Section 98 of the Lukautim Pikinini Act 2015 requires that no protective order be made in the abstract.
The Court shall, before making an order under section 97, obtain and consider a plan for the child’s care, prepared in writing by the Office.
Where the Court is satisfied that a child is a child in need of protection, it shall consider the plan of care presented by the Office.
The plan is a precondition
Two verbs, both mandatory. The Court must obtain the plan — so it may not proceed if the Office has not produced one — and must consider it.
And the plan must be in writing. An oral account from an officer at the bar table does not satisfy section 98.
Its purpose is to prevent the most common failure in child protection: removing a child without a settled plan for what happens next. The Court is required to know, before it acts, where the child will live, who will care for the child, and what is intended.
What a care plan must deal with
Section 98 does not list what a plan contains. The requirements come from the provisions the Court must apply when it reads the plan.
| Matter | Source of the requirement |
|---|---|
| Whether the child can remain at home with support | s 5(1)(f), and s 5(1)(g) — least intrusive intervention |
| Whether a family member, neighbour or community member can take the child | s 94(2) — the Court shall consider this before ordering care |
| Keeping siblings together; contact with relatives and friends | s 94(1)(a), (b) |
| Cultural, racial and linguistic heritage; education and religion | s 94(1)(c), (d); s 5(1)(j) |
| The plan to return the child to the family | s 5(1)(h) |
| Medical and psychosocial support | s 44(3); s 51(2) |
| The child’s own views | s 5(1)(l); s 5(2) |
| Settled and permanent living arrangements, where care is permanent | s 52(3) |
Interventions should be aimed at remedying the harmful situation and providing a plan to return the child to his family, unless to do so is contrary to the child’s best interests.
A care plan is therefore normally a plan for return: what must change in the family, what support the Office will provide, and over what period. A plan that simply proposes indefinite out-of-home care without addressing return is at odds with section 5(1)(h).
Considering is not accepting
The Court may hear any more evidence the Court considers necessary to help it determine an appropriate order.
The Office prepares the plan; the Court decides. Section 97(3)(b) allows the Court to go beyond it, and section 93(2) allows the Court, on its own initiative, to summon any person to testify or produce documents.
So a plan that fails to address section 94(2) — whether a family member, neighbour or community member could take the child — can be tested by the Court calling that evidence itself.
Section 78(2)(b) — breaking a care plan is an offence
A caregiver who fails to observe, perform or keep a condition or agreement contained in a care plan that he has entered into in relation to a child, and by the terms of which he has bound himself or agreed to observe, perform or keep, is guilty of an offence.
Penalty: a fine not exceeding K5,000.00 or imprisonment for a term not exceeding two years, or both.
A care plan is not merely an administrative document filed with the court. Where a caregiver has bound himself to its terms, breaching them is a criminal offence.
“Caregiver” is defined in section 2 as a person providing an out-of-home care service, or employed by one, to care for a child. The same section 78(2) also penalises a caregiver who neglects, ill-treats, exploits or abuses the child, or who obstructs or denies the well-being of the child — see the general offences.
The practical effect is that the commitments in a care plan — about schooling, contact with siblings, medical care — carry real consequences for the person who agreed to them.
Once the plan is considered, the Court makes a temporary or permanent order under section 99, and the Office may contribute towards the child’s upkeep out of the Child Protection Trust Fund under section 100. In enforcing the order, the Office must apply the four section 94(1) placement considerations.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 44, 51, 52, 78, 93–100
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.