Child Care, Protection and Justice Act, 2010

This Act may be cited as the Child Care, Protection and Justice Act.

This section defines key terms used in the Act, including child, guardian, diversion, place of safety, and serious offence.

Parents or guardians must protect and care for a child, register the child’s birth, and must not act against the child’s welfare or any court order.

Children have duties to respect and help parents, guardians, superiors and elders, serve the community, support Malawi’s unity and values, and contribute to their own development, with the child’s age and abilities taken into account.

Certain people may ask the child justice court to determine a child’s parentage when the parents are unknown or parentage is disputed.

A child justice court must treat listed matters as evidence of parentage and may order the putative father to take a medical test.

The child justice court must decide whether the alleged parent is the child’s parent, using the evidence under section 6.

A parent, family member, or other appropriate person may apply to the child justice court for custody or periodic access to a child, and the court must consider the child’s welfare factors before deciding.

If a child’s liable parent or other liable person neglects maintenance or contribution, certain people may apply to the child justice court for a maintenance order.

A child justice court must consider specified factors when making a maintenance order.

A child justice court may ask a social welfare officer to prepare and submit a social inquiry report about maintenance before the court makes a maintenance order.

A child justice court may award maintenance to a child.

The child justice court may attach the liable person’s earnings, salary, or property to enforce child maintenance orders.

A custodian of a child covered by a maintenance order must receive and use the funds for the child, and the responsible public or local government officer must report quarterly to the child justice court.

A maintenance order ends when the child dies, marries, or turns 16, but it can still be used to recover money already due.

A child justice court may continue or restart a maintenance order after a child turns 16 if the child is still in education or training, up to the first university qualification where applicable.

A child justice court may vary or discharge a maintenance order if the child’s interests would be better protected or not harmed.

Maintenance orders are enforced 30 days after the order is made, and a child justice court may allow a longer period in appropriate circumstances.

Parents and guardians must jointly and severally maintain a child, unless the child justice court orders otherwise.

A child justice court or High Court may make a maintenance order against either parent or both parents in matrimonial proceedings.

If a maintenance order is made, the child justice court may replace the person receiving maintenance funds or require the payer to invest the funds in trust for the child.

A person liable to maintain a child under a maintenance order must provide food, clothing, health, basic education, and reasonable shelter, and must not misapply funds paid under that order.

This section lists when a child is treated as being in need of care and protection, and explains what counts as physical, emotional, psychological, or sexual abuse.

A police officer, social welfare officer, chief, or community member may take a child into temporary custody or a place of safety if satisfied on reasonable grounds that the child needs care and protection.

A child taken into a place of safety must be brought before a child justice court within 48 hours, or if that is not possible, before a magistrate. The court may refer the child for age estimation, and certain carers or officials must notify parents or the social welfare officer promptly.

Certain officers or community members may present a child for medical care, and an officer or chief may require the child to be brought for medical care.

A medical officer must provide or arrange necessary examination or treatment for a child presented under section 26, and must report to the person who brought the child after treatment is completed.

If a medical officer thinks a child needs hospitalization, the officer must cause the child to be hospitalized.

If a child is hospitalized under section 28, the social welfare officer has the same control and responsibility over the child’s maintenance as a person in charge of a place of safety would have.

A social welfare officer may authorize treatment for a child with a minor condition, and may authorize more urgent treatment in serious cases or where there is immediate risk, with notice to the parent or guardian in some cases.

A child treated or examined after being placed in a place of safety must be brought before a child justice court within 48 hours; if that is not possible, the child must be brought before a magistrate who may order temporary placement.

Certain officers, medical officers, and helpers are exempt from civil or criminal liability when a child is examined or treated under section 27, but this does not protect a medical officer from liability for negligent examination or treatment.

A medical officer must immediately tell a social welfare officer or police officer if, on reasonable grounds, they believe a child being examined or treated is injured or sexually abused.

A family member who reasonably believes a child is injured or sexually abused must immediately report it to a social welfare officer or police officer.

A child care provider must report certain suspected child injury or sexual abuse to a social welfare officer or police officer.

Community members must immediately report certain child injury, abandonment, exposure, or sexual abuse concerns to a chief, police officer, or social welfare officer.

If a child justice court finds a child before it is in need of care and protection, it may order the parents or guardians to enter a binding care agreement, place the child with a fit and proper person, or place the child under supervision.

A guardian may be appointed by a parent’s will or choice, by court order, or by the child’s family for a child resident in Malawi.

A parent may appoint a guardian for a child by will or deed to take effect after the parent’s death, and a guardian may by will appoint a replacement guardian if the guardian dies.

A child or family member may ask the child justice court to appoint a guardian if a surviving parent is considered unfit to have custody.

A child justice court may appoint a guardian for a child, if it is in the child’s best interest and an application is made by any person.

Guardianship ends when the child turns 16, unless exceptional circumstances justify a child justice court order extending it.

A child justice court may vary, modify, or revoke a guardians order if someone named in the section applies.

If joint guardians, or a surviving parent and a guardian, cannot agree about a child’s welfare, any of them may ask the child justice court for directions, and the court may make orders it thinks proper.

A guardian of a child’s estate must provide the child’s necessities, protect the child’s assets, and produce required accounts or inventories; false records or failures can lead to criminal liability.

The Minister must establish public foster homes for foster care placement, and they must be run by a person appointed by the Minister.

A person or organization may apply to the Minister for a home to be designated as a private foster home, and the Minister may designate it if the application meets the Act’s requirements.

Rules on managing, inspecting, and closing reformatory centers and safety homes also apply to foster homes, with necessary adaptations.

A child justice court may commit a child to a foster home if it is satisfied the child needs foster-care and protection.

A foster home manager must have the same rights and responsibilities toward a child in care as the child’s parent, while the child remains in the foster home.

A District Social Welfare Officer may place a child with a willing foster parent who has applied to care for the child, for up to five years, and the foster parent may apply for an extension when that period ends.

Applications to foster a child must be made to the District Social Welfare Officer using prescribed Form 1 in the Second Schedule.

A foster parent caring for a committed child must have the same maintenance responsibilities as a parent, while the child remains in the foster parent's care.

Some people may apply to be foster parents, but a single person under 25 cannot, and a single person cannot foster a child of the opposite sex unless a District Social Welfare Officer certifies it is in the child’s best interest.

A child cannot be placed with a non-relative foster parent unless specified checks and confirmations are completed first.

A foster parent must try to raise the child in line with the child’s religion, or if the child’s religion is unknown, in line with the foster parent’s religion, while respecting the child’s choice of another established religion.

Wherever possible, a child should be placed with a foster parent who shares the child’s parents’ cultural background and comes from the same area in Malawi.

Foster parents must sign the prescribed undertaking when the child is placed with them, and copies must be distributed as required.

Rules for foster care medical checks, immunization records, and reporting.

The District Social Welfare Officer must oversee fostering and ensure the Act is complied with.

The District Social Welfare Officer must visit the foster family and child on set timelines and file a written report after each visit.

A foster parent must not marry a child they are fostering; any such marriage is void.

A child may not stay with a foster parent if the placement is no longer in the child’s best interests, and a child does not have to remain in foster care after age 16.

If a foster parent wants to return a foster child, the parent must take the child to the District Social Welfare Officer, who must place the child in a foster home.

If a foster child is seriously ill, the foster parent must notify the District Social Welfare Officer as soon as possible, and the officer must notify the parents or guardians.

If a foster child dies, the foster parent must try to get a death certificate and post-mortem report and notify the social welfare officer within 48 hours; the officer must then notify the parents. If the foster parent dies and the child is with a single foster parent, the child must be returned to the social welfare office or foster home manager.

The District Social Welfare Officer must keep foster care records and report changes and placements to the Board within set time limits.

A foster parent may apply at any time to adopt a foster child, subject to the Adoption of Children Act.

A person commits an offence if they interfere with foster-child visits, breach the Act without reasonable excuse, use undesirable premises for a foster child, marry a child under foster care, or run a foster home without the Minister’s approval.

Local government authorities must protect children’s welfare and inspect or support child-related facilities and risks in their area.

A local government authority must appoint one of its officers as the Secretary for Children’s Affairs, who is responsible for children’s welfare.

A local government authority must keep a register of children with disabilities in its area and assist them whenever possible.

A local government authority must provide accommodation for children in its area who appear to need it because they are lost, abandoned, or seeking refuge.

A local government authority must try to trace the parents or guardians of a lost or abandoned child, or return the child to where the child usually lives, and if that fails it must refer the matter to welfare or police authorities.

People with evidence that a child’s rights are being infringed must report it to the local government authority.

A local government authority must keep and maintain a register of births and deaths of children unless that duty has been given to another authority.

A local government authority must keep a register of children suffering from HIV and AIDS.

A person must not unlawfully take, retain, or conceal a child without the required consent; doing so is an offence punishable by 10 years’ imprisonment.

A person who takes part in a transaction whose object is child trafficking commits an offence and may be imprisoned for life.

No person may subject a child to a harmful social or customary practice.

No person may force a child into marriage or betrothal.

No person may sell or pledge a child, use a child as surety for debt or mortgage, or force a child to work for another person's income.

A person who breaks sections 80, 81, or 82 commits an offence and can be imprisoned for ten years.

A social welfare officer may remove a child to a place of safety on reasonable grounds of trafficking, abduction, harmful practice, or prostitution-related use, and the child must then be brought before a child justice court within 48 hours if practicable.

A child justice court may make a child recovery order if there are reasonable grounds to believe a child has been abducted or trafficked.

A court must not use the words “finding of guilty,” “conviction,” or “sentence” for a child, and must instead record that the child is responsible for the offence and make an order under the Act.

A finding of responsibility for an offence against a child generally has no effect against the child, except as provided in section 105 and only for the specific offence found.

When a court deals with a child brought before it as an offender or for care or protection, it must in proper cases remove the child from undesirable surroundings and ensure proper nutrition, education, and training, and it must give primary consideration to the child’s rights.

When arresting a child or someone who appears to be a child, the arresting officer must consider the child’s best interests and general welfare, and follow the guidelines in this Division.

When a child is arrested, the police officer or other arresting person must ensure the child’s rights, safety, care, and support are protected.

If summons are used to bring a child before a court, they must be issued by a court of competent jurisdiction and served at a time that supports the child’s best interests.

If a private person arrests a child, that person must bring the child to a police officer, the nearest police station, or a court as soon as practicable and within 24 hours.

When a child is arrested or summoned, police must refer the child to a probation officer, and a child under ten must not be arrested but referred for age estimation.

Police officers of sub-inspector rank and above may caution and release a child offender if the offence is not serious, there is enough evidence for prosecution, and the child admits responsibility.

A child should not be detained before a finding unless the Director of Public Prosecutions satisfies the inquiry magistrate or court, and a detained child must be brought before an inquiry magistrate within 48 hours (or the next court day if that timing falls outside court hours).

If a child is to be detained before a finding, detention should be in a safety home unless an officer-in-charge or prosecutor applies for an alternative order and the court chooses another option.

A child in detention, in transit to or from court, or waiting before or after a criminal court appearance must not be allowed to associate with a non-relative adult charged with another offence.

Police must usually release an apprehended child, or someone who appears to be a child, on recognizance if they cannot be brought promptly before an inquiry magistrate, unless listed exceptions apply.

A preliminary inquiry is generally held for a child suspected of an offence before plea, unless the child was released on caution or the charge was withdrawn.

This section lists who must attend a preliminary inquiry and allows limited exceptions.

This section lists who may attend a preliminary inquiry.

This section sets the steps for starting a preliminary inquiry, including explanations to the child, documents the prosecutor must provide, and limits on questioning and appeal.

The inquiry magistrate may manage the preliminary inquiry, request information and attendance, rule on disputes, adjourn or dispense with a social inquiry in some cases, and must share key reports, allow challenges, inform participants about diversion options, and consider arrest/detention reports.

An inquiry magistrate may order a child’s release or detention while the child is awaiting further appearance.

At a preliminary inquiry, information about a child’s previous diversion or prior responsibility may be given to help the inquiry magistrate decide on diversion; self-incriminating information given by the child at that inquiry is not admissible later in court proceedings.

An adult co-accused with a child in a preliminary inquiry must be excluded, subject to section 100(1)(f).

The inquiry magistrate may adjourn a preliminary inquiry for up to 7 days for listed purposes, and must tell the child about needing a parent, guardian, appropriate adult, or legal representation if the adjournment is for an identification parade.

If a child or the child’s parent, guardian, or appropriate adult does not comply with release conditions after an adjourned preliminary inquiry, the court can issue a warrant and make a necessary order.

If a child, parent, guardian, or appropriate adult is notified to attend a preliminary inquiry and does not attend, they can be compelled to appear.

The prosecutor and inquiry magistrate must take specified steps on diversion, withdrawal of charges, or moving the child’s case forward.

The inquiry magistrate must explain legal representation rights, help with State-funded legal aid applications, and manage attendance or orders for the child in the situations listed.

A child suspected of an offence must be considered for diversion if the listed conditions are met and the offence is not in the Fourth Schedule.

This section says diversion categories and options are listed in the Fifth Schedule, and decision-makers must consider listed factors when choosing a diversion option for a child.

Diversion programmes must not exclude a child for inability to pay, must not require inappropriate service, and must meet child-centred minimum standards.

Institutions that provide diversion options regularly must register with the Minister.

Each second grade magistrate court must have a child panel, and the probation officer must help staff it and consult the chief before nominations where a chief serves the area.

This section says child panels manage their own procedure, and sets deadlines for probation officers and courts to notify, convene, record, submit, and, if needed, reschedule and refer matters back.

If victim-offender mediation or restorative justice is chosen as a diversion option, the probation officer must convene it and may regulate the procedure.

If a child does not comply with a diversion order, the inquiry magistrate can issue a warrant or notice, must inquire into the reasons, and may change the diversion response or refer the matter for trial.

If a diversion option is selected under this section, an inquiry magistrate, a court, or a child panel must identify a probation officer or another suitable person to monitor it.

The Board must keep and maintain a register of children diverted from prosecution.

This Part applies when determining a person's age for criminal responsibility under section 14 of the Penal Code and for this Act.

A probation officer must gather relevant age information, complete an age estimation form, and estimate a child’s age if it is unknown.

An inquiry magistrate must determine and record a person’s age at a preliminary inquiry, may ask for relevant documents or statements, and must close and transfer the matter if the person was over 16 at the time of the alleged offence.

The court must assess age when a defendant may be under 16, and may transfer the case to child justice court or back to adult process depending on the finding and trial stage.

A child has a right to legal representation, and certain adults may appoint a representative for the child.

Children in the listed proceedings may be entitled to State-funded legal representation, and a plea cannot be taken in one case until a legal representative is appointed.

A legal representative for a child must explain the child’s rights and responsibilities, let the child give independent instructions if capable, promote diversion in criminal matters when appropriate, avoid undue pressure to admit the crime, and help ensure trials finish speedily.

If a child needs legal representation at State expense, the inquiry magistrate or court must immediately ask the legal aid office to appoint a legal representative. If the child is in detention, the legal representative must consult the child before the next court date.

A child needing legal representation under section 127 cannot waive that right.

If a child still refuses legal representation after questioning, the inquiry magistrate or court may ask the legal aid office to help the child at State expense. A person assisting the child must attend hearings, address the court, give notice of appeal, and have access to case materials, and may cross-examine witnesses and object to evidence.

Child justice courts must be established and are subordinate to the High Court.

A child justice court must be presided over by a professional magistrate or first-grade magistrate.

A child justice court has jurisdiction over children matters, but if a child-related matter would otherwise go to the High Court, the High Court must hear it and follow the Act’s requirements for the child.

A parent or guardian may attend a child justice court case, and may be required to attend all stages in some cases.

A child charged with an adult must generally be tried separately, unless there are compelling reasons to join the trials.

Children generally must not be tried by jury, unless jointly charged with an adult.

A child justice court must sit as needed, usually in a separate place or on different days from other courts, and only specified people may attend its sittings.

Media reports about child justice court proceedings must not reveal identifying details or show the child’s picture, unless a court orders otherwise in the interests of justice.

A child must not be imprisoned for any offence.

A child found responsible for offences in the Sixth Schedule may be detained at a reformatory centre for a period set by the court.

A child justice court may order a parent or guardian to pay fines, compensation, damages or costs, or require security for the child’s good behaviour, in specified cases.

Most courts must send a child offender’s case to a child justice court, unless the child’s best interests require otherwise.

In a child justice court, the court must explain the alleged offence to the child, hear the child’s response and evidence, and manage the hearing fairly.

Child justice court proceedings must be informal, and the presiding officer must prevent technical language, limit uniforms/robes except for identification or evidence, provide regular breaks and child provisions, and ensure assistance for children with disabilities where needed.

If a child admits the offence or the court proves it, the child justice court may make several orders, but it cannot make a reformatory centre order for a child under 14 unless the stated exceptions apply.

The Board may act during the detention period, the Chief Justice may amend the Seventh Schedule by Gazette notice, and a reformatory centre manager must assess each child and send monthly reports to the Board.

A child who escapes while being lawfully conveyed or transferred under a court or Board order is not committing a criminal offence, and the child may be taken back without warrant. The court and the Chairman of the Board also have powers to make replacement orders or direct detention after certain breaches or care failures.

A child, parent, guardian, or appropriate adult may appeal a child justice court judgment or order to the High Court. For detention orders, the High Court may confirm, set aside, or replace the order.

This section establishes the Child Case Review Board and sets out how its members are appointed.

Board members serve for three years, subject to re-appointment. A person appointed to fill a vacancy serves the rest of the term and may be re-appointed. The Chairperson, Deputy Chairperson, other members, or alternates may resign by written notice, but the resignation only takes effect after seven days.

This section sets who presides over Board meetings, how a substitute chair is chosen, what counts as a quorum, how decisions are made, and how often the Board must meet.

The Board must carry out a set of child-welfare and detention-centre functions, including advising administrators, monitoring centres, keeping a register, reviewing cases, and helping with rehabilitation and staff recruitment.

The Board has power over where children are sent, transferred, released, discharged, and what conditions attach to those orders.

The Board must have a Secretary from the public service, and that Secretary must keep records, do administrative work, prepare budgets, act as liaison, and follow the Board’s and Chairperson’s directions.

Parliament must provide the Board’s funding, and the Board may also accept donations and other assistance.

The Minister must establish public reformatory centres or public safety homes, publish their establishment in the Gazette, and state whether they are for female children, male children, or both, plus the number of children to be detained.

A home or institution’s manager or proprietor may apply to the Minister for designation as a private reformatory centre or private safety home. If the Minister is satisfied the application meets the Act’s requirements, the Minister may designate it and must issue a certificate.

Reformatory centres and safety homes must be managed under the Rules in the Eighth Schedule, and the Minister may amend that Schedule by Gazette order.

The manager of a reformatory centre or safety home must send monthly reports to the Board and allow inspection at reasonable times.

The Board may appoint qualified people to inspect reformatory centres and safety homes and report back. Inspectors can enter, inspect, and inquire, and may temporarily close a centre or home if needed for children’s welfare and safety. The Board forwards reports and recommendations to the Minister, and the manager may submit written reasons against permanent closure.

The Minister may direct closure of a reformatory centre or safety home by written notice, but must first hear the manager and must publish the notice in the Gazette.

The manager of a reformatory centre or safety home may ask the Minister to review a closure decision, and the Minister may re-issue the certificate after considering the application.

Certain managers, proprietors, executors, or administrators may apply to close a private reformatory centre or private safety home after giving the required written notice to the Minister.

A manager of a private reformatory centre or private safety home must receive a child sent there under this Act when there is a vacancy, and must educate, clothe, lodge, and feed the child for the detention period.

After closure notice is received, a reformatory centre or safety home must not receive any child under this Act after that date or after the date stated in the notice.

When a private reformatory centre or private safety home closes, the Board must order residents to be discharged or transferred, after consulting the Minister. If a centre or home is temporarily closed by inspectors, the Board must arrange suitable alternative placement for the children. Transfer must not increase a child’s stay period.

The manager of a reformatory centre or safety home must review cases of children detained for twelve months and may then recommend their conditional discharge to the Board.

A reformatory centre or safety home is a lawful place of detention for certain children.

A detained child who is seriously ill may be removed to a hospital on a medical officer’s certificate, and the hospital’s medical officer must send monthly certificates while the child stays there.

If the medical officer thinks a child no longer needs to stay in hospital, the officer must issue a certificate. The manager or person in control of the place of detention may then, after seeking the medical officer’s advice, recommend release to the Board.

Hospital medical officers or other hospital officers must take every reasonable precaution to prevent a child’s escape while the child is under medical care at the hospital.

A child in a reformatory centre or safety home must follow the centre’s discipline rules, and a manager may report an unruly or depraved child to the Board in writing.

Anyone who helps a detained child escape, or who harbours, conceals, or helps an escaped child avoid returning, commits an offence and is liable to six months’ imprisonment and a K50,000 fine.

Producing the warrant or other authorising document is enough evidence of a child’s identity and lawful detention or disposal in proceedings about the child.

A manager of a reformatory centre or safety home may make disciplinary rules, but they must be approved by the Minister before enforcement and cannot later be changed without the same approval.

After a child justice court makes a committal order, the court may order a parent, guardian, or other custodian to pay periodic contributions for the child’s maintenance.

The funding for public reformatory centres, public safety homes, and public foster homes comes from parliamentary appropriations, court-ordered contributions under section 177, and donations or gifts from any person.

A person caring for a committed child must keep the child in care, report regularly to the court, report immediately if the child dies or escapes, and allow a Social Welfare Officer to visit and ask reasonable questions.

When a probation order is made, the child’s parents or guardians must keep caring for the child and let the supervisor access the child’s living place at any time.

A person who is not a child commits an offence if they refuse to answer required questions, give false statements, block authorised entry or access, or ignore a lawful order, summons, or warrant.

A court may declare that an order is invalid to the extent it harms a child when the order was made because of a mistake about the child’s age.

A court may extend the Act’s application to people over 16 but under 21, either on application or on its own motion.

The Minister may make regulations to carry the Act into effect, but only on the Board’s recommendation.

The Chief Justice may make rules for procedure and practice in a child justice court.

This section repeals the Affiliation Act and the Children and Young Persons Act, but keeps certain existing subsidiary legislation and orders in force if they do not conflict with this Act.

At the start of the Act, the Minister must direct certain transfers of children to a safety home, reformatory centre, or foster home.

Certain custodial officials must send the Board lists of children in custody or at reformatory centres when the Act begins.

If certain child or young person proceedings were already started under the repealed Acts when this Act began, they must be treated as proceedings under this Act, and the court must continue as if it has jurisdiction under this Act.