Child Care and Protection Act, 2015 (Act 3 of 2015)

Government Gazette no. 5744
This is the latest version of this legislation commenced on 14 Nov 2019.
Coat of Arms

Child Care and Protection Act, 2015

Act 3 of 2015

  1. [Amended by Combating of Trafficking in Persons Act, 2018 (Act 1 of 2018) on 14 November 2019]


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;[definition of “United Nations Protocol to Prevent Trafficking in Persons” deleted by section 28(1)(b) of Act 1 of 2018]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;[definition of “victim of child trafficking” deleted by section 28(1)(a) of Act 1 of 2018]

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