CHAPTER 28:04
CHILDREN'S

ARRANGEMENT OF SECTIONS

   SECTION

PART I
Preliminary

   1.   Short title

   2.   Interpretation

PART II
Application, Objects and Guiding Principles of the Act

   3.   Conflict with other legislation

   4.   Objects of the Act

   5.   Best interests of the child paramount

   6.   Determining the best interests of the child

   7.   Guiding principles

   8.   Child participation

PART III
Bill of Child Rights

   9.   Application

   10.   Right to life

   11.   Right to a name

   12.   Right to a nationality

   13.   Right to know and be cared for by parents

   14.   Right to appropriate parental guidance

   15.   Right to health

   16.   Right to shelter

   17.   Right to clothing

   18.   Right to education

   19.   Right to leisure, play and recreation

   20.   Right to freedom of expression

   21.   Right to freedom of religion, etc.

   22.   Right to freedom of association

   23.   Right to privacy

   24.   Right to protection against harmful labour practices

   25.   Right to protection against sexual abuse and exploitation

   26.   Right to protection from involvement in armed conflict

PART IV
Parental Duties and Rights

   27.   Parental duties

   28.   Parental rights

   29.   Co-parenting agreements

PART V
Community and Governmental Support to Parents

   30.   Support from community leaders

   31.   Support from central Government

   32.   Support from service providers

   33.   Establishment of Village Child Protection Committees

PART VI
Children's Consultative Forum

   34.   Establishment of Children's Consultative Forum

PART VII
National Children's Council

   35.   Establishment of National Children's Council

PART VIII
Children's Courts

   36.   Establishment and jurisdiction of childrens court

   37.   Officers of children's court

   38.   Application of Magistrates' Courts Act and rules

   39.   Sitting of children's court

   40.   Protection orders which children's court may make

PART IX
Commissioners of Child Welfare

   41.   Commissioners of child welfare

PART X
Children in Need of Protection

   42.   Child in need of protection

   43.   Reporting case of child in need of protection

   44.   Children needing immediate protection

   45.   Application for protection order

   46.   Respondents to application

   47.   Hearing in absence of the parties

   48.   Making of protection order

   49.   Duration of protection order

   50.   Parent may apply for protection order

   51.   Care agreements

   52.   Children with disabilities

   53.   Refugee and displaced children

   54.   Rehabilitation of abused children

   55.   Register of child abusers

PART XI
Offences

   56.   Neglect or ill-treatment of children

   57.   Corruption of children

   58.   Exposing children to pornography

   59.   Cohabitation with children prohibited

   60.   Exposing children to narcotics, etc.

   61.   Cruel treatment or punishment

   62.   Harmful social, cultural and religious practices

   63.   Penalty

   64.   Where parent, etc., convicted of an offence

PART XII
Alternative Care of Children in Need of Protection

   65.   Alternative care

   66.   Protected child

   67.   Duties of commissioner in connection with protected children

   68.   Visiting and examination of children

PART XIII
Foster Care

   69.   Foster care

   70.   Who may foster a child

   71.   Determination of placement of child in foster care

   72.   Number of children to be placed in foster care per household

   73.   Duration of foster care placement

   74.   Visits by social worker

   75.   Reuniting child with biological parents

   76.   Review of placement of child

   77.   Duties and rights of foster parent

   78.   Rights of biological parent or guardian of child in foster care

   79.   Termination of foster care

   80.   Child in foster care prohibited from leaving Botswana

PART XIV
Children in Conflict with the law

   81.   Institution of proceedings against a child

   82.   Age of criminal responsibility

   83.   Trial of children

   84.   Protection of child victims and witnesses

   85.   Manner of dealing with child charged with offence

   86.   Court to explain order for probation to offender

   87.   Discharge, etc., of order for probation

   88.   Repeat offenders

   89.   Capital offences

   90.   Corporal punishment

   91.   Probation officers

   92.   Appointment of probation committee

   93.   Certain publications prohibited

   94.   Access to court

   95.   Legal representation

   96.   Appeals and review

PART XV
Homes, Schools and Institutions for the Reception of Children

   97.   Licence required to operate child welfare institution

   98.   Applications

   99.   Notice of advertisement of application

   100.   Consideration of applications

   101.   Issue of licences

   102.   Licences restricted to fixed premises

   103.   Duration and renewal of licences

   104.   Suspension and revocation of licences

   105.   Managers of institutions

   106.   Transfer of licences

   107.   Duplicate licences

   108.   Register of licences

   109.   Display of licences

   110.   Authorised officers

   111.   Establishment of institutions for reception of children

   112.   Failure to comply with regulations or minimum standards imposed

   113.   Travel outside Botswana by children in institution

PART XVI
Child Abduction and Trafficking in Children

   114.   Abduction and trafficking in children

PART XVII
Miscellaneous

   115.   Enforcement of rights

   116.   Offences and penalty

   117.   Regulations

   118.   Repeal of Cap. 28:04

   119.   Amendment of Schedules

   120.   Savings

   121.   Transitional

      First Schedule

      Second Schedule

      Third Schedule

Act 5, 1981,
Act 8, 2003,
Act 14, 2005,
Act 8, 2009.

An Act to make provision for the promotion and protection of the rights of the child; for the promotion of the physical, emotional, intellectual and social development and general well-being of children; for the protection and care of children; for the establishment of structures to provide for the care, support, protection and rehabilitation of children; and for matters connected therewith.

[Date of Commencement: 19th June 2009]

PART I
Preliminary (ss 1-2)

1.   Short title

   This Act may be cited as the Children's Act.

2.   Interpretation

   In this Act, unless the context otherwise requires-

   "absent parent" means a biological parent who is not ordinarily resident with the child;

   "adopted child" means a child adopted under the Adoption of Children Act;

   " adoptive parent" means a person who adopts or has adopted a child under the Adoption of Children Act;

   "child" means any person who is below the age of 18 years;

   "child in need of protection" has the meaning assigned to it by section 42;

   "children's court" means a court established by section 36;

   "child welfare institution" includes an institution licensed under section 97 or established under section 111 to provide services catering for the care, maintenance, health, education, development, protection, or general well-being of children, and a place of safety, a school of industries, a residential care facility or other community based organisation which provides care or welfare services for children;

   "commissioner" means a commissioner of child welfare referred to in section 41;

   "community leader" means a kgosi, kgosana or other like traditional leader in a community;

   "fit person" means any person of good repute and right standing in the society who is emotionally, physically, mentally and financially capable of caring for, maintaining, guiding and controlling a child;

   "foster parent" means any person who, whether for reward or otherwise, undertakes the temporary care of any child placed in that person's custody or care under section 69;

   "guardian" means a person who has the charge of, or control over, a child, or a person appointed according to law to be the guardian of a child;

   "harm" in relation to a child, includes any form of harm or ill-treatment inflicted deliberately on a child, and-

   (a)   assaulting a child;

   (b)   sexually abusing a child or allowing a child to be sexually abused;

   (c)   work that is harmful to the child because it is economically exploitative, hazardous, interferes with the child's education, or is harmful to the child's health or physical, mental, spiritual , moral or social development; and

   (d)   exposing or subjecting a child to behaviour that may harm the child physically, emotionally or psychologically;

   "parent", in relation to a child, means a biological parent, adoptive parent, foster parent or step-parent, but excludes-

   (a)   the biological father of a child through the rape of, or incest with, the mother of the child; and

   (b)   a parent whose parental duties and rights in respect of the child have been terminated in terms of this Act or by a court;

   "place of safety" means any child welfare institution which has been established or licensed under this Act, or the home of a family approved under this Act or regulations thereto to receive and care for children in need of protection on an emergency or temporary basis;

   "probation officer" means a person appointed under section 91;

   "relative", in relation to a child, includes the child's-

   (a)   grandparent;

   (b)   sibling;

   (c)   uncle or aunt; or

   (d)   cousin;

   "service provider" means any person or body licensed in terms of this Act or any other law to provide services for the health, education, development and protection and general well-being of a child;

   "school of industries" means a child welfare institution licensed under this Act which provides vocational training and rehabilitation services to children who are or have been in conflict with the law;

   "step-parent", in relation to a child, means the spouse of the child's biological parent, which spouse is not the child's biological parent; and

   "social worker" means a person who holds a qualification in social work, or such other qualification as may be prescribed, and is employed as such by Government or such other institution as may be approved under this Act or any other law.

PART II
Application, Objects and Guiding Principles of the Act (ss 3-8)

3.   Conflict with other legislation

   In the event of any conflict or inconsistency between the provisions of this Act and any other legislation, the provisions of this Act shall take precedence, except where the exercise of the rights set out in this Act has or would have the effect of harming the child's emotional, physical, psychological or moral well-being, or of prejudicing the exercise of the rights and freedoms of others, national security, the public interest, public safety, public order, public morality or public health.

4.   Objects of the Act

   The objects of the Act are to-

   (a)   promote the well-being of children, families and communities in Botswana;

   (b)   provide for the protection and care of children where their parents have not provided, or are unable or unlikely to provide, that protection and care;

   (c)   protect children from harm;

   (d)   acknowledge the primary responsibility of parents and families to care for and protect children, and to support and assist them in carrying out that responsibility;

   (e)   acknowledge the role played by communities in promoting and safeguarding the well-being of children and to encourage and support them in carrying out that role; and

   (f)   protect children from unlawful or exploitative labour practices.

5.   Best interests of the child paramount

   A person or the court performing a function or exercising a power under this Act shall regard the best interests of the child as the paramount consideration.

6.   Determining the best interests of the child

   (1) The following factors shall be taken into account in determining the best interests of the child-

   (a)   the need to protect the child from harm;

   (b)   the capacity of the child's parents, other relative, guardian or other person to care for and protect the child;

   (c)   the child's spiritual, physical, emotional and educational needs;

   (d)   the child's age, maturity, sex, background, and language;

   (e)   the child's cultural, ethnic or religious identity;

   (f)   the likely effect on the child of any change in the child's circumstances;

   (g)   the importance of stability and continuity in the child's living arrangements and the likely effect on the child of any change in, or disruption of, those arrangements;

   (h)   any wishes or views expressed by the child, having regard to the child's age, maturity and level of understanding in determining the weight to be given to those wishes or views; and

   (i)   any other factor which will ensure the general well-being of the child.

   (2) The provisions of subsection (1) shall not be construed as limiting the factors that may be taken into account in determining what is in the best interests of the child.

7.   Guiding principles

   The following principles shall be observed in the administration of this Act-

   (a)   no decision or action shall be taken whose result or likelihood is to discriminate against any child on the basis of sex, family, colour, race, ethnicity, place of origin, language, religion, economic status, parents, physical or mental status, or any other status;

   (b)   every child shall be cared for and protected from harm;

   (c)   the parents, family and community of a child have the primary responsibility of safeguarding and promoting the child's well-being;

   (d)   every child shall have stable, secure and safe relationships and living arrangements;

   (e)   a child's parents, other relatives, guardian and any other people who are significant in the child's life shall be given an opportunity and assistance to participate in decision-making processes under this Act that are likely to have a significant impact on the child's life;

   (f)   the people referred to in paragraph (e) shall be given adequate information, in a manner and language they understand, regarding-

      (i)   decision-making processes under this Act that are likely to have a significant impact on the child's life,

      (ii)   the outcome and implications of any decision about the child, including an explanation of the reasons for the decision, and

      (iii)   any relevant complaint or review procedure;

   (g)   decisions about a child shall be consistent with cultural, ethnic and religious values and traditions relevant to the child; and

   (h)   decisions about a child shall be made promptly having regard to the age, circumstances and needs of the child.

8.   Child participation

   (1) Every child who is of such age, maturity and level of understanding as to be able to participate in decisions which have a significant impact on that child's life shall have a right to do so.

   (2) For the purpose of ensuring that the child is able to participate in the decision-making process, the child shall be given-

   (a)   adequate information, in a manner and language that the child understands, about-

      (i)   the decision to be made,

      (ii)   the reasons for the involvement of persons or institutions other than his or her parents, other relatives or guardian,

      (iii)   the ways in which the child can participate in the decision-making process, and

      (iv)   any relevant complaint or review procedures;

   (b)   the opportunity to express the child's wishes and views freely, according to the child's age, maturity and level of understanding;

   (c)   any assistance that is necessary for the child to express those wishes and views;

   (d)   adequate information regarding how the child's wishes and views will be taken into account;

   (e)   adequate information about the decision made and a full explanation of the reasons for the decision; and

   (f)   an opportunity to respond to the decision made.

   (3) Decisions under this Act that are likely to have a significant impact on a child's life include but are not limited to-

   (a)   decisions about the alternative care of the child;

   (b)   decisions in the course of preparing, modifying or reviewing care or alternative care agreements or plans for the child;

   (c)   decisions about the provision of social services to the child; and

   (d)   decisions about contact with the child's parents, other relatives, guardian or other persons who are significant in the child's life.

PART III
Bill of Child Rights (ss 9-26)

9.   Application

   The rights set out in this Part supplement the rights set out in Chapter II of the Constitution.

10.   Right to life

   (1) Every child has an inherent right to life.

   (2) In order to ensure the enjoyment of this right, no person shall take any action or make any decision the effect of which will be to deprive a child of survival and development to the child's full potential.

11.   Right to a name

   Every child has a right to a name, from birth, which neither stigmatises nor demeans the dignity of that child.

12.   Right to a nationality

   (1) Every child has a right to a nationality from birth.

   (2) In order to ensure the enjoyment of nationality, the parent or other person specified in the Births and Deaths Registration Act shall give notice of the child's birth to the Registrar of Births in such manner as is prescribed under that Act.

   (3) A birth certificate issued by the Registrar of Births under that Act shall be proof of the nationality of the child.

   (4) The birth certificate shall indicate the name, citizenship and address of the biological mother and the biological father of the child whether the child is born in or out of wedlock.

   (5) Any person who unreasonably withholds information for the purposes of subsection (4) shall be guilty of an offence and shall be liable to a fine of not less than P2 000 but not more than P5 000, or to imprisonment for a term of not less than three months but not more than six years, or both.

13.   Right to know and be cared for by parents

   (1) Subject to the child's best interests, every child has a right to know and be cared for by both of his or her biological parents, and to appropriate alternative care where the child is removed from the family environment.

   (2) A child who is born out of wedlock and does not live with both of his or her biological parents has a right to access the absent parent, and to be nurtured, supported and maintained by such absent parent in accordance with the provisions of this and any other Act which deals with the care and maintenance of children.

   (3) Any parent, other relative or guardian or other person who, without reasonable excuse, refuses the absent parent access to the child shall be guilty of an offence and shall be sentenced to a fine of not less than P2 000 but not more than P5 000, or to imprisonment for a term of not less than three months but not more than six months, or both.

   (4) No person shall separate a child from his or her parents, other relatives or guardian unless it is in the child's best interests to do so.

   (5) Subject to a child's age, maturity and level of understanding, any person seeking to separate the child from his or her parents, other relatives or guardian shall seek the child's consent.

   (6) Any person who contravenes the provisions of subsection (4) or (5) shall be guilty of an offence and shall be sentenced to a fine of not less than P2 000 but not more than P5 000, or to imprisonment for a term of not less than three months but not more than six years, or both.

14.   Right to appropriate parental guidance

   Every child has a right to parental guidance appropriate to that child's age, maturity and level of understanding in order to ensure that the child grows to his or her maximum potential.

15.   Right to health

   (1) Every child has a right to the highest attainable standard of health and medical care.

   (2) Where the parents, other relatives or guardian of a child are unable, due to financial constraints, physical disability, ill health or other reasonable cause to ensure the child's enjoyment of the right referred to in this section, the Minister shall cause to be taken such steps as are necessary to ensure the child's enjoyment of those rights.

16.   Right to shelter

   Every child has a right to adequate and safe housing.

17.   Right to clothing

   A parent shall ensure that his or her child is adequately clothed.

18.   Right to education

   (1) Every child has a right to free basic education.

   (2) A parent, other relative or guardian who, without reasonable excuse, denies a child the opportunity of going to school shall be guilty of an offence and shall be sentenced to a fine of not less than P5 000, but not more than P10 000.

19.   Right to leisure, play and recreation

   Every child has a right to leisure, play and recreation which are appropriate to the age, maturity and level of development of the child.

20.   Right to freedom of expression

   (1) Every child has a right to freely express his or her views and opinions, and to freely receive and communicate ideas and information. The right to freedom of expression shall be exercised subject to the child's best interests taking into account-

   (a)   the child's age, maturity and level of understanding;

   (b)   the need for parental guidance and to protect the child from pornography and other influences which may cause emotional, physical, psychological or moral harm to the child;

   (c)   the public interest, national security, public morality, public health and the rights and freedoms of other people.

21.   Right to freedom of religion, etc.

   While a parent, other relative or guardian may provide a child with guidance on political and other matters, no parent, other relative or guardian shall force that child to adopt any particular religion, philosophy or doctrine.

22.   Right to freedom of association

   Every child has the right to freedom of association subject to the child's age, maturity and level of understanding, of parental guidance, national security, public health or morals, and the rights and freedoms of others.

23.   Right to privacy

   (1) Every child has a right to have his or her privacy protected.

   (2) The right to privacy shall be exercised subject to the child's best interests taking into account-

   (a)   the child's age, maturity and level of understanding;

   (b)   the need for parental guidance and to protect the child from pornography and other influences which may cause emotional, physical, psychological or moral harm to the child;

   (c)   the public interest, national security, public morality, public health and the rights and freedoms of other people.

24.   Right to protection against harmful labour practices

   (1) Every child has a right to be protected against work and other labour practices which-

   (a)   are inappropriate for a person of that child's age; or

   (b)   place at risk the child's education, physical or mental health, or spiritual, moral or social development or well-being.

   (2) Any employment of a child as permitted by the Employment Act shall be for purposes of apprenticeship.

   (3) Any contract for apprenticeship shall be with the written consent of the child's parent, other relative or guardian.

   (4) The duties of an employer towards an apprentice shall be to-

   (a)   train and instruct the child in a trade, in accordance with such standards and conditions as may be prescribed, in order to impart such knowledge and skills as the child may use to his or her future benefit; and

   (b)   provide a safe and healthy environme

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