia, any requirements relating to inter-country adoption as set out in Part 2 of this Chapter must be complied with.
(7)Consent to the adoption of a child may not be given before the birth of the child.
(8)Consent contemplated in subsection (1) and given -(a)inside Namibia, must be in writing and -(i)signed by the person consenting in the presence of a children’s commissioner;(ii)verified by a children’s commissioner in the prescribed manner; and(iii)filed by the clerk of the children’s court pending an application for the adoption of the child; or(b)outside Namibia, must be in writing and -(i)signed by the person consenting in the presence of a prescribed person;(ii)verified in the prescribed manner and by the prescribed person; and(iii)submitted to and filed by a clerk of the children’s court pending an application for the adoption of the child.
(9)The consent contemplated in subsection (1) must set out the names of the prospective adoptive parents, unless the person giving the consent chooses not to be informed of the identity of the prospective adoptive parents, in which case that choice must be indicated on the consent form.
(10)The court may on good cause shown condone any deficiency in the provision of a consent given outside Namibia in terms of subsection (8)(b) in that the consent -(a)was not signed in the presence of the prescribed person; or(b)was not verified in the prescribed manner or by the prescribed person.
(11)A person referred to in subsection (1) who has consented to the adoption of the child may withdraw the consent within 60 days after having signed the consent, failing which the consent is final irrespective of the period of any delay in finalising the adoption.
(12)The children’s court may dispense with consent of a parent or guardian to an adoption, if -(a)the court is satisfied that the parent or guardian -(i)is incompetent to give consent due to mental incapacity confirmed by a report from a suitably qualified person;(ii)has abandoned the child;(iii)cannot be found or identified by means of the prescribed procedure and period;(iv)has abused or deliberately neglected the child or has allowed the child to be abused or deliberately neglected;(v)did not make an attempt to fulfil his or her parental responsibilities towards the child during the last 12 months;(vi)has been divested by an order of court of the right to consent to the adoption of the child; or(vii)has been convicted of any offence, committed in relation to the child to be adopted, referred to in section 238; or(b)the child is an orphan and does not have a guardian to care for or arrange for the care of the child and the court is provided with certified copies of the child’s parent’s or guardian’s death certificate or such other documentation as may be required by the court.
(13)If the parent referred to in subsection (1) is the biological father of the child, the consent of that parent to the adoption is not necessary if -(a)that biological father is not married to the child’s mother or was not married to her at the time of conception or at any time after conception and has not acknowledged paternity in a manner set out in subsection (14) or in any other prescribed manner that he is the biological father of the child; or(b)the court, following an allegation by the mother of the child, finds on a balance of probabilities that the child was conceived as a result of the rape of the mother, provided that such finding does not constitute a conviction for the crime of rape.
(14)A person referred to in subsection (13)(a) may, for the purposes of that subsection, acknowledge that he is the biological father of a child by -(a)voluntarily paying or offering to pay maintenance in respect of the child;(b)paying damages in respect of the pregnancy in terms of customary law; or(c)causing particulars of himself to be entered in the registration of birth of the child in terms of the Births, Marriages and Deaths Registration Act, 1963 (Act No. 81 of 1963).
(15)A children’s court may on a balance of probabilities make a finding as to the existence of a ground on which a parent or person is excluded in terms of this section from giving consent to the adoption of a child.

173. Unreasonable withholding of consent

(1)If a parent or person referred to in section 172(1) withholds consent for the adoption of a child a children’s court may, despite the absence of such consent, grant an order for the adoption of the child if the court finds that -(a)consent has unreasonably been withheld; and(b)the adoption is in the best interests of the child.
(2)In determining whether consent is being withheld unreasonably, the court must take into account all relevant factors, including -(a)the nature of the relationship during the last two years between the child and the person withholding consent and any findings by a court in this respect; and(b)the prospects of a sound relationship developing between the child and the person withholding consent in the immediate future.

174. Adoption plans

(1)Before the making of an adoption order, but only after the required consents to the adoption have been given, the parties to the adoption may agree on an adoption plan.
(2)If the children’s court, in the course of approving an adoption, concludes that an adoption plan concluded after the adoption order is finalised would be in the best interests of the child concerned, it may direct the parties to attempt to conclude such an agreement and may order the parties to make use of mediation for this purpose.
(3)An adoption plan is a plan agreed to by two or more of the parties to the adoption of a child that may include the making of arrangements for the exchange of information between the parties to the adoption in relation to any one or more of the following -(a)the child’s medical background or condition;(b)the child’s development and important events in the child’s life;(c)the means and nature of contact between the parties and the child; or(d)any other matter relating to the child.
(4)Without limiting the matters for which an adoption plan may be made, an adoption plan may include the manner in which the child is to be assisted to develop a healthy and positive cultural identity and to foster links with the child’s cultural heritage.
(5)An adoption plan -(a)must be in writing;(b)takes effect only if made an order of court;(c)may be amended or terminated only by an order of court on application by -(i)a party to the agreement; or(ii)the adopted child; and(d)must contain the prescribed particulars.
(6)An adoption plan contemplated in subsection (1) may not be entered into without due consideration of the views of the child if the child is of an age, maturity and stage of development to understand the implications of such an agreement.
(7)The designated social worker facilitating the adoption of the child must assist the parties to an adoption in preparing an adoption plan and counsel the parties on the implications of such an agreement.
(8)A court may, when granting an application for the adoption of the child, confirm an adoption plan which is in the best interests of the child.

175. Application for adoption

(1)An application for the adoption of a child must -(a)be made in the prescribed manner to a children’s court in the district in which the child normally resides;(b)be accompanied by a report, in the prescribed format, by a designated social worker containing -(i)information on whether the child is adoptable as contemplated in section 169;(ii)information on whether the adoption is in the best interests of the child; and(iii)prescribed medical information in relation to the child;(c)be accompanied by an assessment referred to in section 170(6);(d)be accompanied by an adoption plan referred to in section 174, if any; and(e)contain such particulars as may be prescribed.
(2)The person who applies for an adoption of a child may not have access to any document lodged with the court by other parties except with the permission of the court.

176. Notice of application to parties

(1)The children’s court may not make an adoption order unless 30 days’ notice of the application for the adoption order has been given by clerk of the children’s court to -(a)each person whose consent to the adoption is required in terms of section 172; and(b)the Minister.
(2)An adoption order may be granted provisionally before the expiry of the period referred to in section 172(11) if the children’s court considers it to be in the best interests of the child concerned to do so, and may, irrespective of whether a provisional order has been granted, be made final upon the expiry of the period referred to in that subsection.
(3)The notice referred to in subsection (1) must -(a)inform the person whose consent is required in terms of section 172 and the Minister of the proposed adoption of the child; and(b)request the person contemplated in paragraph (a) to consent or withhold consent for the adoption.
(4)If a person on whom a notice in terms of subsection (1) has been served fails to comply with a request contained in the notice within 30 days, that person must be regarded as having consented to the adoption.
(5)The court may direct that notice of an application for an adoption order be given to any specified person, if it appears to the court that this is necessary in the interests of justice.

177. Consideration of adoption application

(1)When considering an application for the adoption of a child, the court must take into account all relevant factors, including the following:(a)the best interests of the child;(b)the desirability of identifying and preserving the child’s identity, language, culture and religious ties, and for this purpose the court must have regard to the designated social worker’s assessment in terms of section 169(2) and section 170(6);(c)the need to allow a child who is able to form his or her own views on a matter concerning his or her adoption to express those views freely, which views are to be given due weight in accordance with the developmental capacity of the child and the circumstances;(d)any reasonable preferences expressed by a parent or guardian and stated in that parent or guardian’s consent;(e)the report contemplated in section 175(1)(b); and(f)an adoption plan, if any.
(2)A children’s court considering an application may not make an order for the adoption of a child unless -(a)consent for the adoption has been given in terms of section 172, and the court is satisfied that the parent or guardian of the child understands that the effect of the adoption order means permanent deprivation of parental rights; and(b)consent has not been withdrawn in terms of section 172(11).
(3)If an application for an adoption order is filed and all the applicable requirements of this Act have been complied with, a children’s court may, having regard to all the circumstances of the case, make an order for the adoption of a child and may give such directions regarding the monitoring of the well-being of the adopted child by a designated social worker or other suitably qualified person as the court considers appropriate.

178. Effect of adoption order

(1)Except when provided otherwise in the adoption order or in an adoption plan confirmed by the court, an adoption order terminates -(a)all parental responsibilities and rights any person had in respect of the child immediately before the adoption;(b)all claims to contact with the child by any family member of a person referred to in paragraph (a);(c)all rights and responsibilities the child had in respect of a person referred to in paragraph (a) or (b) immediately before the adoption; and(d)any previous order made in respect of the placement of the child.
(2)An adoption order -(a)confers full parental responsibilities and rights in respect of the adopted child on the adoptive parent;(b)confers the surname of the adoptive parent, or such other surname as may be decided upon by the adoptive parent, on the adopted child, except when otherwise provided in the order;(c)does not permit any marriage or sexual intercourse between the child and any other person which would have been prohibited had the child not been adopted; and(d)does not affect any rights to property acquired by the child before the adoption.
(3)An adopted child is for all purposes regarded as the child of the adoptive parent and an adoptive parent is for all purposes regarded as the parent of the adopted child.

179. Rescission of adoption order

(1)A children’s court may rescind an adoption order on application in the prescribed form by -(a)the adopted child;(b)a parent of the adopted child or other person who had guardianship in respect of the child immediately before the adoption; or(c)the adoptive parent of the child.
(2)An application in terms of subsection (1) must be lodged within a reasonable time but not exceeding one year from the date of the adoption.
(3)An adoption order may be rescinded only if rescission of the order is in the best interest of the child and -(a)the applicant is a parent or guardian of the child whose consent was required for the adoption order to be made, but whose consent was not obtained; or(b)at the time of making the adoption order the adoptive parent did not qualify as such in terms of section 170.
(4)Notice of an application for rescission of an adoption order must be given to -(a)the adoptive parent of that child, if any other person brings the application;(b)all persons who have consented to the adoption in terms of section 172 or who have withheld consent to the adoption, if the child or the adoptive parent brings the application;(c)the Minister and the competent authority responsible for adoptions in the other country, in the case of an inter-country adoption; and(d)any other person whom the court finds has a sufficient interest in the matter.

180. Effect of rescission

(1)As from the date on which the rescission of an adoption order takes effect -(a)the effects of the adoption order as set out in section 178(2) and (3) no longer apply in respect of the child concerned; and(b)all responsibilities, rights and other matters terminated by section 178(1) in respect of the child are restored.
(2)When rescinding an adoption order the court may -(a)make an appropriate placement order in terms of section 145(3) in respect of the child concerned; or(b)order that the child be kept in a place of safety until an appropriate placement order can be made.

181. Recording of adoption in births register

(1)After an adoption order has been made by a children’s court in respect of a child whose birth has been registered in Namibia, the clerk of court must transmit the adoption order to the minister responsible for home affairs, who must alter the birth register accordingly.
(2)A notice in terms of subsection (1) must be accompanied by -(a)the relevant adoption order as registered by the adoption registrar contemplated in section 183;(b)the birth certificate of the child, if any; and(c)the prescribed application to note an adoption.

182. Registration of birth and recording of adoption of child whose birth is registered outside Namibia

(1)After an adoption order has been made by a children’s court in respect of a child whose birth has been registered outside Namibia but whose parents are resident in Namibia, the clerk of the children’s court must transmit the adoption order to the minister responsible for home affairs to register the birth of the child and to record the adoption of the child in the birth register.
(2)An application in terms of subsection (1) must be accompanied by -(a)the relevant adoption order as registered by the adoption registrar contemplated in section 183;(b)the birth certificate of the adopted child or if the birth certificate is not available -(i)other documentary evidence relating to the date of birth of the child; or(ii)a certificate signed by a children’s commissioner specifying the age or estimated age of the child;(c)the prescribed application to note an adoption, completed as far as possible and signed by the adoptive parent; and(d)a fee prescribed in terms of any applicable law, if any.

183. Adoption Register

(1)The Minister must designate a staff member of the Ministry as the adoption registrar, who must in the prescribed manner record information relating to and keep a register, to be known as the Adoption Register, of -(a)the registration numbers allocated to records of adoption cases;(b)the personal details and medical history of adopted children and of their biological parents;(c)particulars of successful appeals against and rescissions of adoption orders; and(d)all other prescribed information in connection with adoptions.
(2)The clerk of the children’s court must -(a)keep a record of all adoption cases by a children’s court, including all adoption orders issued by the court, in the prescribed manner;(b)as soon as is practicable after an adoption order has been issued, forward the adoption order, a copy of the record of the adoption inquiry and other prescribed documents relating to the adoption to the Adoption Registrar; and(c)in the case of an inter-country adoption, forward copies of the documents referred to in paragraph (b) to the Minister.
(3)The Adoption Registrar must -(a)ensure that the births of all children who are to be adopted, including all children listed in the RACAP contemplated in section 171, are registered in accordance with the provisions of the relevant legislation regulating the registration of births; and(b)submit a certified copy of each adoption order made in terms of section 177 or in Part 2 of this Chapter to the minister responsible for home affairs, including a certified copy of any rescission of such order as contemplated in section 179.
(4)The Adoption Registrar may provide to a birth registration authority of a foreign country such information as may be requested by the foreign country relating to a child born in Namibia but adopted by citizens of a foreign country after the competent authority of that country has made the certification required by the Convention.

184. Access to Adoption Register

(1)The information contained in the Adoption Register may not be disclosed to any person, except -(a)to an adopted child after the child has reached the age of 18 years;(b)to the adoptive parent of an adopted child after the child has reached the age of 18 years;(c)to the biological parent or a previous adoptive parent of an adopted child after the child has reached the age of 18 years, but only if the current adoptive parent and the adopted child give their consent in writing;(d)for any official purposes subject to conditions determined by the Minister;(e)by an order of court, if the court finds that such disclosure is in the best interests of the adopted child; or(f)for purposes of research, but information that would reveal the identity of an adopted child or his or her adoptive or biological parent may not be revealed.
(2)The Minister may require a person to receive counselling before disclosing any information contained in the Adoption Register to that person in terms of subsection (1) (a), (b), (c) or (e).
(3)Despite subsection (1), an adopted child or an adoptive parent is entitled to have access to any medical information concerning -(a)the adopted child; or(b)the biological parents of the adopted child, if such information relates directly to the health of the adopted child.
(4)Despite subsection (1), parties to an adoption plan contemplated in section 174 are entitled to have access to such information about the child as has been stated in the plan.

185. Offences in respect of adoption services

(1)A person may not provide adoption services in terms of this Chapter or facilitate an adoption, unless such person is a social worker who is designated by the Minister in terms of section 33 to provide adoption services or to facilitate an adoption.
(2)A person may not -(a)give or receive or agree to give or receive, any consideration, in cash or in kind, for the adoption of a child in terms of Part 1 or Part 2 of this Chapter; or(b)by any means induce another person to give up a child for adoption in terms of Part 1 or Part 2 of this Chapter.
(3)Subsection (2)(a) does not apply to -(a)the care-giver or biological parent of a child receiving compensation for prescribed expenses;(b)a legal practitioner, psychologist or other professional person receiving prescribed fees for services provided in connection with an adoption;(c)an organ of state; or(d)any other prescribed persons.
(4)The payment of expenses referred to in subsection (3)(a) must be arranged through a designated social worker or in the case of medical or other prescribed expenses must be paid directly to the medical institution or other service provider in question.
(5)Expenses incurred in terms of subsection (3) are not refundable if the adoption, due to the death of the child or for any other reason based on good faith, fails to be concluded.
(6)Any person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

186. Advertising

(1)A person may not publish or cause to be published in any form or by any means an advertisement dealing with the placement or adoption of a specific child or calling upon any person to be a surrogate mother of a child.
(2)Subsection (1) does not apply to -(a)the publication of a court order or a notice in terms of this Act;(b)an advertisement by the Ministry for purposes of recruiting prospective adoptive parents for inclusion in the RACAP contemplated in section 171; or(c)other forms of prescribed advertisements.
(3)A person who contravenes a provision of subsection (1) commits an offence and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

187. Regulations

(1)The Minister may make regulations relating to -(a)procedures for determining whether a child has been abandoned by a parent or other person who has parental responsibilities and rights in respect of the child;(b)procedures to be followed to locate persons whose whereabouts are unknown for obtaining their consent to adoptions;(c)procedures for determining the age of a child;(d)procedures for payment for adoption services undertaken by persons or organisations to prevent conflict of interests from arising;(e)requirements that a social worker has to comply with to provide adoption services or inter-country adoption services;(f)procedure and form of an application to be provided with a certificate to render adoption services;(g)advertising guidelines for recruitment of prospective adoptive parents;(h)guidelines for the training of prospective adoptive parents;(i)any other matter required or permitted to be prescribed under this Part; and(j)any other incidental administrative or procedural matter that is necessary to be prescribed for the proper implementation or administration of this Part.
(2)Regulations made under subsection (1) may -(a)create an offence for any contravention of a regulation or a failure to comply with a provision of a regulation; and(b)prescribe penalties in respect of an offence contemplated in paragraph (a) not exceeding a fine of N$ 4 000 or imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

Part 2 – INTER-COUNTRY ADOPTIONS


188. Purpose of this Part

The purpose of this Part is to give practical effect to the provisions relating to inter-country adoption set out in the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption.

189. Convention to have force of law

The Convention has the force of law in Namibia from the date that it becomes binding on Namibia.

190. Central Authority in Namibia

(1)The Minister is the Central Authority for Namibia for the purpose of Article 6(1) of the Convention.
(2)The Minister may exercise all the powers and must perform all the functions that a Central Authority has under the Convention.

191. Delegation of Convention powers and functions

(1)The Minister may, to the extent permitted by the Convention, delegate the powers or functions of a Central Authority under Article 9 or Chapter IV of the Convention to a staff member of the Ministry or to an organ of state as the Minister may consider appropriate.
(2)A delegation under subsection (1) does not prevent the performance or exercise of a power or function delegated under that subsection by the Minister.

192. Recognition of Convention adoptions

The competent authority to certify under Article 23 of the Convention that an adoption has been made in accordance with the Convention is a children’s court designated by the minister responsible for justice for this purpose with the concurrence of the Minister and the Magistrate’s Commission.

193. Notice of adoption application

Each application for the adoption of a child habitually resident in Namibia, whether by prospective adoptive parents habitually resident within or outside the borders of Namibia, must, apart from any other requirements, be served on Namibia’s Central Authority.

194. Application of Part 1

Part 1 of this Chapter applies to the making of an adoption order under the Convention to the extent that such provisions are not inconsistent with the Convention and subject to any additional safeguards and procedures set out in the Convention.

195. Exceptional cases involving inter-country adoptions

(1)The adoption of a child habitually resident in Namibia by a family member of that child resident in a contracting State to the Convention or by a person resident in a contracting State to the Convention who will become an adoptive parent jointly with the child’s biological parent, may be dealt with in the prescribed manner as an inter-country adoption, but the Minister may dispense with one or more of the formal requirements of inter-country adoption if it is in the best interests of the child concerned in the context of a specific case.
(2)The adoption of a child habitually resident in Namibia by a prospective adoptive parent resident in a State that is not a contracting state to the Convention, may be dealt with in the prescribed manner as an inter-country adoption -(a)if the -(i)prospective adoptive parents are family members of that child;(ii)prospective adoptive parents had a pre-existing relationship with the child; or(iii)child has special needs which can only be catered for in the country of habitual residence of the prospective adoptive parents; and(b)if the prospective adoptive parents have been assessed for eligibility to adopt;(c)if the adoption will be recognised in the country of habitual residence of the prospective adoptive parents;(d)if the child to be adopted will be allowed to enter and remain permanently in the country of habitual residence of the prospective adoptive parents; and(e)the standards that are being or will be applied to the adoption accord with those in the Convention.

196. Authority for Namibian accredited bodies to act overseas

The Minister may accredit a social worker or a child protection organisation designated to facilitate inter-country adoptions under section 33 to act in another State which is a contracting state to the Convention.

197. Authority for overseas accredited bodies to act in Namibia

The Minister may authorise a body accredited under Chapter III of the Convention in another contracting state to act in Namibia.

198. Inter-country adoption required in respect of certain children198.

(1)A person, other than the child’s parent, family member or an extended family member, who is not habitually resident in Namibia and who has obtained custody or guardianship of a child who is habitually resident in Namibia by a court order or through any other means may not take or send such child out of Namibia without concluding an inter-country adoption in terms of this Part.
(2)If an application is made in the High Court for the guardianship of a child who is habitually resident in Namibia by a person who is not habitually resident in Namibia, the application must be referred to a children’s court having jurisdiction to be dealt with in terms of this Part as an inter-country adoption.
(3)A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding N$50 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.

199. Regulations

(1)The Minister may make such regulations as are necessary to give practical effect to the provisions of the Convention and the Minister may in particular make regulations relating to -(a)accreditation of bodies in accordance with Articles 10 and 11 of the Convention;(b)authorisation of an accredited body from another contracting State to act in Namibia in accordance with Article 12 of the Convention;(c)procedures governing the giving of consent in accordance with Article 4(c) of the Convention;(d)requirements relating to a child who may be considered for inter-country adoption;(e)requirements relating to the applicants in an inter-country adoption;(f)authority to make orders in relation to inter-country adoption and the form of such orders;(g)additional safeguards that are necessary to ensure that the fundamental rights of the child are respected in the adoption process, including the principle of subsidiarity;(h)any other matter required or permitted to be prescribed under this Part; and(i)any other incidental administrative or procedural matter that is necessary to be prescribed for the proper implementation or administration of this Part.
(2)Regulations made under subsection (1) may -(a)create an offence for any contravention of a regulation or a failure to comply with a provision of a regulation; and(b)prescribe penalties in respect of an offence contemplated in paragraph (a) not exceeding a fine of N$4 000 or imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

Chapter 14
CHILD TRAFFICKING


Part 1 – GENERAL PROVISIONS IN RESPECT OF CHILD TRAFFICKING


200. Definitions relating to this Chapter

(1)For the purpose of this Chapter -carrier” includes a person who is the owner or employee of the owner, an agent, an operator, a lessor, a driver, a charterer or a master, of any means of transport;