Section 96 of the Lukautim Pikinini Act 2015 protects the identity of children involved in proceedings.
A person who publishes or makes public information that has the effect of identifying a child who —
(a) is a witness at, or a participant in, a hearing; or
(b) is the subject of a proceeding,
under this Act, is guilty of an offence.
Penalty: for an individual, a fine not exceeding K2,000.00 or imprisonment for a term not exceeding 12 months; for a corporation, a fine not exceeding K10,000.00.
The test is effect, not intention
The offence is publishing information that has the effect of identifying the child. A publisher who carefully omits the child’s name still commits the offence if the material identifies the child in substance.
Information with that effect includes:
- the parents’ names — which identify their children;
- a village, settlement or school, combined with the child’s age or family circumstances;
- a photograph, even with the face obscured, where the setting or clothing identifies the child;
- the name of a person charged, where the relationship to the child is stated.
Nor is intention an element. The section speaks of the effect, so a publisher who did not mean to identify the child is not excused.
Paragraphs (a) and (b)
| Paragraph | Child protected |
|---|---|
| (a) | A child who is a witness at, or a participant in, a hearing — including a child giving evidence about someone else |
| (b) | A child who is the subject of a proceeding — the child whose protection, custody or maintenance is being decided |
It covers any child witness or participant in a hearing under the Act — not only the child at the centre of the case. A sibling who gives evidence, or a friend, is equally protected.
The words “under this Act” extend section 96 beyond the Family Court to any hearing under the Act, including a prosecution for one of the Part XI offences.
Why a corporation faces K10,000
The corporate maximum of K10,000 is five times the individual fine, and applies where the publisher is a newspaper, broadcaster or online platform.
The reason is straightforward. A corporation cannot be imprisoned, so a fine is the only available penalty; and a media organisation reaches an audience an individual does not, so the harm to the child is greater.
Section 95 — the other half of the protection
(2) A hearing may be held in camera or otherwise, and be attended only by (i) the parties and (ii) any other person by leave of the Court.
(3) The Court may order a person not directly interested not to be present, or to remain within the hearing of the Court.
(4) A person who enters or remains in contravention of such an order commits an offence. Penalty: K1,000 or 12 months, or both.
Section 95 controls who is in the room. Section 96 controls what may leave it.
Both are needed. A closed hearing achieves nothing if a party publishes what happened; and a publication ban achieves less if the hearing is open to anyone who chooses to attend.
A stricter rule than in matrimonial causes
| Family Court — LPA s 96 | National Court, matrimonial — MCA s 95 | |
|---|---|---|
| What is banned | Anything identifying a child | The evidence, and particulars beyond four categories |
| Names of parties | Not publishable if they identify a child | Publishable — s 95(2)(a) |
| Who may prosecute | No restriction stated | Only by or with the consent of the Public Prosecutor — s 95(5) |
| Corporate penalty | K10,000 | Up to K2,000 on indictment for a second offence |
In a matrimonial cause a newspaper may name the parties and state the ground. In a Family Court matter it may do neither, if the effect would be to identify a child.
What remains publishable is the substance without the identifiers — the point of law, the principle applied, the outcome in general terms. That is enough for the public to know how the courts are treating children, without exposing any child.
It gives effect to Constitution section 49 — the right to privacy — which section 1 of the Act expressly identifies as a qualified right the Act regulates, and to section 5(1)(a): where the child’s interests conflict with anyone else’s, the child’s prevail.
Note also section 41, which protects the identity of a person who reports a child in need of protection — disclosure requires that person’s consent or leave of the Court.
Sources
- Lukautim Pikinini Act 2015 — ss 1, 5, 41, 95, 96
- Constitution — ss 37(12), 49
- Matrimonial Causes Act (Chapter 282) — ss 92, 95
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.