CHAPTER 26:03
CHILD CARE, PROTECTION AND JUSTICE

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
CHILD CARE AND PROTECTION

Division 1
Child Care and Protection by the Family

   3.   Duties and responsibilities of parents

   4.   Duties and responsibilities of children

   5.   Parentage

   6.   Evidence of parentage

   7.   Determination of parentage

   8.   Custody and access

   9.   Application for maintenance

   10.   Consideration for maintenance

   11.   Request for social inquiry report

   12.   Maintenance order

   13.   Attachment order

   14.   Persons entitled to receive maintenance funds

   15.   Duration of maintenance order

   16.   Continuation of maintenance orders

   17.   Variation or discharge of orders

   18.   Enforcement of maintenance orders

   19.   Joint responsibility to maintain a child

   20.   Maintenance during matrimonial proceedings

   21.   Power to make maintenance funds to be paid to a person other than the applicant

   22.   Offences

Division 2
Children in Need of Care and Protection

   23.   Determination of children in need of care and protection

   24.   Taking a child into place of safety

   25.   Presentation before child justice court

   26.   Child in need of medical examination

   27.   Medical examination and treatment

   28.   Hospitalization

   29.   Control over hospitalized children

   30.   Authorization of medical treatment

   31.   Steps to be taken after medical examination or treatment

   32.   No liability incurred for giving authorization

   33.   Duty of a medical officer

   34.   Duty of members of the family

   35.   Duty of child care provider

   36.   Duty of members of the community

   37.   Functions of child justice courts in cases of children in need of care

Division 3
Guardianship

   38.   Appointment of guardian

   39.   Appointment of a testamentary guardian

   40.   Application for the appointment of guardian by a child or family member

   41.   Application for the appointment of a guardian by other persons, other than a child or a family member

   42.   Extension of guardianship beyond a child's sixteenth birthday

   43.   Power to revoke, modify or vary a guardians order

   44.   Disputes between guardians

   45.   Offences by guardians

Division 4
Fosterage

   46.   Public foster homes

   47.   Private foster homes

   48.   Management of foster homes

   49.   Foster home placement

   50.   Responsibilities of a manager of a foster home

   51.   Commitment of a child to a foster parent

   52.   Application to foster a child

   53.   Responsibilities of foster parents

   54.   Persons qualified to foster children

   55.   Procedure before placement

   56.   Religion

   57.   Cultural background

   58.   Undertaking by foster parents

   59.   Medical arrangements

   60.   Supervising officer

   61.   Visits during placement

   62.   Marriages

   63.   Termination of placement

   64.   Surrendering a foster child

   65.   Illness of foster child

   66.   Death of foster child

   67.   Records

   68.   Application for adoption

   69.   Offences

Division 5
Support for Children by Local Authorities

   70.   General functions of local government authorities

   71.   Secretary for children affairs

   72.   Registration of children with disabilities

   73.   Duty to provide accommodation to children in need

   74.   Tracing of parents or guardians

   75.   Duty to report infringement of a child's rights

   76.   Registration of births and deaths of children

   77.   Registration of children affected by HIV and AIDS

Division 6
Protection of Children from Undesirable Practices

   78.   Child abduction

   79.   Child trafficking

   80.   Harmful cultural practices

   81.   Forced marriage or betrothal

   82.   Pledge of a child as security

   83.   Offences

   84.   Inquiries and placements

   85.   Child recovery order

PART III
CHILDREN SUSPECTED TO HAVE COMMITTED OFFENCES

Division 1
General Principles

   86.   Mode of pronouncing a finding against a child

   87.   Non-effect of a finding against a child

   88.   General consideration

Division 2
Methods of Bringing a Child Offender Before a Court or Other Inquiry

   89.   Arrest of a child

   90.   Guidelines on arrest of children

   91.   Summons

   92.   Arrest of a child by a private person

   93.   Reference to a probation officer

   94.   Police powers to caution and release

Division 3
Detention Before a Finding Against a Child

   95.   Restriction on detention before a finding against a child

   96.   Places of detention before a finding against a child

   97.   Child not to associate with adult offender

   98.   Bail of children

Division 4
Preliminary Inquiry

   99.   Nature and objectives of a preliminary inquiry

   100.   Persons who shall attend a preliminary inquiry

   101.   Persons who may attend a preliminary inquiry

   102.   Procedure relating to holding a preliminary inquiry

   103.   General powers and duties of an inquiry magistrate

   104.   Release or detention of a child by inquiry magistrate

   105.   Evidentiary matters

   106.   Separation and joinder of proceedings of a preliminary inquiry

   107.   Adjourning a preliminary inquiry

   108.   Failure to comply with conditions pursuant to adjournment of a preliminary inquiry

   109.   Failure to appear at a preliminary inquiry

   110.   Decisions regarding diversion, withdrawal, of prosecution of charges or transfer to a child justice court

   111.   Procedure upon referral of matter to court

Division 5
Diversion

   112.   Diversion to occur in certain circumstances

   113.   Diversion options

   114.   Minimum standards applicable to diversion

   115.   Registration of diversion programmes

   116.   Establishment of child panels

   117.   Procedure of child panels

   118.   Victim-offender mediation or other restorative justice

   119.   Failure to comply with diversion orders

   120.   Monitoring programmes of diversion

   121.   Keeping of records

PART IV
DETERMINATION OF AGE OF A CHILD

   122.   Application of this Part

   123.   Age estimation by a probation officer

   124.   Age determination at a preliminary inquiry

   125.   Age assessment and determination by an officer presiding in a criminal court other than a child justice court

PART V
LEGAL REPRESENTATION

   126.   Access by a child to legal representation

   127.   Child to be provided with legal representation at State expense

   128.   Requirements to be complied with by legal representatives

   129.   Mode of seeking legal representation at State expense

   130.   Child may not waive legal representation

   131.   Legal assistance

PART VI
CHILD JUSTICE COURTS: ESTABLISHMENT, JURISDICTION, COMPOSITION, PROCEDURE AND POWERS

   132.   Establishment of child justice courts

   133.   Composition of a child justice court

   134.   Jurisdiction of a child justice court

   135.   Parent or guardian may be allowed to attend court

   136.   Separation and joinder of trials involving children and adults

   137.   Jury trials in children matters

   138.   Places of sitting of child justice court and person who may attend the proccedings

   139.   Restriction on media reports of proceedings in a child justice court

   140.   Restrictions on punishment of children

   141.   Punishment of certain grave crimes

   142.   Power to order parent or guardian to pay fine imposed instead of a child

   143.   Duty of other courts to remit children to a child justice court

   144.   Criminal procedure in a child justice court

   145.   Proceedings of a child justice court to be informal

   146.   Power of child justice court on proof of offence

   147.   Reformatory centre orders and other orders for detention

   148.   Escape from custody or care and breach of court condition

   149.   Appeal and review

PART VII
CHILD CASE REVIEW BOARD

   150.   Establishment of Child Case Review Board

   151.   Tenure of office for members of the Board

   152.   Proceedings of the Board

   153.   Functions of the Board

   154.   Powers of the Board

   155.   Secretariat of the Board

   156.   Funding for the Board

PART VIII
REFORMATORY CENTRES AND SAFETY HOMES

   157.   Public reformatory centres and public safety homes

   158.   Minister may appoint private reformatory centres and private safety homes

   159.   Reformatory Centres and Safety Homes (Management) Rules

   160.   Manager shall send monthly reports to the Board and allow inspection

   161.   Inspection of reformatory centres and safety homes

   162.   Powers of a Minister to direct closure of reformatory centres or safety homes

   163.   Application to review Minister's decision on closure of a reformatory centre or safety home

   164.   Manager, proprietor, his executor, administrator may apply for closure

   165.   Duty to receive children

   166.   Effect of closure notice and cancellation of certificate

   167.   Discharge or transfer of children

   168.   Review of cases of detained children

   169.   Reformatory centres, safety homes lawful places of detention

   170.   Illness of children detained

   171.   Return after treatment

   172.   Duty to prevent escape

   173.   Breaches of rules of discipline

   174.   Penalties for assisting or inducing escape and for harbouring or concealing escaped children

   175.   Presumption of evidence of identity

   176.   Disciplinary rules

PART IX
GENERAL

   177.   Contribution order

   178.   Funds for public reformatory centres, public safety homes and public foster homes

   179.   Duties and powers of a person to whom a child is committed

   180.   Duties arising from a probation order

   181.   General offences

   182.   Mistake as to age

   183.   Extension of application of the Act

   184.   Regulations and rules

   185.   Court rules

   186.   Repeals and savings

PART X
TRANSITIONAL PROVISIONS

   187.   Transfer of children

   188.   Remittance of a list of children

   189.   Proceedings under the repealed Acts

   Schedules

      First Schedule

      Second Schedule

      Third Schedule

      Fourth Schedule

      Fifth Schedule

      Sixth Schedule

      Seventh Schedule

      Eighth Schedule

22 of 2010
G.N. 48/2011

An Act to consolidate the law relating to children by making provision for child care and protection and for child justice; and for matters of social development of the child and for connected matters

[1ST OCTOBER 2011]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Child Care, Protection and Justice Act.

2.   Interpretation

   In this Act, unless the context otherwise requires—

   “appropriate adult” means an adult relative or any adult who knows the child or is known to the child or any person appointed by the court, but shall not include—

   (a)   a police officer, investigator, prosecutor or any person working with the police in relation to the case;

   (b)   victim of the offence;

   (c)   a witness in the case whether for or against the child; or

   (d)   a person who has been convicted in relation to an offence involving child abuse;

   “Board” means the Child Case Review Board established under section 150;

   “child” means a person below the age of sixteen years;

   “child” used in relation to proceedings before age determination shall, if the age is unknown, includes a person who appears to be below sixteen years of age;

   “child justice court” means a subordinate court established under section 132;

   “child panel” means a child panel established under section 116:

   “court” in relation to proceedings relating to a child, includes any tribunal;

   “diversion” means the referral of cases of child offenders away from formal court proceedings with or without conditions;

   “diversion option” means a plan or a programme of diversion of a prescribed order and content and of specified duration;

   “foster care” means the placement of a child in a foster home or with a foster parent;

   “foster child” means a child placed in a foster home or with a foster parent;

   “foster parent” means a person with whom a child is placed for foster care and protection under this Act;

   “foster home” means a home approved by the Minister under section 46 or 47;

   “guardian” means a person who has lawful or legitimate custody, care or control of a child in place of a parent;

   “parent” includes an adoptive parent, foster parent or any person acting in whatever way as parent;

   “parent, guardian, or appropriate adult” used in relation to a child means a parent, guardian or appropriate adult of the child;

   “place of detention” means a place of detention as provided under this Act;

   “place of safety” means an appropriate place where a child in need of care and protection can be kept temporarily and includes a safety home or a foster home;

   “private reformatory centre” means a reformatory centre established under section 158;

   “private safety home” means a safety home established under section 158;

   “medical officer” means any person duly authorized to perform duties of a medical personnel and includes a health worker;

   “probation officer” means a person appointed as such under section 15 of the Probation of Offenders Act or any other qualified person whom the Minister may appoint to perform probation duties for the purposes of this Act;

   “public reformatory centre” means a reformatory centre established under section 157;

   “public safety home” means a safety home established under section 157;

   “reformatory centre” means a home or institution or part thereof established for the purposes of—

   (a)   reception, education and vocational training; and

   (b)   counselling of children in accordance with this Act.

   “restorative justice” means the promotion of reconciliation, reconstruction and sense of responsibility in respect of the offence committed by a child;

   “safety home” means a place or part thereof for the purposes of reception, education, counseling and safety of children before conclusion of trial or in circumstances requiring placement of a child for care and protection.

   “serious offence” in relation to a child means any of the offences listed in the Fourth Schedule;

   “vocational training” means training in some branch of useful industry, including agriculture.

PART II
CHILD CARE AND PROTECTION

Division 1
Child Care and Protection by the Family

3.   Duties and responsibilities of parents

   (1) In addition to the duties and responsibilities imposed by section 23 of the Constitution, a parent or guardian—

   (a)   shall not deprive a child of his or her welfare;

   (b)   has responsibilities whether imposed by law or otherwise towards the child which include the responsibility to—

      (i)   protect the child from neglect, discrimination, violence, abuse, exploitation, oppression and exposure to physical, mental, social and moral hazards;

      (ii)   provide proper guidance, care, assistance and maintenance for the child to ensure his or her survival and development, including in particular adequate diet, clothing, shelter and medical attention;

      (iii)   ensure that during the temporary absence of the parent or guardian, the child shall be cared for by a competent person;

      (iv)   exercise joint primary responsibility for raising their children,

except where the parent or guardian has forfeited or surrendered his or her rights and responsibilities in accordance with the law.

   (2) A parent or guardian shall be responsible for the registration of the birth of his or her children.

   (3) The fact that a parent or guardian has parental responsibility for a child shall not entitle him or her to act in any way which would be incompatible with any court order made in respect of the child.

   (4) Subject to this Act, a person who does not have parental responsibility for a particular child but has care of the child may do what is reasonable in all the circumstances of the case for the purposes of safeguarding or promoting the welfare of the child.

   (5) Where it is more than one person that have parental response-bility for a child, each of them may act alone and without the other or others in meeting that responsibility; but nothing in this Division shall affect the operation of any law which requires the consent of more than one person in a matter affecting the child.

4.   Duties and responsibilities of children

   In the application of the provisions of this Act, and in any matter concerning a child, due regard shall be had to duties and responsibilities of the child to—

   (a)   respect the parents, guardians, superiors and elders at all times and depending on the age of the child assist them in cases of need;

   (b)   serve the community by placing his or her physical and intellectual abilities at its service;

   (c)   preserve and strengthen social and national unity and character of Malawi;

   (d)   uphold the positive values of the community; and

   (e)   contribute towards the child’s own development into being a useful member of the society,

but due regard shall be paid to the age and ability of the child and to such limitations as are contained in this Act.

5.   Parentage

   (1) Where the parents of a child are not known or where parentage is disputed, the following persons may apply to a child justice court for an order to determine the parentage of a child—

   (a)   the child;

   (b)   the parent of the child;

   (c)   the guardian of the child;

   (d)   a probation officer;

   (e)   a social welfare officer; or

   (f)   any other interested person as the child justice court may deem fit.

   (2) The application for parentage may be made—

   (a)   before the child is born; or

   (b)   before a child is sixteen years of age or after the child has attained that age but with special leave of a child justice court or the High Court.

   (3) For the purposes of succession and inheritance, the application for parentage shall be made within three years after the death of the father or mother of a child.

6.   Evidence of parentage

   (1) The following shall be considered by a child justice court as evidence of parentage—

   (a)   the name of the parent entered in the register of births;

   (b)   performance of a customary ceremony towards the child by the purported father of the child;

   (c)   refusal by the purported father to submit to medical test;

   (d)   public knowledge of parentage; and

   (e)   any other matter that the child justice court may consider relevant.

   (2) The child justice court may order the putative father to submit to a medical test.

7.   Determination of parentage

   The child justice court shall, on the basis of the evidence under section 6 determine whether or not the alleged parent is the parent of the child.

8.   Custody and access

   (1) A parent, a family member or any other appropriate person may apply to a child justice court for custody of a child.

   (2) A family member or any other appropriate person may apply to a child justice court for periodic access to the child.

   (3) The child justice court shall consider the best interests of the child and the importance of the child, on account of age, being with his mother when making an order for custody or access.

   (4) In addition to the matters under subsection (3), a child justice court shall consider—

   (a)   the views of the child;

   (b)   that it is desirable to keep siblings together; and

   (c)   any other matter the child justice court may consider relevant.

   (5) Upon application for custody or access under this section, the child justice court may make an order granting the applicant custody or the access to the child, and may attach such conditions as the court may consider appropriate.

9.   Application for maintenance

   (1) Where a parent or any other person who is legally liable to maintain a child or to contribute towards the maintenance of the child, neglects to maintain the child, neglects to maintain the child or to make the contribution, the following persons may apply against such person to the child justice court for a maintenance order of the child—

   (a)   the child;

   (b)   the parent of the child;

   (c)   the guardian of the child;

   (d)   relatives of the child;

   (e)   a social welfare officer;

   (f)   a police officer;

   (g)   a teacher;

   (h)   a health officer; and

   (i)   any other appropriate person.

10.   Consideration for maintenance

   A child justice court shall consider the following when making a maintenance order—

   (a)   the income and wealth of both parents of the child or of the person legally liable to maintain the child;

   (b)   any impairment in the earning capacity of the person with a duty to maintain the child;

   (c)   the financial responsibility of the person with respect to the maintenance of other children;

   (d)   the cost of living in the area where the child resides;

   (e)   the rights of the child under this Act; and

   (f)   any other matter, which the child justice court may consider relevant.

11.   Request for social inquiry report

   A child justice court may request that a social welfare officer prepare a social inquiry report on the issue of maintenance and submit the report to the child justice court for consideration before the child justice court makes the maintenance order.

12.   Maintenance order

   A child justice court may award maintenance to the child and the maintenance order may include the following—

   (a)   periodic expenses for the child;

   (b)   a periodic allowance for the maintenance of the child; and

   (c)   the payment of a reasonable sum to be determined by the child justice court for the education of the child.

13.   Attachment order

   (1) Where periodic payment or lump sum payment for the maintenance of a child has been ordered, the child justice court may order that the earnings, salary or property of the person liable, be attached.

   (2) The attachment order shall be applicable in all cases of failure to pay maintenance.

   (3) The attachment order may be directed to the employer to deduct the sum of the maintenance funds every time payment of the salary is made.

   (4) If the maintenance order is made before the birth of the child or within two months after the birth of the child, such payment may. if the court thinks fit, be calculated from the birth of the child.

14.   Persons entitled to receive maintenance funds

   (1) A person who has custody of a child who is the subject of a maintenance order under the Act is under a duty to receive and administer the funds on behalf of the child.

   (2) A copy of the maintenance order shall be served on the public officer or the local government officer responsible for children welfare in the area.

   (3) The public officer or the local government officer shall make quarterly reports to the child justice court that made the order on the way funds are being administered.

15.   Duration of maintenance order

   (1) A maintenance order made in pursuance of this Act, shall, except for purposes only of recovering money previously due under such order, cease to be of any force or validity—

   (a)   after the death of the child;

   (b)   after the marriage of the child;

   (c)   after the child has attained the age of sixteen years.

   (2) A maintenance order may lapse before the child attains the age of sixteen years if before that age the child is gainfully and permanently employed.

16.   Continuation of maintenance order

   (1) Notwithstanding the provisions of section 15, a child justice court may continue or order a resumption of a maintenance order after the child has attained the age of sixteen years if the child is engaged in education or training after that age, up to obtaining his or her first university qualification where applicable.

   (2) An application under this section may be brought by the child a parent or guardian, or any other person who has custody of the child.

17.   Variation or discharge of orders

   A child justice court may, if satisfied that the interests of the child will be better protected or will not be adversely affected, vary or discharge, as the case may be, a maintenance order on the application of the child, a parent, guardian, the person having custody of the child or any other person legally liable to maintain the child. ’

18.   Enforcement of maintenance orders

   Maintenance orders shall be enforced thirty days after the order is made, but a child justice court may in appropriate circumstances, make an order for a longer period.

19.   Joint responsibility to maintain a child

   Unless the child justice court orders otherwise, the responsibility to maintain a child as between parents and guardians shall be joint and several.

20.   Maintenance during matrimonial proceedings

   A child justice court or High Court shall have power to make a maintenance order against either parent or both parents where proceedings for nullity, judicial separation, divorce or any other matrimonial proceedings are tiled by either parent, and such order may be made during such proceedings or after a final decree is made in such proceedings.

21.   Power to make maintenance funds to be paid to a person other than the applicant

   Whenever a maintenance order is made under this Act, the child justice court may. at the time of making the order, or from time to time thereafter, on being satisfied that the person having custody of the child

   (a)   is not or has ceased to be a fit and proper person to receive any maintenance funds specified in the order in respect of the child;

   (b)   has left the jurisdiction of the child justice court for an indefinite period;

   (c)   is dead or is incapacitated or has become of unsound mind;

   (d)   has been imprisoned or has been declared insolvent;

   (e)   has misappropriated, misapplied or mismanaged any maintenance funds paid to him for the benefit of the child;

   (f)   has otherwise committed an offence under this Act,

appoint any other person it considers fit and responsible to receive and administer any maintenance funds required to be paid under a maintenance order, or order the person required to make a payment of the maintenance funds to invest the funds in whole or in part in trust for the benefit of the child.

22.   Offences

   (1) A person who, being liable to maintain a child under a maintenance order, fails to maintain the child in respect of food, clothing, health, basic education and reasonable shelter, commits an offence and   

   (a)   on first conviction, shall be liable to pay the maintenance order;

   (b)   on the second or every subsequent conviction for continuous failure to maintain the child, shall be liable to imprisonment for one year.

   (2) A person who misapplies funds paid under, a maintenance order commits an offence and shall be liable to imprisonment for one year and a fine of K50,000.

Division 2
Children in Need of Care and Protection

23.   Determination of children in need of care and protection

   (1) A child is in need of care and protection if—   

   (a)   the child has been or there is substantial risk that the child will be physically, psychologically or emotionally injured or sexually abused by the parent or guardian or a member of the family or any other person;

   (b)   the child has been or there is substantial risk that the child will be physically injured or emotionally injured or sexually abused and the parent or guardian or any other person, knowing of such injury, risk or abuse, has not protected or is unlikely to protect the child from such injury, risk or abuse;

   (c)   the parent or guardian of the child is unfit or has neglected, or is unable, to exercise proper supervision and control over the child and the child is falling into undesirable association;

   (d)   the parent or guardian of the child has neglected or is unwilling to provide for the child’s adequate care, food, clothing, shelter, education and health;

   (e)   the child—

      (i)   has no parent or guardian; or

      (ii)   has been abandoned by the parents or guardians and after reasonable inquiries the parents or guardians cannot be found, and no other suitable person is willing and able to care for the child;

   (f)   the child needs to be examined, investigated or treated for the purposes of restoring or preserving the health of the child and if the parents or guardians neglects or refuse to have the child so examined, investigated or treated;

   (g)   the child behaves in a manner that is, or is likely to be, harmful to the child or to any other person and the parents or guardians are unable or unwilling to take necessary measures to remedy the situation or the remedial measures taken by the parents or guardians have failed and as a result the child cannot be controlled by his parents or guardians;

   (h)   there is such a conflict between the child and the parents or guardians of the child, or between the parents or guardians, that family relationships are seriously disrupted, thereby causing the child emotional injury:

   (i)   the child is in the custody of a person who has been convicted of committing an offence in connexion with that child;

   (j)   the child frequents the company of immoral, vicious, or otherwise undesirable person or persons or is living in circumstances calculated to cause or induce the seduction, corruption or prostitution of the child;

   (k)   the child is allowed to be on a street, premises or any place for the purpose of—

      (i)   begging or receiving alms, whether or not there is any pretence of singing, playing, performing or offering anything for sale and as a result the child becomes a habitual beggar;

      (ii)   carrying out illegal hawking, illegal lotteries, gambling or other illegal activities detrimental to the health and welfare or retard the educational advancement of the child;

   (l)   the child cannot be controlled by his/her parent or guardian or the person in custody of the child: and

   (m)   if the child is assessed by the Social Welfare Officer to be in need of care and protection.

   (2) For the purposes of this Division, a child is—

   (a)   physically injured if there is injury to any part of the body of the child as a result of the non-accidental application of force or agent to the child’s body that is evidenced by. among other things, a laceration, a concussion, an abrasion, a scar, a fracture or other bone injury, a dislocation, a sprain, a haemorrhaging, a rupture, a burn, a scald, loss or alteration of consciousness or loss of hair or teeth;

   (b)   emotionally and psychologically injured if there is impairment of the mental or emotional functioning of the child that is evidenced by, amongst other things, a mental or behavioural disorder, including anxiety, depression, withdrawal, aggression or delayed development;

   (c)   sexually abused if the child has taken part, whether as a participant or an observer, in any activity which is sexual in nature for the purposes of—

      (i)   any pornographic or indecent material, photograph, recording, film, videotape or performance; or

      (ii)   sexual exploitation by any person for sexual gratification or for commercial gain.

24.   Taking a child into place of safety

   A police officer, social welfare officer, a chief or any member of the community, if satisfied on reasonable grounds that a child is in need of care and protection, may take the child and place him/her into his/her temporary custody or a place of safety.

25.   Presentation before child justice court

   (1) Subject to section 26, a child who is taken into a place of safety under section 24 shall be brought before a child justice court within forty-eight hours.

   (2) If it is not possible to bring a child before a child justice court within the time specified under subsection (1), the child shall be brought before any magistrate who may direct that the child be placed in—

   (a)   a place of safety; or

   (b)   the care of a fit and proper person,

until such time as the child can be brought before a child justice court.

   (3) Where a child in need of care and protection is brought before a child justice court, the court shall, if the age of the child is not known, refer him/her to a probation officer for age estimation.

   (4) If a child is in a place of safety or in the care of a fit and proper person under subsection (2)—

   (a)   the person in charge of the place of safety or such fit and proper person shall have like control over, and responsibility for the maintenance of, the child as the parent or guardian of the child would have had; and

   (b)   the child shall continue to be in the care of the person referred to in paragraph (a) notwithstanding that the child is claimed by the parent or guardian or any other person.

   (5) A social welfare officer, police officer, chief or any member of the community who takes a child to a place of safety under this section shall, immediately upon such taking, cause the parent or guardian of the child to be notified of such taking if the parents are known and if it is practicable to do so.

   (6) A police officer, chief or any member of the community who takes a child into temporary custody under this section shall, immediately upon such taking, notify the social welfare officer of such taking.

26.   Child in need of medical examination

   (1) If a social welfare officer, police officer, chief or any member of the community is of the opinion that a child is in need of medical examination or treatment he may, instead of bringing the child before a child justice court present the child for medical care.

   (2) If a social welfare officer, police officer or chief is satisfied on reasonable grounds that the child is in need of medical examination or treatment, he may direct either in writing or orally that the person keeping the child for the time being immediately present the child for medical care.

   (3) If the person referred to under subsection (2) fails to comply within forty-eight (48) hours with a direction made under that subsection, the social welfare officer, police officer or chief may take the child into temporary custody for the purpose of taking the child for the medical care.

27.   Medical examination and treatment

   (1) A medical officer before whom a child is presented under section 26 shall provide or cause to be provided such examination or treatment as the medical officer thinks necessary.

   (2) The child who is presented before a medical officer under subsection (1) shall be exempted from medical fees with the authority of a District Social Welfare Officer.

   (3) The medical officer shall upon completing the treatment present a report to the person who brought the child for the medical care.

28.   Hospitalization

   If the medical officer is of the opinion that hospitalization of the child is necessary, he/she shall cause the child to be so hospitalized.

29.   Control over hospitalized children

   If a child is hospitalized under section 28, the social welfare officer shall have the same control and responsibility over the maintenance of the child as the person in charge of a place of safety would have had if the child had been placed in a place of safety.

30.   Authorization of medical treatment

   (1) If, in the opinion of the medical officer, the child referred to under section 28 is suffering from a minor illness, injury or condition, the treatment may be authorized by a social welfare officer.

   (2) If, in the opinion of the medical officer, the child referred to in section 28 is suffering from a serious illness, injury or condition or requires surgery or psychiatric examination or treatment, a social welfare officer or police officer—

   (a)   shall immediately notify or take reasonable steps to notify and consult the parent or guardian of the child or any person having authority to consent to such examination or treatment; and

   (b)   may, with the written consent of the parents or guardians or such other appropriate person, authorize such medical or surgical or psychiatric examination or treatment as may be considered necessary by the health worker.

   (3) If a medical officer has certified in writing that there is immediate risk to the health of a child, a social welfare officer or police officer may authorize, without obtaining the consent referred to in subsection (2), such medical or surgical or psychiatric examination or treatment as may be considered necessary by the medical officer but only under any of the following circumstances—

   (a)   that the parent or guardian of the child or any person having authority to consent to such examination or treatment has unreasonably refused to give, or abstained from giving, consent to such treatment;

   (b)   that the parent or guardian or the person having authority to consent to such examination or treatment is not available or cannot be found within a reasonable time; or

   (c)   the social welfare officer or the police officer believes on reasonable grounds that the parent or guardian or the person having authority to consent to such examination or treatment has ill-treated, neglected, abandoned, or exposed or sexually abused, the child.

31.   Steps to be taken after medical examination or treatment

   (1) A child who is placed in a place of safety and is medically examined or treated shall be brought before a child justice court within forty-eight hours—

   (a)   of the completion of such examination or treatment; or

   (b)   if the child is hospitalized, of his/her discharge from the hospital.

   (2) If it is not possible to bring the child before the child justice court within the time specified in subsection (1), the child shall be brought before any magistrate who may direct that the child be placed in—

   (a)   a place of safety; or

   (b)   the care of a fit and proper person,

until such time as the child can be brought before child justice court,

   (3) A child who—

   (a)   is taken into custody under section 24; and

   (b)   subsequently undergoes medical examination or treatment, may be returned to the person from whose care the child was taken upon the completion of such examination or treatment or if the child is hospitalized, upon discharge from the hospital.

32.   No liability incurred for giving authorization

   (1) If a child is examined or treated pursuant to section 27

   (a)   the social welfare officer or police officer who authorizes such examination or treatment;

   (b)   the medical officer who examines or treats the child; and

   (c)   all persons acting in aid of the medical officer,

shall not incur any civil or criminal liability at law by reason only that a child is examined or treated pursuant to that section.

   (2) Nothing contained in subsection (1) relieves a medical officer from liability in respect of any negligent medical examination or treatment of a child.

33.   Duty of a medical officer

   (1) A medical officer shall, if he believes on reasonable grounds that a child being examined or treated is physically, psychologically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, immediately inform a social welfare officer or police officer.

   (2) A medical officer who fails to comply with subsection (1) commits an offence and shall be liable to a fine of K20,000 and to imprisonment for six months.

34.   Duty of members of the family

   (1) If any member of the family of a child believes on reasonable grounds that the child is physically, psychologically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, he/she shall immediately inform a social welfare officer or a police officer.

   (2) A member of the family who fails to comply with subsection (1) commits an offence and shall be released on a binding agreement on conditions to be determined by the court.

35.   Duty of child care provider

   (1) If a child care provider believes on reasonable grounds that a child is physically, psychologically or emotionally injured as a result of being ill-treated, neglected, abandoned or exposed, or is sexually abused, he/she shall inform a social welfare officer or a police officer.

   (2) If a child care provider fails to comply with subsection (1) commits an offence and shall be liable to a fine of K10,000 and to imprisonment for three months.

36.   Duty of members of the community

   (1) If a member of the community believes on reasonable grounds that a child is physically, psychologically or emotionally injured, abandoned, or exposed, or is sexually abused, he/she shall immediately inform a chief, a police officer or a social welfare officer.

   (2) A member of the community who fails to comply with subsection (1) commits an offence and shall be liable to a fine of K10,000 and to imprisonment for three months.

37.   Functions of child justice courts in cases of children in need of care

   (1) If a child justice court is satisfied that any child brought before it under this Division is a child in need of care and protection, the court may—

   (a)   order the parents or guardians to enter into a binding agreement to exercise proper care and guardianship for a period specified by a child justice court;   ,

   (b)   make an order placing the child in the custody of a fit and proper person for a period specified by the child justice court;

   (c)   without any other order or in addition to an order made under paragraph (a) or (b), make an order placing the child under the supervision of—

      (i)   a social welfare officer; or

      (ii)   some other person appointed for the purpose by the child justice court,

for a period specified by the child justice court.

Division 3
Guardianship

38.   Appointment of guardian

   (1) A guardian may be appointed by—

   (a)   the testamentary will or choice of a parent;

   (b)   an order of the court; and

   (c)   the family of the child.

   (2) A guardian may be appointed in respect of any child who is resident in Malawi.

   (3) A guardian appointed under this Act shall be a person resident in Malawi.

   (4) Where a guardian is appointed only in respect of the estate of the child, the guardian need not have actual custody of the child but shall, with the authority of the child justice court and with the assistance of a legal representative as the court may provide for the child, have—

   (a)   power and responsibility to administer the estate of the child, and in particular to receive or recover and invest the property of the child in his/her own name for the benefit of the child;

   (b)   the duty to take all reasonable steps to safeguard the estate of the child from loss or damage;

   (c)   the duty to produce and avail accounts or a written report to the child justice court in the prescribed form in the First Schedule.

39.   Application of a testamentary guardian

   (1) A parent of a child may by will or deed appoint any person to be a guardian of the child after that parent’s death.

   (2) A guardian of a child may by will appoint another individual to take his place as the guardian of the child in the event of his death.

40.   Application for the appointment of a guardian by a child or family member

   (1) If a child, or any member of the family, considers that a surviving parent is unfit to have legal custody of the child, he may apply to the child justice court for the appointment of a guardian.

   (2) The court, after considering the application, may—

   (a)   appoint the guardian;

   (b)   make an order that the guardian shall act jointly with the parent; or

   (c)   make any other order which the court considers appropriate in the circumstances.

   (3) Where the child justice court makes an order that the guardian is the only guardian of the child, it may order the parent to pay the guardian a financial provision towards the maintenance of the child, having regard to the means of the parent as the court may consider reasonable.

   (4) A guardian who has been appointed to act jointly with the surviving parent under subsection (2), shall continue to act as a guardian after the death of the parent, but if the pareat appointed a guardian by will, before his/her death the guardian appointed by the child justice court shall act jointly with the guardian appointed by the parent.

41.   Application for the appointment of a guardian by other persons, other than a child or a family member

   (1) A child justice court may, in the best interest of a child, appoint a guardian on the application made by any person where—

   (a)   the child’s parents are no longer living;

   (b)   the parents cannot be found;

   (c)   the child has no guardian and there is no other person having parental responsibility for the child; or

   (d)   where the parents of the child are no longer living together and it is necessary in the best interests of the child that a guardian be appointed for the child.

42.   Extension of guardianship beyond a child’s sixteenth birthday

   (1) An appointment for guardianship shall determine upon the child attaining the age of sixteen years, unless exceptional circumstances exist that require a child justice court to grant an order that the appointment be extended.

   (2) An application for extension of guardianship shall be made within six months before or after the child’s sixteenth birthday.

   (3) A child justice court making an order under this section shall specify the duration of the order and the order may contain such conditions and directions as the court may see fit.

43.   Power to rovoke, modify or vary a guardians order

   (1) A child justice court may, on application by the child, parent, guardian, a family member or a social welfare officer, vary, modify or revoke a guardians order.

44.   Disputes between guardians

   Where two or more persons act as joint guardians to a child or where the surviving parent and a guardian act jointly and are unable to agree on any question affecting the welfare of the child, any of them may apply to a child justice court for its direction, and the child justice court may make orders regarding the differences as it may think proper.

45.   Offences by guardians

   A guardian of the estate of a child who—

   (a)   refuses or neglects to provide sufficient food, clothes and other necessaries for the child; or

   (b)   misapplies, misplaces, neglects to recover or to safeguard any asset forming part of the estate of the child, resulting in the loss or damage of such estate; or

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