The commonest reason a person does not report a child at risk is fear of the consequences to themselves. Section 39 of the Lukautim Pikinini Act 2015 addresses that directly.
A person who notifies the Office under section 38 —
- shall not be held to have breached any professional etiquette or code;
- shall not be held to have departed from any accepted form of professional conduct; and
- does not incur civil or criminal liability in respect of the notification.
What each limb covers
| Limb | The risk it removes |
|---|---|
| No breach of professional etiquette or code | Disciplinary action by a medical board, legal professional body, teaching authority or church |
| No departure from accepted professional conduct | A finding of professional negligence or misconduct in any forum |
| No civil or criminal liability | An action for defamation, breach of confidence or breach of privacy; prosecution for any offence arising from the report |
A report that a child is being harmed necessarily says something damaging about the person responsible. Without section 39, every report would carry the risk of a defamation suit.
Section 39 removes it. The immunity is expressed as “in respect of the notification” — it protects the act of reporting, whatever the report contains.
Who gets the protection
Section 39 is not confined to the mandatory reporters listed in section 38(4). It applies to a person who notifies the Office under section 38 — which includes any person acting under section 38(1).
So a neighbour, a relative, a shopkeeper or a fellow pupil is protected on the same terms as a doctor or a teacher.
Section 39 protects a notification. It does not protect a malicious report.
Section 40 makes it an offence to maliciously report, or make a report intended to cause distress or annoyance to a person in whose care and custody a child is kept. Penalty: a fine not exceeding K500.00 or imprisonment for a term not exceeding six months, or both.
The line is purpose, not accuracy. A report made in good faith on reasonable grounds is protected even if it turns out to be wrong. A report made to harass is an offence even if something in it happens to be true.
Section 41 — and your name stays out of it
The identity of the person who notifies the Office under section 38 shall not be disclosed to any other person without the person’s consent or leave of the Court.
Consent. A reporter may agree to be identified — for instance where they will give evidence at a child protection hearing in any event.
Leave of the Court. The Family Court may permit disclosure. It would need a reason: the identity of the source is not ordinarily material, since what matters is whether the child is in need of protection, not who said so.
Note that section 96 separately restricts publicity of Family Court proceedings, so even a disclosure to the parties does not become public.
Other protections in the Act
The Act provides an indemnity for persons acting in good faith in the performance of functions under it — covering officers of the Office, the Director, Child Protection Officers and child protection volunteers as they exercise the emergency and investigative powers.
Part XI makes it an offence to obstruct a person performing functions under the Act — the other side of the same coin. A person who reports, or who acts on a report, is protected from liability and from interference.
The structure of the Act answers the question. Section 38(1) asks only for a belief on reasonable grounds. Section 39 removes the downside of being wrong. Section 40 penalises only malice.
Nothing in the Act requires a reporter to investigate first, to be certain, or to name a perpetrator. That is the work of the investigation under section 42.
And under section 38(2), a person who reports should also take whatever steps are necessary to assist the child. Where the danger is immediate, section 46 allows a police officer or Child Protection Officer to take charge of the child at once, without a court order.
Sources
- Lukautim Pikinini Act 2015 — ss 38–42, 46, 84, 96, 117
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.