Division 2 of Part XII of the Lukautim Pikinini Act 2015 governs how the Family Court conducts a child protection hearing.
Section 93(1) — the Director must apply
Where Part V of the Act applies to a child, the Director shall, as soon as practicable, make an application to the Court for an order under section 97.
This is a duty, not a discretion. Where a child falls within Part V — that is, is a child in need of protection — the Director must bring the matter to court.
It is the safeguard against administrative custody continuing indefinitely. Section 51 gives the Office the care of a removed child until the child is returned or a Court makes an order. Section 93(1) ensures the second of those happens promptly.
It also gives effect to section 5(1)(n) — decisions to be made and implemented as expeditiously as possible, having regard to the child’s sense of time.
Section 93(2) — the court may act on its own initiative
The Court conducting a child protection hearing has power, on its own initiative, to summon any person to attend before it and to testify or produce any document, and to enforce obedience to the summons or orders.
In ordinary litigation a court decides on the evidence the parties choose to place before it. Section 93(2) departs from that.
The reason is structural. The parties to a protection hearing are the Director and the parents. The child is the person whose future is decided but is not, in the ordinary sense, a party pressing a case. If neither adult calls a witness — a teacher, a doctor, a relative — the Court would otherwise never hear from them.
The power to enforce obedience makes it real: a summons under section 93(2) can be enforced like any other order of the Court.
Section 95(1) — informality
In conducting a hearing under this Part, the Court may —
(a) conduct proceedings before it in an informal manner; and
(b) proceed without regard to legal forms.
Most parents in a protection hearing are unrepresented. A formal adversarial procedure would leave them unable to participate in a decision about their own children.
Section 95(1) allows the magistrate to run the hearing in a way the parties can follow — asking questions directly, accepting evidence without technical objection, and explaining what is happening.
Informality is not the absence of fairness. Constitution section 59 makes natural justice a rule of the underlying law, and its minimum requirement — to act fairly and be seen to act fairly — applies whatever the procedure.
Sections 95(2) to (4) — closed hearings
A hearing under this Part may — (a) be held in camera or otherwise; and (b) be attended only by (i) the parties to the proceedings and (ii) any other person by leave of the Court.
(3) The Court may order a person not directly interested in a hearing not to be present in the place where it is held, or to remain within the hearing of the Court.
(4) A person who enters or remains in contravention of such an order is guilty of an offence. Penalty: a fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months, or both.
| Court | Default | Publication |
|---|---|---|
| Family Court — s 95(2) | May be in camera; attendance limited to parties and those with leave | Identifying a child is an offence — s 96 |
| National Court, matrimonial — MCA s 92 | Open court, unless special circumstances justify exclusion | Only four categories may be published — MCA s 95 |
A matrimonial cause is presumptively open. A Family Court hearing under this Part may be in camera, and attendance is limited to parties and persons the Court permits.
The reason is the subject matter: the details of a child’s abuse or neglect, and the child’s own evidence. Section 95(3) goes further by allowing the Court to exclude anyone not directly interested — and section 95(4) makes ignoring that order an offence.
The sequence at the hearing
1. The Court determines whether the child is in need of protection — section 97(1).
2. If not, and the child was removed, the Court shall order the return of the child to the parent — section 97(2).
3. If yes, the Court shall consider the plan of care presented by the Office, and may hear further evidence — section 97(3). The care plan must be obtained and considered before any order — section 98.
4. Before ordering removal from a parent or guardian, the Court must consider whether the child can be placed with a family member, neighbour or other member of the community or extended family — section 94(2).
The Court then makes a temporary or permanent order under section 99, and the Office may contribute from the Fund towards the child’s upkeep under section 100. An appeal lies to the National Court within 40 days.
Sources
- Lukautim Pikinini Act 2015 — ss 5, 51, 87–100, 115
- Constitution — ss 37(12), 59
- 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.