Lesotho
Children's Protection and Welfare Act, 2011
Act 7 of 2011
- Published in Government Gazette 40 on 31 March 2011
- Commenced on 31 March 2011
- [This is the version of this document from 31 March 2011.]
Part I – Preliminary
1. Short title and commencement
This Act may be cited as Children’s Protection and Welfare Act, 2011 and shall come into operation on the date of its publication in the Gazette.2. Objects
3. Interpretation
In this Act, unless the context otherwise requires—“abuse” in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes—(a)assaulting a child or inflicting any other form of deliberate injury or harm on a child;(b)sexually abusing a child;(c)committing an exploitative labour practice in relation to a child;(d)exposing or subjecting a child to behaviour that may socially, emotionally, physically or psychologically harm the child;(e)exposing a child to physical or mental neglect;(f)abandoning or leaving a child without visible means of support; and(g)subjecting a child to harmful substances such as alcohol and drugs.“adoption agencies” means non-governmental organisations authorised by their governments to carry out mandates of adoption processes under supervision of departments responsible for children’s welfare and protection;“approved school” means a school designated as such under section 188;“approved school order” means an order made by a Children’s Court requiring a child to be sent to an approved school;“assessment” means a process of evaluation of a child by a probation officer or social worker, on the child’s development and competencies, the child’s family or home circumstances, the nature and circumstances surrounding the socio-economic circumstances of the child or an alleged commission of an offence and its impact upon the victim, intention of the child to acknowledge responsibility for the alleged offence, and any other relevant circumstances or factors;“Bureau of Statistics” means a unit within a Ministry responsible for statistics;“chief” has the meaning assigned to it in the Chieftainship Act, 1968;“child” means a person under the age of eighteen years;“children’s court” has the meaning assigned to it under section 134;“Commissioner of Police” has the same meaning as in the Police Services Act 1998;“community service” has the same meaning as in the Community Service Rules, 1999;“contribution order” means an order made by a Children’s Court for a parent of a child who is sent to an institution to contribute financially for the welfare of the child;“a child with disability” means a child who is affected by any disability of a physical, intellectual, sensory or mental nature or other disability irrespective of its cause, whether temporary or permanent, to the extent that the child is unable to engage in activities in a normal way and is as a result hampered in his normal functions in certain areas of social life;“Department of Social Welfare” means a department responsible for social welfare;“detention” means the deprivation of liberty of a child including confinement in a police cell, lock-up, prison, approved school or probation hostel;“Director of Probation Unit” means an officer heading the probation unit;“District Administrator” has the same meaning as in the Local Government Act, 1997;“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 which is intended to promote a child’s accountability and reintegration into society;“early intervention services” means social development services which are provided to families with children in order to strengthen and build their capacity and self-reliance to address problems that may or are bound to occur in the family environment;“family foster care” means placement of a child by the Department of Social Welfare with family members who are not the child’s biological parents;“family group conference” means a meeting involving a child, his parents and family members, a victim of an offence, his parents and any other relevant party to find ways to restore the harm and broken relationships caused by the child’s offending;“foster parent” means a person, not being a parent of a child, who undertakes the responsibility of providing for the care, accommodation and upbringing of the child, with or without financial reward;“guardian” means any person who, in the opinion of a Children’s Court, having cognizance of any case in relation to a child or in which the child is concerned, is for the time being in charge of and has control over the child;“household member” means a person who ordinarily resides in the same household as a child;“inquiry magistrate” means an officer presiding in a preliminary inquiry;“institutional foster care” means placement of a child by the Department of Social Welfare at a care facility for a specified period of time;“local authority” has the same meaning as in the Local Government Act, 1997;“member of the family” includes a parent or a guardian, or a member of an extended family, who is a household member;“Minister” means the Minister responsible for children’s affairs;“person” means a natural person or juristic person;“place of detention”—(a)means any place of detention established or appointed under section 181; and(b)includes accommodation in police station, police cell or lockup, prison, approved school, probation hostel, separate or apart from adult offenders;“place of safety” means any institution designated for the care and protection of children, foster home or any other suitable place the occupier of which is willing temporarily to receive a child;“police officer” has the same meaning as in the Police Service Act 1998;“preliminary inquiry” means a compulsory procedure which takes place before charges are instituted in relation to an alleged offence and which is held in all cases involving a child over the minimum age of criminal responsibility, where diversion, conversion to a Children’s Court inquiry or a decision to decline to charge the child has not yet been taken in accordance with this Act;“probationer” means a child for the time being under supervision by virtue of a probation order;“probation hostel” means a hostel established or appointed as a place of residence for children required to reside there under section 182;“probation officer” means a person who holds a qualification recognised by the responsible Minister and includes auxiliary probation officer and shall by virtue of such status be an officer of court;“probation period” means the period in which a probationer is placed under supervision by a probation order;“probation unit” means a department, in the Ministry responsible for justice which deals with the rehabilitation and re-intergration of children in conflict with the law and at risk of offending;“recognisance” means a communication to the child by a police officer or social worker to appear at an assessment on a specified date and at a specified place and time, or by a magistrate to appear at a preliminary inquiry or before a Children’s Court;“Registrar of Births and Deaths” has the same meaning as in the Registration of Births and Deaths Act, 1973;“sentence involving residential element” means a sentence referred to under section 154 (3) or a programme referred to under section 159 where part of that sentence or programme involves compulsory residence in a residential facility or a place other than a child’s home;“social worker” means a person who holds a qualification recognised by the National Council of Social Workers and includes auxiliary social workers and shall by virtue of such status be an officer of court;“trafficking” means the recruitment, transportation, transfer, sale, harbouring or receipt of persons by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purposes of exploitation; and“vulnerable child” is a person who is below the age of 18, who has one or both parents who have deserted or neglected him to the extent that he has no means of survival and as such is exposed to dangers of abuse, exploitation or criminality and is, therefore, in need of care and protection.Part II – Principles
4. The best interests of a child
5. Evolving capacity
All actions concerning a child shall take full account of his evolving capacities.6. Non-discrimination
A child shall not be discriminated against on the grounds of gender, race, age, religion, disability, health status, language, custom, ethnic origin, rural or urban background, birth, socio-economic status, refugee status or other status.Part III – Rights of a child and responsibilities of parents and the State
7. Identity of a child
A child has a right, from birth, to a decent name and to acquire a nationality.8. Right to registration
A child has a right to be registered within three months of birth whether born alive or still-born.9. Right of orphaned and vulnerable children to registration
10. Right to live with parents and grow up in a caring environment
A child has a right to live with his parents and grow up in a caring and peaceful environment unless it is proved in court that living with his parents shall—11. Right to education and Health
12. Right to social activity
A child shall not be deprived or hindered to participate in sports, cultural or artistic activity or any other leisure activity except where it is not in the best interests of the child.13. Rights of child with disabilities
A child with disability has a right to dignity, special care, medical treatment, rehabilitation, family and personal integrity, sports and recreation, education and training to help him enjoy a full and decent life and achieve the greatest degree of a self-reliance and social integration.14. Right of opinion
15. Right to protection from exploitative labour
A child has a right to be protected from exploitative labour as provided for under section 226 of this Act and other international instruments on child labour.16. Right to protection from torture and degrading treatment
17. A child not to be subjected to harmful cultural rites, custom and traditional practices
A child shall not be subjected to any cultural rites, customs or traditional practices that are likely to negatively affect the child’s life, health, welfare, dignity or physical, emotional, psychological, mental and intellectual development.18. Right to be protected from harmful substances
A child has a right to be protected from the use of hallucinogens, narcotics, alcohol, tobacco products or psycho-tropic drugs and any other substances declared harmful, and from being involved in their production, trafficking or distribution.19. Right to parental property
A child has a right to the property of his parents but where the child is born out of wedlock, the child has a right to the property of his biological mother irrespective of the mother’s marital status.20. Parent’s and guardian’s duties and responsibilities
21. Children’s duties and responsibilities
In the application of the provisions of this Act, a child shall have due regard to his duties and responsibilities to—22. State duties and responsibilities
The state has a duty to formulate policies which will ensure—Part IV – Child in need of care and protection
23. Child in need of care and protection
24. Taking child into place of safety
A police officer, the department of social welfare, a chief or member of the community who is satisfied on reasonable grounds that a child is in need of care and protection may take the child and place him in a place of safety.25.- Presentation before Children’s Court
26. Child in need of medical examination or treatment
27. Medical examination and treatment
28. Authorisation of hospitalisation
29. Control over hospitalised children
Where a child is hospitalised under section 28, the director of social welfare shall have the same control over and responsibility for the maintenance of the child as the person in charge of a place of safety would have had if the child had been placed in the place of safety.30. Authorisation of medical treatment
31. Steps to be taken after medical examination or treatment
32. No liability incurred for giving authorisation
33. Duty of medical officer
34. Duty of member of the family
35. Duty of child-care provider
36. Duty of member of the community
37. Functions of Children’s Court in cases of children in need of care
Part V – Administration of property of children by office of the Master of the High Court
38. Reporting of estate to the office of the Master of the High Court
Where a parent is survived by minor children, the surviving parent, guardian, closest relative, or any member of the community shall report the estate to the office of the Master of the High Court within two months of the death of the parent.39. Seeking permission of the office of the Master of the High Court for alienation, disposal of or sale of children’s property
40. Duties of the Master of the High Court
The master of the high court shall—41. Duties of the District Administrator in the administration of the property of children
The district administrator before whom a successful heir of a deceased person is presented shall—42. Duty of employer in relation to property belonging to children
43. Duties of financial institutions
Part VI – Offences in relation to health and welfare of children
44. Ill-treatment, neglect, abandonment or exposure of children to abuse
45. Children not to be used for begging
A person who causes or allows a child to be on any street, premises or place for the purposes of—46. Leaving a child without supervision and care
A person who, being a parent or guardian or a person for the time being having the care of a child, leaves the child—Part VII – Conditions for taking a child into care
47. Conditions for taking a child into care
48. Application
49. Subsequent obligations towards taking child into care
50. Presentation of child before social worker
Part VIII – Fosterage and adoption
51. Person who can foster or adopt
52. Application to foster or adopt a child
53. Parental rights and responsibilities of foster parent
A foster parent in whose care a child is placed shall have the same rights and responsibilities in respect of the child’s care and guardianship as the parent of the child while the child remains in his care.54. Duties of the Department of Social Welfare
55. Application for adoption
56. Effect of adoption on parental rights
57. Restriction on making adoption orders
An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants—58. Consent of parents or guardians
59. Conditions for adoption order
60. Knowledge of adoption by child
61. Inter-country adoption
62. Devolution of property on adoption
63. Testamentary disposition
64. Register of adopted children
65. Procedure in adoption proceedings
Part IX – Trafficking and abduction of children
66. Unlawful transfer of possession, custody or control of child
67. Trafficking of child by false pretences
68. Examination of child and person in charge
The department of social welfare or any person authorised in writing by the department of social welfare may require—69. Social worker to cause arrest
70. Taking a child without appropriate consent
71. Inquiries and placement of a child brought into or out of Lesotho or acquired under false pretences
72. Recovery order
Part X – Child in need of rehabilitation and urgent protection
73. Child in need of rehabilitation
A child is in need of rehabilitation if the child—74. Removal of a child in need of rehabilitation to a place of safety
75. Orders upon completion of an inquiry
76. Child in need of urgent protection
77. Offences
A person who—78. Presumptions
Where a person—Part XI – Children in conflict with the law, age of criminal responsibility and age determination
79. Age of criminal responsibility and prosecution requirements
80. Purposes of assessment of age
81. Duties of police officer in relation to age assessment
If a police officer is uncertain about the exact age of a person suspected of having committed an offence, but has reason to believe that the age of the person would render that person subject to protection under this Act, he shall take such person to a probation officer for assessment of age within the prescribed period or, if a probation officer is not readily available, to a medical officer:Except that where a police officer has reasonable grounds to believe that a child is below the minimum age of prosecution as described under section 79, he shall not arrest the child.82. Age assessment by probation officer
83. Age estimation by medical officer
84. Age determination to be effected at preliminary inquiry
85. Age assessment and determination by officer presiding in criminal court
86. Parent or guardian to attend assessment
87. Duties of probation officer in relation to social assessment
88. Powers of probation officer to obtain relevant evidence or secure attendance of relevant persons
A probation officer may, by issuing a notice, require an arresting officer or any other police officer to—89. Powers of probation officer in relation to children below the minimum age of prosecution
90. Powers of probation officer in respect of children above the minimum age of prosecution alleged to have committed offences referred to in Schedule I
91. Powers of probation officer in respect of children above the age of prosecution alleged to have committed offences referred to in Schedule II
Part XI – Police powers and duties
[Please note: numbering as in original. Two Parts XI in original.]92. Meaning and purpose of arrest
93. Powers of arrest and arrest by police officer without warrant
94. Alternatives to arrest
95. Arrest by private person without warrant
96. Issue of warrant of arrest
97. Duties of police officer upon arrest with or without warrant
98. Duty of police officer to inform probation officer
99. Duty of police officer to notify parents, guardian or family member
100. Duties of police upon request
An arresting officer or another police officer may be required by a probation officer, as a matter of urgency, to—101. Cautioning by police
102. Pre-trial procedures and presence of parent or guardian
103. Detention in police custody before appearance at assessment
104. Powers of police to release a child from detention before preliminary inquiry
105. Child not charged until matter entered on roll of Children’s Court
For the purposes of proceedings under this Act, a child shall not be charged until—Part XII – Preliminary inquiry
106. Nature and purposes of preliminary inquiry
107. Procedure in preliminary inquiry
108. Separation and joinder of preliminary inquiry
109. General powers and duties of inquiry magistrate
110. Decisions of inquiry magistrate and factors to be considered
111. Sufficiency of evidence in a preliminary inquiry
112. Inquiry magistrate’s duty where child previously released or alternatives to arrest used
Where a child has been previously released from detention, or where an alternative to arrest under section 94 has been used, and the matter is to be transferred to a prosecutor for charges to be instituted in a children’s court or any other court in terms of section 110(4)(b), an inquiry magistrate—113. Inquiry magistrate’s duty to inquire into possible release of child from detention
114. Remanding a child for a preliminary inquiry
115. Circumstances under which a child may be remanded in detention after finalisation of preliminary inquiry
116. Failure of child above the minimum age of prosecution to attend assessment or preliminary inquiry
117. Failure to comply with diversion conditions
118. Procedure upon referral of matter to be instituted
119. Application for release from detention
Part XIII – Restorative justice and diversion
120. Restorative justice
The purposes of restorative justice in terms of this Act are to—121. Establishment of Village Child Justice Committee
122. Restorative justice processes
A restorative justice process involves—123. Family group conference
124. Open Village Healing Forum
125. Victim-offender mediation
126. Referral to restorative justice process
127. Diversion
128. Circumstances to be considered for diversion
129. Diversion options
130. Referral and powers of prosecution in respect of children above the minimum age of prosecution with respect to diversion
Part XIV – Bail and detention pending trial
131. Bail
132. Remand
Part XV – Children’s court
133. Jurisdiction of Children’s Court
134. Proceedings under this Act by a court other than a Children’s Court
135. Assistance to children who appear in court
136. Parent or guardian to attend proceedings
137. Charge sheet and withdrawal of charge
138. Conduct of proceedings in Children’s Court
139. Evidence in cases involving child offenders
140. Separation and joinder of trials involving children and adults
141. Separation and joinder of trials involving children only
142. Adjournment of proceedings
143. Powers of officer presiding in a Children’s Court
144. Failure to attend court proceedings
145. Privacy and confidentiality
146. Evidence through intermediaries
Part XVI – Legal representation
147. Principles relating to legal representation
148. Appointment of a legal representative
Part XVII – Sentencing
149. Power to impose sentence after a charge is proved
A children’s court or any other court hearing a matter in respect of which a child is an accused person may, after proof of a charge against the child, impose a sentence in accordance with the provisions of this part.150. Pre-sentence report
151. Evidence of previous diversion and other evidence relevant to sentence
152. Nature of sentences
A presiding officer imposing a sentence under this Act may impose any one of the options referred to under section 129(2), (3), (4) or (5), or any of the sanctions referred to in sections 153, 154, 155 and 156.153. Sentences involving residential and non-residential element
A sentence not involving a residential element which is available as a sentence for the purposes of this Act includes—154. Postponement or suspension of sentence
155. Sentences with restorative justice element
156. Sentences involving imprisonment
157. Sentences involving residential element
158. Contribution order
159. Referral to residential facility
160. Monetary penalties
No monetary penalty payable to the state may be imposed as a sentence by a children’s court or any other court acting under the provisions of this Act.161. Prohibition of certain forms of punishment
Part XVIII – Probation order
162. Probation order
163. Failure to comply with probation order
164. Effects of probation order
165. Variation of probation order
166. Discharge of probation order
167. Children’s Court to give copies of varying or discharging order to probation officer
On the making of an order varying or discharging a probation order under section 165 or 166 respectively—Part XIX – Appeal and review
168. Appeal by child against whom a charge has been proved
A child against whom a charge has been proved by a children’s court or any other court acting under the provisions of this Act has the right to appeal.169. Automatic review in certain cases
170. Review in other instances
171. Review of proceedings after proving a charge but before sentence
172. Suspension of execution of sentence
Part XX – Children at risk of offending
173. Children at risk of offending
174. Supervision by probation officer
Part XXI – Institutions
175. Places of safety for children in need of welfare
176. Escape or removal of child from place of safety
177. Removing or helping a child to escape from place of safety
A person who—178. Places of detention or custody for children in conflict with the law
179. Remanding children to places of detention or custody
180. Escape or removal from place of detention or custody
181. Removing or helping a child to escape from place of detention or custody
A person who—182. Probation Hostel
The Minister may, by notice in the Gazette, designate, establish or appoint such probation hostels as may be required for the purposes of this Act.183. Child under thirteen years not to be sent to probation hostel
A child under the age of thirteen years shall not be sent to a probation hostel.184. Child who escapes or is removed from probation hostel
A child who escapes or is removed from a probation hostel without lawful authority—185. Removing or helping a child to escape from probation hostel
Any person who—186. Approved school
187. Child under thirteen years not to be sent to an approved school
A child under thirteen years shall not be sent to an approved school.188. When child can be sent to approved school
189. Approved school order
190. Further placement in approved school
If a person who is in charge of an approved school is satisfied that a child—191. After-care of child released from approved school
If a child is sent to an approved school, a children’s court making an order shall, at the same time, make the order that after the expiration of the period of his placement he shall, for a period not exceeding one year, be under the supervision of—192. Escape from approved school or failure to return to approved school after expiry of leave
193. Supervision of approved school
Every approved school shall be under the supervision of the director of probation unit.194. Removing or helping a child to escape from approved school
A person who—195. Other facilities for children in conflict with the law
196. Standards for monitoring and supervision of children’s institutions established under this Act
Part XXII – Parentage, custody and guardianship
197. Parentage
198. Evidence of parentage
The following shall be considered by a children’s court as evidence of parentage—199. Medical test
A children’s court may order a parent referred to in section 198 to submit medical test, results and the children’s court shall, on the basis of the evidence before it, make such order as it considers appropriate.200. Custody and access
201. Non-custodial parent to have access to a child
A non-custodial parent in respect of whom an application is made to a children’s court for an order of parentage or custody under this part, shall have access to a child who is the subject of the order.202. Removal of a child from lawful custody
203. Appointment of guardian
204. Rights of surviving parent to guardianship
205. Appointment of testamentary guardian
206. Appointment of guardian by a Children’s Court
A children’s court may appoint a guardian on the application made by any person where a child’s parents are no longer living or cannot be found and the child has no guardian and there is no other person having parental responsibility for him or where the parents of the child are no longer living together.207. Guardianship revocation
An appointment made under section 206 revokes an earlier appointment made by the same person in respect of the same child, unless it is clear that the purpose of the latter appointment is to appoint an additional guardian.208. Extension of guardianship beyond a child’s eighteenth birthday
209. Disputes between guardians
Where two or more persons act as joint guardians to a child, or where a surviving parent and guardian act jointly and are unable to agree on any question affecting the welfare of the child, either party may apply to a children’s court for its direction, and the children’s court may make such order as it may consider proper.210. Neglect or misapplication of assets by the guardian of the estate of the child
Where a guardian of the estate of a child, whether or not the guardian is also the guardian of the child, neglects to recover or safeguard, or misplaces any asset forming part of the estate of the child, or subjects the estate to loss or damage, he commits an offence and is liable on conviction to a fine not exceeding ten thousand maloti or to imprisonment for a period not exceeding ten months or both.211. Duties of guardian in relation to the estate of a child
Part XXIII – Maintenance of children
212. Duty to maintain a child
213. Application for maintenance order
214. Consideration for maintenance orders
A children’s court shall consider the following when making a maintenance order—215. Request for social inquiry report
A children’s court may request that a social worker prepares a social inquiry report on the issue of maintenance and submit it to it for consideration before a maintenance order.216. Maintenance order
217. Persons entitled to maintenance order
218. Duration of order
219. Continuation of maintenance orders
220. Variation or discharge of orders
A children’s court may, if satisfied, vary or discharge a maintenance order on the application of a parent or guardian, or the person who has custody of a child or any other person legally liable to maintain the child.221. Enforcement of maintenance orders
A maintenance order shall be enforced after thirty days of the making of the order.222. Non-custodial parent to have access to child
A non-custodial parent in respect of whom an application is made to a children’s court for an order of maintenance under this part, shall have access to the child who is the subject of the order.223. Joint maintenance of child
Unless a children’s court otherwise directs, and subject to any financial contribution ordered to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child—224. Maintenance during matrimonial proceedings
A children’s court shall have power to make a maintenance order, whether or not proceedings for nullity, judicial separation, divorce or any other matrimonial proceedings have been filed by a parent of a child or during proceedings or after a final decree is made in such proceedings.225. Payment of maintenance monies to persons other than the applicant
Where a maintenance order is made under this section, a children’s court may, at the time of making the order, on being satisfied that the person in whose favour the order is made—Part XXIV – Employment of children
226. Exploitative child labour
227. Prohibition of child labour at night and in industrial undertakings
228. Minimum age for child labour
229. Engagement in light work
230. Minimum age for hazardous employment
231. Non-employment of children and young persons in industrial undertakings
Part XXV – Protective measures relating to the health of children
232. Consent to medical treatment or surgical operation
233. HIV Testing
234. Access to legal, medical and health assistance
Part XXVII – Miscellaneous
[Please note numbering as in original. No Part XXVI]235. Powers of the courts
Notwithstanding any penalty imposed under this Act, a court may, where circumstances warrant, impose any penalty higher than that provided for in the Act.236. Regulations
The Minister may, by notice published in the Gazette, make regulations generally for giving effect to the provisions of this Act.237. Repeals
238. Amendment of Labour Code, 1992
Section 78 of the labour code, 1992 is amended by—History of this document
31 March 2011 this version
Commenced