CHILDREN’S CODE ACT
Arrangement of Sections
Section
PART I
PRELIMINARY PROVISIONS
1. Short title
2. Interpretation
3. Best interest of child
4. Principles in achieving children’s rights
PART II
THE RIGHTS AND RESPONSIBILITIES OF CHILD
5. Right to survival and development
6. Right to expression
7. Prohibition of discrimination against child
8. Right to name and nationality
9. Right to parental care
10. Right to education
11. Right to health care
12. Right to social protection and social services
13. Protection from child labour
14. Protection from armed conflict
15. Child with disability
16. Protection of child on move
17. Protection from maltreatment and other forms of exploitation
18. Protection from female genital mutilation, child marriage, etc.
19. Protection from sexual exploitation
20. Protection from hallucinogens, alcohol, tobacco products, drugs and precursor chemicals
21. Right to leisure and recreation
22. Protection from corporal punishment
23. Protection from torture and deprivation of liberty
24. Right to privacy
25. Rights of child witness or child victim
26. Duties and responsibilities of child
27. Sanction for infringement of rights of child
28. Enforcement of rights of child
PART III
ADMINISTRATION
29. Child Development Department
30. Director of Child Development, child development officers and other staff
31. Functions of Director of Child Development
32. Social Welfare Department
33. Director of Social Welfare, child welfare inspectors and probation officers
34. Functions of Director of Social Welfare
35. Powers of child development officer and child welfare inspector
36. National Coordination Committee for Children
37. Immunity
PART IV
PARENTAL RESPONSIBILITY
38. Parental responsibility
39. Persons with parental responsibility
40. Acquisition of parental responsibility by father
41. Parental responsibility agreement
42. Transmission of parental responsibility
43. Extension of parental responsibility beyond 19th birthday
44. Failure to exercise parental responsibility
PART V
ARREST, BAIL AND DEPRIVATION OF A CHILD’S LIBERTY
45. Age of criminal responsibility of child
46. Rights of child during apprehension
47. Apprehension of child
48. Apprehension by person
49. Apprehension and arrest by law enforcement officer
50. Information of arrest of child
51. Issuance of warrant of arrest
52. Notification of reason for arrest or substance of warrant
53. Search of arrested child
54. Caution by law enforcement officer
55. Interview of child
56. Recognisance
57. Custody of child
PART VI
DIVERSION OPTIONS
58. Diversion options
59. Conditions for diversion
60. Failure to comply with diversion option
61. Requirements for diversion programme
62. Prohibition of provision of diversion programme without accreditation
63. Application for accreditation of diversion programme
64. Suspension or revocation of accreditation of diversion programme
PART VII
COURT PROCEEDINGS
65. Constitution of juvenile court
66. Jurisdiction of juvenile court
67. Jurisdiction of Children’s Court
68. Sittings of juvenile court or Children’s Court
69. Prohibition of other courts hearing charge or matter against child
70. Remission of child to Children’s Court
71. Presumption and determination of age
72. Rights of child in conflict with the law
73. Appearance of child in juvenile court or Children’s Court and bail
74. Procedure in court
75. Remand of apprehended child during trial
76. Social welfare report of child
77. Parent, guardian to give security
78. Evidence of child
79. Methods of dealing with child in conflict with law
80. Payment of fine by parent, guardian or person having parental responsibility
81. General principles with regard to proceedings in juvenile court or Children’s Court
82. Presence of child welfare inspector or authorised officer
83. Reports
PART VIII
PROBATION OF CHILDREN
Division 1
Administration
84. Programmes for combating crime and rendering probation services
85. Functions of probation officer
86. Powers of probation officer
Division 2
Probation Orders
87. Probation order
88. Contents of probation order
89. Submission of child to treatment of mental condition
90. Copies of orders
91. Failure of probationer to comply with probation order
92. Commission of further offences by probationer
93. Effect of finding of guilty where probation order made
94. Amendment of probation order
95. Discharge of probation orders
96. Reformatory children
97. Probation Committee
PART IX
CHILD APPROVED CENTRE ORDER AND CHILD REFORMATORY CENTRE ORDER
98. Establishment of child approved centre
99. Child reformatory centre and child transit centre
100. Child approved centre order and reformatory centre order
101. Contents of child approved centre order and child reformatory centre order
102. Conveyance to child approved centre or child reformatory centre
103. Duration of custody in child approved centre or child reformatory centre
104. Extension of period of custody in child approved centre or child reformatory centre
105. Harbouring or concealing child
106. Penalty for escape or absence from child approved centre, child reformatory centre, child transit centre or place of safety
107. Separation of incorrigibles
108. Power to release on permit
109. Revocation or forfeiture of permit
110. Supervision after expiration of period of custody
111. Contributions for maintenance of child
112. Production of child
113. Expunge of record of finding of guilty and order
114. International reciprocity
115. Appeal against child approved centre order or child reformatory centre order
PART X
AFFILIATION, STATUS OF CHILD, MAINTENANCE AND CUSTODY
Division 1
Affiliation Orders
116. Application by child’s mother
117. Application by party to void marriage
118. Application by child
119. Corroboration of evidence
120. Order of unfitness for custody
Division 2
Family Status of a Child
121. Equal status of children
122. Presumption of parenthood of child born during marriage
123. Recognition of paternity in case of succession
124. Evidence and proof of paternity
125. Filing of instruments of acknowledgement
126. Use of paternity test
127. Consent to taking of samples
128. Impersonating another person for purposes of paternity test
Division 3
Maintenance of Affiliated Children
129. Presumptions regarding maintenance of children
130. Maintenance of affiliated child
131. Types of maintenance orders
132. Matters for consideration when making maintenance order
133. Financial provision by step-parent of child
134. Duration of maintenance order
135. Variation or discharge of maintenance order
136. Persons to whom payments may be made
Division 4
Maintenance of Child of Family
137. Maintenance of child of family
138. Application for maintenance order
139. Other maintenance provisions
140. Order for payments to person other than applicant
Division 5
Custody of Children
141. Custody order
142. Restriction on removal of child
143. Custody and access
144. Factors taken into consideration in making custody order
145. Supervision of child in custody
146. Disputes between joint custodial parents
147. Interim custody order
148. Custody agreement
149. Maintenance order where custody order made
Division 6
Registration and Enforcement of Maintenance Orders
150. Registration of High Court order
151. Registration of subordinate court order
152. Effect of registration
153. Prohibition of multiple registration
154. Enforcement of registered order
155. Variation of orders registered in subordinate court
156. Cancellation of registration
157. Enforcement of maintenance order
PART XI
GUARDIANSHIP
158. Rights of surviving parent to guardianship and power of court
159. Appointment of guardian
160. Appointment of testamentary guardian
161. Appointment of guardian by court
162. Guardian’s revocation and disclaimer
163. Duration of appointment of guardian
164. Dispute between guardians
165. Powers of guardian
166. Offences by guardian
PART XII
CHILD IN NEED OF CARE AND PROTECTION
167. Child in need of care and protection
168. Conveyance to place of safety
169. Proceedings in respect of child in need of care and protection
170. Powers of court
171. Intervention by ministry or place of safety
172. Medical care
173. Hearing of parent or guardian
174. Application of trust for maintenance of child
175. Cruelty to, or neglect of, child
176. Warrant to search for and remove child
177. Orders for protection of children
178. Supervision order
179. Care order
180. Arrangements for access to child in care
181. Intensive family support
182. Accreditation to provide intensive family support
PART XIII
FOSTER CARE
183. Application to foster child
184. Persons qualified to foster children
185. Duration of foster care
186. Procedure before placement in foster care
187. Religion
188. Cultural background
189. Undertaking by foster parents
190. Medical examination
191. Visits during placement
192. Prohibition to remove child without leave
193. Illness
194. Death
195. Termination of placement
196. Records
PART XIV
ADOPTION
197. Principles relating to adoption
198. Types of adoption
199. Adoptable children
200. Persons who may adopt
201. Confidentiality
202. Medical examination of child prior to adoption
203. Prohibition of two or more adoption orders simultaneously
204. General prohibitions relating to adoption
Division 1
Domestic Adoptions
205. Procedure for adoption
206. Visits during placement
207. Contact between prospective parent and child’s parent in domestic adoption
208. Termination of placement
209. Prohibition to remove child without leave during placement
210. Illness during placement in domestic adoption
211. Application to adopt child
212. Power to dispense with consent
213. Death
214. Guardian ad litem for the child
215. Interim orders
216. Conversion from open to closed adoption order
Division 2
Inter-Country Adoptions
217. Functions of central authority in Republic
218. Communication between central authorities
219. Conditions for inter-country adoption by State of origin
220. Conditions for inter-country adoption by receiving State
221. Applicants for inter-country adoption
222. Procedure for adoption of child from Republic
223. Visitation during, and termination of, placement in inter-country adoption
224. Prohibition to remove child without leave during placement
225. Illness during placement in inter-country adoption
226. Application for adoption
227. Withdrawal of approval by Republic
228. Application to adopt child from other State by person in Republic
229. Transfer of adopted child to Republic
230. Registration of birth and recording of adoption of child born outside Republic
231. Removal of adopted child from adoptive parent
232. Death, illness or injury of child before transfer to receiving State
233. Conversion of open adoption order to closed adoption order in inter-country adoption
234. Contact between prospective parent and child’s parent in inter-country adoption
235. Translation of documents
Division 3
Effect of Grant or Refusal of Adoption
236. Rejection of application for adoption
237. Effect of adoption on parental rights
238. Orders and agreements in respect of child born outside marriage
239. Devolution of property on adoption
240. Supplementary provisions on intestacy and testamentary disposition
241. Effect of inter-country adoption
Division 4
Post-adoption
242. Post-adoption report
243. Power to appoint guardian post-adoption
244. Revocation of adoption order
245. Adoption order in respect of children previously adopted
246. Amendment of adoption order
Division 5
Registers and Case Record
247. Register of available children for adoption
248. Child case record
249. Registration of adoption orders
250. Adopted children Register
251. Additional register
PART XV
ADOPTION AGENCIES
252. Functions of adoption agency
253. Prohibition of adoption service without certificate of accreditation
254. Application for accreditation as adoption agency
255. Accreditation of adoption agency
256. Changes in detail
257. Suspension or revocation of accreditation
258. Surrender of certificate of accreditation
259. Publication of accredited adoption agency
260. Display of certificate of accreditation
261. Prohibition of transfer of certificate of accreditation
262. Duplicate certificate of accreditation
263. Reporting requirements for accredited adoption agency
264. Register of accredited adoption agency
265. Confidential information
266. Authorisation of foreign accredited adoption bodies
267. Adoption working agreement
PART XVI
CHILD CARE FACILITY
268. Prohibition of establishment of child care facility without approval
269. Child care facility
270. Suspension or cancellation of approval
271. Reception of child in child care facility
272. Maintenance of child in child care facility
273. Monitoring of progress of child
274. Inspection of child care facility or other premises
275. Child care facility regulations
PART XVII
CHILD SAFEGUARDING
276. Measures on child safeguarding in institution or organisation
277. Reception of child in institution or organisation
278. Maintenance of child in institution or organisation
279. Monitoring of progress of child in institution or organisation
280. Inspection of institution or organisation
281. Regulations on child safeguarding
PART XVIII
INTERNATIONAL CHILD ABDUCTION
282. Interpretation for Part XVIII
283. Child wrongfully removed from or retained in Republic
284. Co-operation between central authorities
285. Application to return child
286. Commencement of legal proceedings
287. Limitation of powers of court
PART XIX
GENERAL PROVISIONS
288. Harbouring or concealing child
289. Escape from child care facility or place of safety
290. Appeals
291. Evidence of wages
292. Professional services in adoption
293. General penalty
294. Offences by principal officers of body corporate or unincorporated body
295. Regulations
296. Rules
297. Repeal of Acts
298. Savings and transitional provisions
AN ACT
to reform and consolidate the law relating to children; provide for parental responsibility, custody, maintenance, guardianship, foster care, adoption, care and protection of children; provide for the grant of legal aid to, and establish procedures for the treatment of, children in conflict with the law; provide for the making of social welfare reports in respect of a child in conflict with the law; establish diversion and alternative correctional programmes and promote the rehabilitation of a child in conflict with the law through programmes to facilitate restorative justice and compliance with laws; provide for the protection of a child victim and child witness in investigative and judicial processes; provide for the probation of a child in conflict with the law and provision of probation services; provide for the development of treatment programmes, early intervention services and programmes to combat crime and prevent further offending; limit the negative effects of confinement by minimising the impact of a finding of guilty on the family of a child in conflict with the law and facilitate the reintegration of the child in conflict with the law into society; provide for the establishment of child approved centres and child reformatory centres; provide for the regulation of child care facilities; provide for child safeguarding; domesticate the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, the Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption and the Convention on the Civil Aspects of International Child Abduction; repeal the Legitimacy Act, 1929, the Adoption Act, 1956, the Juveniles Act, 1956 and the Affiliation and Maintenance of Children Act, 1995 and provide for matters connected with, or incidental to, the foregoing.
[11th August, 2022]
Act 12 of 2022.
PART I
PRELIMINARY PROVISIONS
This Act may be cited as the Children’s Code Act.
In this Act, unless the context otherwise requires—
"access order" means an order granted to a person to visit, periodically stay or have contact with a child as the court may determine;
"administrative institution" means an authority, agency or any other body that applies a law affecting a child;
"adoption order" means an adoption order made under Part XIV vesting parental responsibility on a person adopting a child;
"adoption agency" means a local adoption agency accredited under Part XV;
"adoptive parent" means a person who adopts a child under Part XIV;
"adult" has the meaning assigned to the word in the Constitution;
"affiliation order" means an order declaring a man to be the biological or putative father of a child;
"appropriate authority" means the Minister for the time being having responsibility for, or such public body having powers under any other written law over children;
"assessment order" means an order requiring a child to be evaluated by a person appointed by the court to assist the court in determining a matter concerning the welfare and upbringing of the child;
"authorised officer" means a child development officer, child welfare inspector, a probation officer, a police officer or any other officer authorised by the Director of Child Development or Director of Social Welfare for the purposes of this Act;
"care order" means an order entrusting the care and protection of a child to a person who is not the parent, guardian, custodial parent or person having parental responsibility for a child;
"central authority" means—
(a) in relation to the Republic, the Director of Social Welfare; and
(b) a person, office or institution in a contracting State to the Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption and the Convention on the Civil Aspects of International Child Abduction;
"certificate of accreditation" means a certificate of accreditation issued to a diversion service provider or adoption agency issued under sections 63 and 255, respectively;
"certificate of legal aid" means a certificate of legal aid issued under the Legal Aid Act, 2021;
"Chief Inspector" means a Chief Inspector of Reformatories who supervises child reformatory centres;
"child" has the meaning assigned to the word in the Constitution;
"child abuse" includes physical, sexual, psychological and mental injury of a child;
"child approved centre" means an approved school established by the Minister;
"child in conflict with the law" means a child in respect of whom court proceedings are contemplated or instituted under any written law;
"child of family" includes a child—
(a) adopted by a husband and wife, or by either of them with the consent of the other;
(b) of the husband and wife, born before the marriage; and
(c) of either party to a marriage, born before the marriage;
"Children’s Court" means the division of the High Court established under the Constitution;
"child development officer" means the person appointed as a child development officer under section 30;
"child welfare inspector" means the person appointed as a child welfare inspector under section 33;
"child care facility" means a home or institution approved under section 268 and established for the care, protection, safety and rehabilitation of children, but does not include—
(a) a child reformatory centre;
(b) a child approved centre;
(c) an educational institution;
(d) a health facility; or
(e) a children’s day care centre, nursery or other similar establishment;
"child marriage" means marriage with a child or any arrangement made by a person for that marriage;
"child on the move" means a child who, voluntarily or involuntarily, moves within or outside the Republic with or without the child’s parent, guardian or person having parental responsibility for the child and whose movement places the child or could place the child at risk of economic or sexual exploitation, abuse, neglect or any other form of violence;
"child reformatory centre" means a child reformatory centre established under section 99;
"child transit centre" means a child transit centre established for the temporary custody of children under section 99;
"Civil Service Commission" means the Civil Service Commission established under Article 222 in the Constitution;
"closed adoption" means an adoption which creates a permanent parent-child relationship with an adoptive parent and where a pre-existing parent-child relationship with the family of origin is terminated;
"Court of Appeal" means the Court of Appeal established under the Constitution;
"court" has the meaning assigned to the word in the Constitution;
"corporal punishment" means the prohibited punishment in which physical force is used on a child;
"custodial order" means an order to place a child in custody in a child reformatory centre on whom a finding of guilty is made by a juvenile court or Children’s Court;
"custodial parent" means the person to whom custody of a child is awarded under a custody order;
"custody order" means an order vesting custody of a child in one or more persons;
"cyberbullying" means the use of electronic communication to bully a child;
"decree" has the meaning assigned to the word in the Matrimonial Causes Act;
"defendant" in relation to a maintenance order or a related attachment of earnings order, means the person liable to make payments under that order;
"Director of Child Development" means the Director of Child Development appointed under section 30;
"Director of Social Welfare" means the Director of Social Welfare appointed under section 33;
"disability" has the meaning assigned to the word in the Persons with Disabilities Act;
"diversion" means the referral of cases of children alleged to have committed offences away from the criminal justice system with or without conditions;
"diversion programme" means a programme that provides for diversion;
"diversion service provider" means a body that offers a diversion programme and includes a public body or non-governmental organisation;
"domestic adoption" means the adoption of a child resident in the Republic by a prospective parent in the Republic;
"drug" has the meaning assigned to the word in the Narcotic Drugs and Psychotropic Substances Act;
"early intervention" means the provision of services, diversion programmes and other programmes aimed at preventing the need for a child in conflict with the law to be dealt with in terms of the formal court procedure;
"education" has the meaning assigned to the word in the Education Act;
"educational institution" has the meaning assigned to the words in the Education Act;
"employer" has the meaning assigned to the word in the Employment Code Act;
"exclusion order" means an order requiring a person who has used violence or threatened to use violence against a child, whether or not that person permanently resides with the child, to depart from the home in which the child is residing or to restrain the person from entering the home or a specified part of the home or from a specified area in which the home is included, or to restrain any other person from taking the child to the person against whom the child needs protection for a period that the court may specify;
"family assistance order" means an order requiring a person appointed by the court to provide advice, counselling and guidance to a child, the child’s parents, custodial parent or a person who has care and control of the child or with whom the child is residing, as the court may specify;
"family group conferencing" means a gathering convened by a probation officer as a diversion or sentencing option to devise a restorative justice response to the offence;
"female genital mutilation" means the cutting and removal of part or all of the female genitalia, the practice of clitoridectomy, excision, infibulation or other practice involving the removal of part or all of the entire clitoris or labia minora of a female person;
"financial arrangement" means a provision governing the rights and liabilities towards each other of the parties to a marriage, including a marriage which has been dissolved or annulled, in respect of the making or securing of payments or the disposition or use of any property, and any rights and liabilities with respect to the maintenance or education of a child, whether or not a child of the family;
"financial provision order" means an order for periodical or lump sum payment made under Part X;
"firearm" has the meaning assigned to the word in the Firearms Act;
"fit person" means an adult who is of high moral character and integrity, who has mental capacity to look after a child and is able to provide a caring home for a child;
"foreign adoption body" means a body accredited to provide adoption services in a foreign State in accordance with the relevant laws of that State;
"foster care" means the placement of a child with a person who is not the child’s parent, guardian or person having parental responsibility who is willing to care for and maintain the child;
"foster child" means a child placed with a foster parent or foster family;
"foster family" means the placement of a child with a family that provides foster care;
"foster parent" means a person who receives and retains a child so as to care for and maintain the child except for a child’s parent, guardian or relative;
"gender-based violence" has the meaning assigned to the words in the Anti-Gender Based Violence Act;
"guardian" in relation to a child, means a person—
(a) who is a relative of a child;
(b) who has charge or control of the child; or
(c) appointed by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child on the death of that parent of the child, either alone or together with the surviving parent of the child;
"health facility" has the meaning assigned to the words in the Health Professions Act;
"health practitioner" has the meaning assigned to the words in the Health Professions Act;
"High Court" means the High Court for Zambia established under the Constitution;
"home" in relation to a child, means the place where the child’s parent, guardian, custodial parent, person having parental responsibility for the child or foster parent permanently resides, or if there is no parent, guardian, custodial parent or person having parental responsibility for the child living and the child has no foster parent, the child’s parent’s, guardian’s or custodial parent’s last permanent residence or the last permanent residence of a person having parental responsibility for the child, except that—
(a) in the case of a parent, guardian, custodial parent or person having parental responsibility having, or having had, more than one permanent place of residence, the parent, guardian, custodial parent or person having parental responsibility shall be presumed to be or to have been permanently resident at the place of that person’s principal permanent residence; and
(b) where the court is unable to determine the home of the child, the child shall be considered, for the purposes of this Act, to have the home in the area of jurisdiction of the local authority in whose area the child is found;
"interim maintenance order" means an interim maintenance order made under Part X;
"inter-country adoption" means the adoption of a child resident in the Republic by a prospective parent resident in a foreign country or the adoption of a child resident in a foreign State by a prospective parent resident in the Republic;
"intensive family support" means a home visitation social work service focused on working with family members, relatives and the community to improve the safety and well-being of a vulnerable child;
"juvenile court" means a Subordinate Court, sitting for the purposes of hearing a charge or matter involving a child—
(a) of the First Class or Second Class; or
(b) in the case of a Subordinate Court of the Third Class, a Subordinate Court presided over by a Magistrate of not less than one year experience;
"law enforcement agency" means the Zambia Police Service and any other agency exercising law enforcement under any written law;
"law enforcement officer" means a police officer and includes an officer under any written law with powers of arrest;
"Legal Aid Board" means the Legal Aid Board established under the Legal Aid Act;
"legal custody" means the parental rights and duties in relation to possession of a child conferred on a person by a custody order;
"legal practitioner" has the meaning assigned to the word "practitioner" in the Legal Practitioners Act;
"local authority" has the meaning assigned to the words in the Constitution;
"maintenance agreement" means an agreement, in writing, between the parties to a marriage, containing financial arrangements, whether made during the continuance, or after the dissolution or annulment, of the marriage;
"maintenance order" means an order for the maintenance of a child or other person, or both, made by a court under Part X;
"maltreatment" means all forms of child abuse resulting in actual or potential harm to the child’s health, survival or dignity of the child;
"mental capacity" has the meaning assigned to the words in the Mental Health Act;
"mental health facility" has the meaning assigned to the words in the Mental Health Act;
"mental health practitioner" has the meaning assigned to the words in the Mental Health Act;
"mental patient" has the meaning assigned to the words in the Mental Health Act;
"National Coordinating Committee for Children" means the National Coordinating Committee for Children established under section 36;
"next friend" means a person who intervenes to assist a victim who is a child or a child who is a mental patient and brings an action on behalf of a child, and includes a child welfare inspector;
"online exploitation" includes grooming, live streaming, consuming child sexual abuse material, and coercing and blackmailing a child for a sexual purpose;
"open adoption" means an adoption in which the parent-child relationship which existed before the adoption is not terminated but a new legal parent-child relationship between the child and the child’s adoptive parent is established and the adoptive parent has parental responsibility for the child;
"original court" in relation to an order under this Act, means the court by which the order was first made;
"parent" means the mother or father of a child and includes a custodial parent;
"parental responsibility" means the duties, rights, powers, responsibilities and authority which, by law or otherwise, a person has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child;
"personal protection order" means an order made by the court to stop threats or violence against the child who has reasonable fear for personal liberty and safety;
"periodic payments order" means a maintenance order for payments to be done by regular instalments made at defined intervals;
"petition" includes a cross-petition;
"place of safety" means a child care facility, a house or other suitable place, the occupier of which is willing to accept the temporary care of a child, but excludes a child approved centre or a child reformatory centre;
"precursor chemicals" has the meaning assigned to the words in the Narcotic Drugs and Psychotropic Substances Act;
"private body" means a voluntary organisation, non-governmental organisation, political party, charitable institution, company, partnership, club or any other person or organisation which is not a public body;
"probation" means the release of a child in conflict with the law, subject to a period of good behaviour by the child in conflict with the law, from detention under supervision;
"probation officer" means a probation officer appointed under section 33;
"probation order" means an order made by a court under Part VIII placing a child under the supervision of a probation officer;
"probation period" means the period specified under a probation order;
"probationer" means a child in conflict with the law placed under supervision by a probation order;
"production order" means an order requiring a person who is harbouring, concealing or otherwise unlawfully detaining a child, or who intends to remove a child from the Republic or from the local limits of the jurisdiction of the court, to disclose any information regarding the whereabouts of the child or to produce the child before the court or restraining the person from removing the child from the jurisdiction of the court for a period that the court may specify;
"prospective parent" means a person who intends to adopt a child under Part XIV;
"public body" has the meaning assigned to the words in the Public Finance Management Act;
"public officer" has the meaning assigned to the words in the Constitution;
"putative father" means a man alleged to be or regarded as the father of a non-marital child;
"receiving State" means a country receiving an adopted child in an inter-country adoption;
"Register" means a Register kept and maintained under this Act;
"register of births" means the register of births kept by the Registrar-General in accordance with the Births and Deaths Registration Act;
"Registrar-General" has the meaning assigned to the word in the Births and Deaths Registration Act;
"relative" in relation to a child, means a person related to the child, by consanguinity or adoption;
"repealed Acts" means the Legitimacy Act, 1929, the Adoption Act, 1956, the Juveniles Act, 1956, and the Affiliation and Maintenance Proceedings Act, 1995;
"residence order" means an order granted to a person to reside with a child or other arrangements that the court may determine;
"respondent" includes a petitioner against whom there is a cross-petition;
"restorative justice" means the promotion of reconciliation and responsibility through the involvement of a child and the child’s parents, family members, victims and the communities concerned;
"secured periodic payments order" means a maintenance order made by a court under Part X;
"serious offence" means an offence which is punishable, without proof of previous conviction, with death, life imprisonment or a term of imprisonment of three years or more, with or without the option of a fine;
"single man" includes a widower, a divorced man and a man on separation from the man’s wife;
"single woman" includes a widow, a divorced woman and a woman on separation from the woman’s husband;
"social welfare report" means a report made by a child welfare inspector regarding the physical, social, psychological and other circumstances, needs and deficiencies of a child for the purpose of assessing the appropriate action to be taken in respect of the child;
"State of origin" means a country in which a child to be adopted resides;
"supervising officer" means a child welfare inspector, probation officer, or a person delegated by the probation officer or child welfare inspector to act on behalf of that probation officer or child welfare inspector;
"wardship order" means an order requiring that a child be placed under the protection of the court; and
"young person" has the meaning assigned to the words in the Constitution.
(1) A child’s best interest is the primary consideration in a matter or action concerning the child, whether undertaken by a public or private body.
(2) A court, an administrative institution or an authorised officer shall in determining the best interests of a child have regard to—
(a) the ascertainable feelings and wishes of the child concerned, having regard to the age and understanding of the child;
(b) the child’s physical, emotional and educational needs and in particular, where the child has a disability, the ability of a person or institution to provide the special care or medical attention that may be required for the child;
(c) the likely effect on the child of any change in the circumstances of the child;
(d) the child’s age, sex, religious persuasion, cultural background and any characteristics of a child which the court or an authorised officer considers necessary;
(e) any harm which the child has suffered or is at risk of suffering;
(f) the ability of a parent or a person having parental responsibility for the child to meet the child’s needs;
(g) the strength of the relationship between a child and the child’s parent or a person having parental responsibility for the child;
(h) where a child’s parents have joint custody, the willingness of the parents to co-operate and co-parent;
(i) the customs and practices of the community to which the child belongs except where the customs and practices are repugnant to justice and morality;
(j) the child’s exposure to, or use of, drugs or precursor chemicals and, in particular, whether the child is addicted to drugs or precursor chemicals, and the ability of a person or institution to provide special care or medical attention that may be required for the child; and
(k) other matters that the court, an administrative institution or an authorised officer considers necessary.
(3) A court, an administrative institution, an authorised officer or a person acting in the name of an administrative institution, exercising a power conferred by this Act or any other written law in relation to a child, shall treat the best interests of the child as the first and paramount consideration to the extent that the—
(a) best interests of the child safeguards and promotes the rights of the child;
(b) best interests of the child conserves and promotes the welfare of the child; and
(c) court, an administrative institution, an authorised officer or a person acting in the name of an administrative institution secures for the child guidance and correction as is necessary for the welfare of the child and in the public interest.
4. Principles in achieving children’s rights
The following principles shall apply in matters relating to children—
(a) devotion to the best interests of a child;
(b) the observance of the right to life, survival and development of a child;
(c) the observance of children’s rights as an integral part of attaining equity and equality among children in all spheres of life;
(d) non-discrimination of children; and
(e) child participation and respect for the views of a child in all spheres of life.
PART II
THE RIGHTS AND RESPONSIBILITIES OF CHILD
5. Right to survival and development
A child has an inherent right to life, dignity and respect and it is the responsibility of the State and the family to ensure the survival and development of the child.
A child who is capable of forming that child’s own views shall be informed of, and be accorded an opportunity to express that child’s opinion in a decision or a matter of procedure affecting the child, and that opinion shall be taken into account, as may be appropriate, having regard to the age and maturity of the child and the nature of the decision.
7. Prohibition of discrimination against child
(1) A person shall not discriminate against or punish a child on the basis of race, colour, sex, gender, age, language, political or other opinion, conscience, belief, tribe, pregnancy, health, ethnic or social origin, disability, property, birth, economic or other status.
(2) A person shall not discriminate against or punish a child on the basis of the colour, sex, gender, age, language, political or other opinion, conscience, belief, tribe, pregnancy, health, ethnic or social origin, disability, property, birth, economic or other status of that child’s parent, guardian, custodial parent or person having parental responsibility.
8. Right to name and nationality
(1) A child has a right, from birth, to a name and nationality and where a child is deprived of that child’s identity, the State shall provide appropriate assistance with a view to establishing that identity.
(2) Subject to this Act, a child has a right to establish who that child’s biological parents are, where practicable, if it is in the best interest of a child.
(3) A child shall be registered after birth in accordance with the Births and Deaths Registration Act.
(1) A child has a right to live with, and to be protected and cared for by, the child’s parents, or to appropriate alternative care if the child is separated from the parents.
(2) A court or the Director of Social Welfare may separate a child from a parent where the court or the Director of Social Welfare determines that the child living with the parent would—
(a) lead to significant harm to the child;
(b) subject the child to serious neglect or abuse; or
(c) not be in the best interests of the child.
(3) Subject to sub-section (1), where a court or the Director of Social Welfare determines that it is in the best interests of a child to separate the child from a parent, the best alternative care available shall be provided for the child in accordance with this Act.
(4) Subject to this Act, the Ministry responsible for child welfare shall ensure that a child who is separated from a parent maintains personal relations and direct contact with that parent on a regular basis, except if it is contrary to the best interests of the child.
(5) Where a child is separated from the child’s family without the leave of a court, the State shall provide assistance for the reunification of the child with the family in an expeditious manner.
(1) A child’s right to education provided under the Education Act, shall be directed at—
(a) developing the child’s—
(i) personality, talents, skills, and mental and physical abilities to the child’s fullest potential;
(ii) respect for human rights and fundamental freedoms enshrined in the Constitution;
(iii) respect for the child’s parents, cultural identity, language and values; and
(iv) respect for the natural environment and ecosystem; and
(b) preparing the child for responsible life in society, in the spirit of tolerance, peace, equality of sexes and friendship.
(2) A child has a right to religious education, subject to appropriate parental guidance.
(3) The State and the parents of a child shall ensure the education of the child.
A child has a right to health and medical care, the provision of which is the responsibility of the child’s parents, a person having parental responsibility for a child and the State.
12. Right to social protection and social services
A child has a right to social protection and social services.
13. Protection from child labour
(1) A person shall not subject a child to economic exploitation or any work that is hazardous or likely to interfere with the child’s education, physical or mental health, spiritual, moral, emotional or social development.
(2) The minimum age of a child for the purposes of admission to employment and the number of hours and conditions of employment of a child shall be in accordance with the Employment Code Act.
14. Protection from armed conflict
(1) A child shall not take part in hostilities or be recruited in armed conflict.
(2) The State shall provide protection, rehabilitation, care, recovery and re-integration into normal life for a child who becomes a victim of armed conflict.
A child with a disability has the right to be treated with dignity and respect in accordance with the Persons with Disabilities Act.
16. Protection of child on move
A child on the move is entitled to appropriate protection and humanitarian assistance in accordance with the Anti-Human Trafficking Act, the Refugees Act and any other relevant written law.
17. Protection from maltreatment and other forms of exploitation
(1) A child is entitled to protection from maltreatment and any other form of exploitation, including sale, trafficking, abduction, cyber bulling or online exploitation by any person.
(2) The Minister shall issue guidelines and put in place measures for the establishment of social and child protection programmes to provide necessary support for the child and for the prevention, counselling, identification, reporting, referral, investigation, treatment and follow up of instances of child maltreatment or other forms of exploitation.
18. Protection from female genital mutilation, child marriage, etc.
(1) A person shall not subject a girl child to female genital mutilation.
(2) A person shall not subject a child to—
(a) child marriage; or
(b) cultural rites, and religious or traditional practices, that are likely to negatively affect the child’s life, health, social welfare, dignity, and physical or psychological development.
19. Protection from sexual exploitation
A person shall not—
(a) subject a child to sexual abuse or sexual exploitation;
(b) use a child in prostitution;
(c) induce or coerce a child to engage in sexual activity; or
(d) expose a child to obscene or pornographic material.
20. Protection from hallucinogens, alcohol, tobacco products, drugs and precursor chemicals
A person shall not subject a child to the use, production, trafficking or distribution of hallucinogens, alcohol, tobacco products, drugs or precursor chemicals.
21. Right to leisure and recreation
A child is entitled to rest, leisure, play and participation in cultural and artistic activities appropriate to the age of that child.
22. Protection from corporal punishment
A person shall not impose corporal punishment as a form of punishment on a child.
23. Protection from torture and deprivation of liberty
(1) A person shall not subject a child to torture, cruel treatment or punishment, unlawful arrest or deprivation of liberty.
(2) Despite any other written law, a person shall not subject a child to capital punishment or life imprisonment.
(3) A child shall not be incarcerated on account of the imprisonment of a child’s parent except where special circumstances exist as provided under the Zambia Correctional Services Act.
A child has the right to privacy appropriate to the age and maturity of that child.
25. Rights of child witness or child victim
(1) A child that is giving evidence to a law enforcement officer or other authorised officer shall be questioned—
(a) in the presence of the child’s parents, guardian or relative, a person having parental responsibility for the child or a child welfare inspector;
(b) in a manner that avoids any harm being occasioned to the child;
(c) in a manner that promotes the well-being of the child; and
(d) having regard to the age, maturity and cognitive abilities of the child, through a child welfare inspector or other authorised officer acting for the child.
(2) A child witness or child victim giving evidence to a law enforcement officer or other authorised officer shall not come into contact with an alleged perpetrator of a crime or be made to confront the alleged perpetrator of a crime.
(3) The identity of a child witness or child victim is confidential and shall not be published under any circumstance.
26. Duties and responsibilities of child
(1) Subject to the Constitution and the provisions of this Act, a parent, guardian or person having parental responsibility for a child shall inculcate the following duties and responsibilities on a child—
(a) the duty and responsibility to contribute to the cohesion of the family;
(b) the duty and responsibility to respect a parent, a guardian, a person having parental responsibility for the child, and an elder at all times and assist them in case of need;
(c) the duty and responsibility to serve the community through the child’s physical and intellectual abilities;
(d) the duty and responsibility to preserve and strengthen social and national solidarity; and
(e) the duty and responsibility to preserve and strengthen the positive cultural values of the community in the child’s relations with other members of that community.
(2) When taking into account the duty and responsibility of a child, a person shall have due regard to the age, maturity and ability of that child, and to limitations that are contained in this Act.
27. Sanction for infringement of rights of child
Except as otherwise provided in any other written law, a person who wilfully or negligently infringes a right of a child specified in this Act commits an offence and is liable, on conviction—
(a) to a fine not exceeding one million penalty units or to imprisonment for a term not exceeding ten years, or to both; or
(b) depending on the facts of the case, to community service.
28. Enforcement of rights of child
A person who alleges that a provision of this Act is being or is likely to be contravened in relation to a child, may petition the Children’s Court for redress, on behalf of the child, without prejudice to any other action with respect to the same matter which is lawfully available.
PART III
ADMINISTRATION
29. Child Development Department
(1) The Child Development Department in the ministry responsible for child development and welfare is responsible for the promotion and advancement of the rights and development of a child under the general direction of the Permanent Secretary of the ministry responsible for child development and welfare.
(2) Despite the generality of sub-section (1), the functions of the Child Development Department are to—
(a) ensure compliance to child rights standards;
(b) design and formulate policy on—
(i) child development activities; and
(ii) the reintegration of children in need of care and protection;
(c) promote and develop awareness among members of the public including children on matters relating to the rights of children;
(d) facilitate measures and strategies designed to prevent, respond and end violence against children and abuse;
(e) provide technical guidance on promotion of child rights, child participation and child protection;
(f) request data from State and non-state actors on the rights and welfare of children in the Republic and facilitate preparation of national, regional and international reports;
(g) request ad hoc thematic information and data from State and non-state actors for purposes of reporting on issues related to the rights and development of a child;
(h) disseminate recommendations from regional and international child rights bodies and oversee the implementation of the recommendations by responsible State and non-state actors;
(i) collaborate with relevant institutions and ministries to exchange information relating to child development; and
(j) conduct research on matters relating to the promotion and advancement of child rights and development.
(3) The Child Development Department may carry out its functions under this Act on its own or jointly with other ministries, departments, Government agencies, local authorities or public and private bodies.
30. Director of Child Development, child development officers and other staff
(1) The Civil Service Commission shall appoint as a public officer, the Director of Child Development who is responsible for the administration of the functions of the Child Development Department.
(2) The Civil Service Commission shall appoint as public officers, child development officers and other staff of the Child Development Department.
(3) The Director of Child Development may, in writing, delegate the exercise of any of the functions conferred on the Director of Child Development by this Act to a child development officer or other authorised officer that the Director of Child Development considers necessary.
(4) The Director of Child Development may, in writing, revoke or vary the delegation of function conferred by the Director of Child Development under sub-section (3).
31. Functions of Director of Child Development
The Director of Child Development shall, despite the generality of section 30(1)—
(a) promote child rights and development;
(b) recommend effective measures to an appropriate authority to prevent violence against children and child rights abuse;
(c) promote awareness on the provision of legal aid for the advancement of the rights of a child; and
(d) inspect a child approved centre, child reformatory centre, place of custody and child care facility with a view to assessing the conditions of children held in those places and make recommendations to redress existing challenges.
(1) The Social Welfare Department in the ministry responsible for child development and welfare is responsible for the administration of this Act and to supervise and exercise control over the planning, financing and co-ordination of welfare activities relating to children under the general direction of the Permanent Secretary of the ministry responsible for child development and welfare.
(2) Despite the generality of sub-section (1), the functions of the Social Welfare Department are to—
(a) determine priorities in the field of child welfare in relation to the socio-economic policies of the State;
(b) provide assistance to vulnerable children, including children with disabilities, orphaned and destitute children, children who abuse drugs, children who are sexually abused and children affected by domestic violence;
(c) establish programmes to alleviate the hardships affecting children;
(d) regulate child care facilities;
(e) support child and family welfare activities;
(f) promote the provision of social services essential to the welfare of children in addition to the welfare of families;
(g) oversee fostering and adoption, and ensure compliance with the provisions relating to fostering and adoption under this Act;
(h) regulate and supervise the activities of an adoption agency;
(i) co-operate with foreign central authorities in inter-country adoptions and international child abduction;
(j) provide technical and other support services to agencies carrying out child welfare programmes;
(k) provide welfare services to a—
(i) circumstantial child and the circumstantial child’s family;
(ii) child in conflict with the law;
(iii) child in need of care and protection;
(iv) child that is a victim of gender-based violence and human trafficking; and
(v) child with disabilities;
(l) provide shelter to a child under paragraph (k);
(m) establish a panel of persons from whom a guardian ad litem may be selected by a court; and
(n) maintain a Register of perpetrators of child sexual violence for the protection of a child, except that the Register shall not include information relating to a child in conflict with the law.
(3) The Social Welfare Department may carry out its functions under this Act on its own or jointly with other ministries, departments, Government agencies, local authorities or public and private bodies.
33. Director of Social Welfare, child welfare inspectors and probation officers
(1) The Civil Service Commission, shall appoint as a public officer, the Director of Social Welfare who is responsible for the administration of the functions of the Social Welfare Department.
(2) The Civil Service Commission shall appoint as public officers, child welfare inspectors, probation officers and other staff of the Social Welfare Department.
(3) The Director of Social Welfare may, in writing, delegate the exercise of any of the functions conferred on the Director of Social Welfare by this Act to a child welfare inspector, probation officer or other authorised officer that the Director of Social Welfare considers necessary.
(4) The Director of Social Welfare may, in writing, revoke or vary the delegation of function conferred by the Director of Social Welfare under sub-section (3).
34. Functions of Director of Social Welfare
The Director of Social Welfare shall, despite the generality of section 33(1)—
(a) assist in the establishment, promotion, co-ordination and supervision of services and facilities designed to advance the well-being of children;
(b) provide reports and assessments as may be required by a court or for the enforcement of an order made by a court under this Act;
(c) ensure the enforcement of court orders in relation to a child which requires supportive, social and administrative arrangements;
(d) safeguard the welfare of a child in all sectors, including a child in foster care or under care by virtue of a care order or an interim care order;
(e) trace the parents, guardian or relative of a lost or abandoned child, or return a lost or abandoned child to the child’s lawful place of residence;
(f) provide guidance and other assistance and treatment for children who are arrested or remanded in police custody or a child transit centre; and
(g) assist children through court proceedings and children’s hearings.
35. Powers of child development officer and child welfare inspector
(1) A child development officer and child welfare inspector shall ensure compliance with this Act.
(2) A child development officer and child welfare inspector shall be provided with a certificate of appointment, in the prescribed form, which shall be prima facie evidence of the child development officer and child welfare inspector’s appointment.
(3) A child development officer and child welfare inspector shall, in performing a function under this Act—
(a) be in possession of the certificate of appointment referred to under sub-section (2); and
(b) show the certificate of appointment to any person who requests to see it or is subject to an inspection or investigation under this Act.
(4) A child development officer and child welfare inspector may, without a warrant, at any reasonable time—
(a) enter and search any premises occupied by an institution or any other premises, including a private dwelling, where information or documents which may be relevant to an inspection may be kept;
(b) search any person on the premises if there are reasonable grounds for believing that the person has possession of a document or article that has a bearing on the inspection, except that a person shall only be searched by a person of the same sex;
(c) examine any document or article found on the premises that has a bearing on the inspection;
(d) require information to be given about any document or article by—
(i) the owner of the premises;
(ii) the person in control of the premises;
(iii) any person who has control of the document or article; or
(iv) any other person who may have the information;
(e) take extracts from, or make copies of, any book or document found on the premises that has a bearing on the investigation;
(f) use any computer system on the premises, or require assistance of any person on the premises to use that computer system, to—
(i) search any data contained in, or available to the computer system;
(ii) reproduce any record from the data; or
(iii) seize an output from the computer for examination and copying;
(g) attach and, if necessary, remove from the premises for examination and safeguarding a document or article that appears to have a bearing on the inspection; and
(h) enter an institution, a dwelling place of a person or a child care facility to examine a child or foster child who is placed in the custody of the institution, dwelling place of a person or child care facility.
(5) A child development officer and child welfare inspector who removes a document or article from any premises under sub-section (4)(g) shall—
(a) issue a receipt for the document or article to the owner of, or person in control of, the premises; and
(b) return the document or article as soon as practicable after achieving the purpose for which it was removed.
(6) A person shall not—
(a) delay or obstruct a child development officer and child welfare inspector in the performance of the child development officer and child welfare inspector’s functions under this Act;
(b) refuse to give a child development officer and child welfare inspector reasonable assistance that the child development officer or child welfare inspector may require for the purpose of exercising the child development officer or child welfare inspector’s powers under this Act;
(c) fail to produce a report or record, or conceal a facility within a child care facility; or
(d) give a child development officer or child welfare inspector false or misleading information in answer to an inquiry made by the child development officer or child welfare inspector.
(7) A person who contravenes sub-section (6) commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a period not exceeding two years, or to both.
(8) A child development officer shall furnish the Director of Child Development with a written report and any other information relating to an inspection as the Director of Child Development may require.
(9) A child welfare inspector shall furnish the Director of Social Welfare with a written report and any other information relating to an inspection as the Director of Social Welfare may require.
(10) Nothing in this section requires a person to disclose or produce information or a document, if the person would in an action in a court be entitled to refuse to disclose or produce the information or document.
36. National Coordination Committee for Children
(1) There is established the National Coordinating Committee for Children which is responsible for the co-ordination of child development and welfare matters in the ministry responsible for child development and welfare.
(2) The composition, functions and proceedings of the National Coordinating Committee for Children shall be prescribed.
(3) The National Coordinating Committee for Children may establish sub-committees in the provinces and districts as prescribed.
An action shall not lie against the Director of Child Development, the Director of Social Welfare, a child development officer, child welfare inspector, probation officer or other staff of the Child Development Department or Social Welfare Department in respect of an act done in good faith and without negligence in the execution of the powers vested in them under this Act.
PART IV
PARENTAL RESPONSIBILITY
(1) Except where a parent has surrendered that parent’s parental responsibilities in accordance with this Act or any other written law, a parent of a child has—
(a) the duty to maintain the child, and in particular to provide the child with—
(i) food;
(ii) shelter;
(iii) clothing;
(iv) medical care, including immunisation;
(v) education and guidance; and
(vi) general care and assurance of the child’s survival and development;
(b) the duty to protect the child from neglect, discrimination, violence and abuse;
(c) the right to—
(i) give parental guidance in religious, moral, social, cultural and other values;
(ii) determine the name of the child;
(iii) appoint a guardian in respect of the child;
(iv) receive, recover, administer and otherwise deal with the property of the child for the benefit and in the best interests of the child;
(v) arrange or restrict the emigration of the child from the Republic; and
(vi) on the death of the child, arrange for the burial or cremation of the child.
(2) A parent shall ensure that in the absence of that parent, the child is cared for by a competent person.
(3) The fact that a person has or does not have parental responsibility shall not affect—
(a) any obligation which the person may have in relation to the child; or
(b) any rights which in the event of the child’s death or injury, that person may have in relation to the child’s property.
(4) Subject to the provisions of this Act, a person who does not have parental responsibility for a particular child, but has care and control of the child may act in a manner that is reasonable in the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.
39. Persons with parental responsibility
(1) A child’s mother and father, whether married to each other or not, have a duty to protect and provide for the child.
(2) Where a child’s father and mother were not married to each other at the time of the child’s birth and have not subsequently married each other, the—
(a) mother shall have parental responsibility at the first instance; and
(b) father shall acquire parental responsibility for the child in accordance with section 40.
(3) Except where a person has surrendered the parental responsibilities in accordance with this Act or any other written law, a person who has parental responsibility for a child at any time shall not—
(a) cease to have that parental responsibility for the child; and
(b) surrender or transfer any part of that parental responsibility to another person but may arrange for some or all of the parental responsibility to be met by one or more persons acting on that person’s behalf.
(4) A person with whom the arrangement under sub-section (3)(b) is made may be a person who already has parental responsibility for the child and the arrangement shall not affect any liability of the person making the arrangement which may arise from any failure by that person to meet any part of the parental responsibility for the child.
(5) Where more than one person has parental responsibility for a child, each of them may act on their own and without the other or others in that responsibility, but nothing in this Part shall be taken to affect the operation of any relevant written law which requires the consent of more than one person in a matter affecting a child.
(6) A person who has parental responsibility for a child shall not act in a manner that contravenes any order made with respect to the child under this Act.
40. Acquisition of parental responsibility by father
(1) Where a child’s father and mother are not married at the time of the child’s birth—
(a) a court may, on an application by the father, order that the father shall have parental responsibility for the child;
(b) the father and mother may, by a parental responsibility agreement, provide for the father’s parental responsibility for the child; or
(c) the father shall acquire parental responsibility for the child if that father acknowledges paternity of the child or maintains the child.
(2) Where a child’s mother loses parental responsibility under any written law that mother may—
(a) apply to the court for restoration of parental responsibility; or
(b) enter into a parental responsibility agreement to provide for parental responsibility of the child.
41. Parental responsibility agreement
(1) A parental responsibility agreement shall be made in the prescribed manner and form.
(2) A parental responsibility agreement shall be terminated by an order of a court made on application by a—
(a) person who has parental responsibility for the child; or
(b) child, with the leave of the court.
(3) A court shall only grant leave under sub-section (2)(b), if the court is satisfied that the child has sufficient understanding to make the proposed application.
42. Transmission of parental responsibility
(1) Where the mother and father of a child are married to each other at the time of the birth of the child or subsequently marry each other after the birth of the child and the—
(a) mother dies, the father shall exercise parental responsibility for the child either alone or together with any guardian appointed by the mother; or
(b) father dies, the mother shall exercise parental responsibility for the child either alone or together with any guardian appointed by the father.
(2) Where the father and mother of the child were not married at the time of the birth of the child and have not subsequently married each other after the birth of the child and the—
(a) mother dies, the father shall have parental responsibility for the child either alone or with any guardian appointed by the mother or the relatives of the mother if the father has acquired parental responsibility; or
(b) father who has acquired parental responsibility dies, the mother shall exercise parental responsibility in respect of the child either alone or with any guardian appointed by the father or the relatives of the father.
(3) A surviving parent of a child may object to any guardian appointed under sub-section (1) or (2) and may apply to a court for the revocation of the appointment of the guardian.
(4) The relatives of the deceased mother or father of the child, may, if the relatives of the deceased mother or father of the child consider the surviving father or mother of the child to be unfit to exercise parental responsibility for the child, apply to a court to make an appropriate order to safeguard the best interests of the child.
(5) Where the mother and the father of the child are deceased or are incapable of exercising parental responsibility due to illness or are mental patients, parental responsibility shall be exercised by—
(a) a guardian;
(b) a relative of the child; or
(c) a person named in a residence order, if a residence order relating to a child is in force or is subsequently made.
(6) A child’s next friend shall, where the child’s next friend considers the person appointed under sub-section (5) to be unfit to exercise parental responsibility, apply to a court to make an appropriate order to safeguard the best interests of the child.
43. Extension of parental responsibility beyond 19th birthday
(1) A court may, on an application, extend parental responsibility in respect of a child beyond the date of the child’s 19th birthday if the court is satisfied that special circumstances exist relating to the welfare of the child that would necessitate that extension being made.
(2) An application under sub-section (1) may be made after the child’s 19th birthday by—
(a) a parent or guardian;
(b) a person having parental responsibility for the child;
(c) the Director of Social Welfare; or
(d) the child.
44. Failure to exercise parental responsibility
A person who wilfully fails or refuses to exercise parental responsibility in accordance with this Part commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.
PART V
ARREST, BAIL AND DEPRIVATION OF A CHILD’S LIBERTY
45. Age of criminal responsibility of child
A child is not criminally liable for an act or omission except as provided under the Penal Code.
46. Rights of child during apprehension
(1) A child has a right to privacy and protection of the child’s identity from exposure by the media—
(a) during an apprehension or arrest;
(b) during an investigation of an offence or court proceedings;
(c) while serving an order of the court; and
(d) whilst in custody.
(2) A child has the right to remain silent during an apprehension, arrest, an investigation of an offence or court proceedings, or whilst in custody and shall be informed of the right to remain silent when apprehended or arrested.
(3) A person shall not release any information for publication that is likely to lead to the identification of a child in the course of an apprehension or arrest while in custody, during an investigation of an offence or court proceedings, and while serving an order of the court.
(4) A person who contravenes sub-section (3) commits an offence and is liable, on conviction, to a fine not exceeding three hundred thousand penalty units or to imprisonment for a term not exceeding three years, or to both.
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