Child Care and Protection Act, 2015

Act 3 of 2015

This is the latest version of this Act.

Citation

Act 3 of 2015

Date

Language

English

Type

Act

Child Care and Protection Act, 2015

Act 3 of 2015

Published in Government Gazette 5744 on 29 May 2015
Assented to on 22 April 2015
Commenced on 30 January 2019 by Commencement of Child Care and Protection Act, 2015
[This is the version of this document from 14 November 2019 and includes any amendments published up to 23 August 2024.]

[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 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

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 Care and Protection Act, 2015

Act 3 of 2015

Related documents

Child Care and Protection Act, 2015

Act 3 of 2015

Chapter 1DEFINITIONS

1. Definitions

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

2. Objects of Act

3. Best interests of the child

4. Child participation

5. General principles

6. Children’s rights to basic conditions of living

7. Duties in respect of children

8. Children’s duties and responsibilities

9. Children with disabilities

10. Age of majority

Chapter 3ADMINISTRATION

Part 1 – NATIONAL ADVISORY COUNCIL ON CHILDREN

11. Establishment of National Advisory Council on Children

12. Functions of Council

13. Access to information

14. Composition of Council

15. Disqualification for appointment

16. Tenure and vacation of office of members of Council

17. Allowances

18. Committees

19. Meetings

20. Performance of administrative work of Council

21. External advisors

22. Consultation with Council

23. Annual reports by ministries

24. Annual report by Council

Part 2 – CHILDREN’S ADVOCATE

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

Part 3 – CHILDREN’S FUND

26. Establishment of Children’s Fund

27. Use of money in Fund

28. Administration of Fund

29. Banking accounts

30. Accountability, accounts and audits

31. Annual report and other reports

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

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

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

35. Appointment or designation of probation officers

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

Part 5 – REGULATIONS

37. Regulations

Chapter 4CHILDREN’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

39. Clerks of children’s court

40. Assessors

41. Geographical area of jurisdiction of children’s court

42. Referral of children by other court for investigation

43. Pre-hearing conferences

44. Lay-forums

45. Settling of matters out of court

46. Appeals

Part 2 – CHILDREN’S COURT PROCEEDINGS AND RULES

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

48. Reports ordered by court

49. Status of reports

50. Adjournments

51. Monitoring of court orders

52. Who may approach children’s court

53. Parties in children’s court proceedings

54. Children’s court environment

55. Private nature of proceedings and vulnerable witnesses

56. Conduct of proceedings

57. Recording of non-participation by child

58. Legal representation

59. Witnesses

60. Witness fees and allowances

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

62. Confidentiality of records of children’s court proceedings

Part 3 – REGULATIONS

63. Regulations

Chapter 1
DEFINITIONS

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

Chapter 3
ADMINISTRATION

Chapter 4
CHILDREN’S COURTS AND COURT PROCEEDINGS

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