Section 80 of the Lukautim Pikinini Act 2015 addresses the point at which custom and child protection collide.
A person commits an offence if he unlawfully subjects a child to a social or a customary practice that is harmful to a child’s well-being as guided by the principle of the best interests of the child.
Penalty: a fine not exceeding K5,000.00 or imprisonment for a term not exceeding two years, or both.
Reading the section
| Element | What it means |
|---|---|
| Unlawfully | Without lawful justification or excuse |
| Subjects a child | The child is made to undergo it — a person under 18 (s 2) |
| A social or a customary practice | Not confined to custom; a social practice is equally within the section |
| Harmful to the child’s well-being | The practice must be harmful — not merely traditional or unfamiliar |
| As guided by the best interests principle | Harm is assessed by reference to the best interests of the child |
Section 80 does not make customary practice unlawful. It makes harm unlawful, whatever its source.
That is why the section refers to a “social or a customary” practice. A harmful practice does not escape the section by being modern rather than traditional, and a customary practice does not attract it merely by being customary.
The measure is the child’s well-being, assessed through the best interests principle in section 5(1)(a) — which makes the child’s interests paramount and provides that where they conflict with another person’s, the child’s prevail.
How custom is recognised, and its limit
Custom is adopted as part of the underlying law — except to the extent that it is inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.
The Constitution has always recognised custom subject to two exceptions. Section 80 supplies the first of them for children: a statute that renders harmful customary practice an offence.
Papua New Guinean law recognises custom extensively in family matters — customary marriage under section 3 of the Marriage Act (Chapter 280), customary adoption under Part VI of the Adoption of Children Act (Chapter 275), and custom as a route to parental responsibility under section 9(2)(a) of this Act.
Section 80 draws the line at harm. It does not disturb the rest.
Where else the Act addresses this
Section 5(4)(d) — it is a duty of a parent, guardian or person with parental responsibility to protect the child from discrimination, violence, abuse, neglect, exploitation and harmful social or customary practices.
Section 86 — a person who, by act or omission, facilitates the marriage of a child, either by custom or by law, is guilty of an offence carrying five years. Child marriage is dealt with separately, and more severely.
Section 5(1)(j) — on removal, the child’s cultural and religious ties are to be preserved as far as possible. The Act protects a child’s culture as well as protecting the child from harm done in its name.
A section 80 offence is a contravention of the Act, so a section 43 search warrant is available — that section applies wherever a provision of this Act is being contravened.
And a child subjected to such a practice is likely to be a child in need of protection under paragraph (c) or (d) of the section 2 definition, engaging mandatory reporting, investigation, and where necessary removal and protection orders.
The Act’s overall approach
The Act does not treat custom as the enemy. Section 4(d) makes it an objective to utilise, strengthen and develop community structures which provide care and protection for children. Section 5(1)(j) prefers care within the child’s own family or community. Section 9(2)(a) recognises custom directly.
Section 5(1)(o) goes further still: the Social Obligations reflected in the Constitution must be considered in handling any child welfare case.
Against that background, section 80 is narrow and specific. It reaches the practice that is harmful to the child’s well-being, judged by the child’s best interests — and nothing else.
Where serious injury results, the Criminal Code offences will usually be the more appropriate charge; section 80’s two-year maximum reflects its role as a specific child-protection provision rather than a substitute for the general criminal law.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 4, 5, 9, 43, 80, 86, 103
- Constitution — Sch 2.1
- Marriage Act (Chapter 280) — s 3
- Adoption of Children Act (Chapter 275) — Part VI
- Criminal Code (Chapter 262)
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.