CHILDREN'S: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
Children's Act (School of Industries) Regulations
(under section 117)
(27th February, 2015)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary
1. Citation
2. Interpretation
PART II
Child Protection and Guiding Principles
3. Protection officers
4. Guiding principles
5. Code of conduct
6. Standards for child protection organisation
PART III
Care of Children
7. Co-parenting agreement
8. Social worker to be assigned
9. Duty to keep privacy of child
10. Assessment of child with disability
11. Refugee and displaced children
PART IV
Fostering of Children
12. Form of care agreement
13. Screening of foster parents
14. Duties of foster parents
15. Non-citizen foster parents
16. Travel outside Botswana of child under care of foster parent
17. Disappearance of child under care of foster parent to be reported
18. Social worker's report
19. Foster placement certificate
PART V
Child Abuse and Register of Child Abusers
20. Rehabilitation of abused child
21. Programmes and rehabilitative measures
22. Access to abused child
23. Register of child abusers
24. Removal of name from register
PART VI
Probation Services
25. Qualifications of probation officer
26. Reports to court
27. Visitations
28. Revocation of probation order
29. Settlement out of court, etc.
PART VII
Licensing and Operation of Child Welfare Institutions
30. Application for licence to operate welfare institution
31. Notice of requisition
32. Grant of licence
33. Board of management
34. Functions of Board
35. Qualifications, suspension and resignation of members
36. Vacation of office by members
37. Filling of vacancy
38. Remuneration and allowances
PART VIII
Maintenance of Health Standards by Child Welfare Institutions
39. Cleanliness
40. First aid, sick bay and fire-fighting equipment
41. Medical care and treatment
42. Private sector medical care
43. Prohibition of smoking
44. Kitchen facilities
PART IX
Miscellaneous Provisions
45. Report on foster care or institutional care situation
46. Endorsement of father's name in birth certificate
47. Assessing suitability of parent's partner
48. Death of parent
49. Custody in case of divorce
50. Extra mural labour
51. Revocation of Cap. 28:04 (Sub. Leg.)
SCHEDULE
S.I. 8, 2005,
S.I. 17, 2015.
PART I
Preliminary
These Regulations may be cited as the Child Protection Regulations.
In these Regulations, unless the context otherwise requires—
"Board" means the Board of management appointed in accordance with regulation 32;
"child protection" means the provision of services related to the protection of children from harm, neglect, abuse and exploitation and the protection of all rights of children;
"Department" means the Department of Social and Community Development;
"Director" means the Director responsible for children's affairs;
"DNA paternity test" means the technology used by a recognised medical laboratory to determine paternity; and
"official child protection role" means engaging in the protection of children from violence, neglect, exploitation and discrimination.
PART II
Child Protection and Guiding Principles
A person shall not be designated, employed or work in any official child protection role, unless he or she is a holder of at least a diploma in social work, child protection related field, law, education, child development or health related discipline.
(1) A social worker or a person engaged in any official child protection role shall, in the discharge of his or her duties—
(a) not condone, accept or otherwise tolerate any form of child abuse, exploitation or neglect on the part of any person against a child;
(b) demonstrate dedication and commitment to the protection of a child;
(c) collaborate with other service providers and workers in child protection;
(d) consider and analyse any action by any person towards any child and promptly take the relevant action to ensure protection of the child from abuse, exploitation or neglect; and
(e) not encourage or allow the participation of a child under his or her care and direction in matters that may negatively affect the child.
(2) The guiding principles provided under subregulation (1) are an addition to the guiding principles provided for under section 7 of the Act.
(1) A person employed—
(a) as a social worker or as a probation officer; or
(b) in any official child protection role by a service provider, an organisation or institution providing a place of safety or a school of industry,
shall sign the code of conduct in Form 1 set out in the Schedule.
(2) A service provider, organisation or institution serving as a place of safety or school of industry shall ensure that all employees engaged in any official child protection role comply with the provisions of subregulation (1).
(3) A service provider, organisation or institution which engages any person who does not comply with the provisions of subregulation (1), commits an offence.
(4) The code of conduct signed in terms of subregulation (1), shall not prejudice the provisions of any employment agreement not inconsistent with the Act and these Regulations, entered into by a service provider, organisation or institution serving as a place of safety or school of industry and the employees of such service provider, organisation or institution.
(5) A social worker, probation officer or employee engaged in any official child protection role who fails to abide by the code of conduct undertaken by him or her, commits an offence.
(6) A person who commits an offence under subregulation (3) or (5), is liable to a fine not exceeding P5 000, or to imprisonment for a term not exceeding six months, or to both.
(7) In addition to the penalty under subregulation (6), a person who contravenes the provisions of this regulation may be—
(a) suspended as a service provider, or from an organisation or institution he or she is employed under; or
(b) expelled from the service provider, organisation or institution that he or she is employed under.
6. Standards for child protection organisation
(1) A service provider, organisation or institution which provides a place of safety or a school of industry shall have and implement a policy that—
(a) a person who has been convicted of a criminal offence shall not be engaged by it as a volunteer or in any other capacity;
(b) child protection and care training and other relevant training is provided at regular intervals for the benefit of its employees and to empower them to meet the different needs of children;
(c) the code of conduct provided under the Schedule is adhered to by all its employees;
(d) no funding is accepted from any organisation or person associated with or suspected to be engaged in child abuse or child exploitation;
(e) proper programmes and activities for rehabilitation, counselling and reintegration of children subjected to abuse are in place; and
(f) a policy on child protection is reviewed at given regular intervals to keep the organisation or institution up to date with international requirements.
(2) A service provider, organisation or institution which provides a place of safety or a school of industry shall have, among others—
(a) gardens for children's use;
(b) at least one play ground;
(c) adequately furnished—
(i) entertainment areas,
(ii) therapy rooms, and
(iii) study rooms; and
(d) professional staff including—
(i) social workers,
(ii) psychologists,
(iii) child development professionals,
(iv) psychiatrists, and
(v) other relevant professionals.
(3) A child shall not be denied admission to a service provider, organisation or institution which provides a place of safety or a school of industry by reason of the HIV status of the child, other chronic illness or any disability.
PART III
Care of Children
(1) A co-parenting agreement referred to under section 26 of the Act shall be in Form 2 set out under the Schedule.
(2) Parents who wish to enter into a co-parenting agreement shall appear before a social worker in the area of residence of the child for assessment before entering into the co-parenting agreement.
(3) The social worker referred to under subregulation (2), shall make an assessment of the needs of the child before the conclusion of the co-parenting agreement, which needs shall be included in the agreement.
(4) The social worker may, where he or she finds that the co-parenting agreement is not in the best interests of the child, make an application to the children's court to vary or revoke the agreement.
(5) A parent who wishes to vary or revoke a co-parenting agreement shall give the other parent 30 days' notice of intention to vary or revoke the agreement.
(6) In any proceedings for the variation or revocation of a co-parenting agreement, the court shall take into consideration the assessment of the social worker on the implementation of the agreement in relation to the child.
(7) The place stated as the residence of a child under a co-parenting agreement shall be the permanent residence of the child, until the child is 10 years of age.
(8) Where the child referred to under subregulation (7) has reached the age of 10 years, the child shall be consulted whenever the parents or other persons are making any decision on the permanent residence or visitation period of the child.
8. Social worker to be assigned
(1) For purposes of the general well-being of a child, a social worker shall be assigned to observe and monitor the emotional well-being and general welfare of the child.
(2) The social worker shall make at least two visitations in three months and submit a quarterly report to the children's court on the progress of the co-parenting agreement, if any, and the well-being of the child.
(3) The visitations referred to under subregulation (2) shall continue even where the parents are staying in different districts.
9. Duty to keep privacy of child
A parent, relative or guardian of a child shall keep any confidential information of, or about the child from the public.
10. Assessment of child with disability
(1) A parent, a person with the care and custody of a child or a guardian of a child with disability shall facilitate the referral of the child to appropriate authorities to assess the child's strength and limitations in order to identify—
(a) the child's needs for formal or informal education;
(b) the special needs and requirements of the child; and
(c) any required social or other interventions to enable the child to live a comfortable life.
(2) A parent, a person with the care and custody or a guardian of a child with disability shall take steps and encourage the child to meet with other children and adults with similar or other disabilities and those who have successfully overcome their disabilities.
(3) A parent, a person with the care and custody or a guardian of a child with disability shall have the responsibility to refer the child to the appropriate authorities for proper assessment and counselling, if necessary.
(4) A parent, a person with the care and custody or a guardian who fails to refer or facilitate the referral of a child to the appropriate authority under subregulation (1) or (3), commits the offence of neglect under section 56 of the Act and is liable to the punishment provided under that section.
11. Refugee and displaced children
(1) A person engaged in any official child protection role and a social worker in the district where refugee or displaced children reside shall ensure that the children have access to all available amenities and that their basic needs such as medical care, education, shelter, food, psychosocial support and protection from abuse and neglect are met.
(2) The social worker referred to under subregulation (1), shall monitor and evaluate all programmes and services provided to refugee or displaced children in the district and compile a report on the progress for submission to the children's court.
PART IV
Fostering of Children
A care agreement referred to under section 51 of the Act shall be in Form 3 set out under the Schedule.
13. Screening of foster parents
(1) A person who wishes to become a foster parent shall make an application in Form 4 set out under the Schedule.
(2) An application to become a foster parent shall be accompanied by—
(a) three character references, two of which shall be from persons of good standing in society;
(b) a home study report from country of origin by an official child protection authority;
(c) a medical certificate from a Government medical officer stating that the applicant does not—
(i) suffer from a chronic or terminal illness which would render such person unable to provide and care for the child, or
(ii) suffer from a communicable disease that poses a danger to the health of the child; and
(d) documentary proof that the applicant possesses sufficient means to maintain the child, if the child is to be placed under his or her care.
(3) A person may be a foster parent if—
(a) upon being examined by a Government medical officer, he or she is found not to be addicted to alcohol or other drugs;
(b) he or she has never been convicted of any criminal offence resulting from conduct which if repeated would make it unsafe for a child to live with that person;
(c) he or she is at least 21 years:
Provided that a child in need of care may be placed in the custody of a person under the age of 21 years if the children's court finds it to be in the best interests of the child; and
(d) he or she is at least 15 years older than the child to tie fostered:
Provided that where the children's court considers it to be in the best interests of the child, it may place the child under the care of a foster parent who is less than 15 years older than the child.
(4) Every person who applies to become a foster parent shall be assessed by a social welfare officer, who shall make an assessment as to whether the applicant would be a suitable foster parent.
(1) A foster parent shall safeguard and promote the welfare of a child under his or her care.
(2) Without prejudice to the generality of subregulation (1), a foster parent shall provide education, health and medical care, food and clothing to a child under his or her care.
(3) A foster parent shall not act in any manner that is contrary to the best interest of the child placed under his or her care.
15. Non-citizen foster parents
(1) Where a foster parent is not a citizen of Botswana, he or she shall not keep in his or her possession, the birth certificate or the travel documents of the foster child.
(2) The birth certificate and the travel documents of a child who is under the care of a foster parent who is not a citizen of Botswana shall be kept by the Department.
16. Travel outside Botswana of child under care of foster parent to be reported
A person who wishes to travel outside Botswana with a child under his or her care shall obtain written authorisation from the Department and submit such authorisation to the children's court.
17. Disappearance of child under care of foster parent
Where a child under foster care disappears from a child welfare institution or the home of a foster parent, the manager of the institution or the foster parent, shall, within 24 hours of the disappearance of the child, report to the nearest police station or a social worker in the District which the child resides.
The report made by a social worker in terms of section 74 regarding a child to be placed in foster care shall be in Form 5 set out under the Schedule.
19. Foster placement certificate
(1) The Minister may issue a foster placement certificate to a foster parent where the court makes an order placing a child in foster care.
(2) The foster placement certificate shall be in Form 6 set out under the Schedule.
PART V
Child Abuse and Register of Child Abusers
20. Rehabilitation of abused child
(1) A parent, a person with the care and custody of a child or a guardian of a child or any other person who gets to know that a child is being abused, shall report the abuse to a social worker.
(2) The social worker shall ensure that the abused child is provided with psychotherapy services for at least one year.
(3) The social worker shall make monthly progress reports to the children's court on the response of the child to psychotherapy.
21. Programmes and rehabilitative measures
(1) For the purposes of facilitating the programmes and rehabilitative measures put in place by the Minister under section 54 of the Act, a social worker shall—
(a) take the history of abuse of a child and shall involve medical personnel and any other necessary expertise to minimise trauma in the child;
(b) make a comprehensive needs assessment and the extent of significant harm on the victim and other family members and thereafter shall provide counselling and parenting skills to the parent, guardian or care giver; and
(c) make monthly progress reports to the children's court on the abused child regarding the reconstruction and restructuring of the family for purposes of reintegration of the child into the family.
(2) The social worker shall, after an abused child has been reintegrated into his or her family—
(a) provide aftercare services to the child to ensure that there is no further psychological and emotional trauma; and
(b) arrange for medical follow-up in accordance with the instructions of the medical officer who first attended the child.
A parent, a person with the care and custody or a guardian who has abused a child shall not be permitted access to the child unless—
(a) the access is part of the programme and rehabilitative measures under regulation 21;
(b) the child is given advance preparation and is of such age and maturity to give consent to see the parent, person with care and custody or guardian;
(c) the social worker or any other child care person is present at the meeting; and
(d) the child or a social worker in attendance can end the meeting any time.
(1) Upon the conviction of any person of an offence involving child abuse, the social worker handling the case shall register the child abuser in Form 7 set out under the Schedule.
(2) The form referred to under subregulation (1) shall be kept at all magistrates' courts and the High Court to ensure immediate registration of all offenders.
(3) The social worker handling the case shall forward the register of child abusers to the Director to update the register.
(4) A person who wishes to consult, inspect or make a copy of or obtain an extract from the register shall pay a fee of P100.
(5) A child care institution wishing to engage the services of any person shall in Form 8 set out under the Schedule and upon payment of a fee of P 50, confirm that the person's name is not in the register of child abusers.
(6) A child care institution which employs a child abuser in contravention of subregulation (5) shall have its licence revoked and where the institution is a government institution, the head of the institution shall be guilty of the offence of neglect of a child and liable to the penalties provided under section 56 of the Act.
24. Removal of name from register
(1) A person who has been registered in the register of child abusers may have his or her name removed from the register on application, in writing, to the Director—
(a) after 10 years from the date of conviction; and
(b) where the person has received and responded well to a defined therapeutic treatment from a social worker, psychologist or psychiatrist.
(2) A social worker, psychologist or psychiatrist who has treated a child abuser, shall compile a detailed report of the progress and response to treatment of the applicant under subregulation (1) for consideration by the Director.
PART VI
Probation Services
25. Qualifications of probation officer
Subject to section 91(2) of the Act, a person shall not be appointed a probation officer unless he or she is a holder of a bachelor's degree, having in its components, any of the following disciplines—
(a) social work;
(b) psychology;
(c) sociology; or
(d) counselling.
(1) A probation officer shall, in the discharge of his or her functions under section 91 of the Act, investigate, assess the circumstances of the child and compile the following reports to the court—
(a) social enquiry report, detailing the social background of the offender, family situation and circumstances, educational attainment, particulars of the present, previous violations, probation officer's diagnosis, intervention plan and recommendations;
(b) pre-sentence report, detailing the offender's background, family history, economic background, criminal history, health status, educational background, employment status and recommended sentence and rehabilitation plan; and
(c) probationer progress report, detailing community safety issues, offender accountability and interventions towards rehabilitation of the offender.
The probation officer shall for the first three months of probation, visit the probationer at least twice a month and thereafter once every month depending on the conduct of the offender.
28. Revocation of probation order
The probation officer may, where he or she observes that the circumstances of the probationer have changed, make an application to the children's court to vary or revoke the probation order.
29. Settlement out of court, etc.
Where a child has committed a minor civil offence or an offence against property, the value of which does not exceed P500, the case may be settled out of court if—
(a) the complainant does not wish to take the case to court;
(b) the child offender admits the offence and shows remorse;
(c) the parent, other relative or guardian of the child is willing to compensate the aggrieved party;
(d) the child is ready to go for mandatory counselling for one year to modify his or her behaviour; or
(e) it is in the best interest of the child not to go through court proceedings.
PART VII
Licensing and Operation of Child Welfare Institutions
30. Application for licence to operate welfare institution
A person who wishes to operate a child welfare institution shall make an application for a licence to operate a child welfare institution in Form 9 set out under the Schedule.
The notice to be issued to the applicant by the licensing authority under section 100 of the Act requiring documents and other relevant evidence of compliance shall be in Form 10 set out under the Schedule.
The licensing authority shall grant an applicant under regulation 30 a licence to operate a child welfare institution in Form 11 set out under the Schedule.
(1) An institution established by the Minister for the reception of children under section 111 of the Act shall have a Board of management appointed by the Minister on the recommendation of the Local Authority responsible for the district or town in which the institution is established.
(2) The Board shall consist of not less than six and not more than nine members who shall hold office for three years and shall be eligible for re-appointment for a further term of two years.
The Board shall be responsible for the operations and carry out the functions and duties of the institution in accordance with the provisions of the Act and these Regulations.
35. Qualifications, removal and suspension of members
(1) A person shall not be appointed as a member of the Board or be qualified to continue to hold office where the person—
(a) has in terms of a law in force in any country—
(i) been adjudged or otherwise declared bankrupt and has not been discharged, or
(ii) made an assignment to, arrangement or composition with his or her creditors, which has not been rescinded or set aside; or
(b) has within the period of 10 years immediately preceding the date of his or her appointment, been convicted—
(i) of a criminal offence within Botswana, or
(ii) outside Botswana, of an offence which if committed in Botswana, would have been a criminal offence,
and sentenced by a court of competent jurisdiction to imprisonment for six months or more without the option of a fine, whether that sentence has been suspended or not, and for which he or she has not received a free pardon.
(2) The Minister may in writing, suspend from office, a member of the Board against whom criminal proceedings are instituted for an offence in respect of which a sentence of imprisonment without the option of a fine may be imposed, and whilst that member is so suspended, he or she shall not carry out any duties under these Regulations or be entitled to any remuneration or allowances as a member of the Board.
(3) The Minister shall remove a member of the Board from office, if the member—
(a) is absent without reasonable cause from three consecutive meetings of the Board of which he or she has had notice;
(b) has been found to be physically or mentally incapable of performing his or her duties efficiently, and a medical doctor has issued a certificate to that effect;
(c) contravenes the provisions of this Act or otherwise misconducts himself or herself to the detriment of the objectives of the Board; and
(d) has been convicted of an offence under the Act or these Regulations, or under any other law for which he or she is sentenced to imprisonment for a term of six months or more without an option of a fine.
36. Vacation of office by members
A member of the Board shall vacate his or her office and his or her office shall become vacant—
(a) if he or she becomes disqualified in terms of regulation 35 to hold office as a member of the Board;
(b) if he or she is adjudged bankrupt or insolvent;
(c) if he or she is absent from three consecutive meetings of the Board without reasonable excuse;
(d) upon his or her death;
(e) upon the expiry of such time as the Minister may specify in writing, notifying the member of his or her removal from office by the Minister;
(f) upon the expiry of one month's notice, in writing to the Minister, of his or her intention to resign from office;
(g) if he or she becomes mentally or physically incapable of performing his or her duties efficiently, and a medical doctor has issued a report to that effect;
(h) if he or she is convicted of an offence under the Act or these Regulations for which he or she is sentenced to imprisonment for a term of six months or more without the option of a fine; or
(i) if he or she is summarily dismissed by the Minister on the grounds of contravening the provisions of the Act or these Regulations.
Where the office of a member becomes vacant before the expiry of the member's term of office, the Minister shall appoint another person in the place of the member who vacates office and that person shall hold office for the remaining period of the term of office of the vacating member:
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