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)
This Act may be cited as the Children's Act.
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 (Cap. 28:01);
"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.
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.
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.
(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)
The rights set out in this Part supplement the rights set out in Chapter II of the Constitution.
(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.
Every child has a right to a name, from birth, which neither stigmatises nor demeans the dignity of that child.
(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 (Cap. 30:01) 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.
(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.
Every child has a right to adequate and safe housing.
A parent shall ensure that his or her child is adequately clothed.
(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.
(1) Every child has a right to have his or her privacy protected.
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