Child Care, Protection and Justice Act
- Assented to on 29 July 2010
- Commenced on 1 October 2011
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
Part I – Preliminary
1. Short titleThis Act may be cited as the Child Care, Protection and Justice Act.
2. InterpretationIn 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;"medical officer" means any person duly authorized to perform duties of a medical personnel and includes a health worker;"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;"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;[Cap. 9:01]"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;[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
4. Duties and responsibilities of childrenIn 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—
6. Evidence of parentage
7. Determination of parentageThe 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
9. Application for maintenance
10. Consideration for maintenanceA child justice court shall consider the following when making a maintenance order—
11. Request for social inquiry reportA 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 orderA child justice court may award maintenance to the child and the maintenance order may include the following—
13. Attachment order
14. Persons entitled to receive maintenance funds
15. Duration of maintenance order
16. Continuation of maintenance order
17. Variation or discharge of ordersA 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 ordersMaintenance 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 childUnless 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 proceedingsA 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 filed 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 applicantWhenever 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—
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 safetyA 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
26. Child in need of medical examination
27. Medical examination and treatment
28. HospitalizationIf 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 childrenIf 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
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 for application
40. Application fo the appointment of a 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 guardiansWhere 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 guardiansA guardian of the estate of a child who—
Division 4 - Fosterage
46. Public foster homes
47. Private foster homes
48. Management of foster homesThe provisions on management, inspection and closure of reformatory centers and safety homes shall apply to foster homes mutatis mutandis.
49. Foster home placementA child justice court may, if satisfied that a child before it is in need of foster-care and protection, commit the child to a foster home for a period of time as the court sees fit.
50. Responsibilities of a manager of a foster homeA manager of a foster home in whose care a child is placed shall have the same rights and responsibilities in respect of the child as the parent of the child while the child remains in the foster home.
51. Commitment of a child to a foster parent
52. Application to foster a childAn application to foster a child shall be made to the District Social Welfare Officer by completing the prescribed Form 1 in the, Second Schedule except that a relative of a child without a parent or guardian may foster the child without first applying to the District Social Welfare Officer.[Second Schedule]
53. Responsibilities of foster parentsA foster parent in whose care a child is committed shall, while the child remains in his care, have the same responsibilities in respect of the maintenance of the child as if such foster parent were the parent of the child.
54. Persons qualified to foster children
55. Procedure before placement
57. Cultural backgroundWherever possible, a child shall be placed with a foster parent who has the same cultural background as the child’s parents and who originates from the same area in Malawi as the parents of the child.
58. Undertaking by foster parents
59. Medical arrangements
60. Supervising officerThe District Social Welfare Officer shall be responsible for overseeing all aspects of the fostering and for ensuring that the provisions of this Act are complied with.
61. Visits during placement
62. MarriagesNo foster parent shall marry a child he or she is fostering and any such purported marriage shall be void.
63. Termination of placement
64. Surrendering a foster childIf at any time a foster parent intends to return a foster child, he or she shall bring the child before the District Social Welfare Officer and the District Social Welfare Officer shall place the child in a foster home.
65. Illness of foster childIf a foster child is seriously ill, the foster parent shall as soon as possible give notice to the District Social Welfare Officer who shall in turn notify the parents or guardians of the illness.
66. Death of foster child
68. Application for adoptionA foster parent may at any time apply to adopt a foster child in accordance with the Adoption of Children Act.[Cap. 26:01]
69. OffencesA person who—
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 disabilitiesA local government authority shall keep a register of children with disabilities within its area of jurisdiction and give assistance to them whenever possible in order to enable those children grow up with dignity among other children and to develop their potential and self-reliance.
73. Duty to provide accommodation to children in needA local government authority shall provide accommodation for children within its area of jurisdiction who appear to the authority to be in need of the accommodation as a result of their being lost or abandoned or seeking refuge.
74. Tracing of parents or guardiansA local government authority shall make every effort, including publication through the mass media, to trace the parents or guardians of any lost or abandoned child or to return the child to the place where the child ordinarily resides; and, where the authority does not succeed, it shall refer the matter to a probation officer or social welfare officer or to the police.
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 practicesNo person shall subject a child to a social or customary practice that is harmful to the health or general development of the child.
81. Forced marriage or betrothalNo person shall—
82. Pledge of a child as securityNo person shall—
83. OffencesA person who contravenes sections 80, 81 and 82 commits an offence and shall be liable to imprisonment for ten years.
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 childThe words "finding of guilty" "conviction" and "sentence" shall not be used in respect of any child in proceedings in a child justice court or any other court, but in pronouncing the conviction against the child, the court shall record that the child is found to be responsible for the offence charged and, instead of sentencing the child, the court shall proceed to make an order upon such a finding in accordance with this Act.
87. Non-effect of finding against a childSave as provided in section 105 a finding of responsibility for an offence against a child shall have no effect whatsoever against the child for the purposes of any law except in respect only of the offence for which the child is found responsible and in respect of such offence, the finding shall elapse upon the child serving the order.
88. General considerationA court, when dealing with a child who is brought before such court either as an offender or in need of care or protection, shall—
Division 2 - Methods of bringing a child offender before a court or other inquiry
89. Arrest of a childIn addition to the provisions of the Criminal Procedure and Evidence Code or of any other written law relating to the arrest of a child, a police officer or any person arresting the child or the person who appears to be a child shall—
90. Guidelines on arrest of childrenA police officer or any person effecting the arrest of a child shall ensure that—
91. SummonsWhere summons have been used for the purposes of bringing a child before a court, the summons shall—
92. Arrest of a child by a private personWhere an arrest of a child is made by a private person, that person shall present the child to a police officer or to the nearest police station or court as soon as it is practicable to do so, but no later than twenty-four hours after the arrest.
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 offendersNo child, while in detention in a safety home or reformatory centre or while being conveyed to or from any court or while awaiting before or after attending a criminal court, shall be permitted to associate with an adult, not being a relative, who is charged with an offence other than the offence with which the child is jointly charged with the adult.
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 inquiryPersons who may attend a preliminary inquiry are—
102. Procedure relating to holding of a preliminary inquiry
103. General powers and duties of an inquiry magistrate
104. Release or detention of a child by inquiry magistrateThe inquiry magistrate may make an order regarding the release or detention of the child pending further appearance of the child at a preliminary inquiry or court where—
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 inquiryA child or his parent, guardian or an appropriate adult who fails to comply with the conditions of the release of the child pursuant to an adjournment of a preliminary inquiry shall be liable to arrest upon a warrant issued by the court for such person to be brought before the court to show cause for failure to comply and the court shall make a necessary order.
109. Failure to appear at a preliminary inquiryWhere a child or his/her parent, guardian, or appropriate adult has been notified to appear at a preliminary inquiry by a police officer or by a probation officer and such child, parent, guardian or appropriate adult fails to attend, such person shall be compelled to attend as if he/she had been summoned by the inquiry magistrate.
110. Decisions regarding diversion, withdrawal of prosecution 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 circumstancesA child suspected of being responsible for an offence shall be considered for diversion if—
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 diversionUpon the selection of a diversion option in accordance with this section, an inquiry magistrate, a court or a child panel shall identify a probation officer or any suitable person to monitor the implementation of the selected diversion option.
121. Keeping of recordsThe Board shall keep and maintain a register of children diverted from prosecution.
Part IV – Determination of age of a child
122. Application of this PartThe provisions of this Part shall apply to the determination of age for the purposes of criminal responsibility under section 14 of the Penal Code and for the purposes of this Act.
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 a child justice courtsThere shall be established child justice courts, which shall be subordinate to the High Court and shall exercise jurisdiction conferred on them by this Act or any other written law.
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 proceedings
139. Restriction on media reports of proceedings in a child justice court
140. Restrictions on punishment of childrenNo child shall be imprisoned for any offence.
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 informalThe proceedings of a child justice court shall be informal and in particular, the presiding officer shall ensure that—
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 BoardThe functions of the Board shall be—
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 homeThe manager of a reformatory centre or a safety home may apply to the Minister to review a decision to close the centre or home and the Minister may, upon considering the application, re-issue the certificate.
164. Manager, proprietor, his executor or administrator may apply for closure
165. Duty to receive childrenThe manager of a private reformatory centre or a private safety home shall, if there is a vacancy in the number of children authorized to be detained at the centre or home, be liable to receive any child sent to the centre or home under this Act, and shall undertake to educate, clothe, lodge and feed the child during the whole period for which the child is liable to be detained at the centre or home.
166. Effect of closure notice and cancellation of certificateIf a reformatory centre or a safety home has been closed under the provisions of this Act, no child shall be received into such centre or home under any of the provisions of this Act after the date of the receipt by the manager of the centre or home of the notice of the closure or after the date specified in the notice of the closure.
167. Discharge or transfer of children
168. Review of cases of detained childrenThe manager of a reformatory centre or a safety home shall review all cases of children detained for twelve months, and may, after such review, recommend to the Board the conditional discharge of such children.
169. Reformatory centre, safety homes lawful places of detentionA reformatory centre or a safety home shall be a lawful place of detention for children in respect of whom a lawful order has been made or who may lawfully be transferred thereto.
170. Illness of children detained
171. Return after treatment
172. Duty to prevent escapeEvery reasonable precaution shall be taken by medical officers or other officers of a hospital to prevent the escape of a child who may at any time be under medical care at the hospital.
173. Breaches of rules of discipline
174. Penalties for assisting or inducing escape and for harbouring or concealing escaped childrenAny person who—
175. Presumption of evidence of identityThe production of the warrant or any other document, in pursuance of which a child is sent to a reformatory centre, safety home or hospital shall in all proceedings relating to the child be sufficient evidence of the identity and of the lawful detention or disposal of the child named in the warrant or document.
176. Disciplinary rules
Part IX – General
177. Contribution order
178. Funds for public reformatory centres, public safety homes and public foster homesFunds for public reformatory centres, public safety homes and public foster homes shall consist of—
179. Duties and powers of a person to whom a child is committed
180. Duties arising from a probation order
181. General offencesAny person, not being a child, who—
182. Mistake as to age
183. Extension of application of the ActA court may, on application or on its own motion, extend the application of this Act to persons that are above sixteen years of age but below twenty-one years of age.
184. Regulations and rulesThe Minister may, on the recommendation of the Board, make regulations for carrying this Act into effect.
185. Court rulesThe Chief Justice may make rules regulating the procedure and practice in a child justice court.
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
History of this document
01 October 2011
29 July 2010