The child protection system in the Lukautim Pikinini Act 2015 depends on people reporting. It can also be abused by people reporting.
A person who maliciously reports, or makes a report that is intended to cause distress or annoyance to a person in whose care and custody a child is kept, in respect of whom a report is made, is guilty of an offence.
Penalty: a fine not exceeding K500.00 or imprisonment for a term not exceeding six months, or both.
The two ways of committing the offence
| Limb | What must be shown |
|---|---|
| Maliciously reports | The report was made with malice — spite, ill will, or a purpose other than the protection of the child |
| Report intended to cause distress or annoyance | The report was intended to distress or annoy the person in whose care and custody the child is kept |
Neither limb asks whether the report was true. Both ask why it was made.
That is the right test. A report may be entirely accurate and still be made to harass; a report may be entirely mistaken and still be made in good faith to protect a child.
The second limb is narrower in one respect: the intended victim must be the person in whose care and custody the child is kept — a parent, guardian, relative or foster carer.
An honest report that turns out to be wrong is not an offence
Section 39 provides that a person who notifies the Office under section 38 does not incur civil or criminal liability in respect of the notification, and is not to be held to have breached any professional code.
Section 38(1) requires only a belief on reasonable grounds. It does not require proof, certainty, or investigation.
So a person who honestly believes a child is at risk, reports, and is proved wrong by the section 42 investigation has committed no offence and incurs no liability. Section 40 is aimed at a different person entirely.
The usual context is a dispute between adults in which a child becomes the weapon — a contested parenting order, a separation, a quarrel between families, a dispute with a neighbour.
A false allegation in such a case does real damage. The person accused faces investigation, and the child may be examined, questioned or removed. Section 40 recognises that the process itself is the harm.
The penalty, in context
| Offence | Penalty |
|---|---|
| Malicious report — s 40 | Fine to K500 or 6 months, or both |
| Acting as a Child Protection Officer without appointment — s 36(3) | Fine to K2,000 or 12 months, or both |
| Removing an abandoned child from a hospital nursery — s 48(1) | 6 months |
| Abandoning a child — s 47 | 5 years |
K500 or six months is at the low end of the Act’s scale. That is not because the conduct is trivial — it is because a heavier penalty would deter honest reporting.
The Act’s whole reporting scheme is built on making it easy and safe to report. A severe offence for getting it wrong, however carefully drafted, would sit uneasily with section 38(3), which compels professionals to report immediately on nothing more than reason to believe.
Section 40 therefore marks the conduct as criminal without creating a chilling effect.
Beyond section 40
Section 39 does not apply. The immunity protects a notification under section 38, made on reasonable grounds. A malicious report is not that, so the ordinary civil law — including defamation — is not displaced.
Section 41 may not hold. The reporter’s identity may be disclosed by leave of the Court. A person prosecuting or suing over a malicious report will need it, and the Court’s protection of an anonymous source is unlikely to survive evidence of malice.
The Family Court will notice. Where the report was made in the course of a parenting dispute, a finding of malice bears directly on the section 102 considerations and on the section 103 best interests assessment — particularly the willingness of each parent to support the child’s relationship with the other.
The practical guidance is simple. If you believe on reasonable grounds that a child is in need of protection, report — you are protected. If your reason for reporting is to damage another adult, do not: the Act treats that as a crime.
Sources
- Lukautim Pikinini Act 2015 — ss 36, 38–42, 47, 48, 96, 102, 103
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.