ARRANGEMENT OF SECTIONS
1. Short title
CHILD CARE AND PROTECTION
Child Care and Protection by the Family
3. Duties and responsibilities of parents
4. Duties and responsibilities of children
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
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
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
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
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
57. Cultural background
58. Undertaking by foster parents
59. Medical arrangements
60. Supervising officer
61. Visits during placement
63. Termination of placement
64. Surrendering a foster child
65. Illness of foster child
66. Death of foster child
68. Application for adoption
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
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
84. Inquiries and placements
85. Child recovery order
CHILDREN SUSPECTED TO HAVE COMMITTED OFFENCES
86. Mode of pronouncing a finding against a child
87. Non-effect of a finding against a child
88. General consideration
Methods of Bringing a Child Offender Before a Court or Other Inquiry
89. Arrest of a child
90. Guidelines on arrest of children
92. Arrest of a child by a private person
93. Reference to a probation officer
94. Police powers to caution and release
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
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
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
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
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
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
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
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
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
187. Transfer of children
188. Remittance of a list of children
189. Proceedings under the repealed Acts
22 of 2010
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]
This Act may be cited as the Child Care, Protection and Justice Act.
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;
“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.
CHILD CARE AND PROTECTION
Child Care and Protection by the Family
(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.
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.
(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.
(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.
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.
(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.
(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.
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.
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.
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.
(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.
(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.
(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.
(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.
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. ’
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.
Unless the child justice court orders otherwise, the responsibility to maintain a child as between parents and guardians shall be joint and several.
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.
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.
(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.
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.
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.
(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.
(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.
(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.
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.
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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
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.
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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