Part XI of the Lukautim Pikinini Act 2015 gathers the Act’s general offences into nine sections.
| Section | Offence | Maximum penalty |
|---|---|---|
| 78 | Offences against children in care | K5,000 or 2 years, or both |
| 79 | Failure to discharge duties after an arrangement or direction | K2,000 or 12 months, or both |
| 80 | Harmful customary practices | K5,000 or 2 years, or both |
| 81 | Duties owed to a child with disabilities | — |
| 82(1) | Sale of a child for personal gain | 5 years |
| 82(2) | Soliciting a sale, accepting proceeds, or receiving the child on payment | K5,000 or 2 years, or both |
| 83 | Endangering a pregnant woman, her unborn child or the pregnancy | 2 years |
| 84 | Obstruction of a person exercising functions under the Act | K2,000 or 12 months, or both |
| 85 | False representation as being associated with the Office | K2,000 or 12 months, or both |
| 86 | Facilitating a child marriage | 5 years |
Section 78 — offences against children in care
(a) abuses, neglects, ill-treats or exploits; or (b) commits violence and causes injuries to a child in his care; or
(c) counsels, causes or attempts to counsel or cause a child in his care to be withdrawn; or
(d) counsels, causes or attempts to cause a child in his care to escape or run away from out-of-home care or from the person with whom the child has been placed; or
(e) knowing a child to have been withdrawn or escaped, (i) harbours or conceals the child or (ii) prevents the child from returning,
is guilty of an offence.
A caregiver who (a) neglects, ill-treats, exploits or abuses the child; or (b) fails to observe, perform or keep a condition or agreement contained in a care plan he has entered into; or (c) obstructs or denies the well-being of the child, is guilty of an offence.
(3) Penalty: a fine not exceeding K5,000.00 or imprisonment for a term not exceeding two years, or both.
It makes breach of a care plan a criminal offence. A care plan under section 98 is not merely an administrative document — a caregiver who binds themselves to its terms and then fails to keep them commits an offence.
A “child in care” is defined in section 2 as a child in the care and custody of the Director or a person authorised by the Director; a “caregiver” is a person providing an out-of-home care service or employed by one.
Section 79 — failure to discharge duties
(1) If a parent fails, without reasonable excuse, to discharge his duties in accordance with section 6, 7 or 8, the Office shall inquire into the circumstances by way of discussions with the parents, so as to put in place arrangements to prevent the continuation of the failure.
(2) A parent who fails to comply with any arrangement so concluded, or with any directions of the Office in relation to implementing it, is guilty of an offence. Penalty: a fine not exceeding K2,000.00 or imprisonment for a term not exceeding 12 months, or both.
Subsection (1) is not penal. A parent who fails to maintain a child faces an inquiry and discussions, aimed at putting arrangements in place.
The offence in subsection (2) is committed only by breaking the arrangement or a direction that follows. That gives effect to section 4(b) — appropriate assistance to parents — and section 5(1)(f), support to the family so the child may remain.
Prosecution is reserved for the parent who has been offered help and refused it.
Sections 82 and 86 — the five-year offences
(1) A person who sells or intends to sell a child for his personal gain is guilty of an offence. Penalty: imprisonment for a term not exceeding five years.
(2) A person who (a) solicits the sale of a child; (b) accepts or intends to accept proceeds of the sale; or (c) receives the child upon payment made, is guilty of an offence. Penalty: K5,000 or two years, or both.
A person who, by act or omission, facilitates the marriage of a child, either by custom or by law, is guilty of an offence. Penalty: imprisonment for a term not exceeding five years.
Note that section 82(1) reaches an intention to sell, and section 86 reaches an omission and a marriage by custom. Paragraph (k) of the definition of a child in need of protection separately covers a child involved in child trafficking. See child marriage for section 86 in full.
The remaining sections
Section 81 — child with a disability. Parents or any other person having custody shall take appropriate steps to ensure the child is (a) assessed as early as possible as to the extent and nature of the disability, (b) offered appropriate treatment, and (c) afforded facilities for rehabilitation and integration for equal opportunities to education. A “child with a disability” is defined in section 2 as a child with physical, psychological or intellectual impairment.
Section 83 — pregnant women. A pregnant woman shall be protected at all times until the delivery of her child; endangering her health or life, the unborn child, or the continuation of normal pregnancy is an offence carrying two years. This is the general counterpart of section 60, which applies in custody.
Section 84 — obstruction. A person who directly or indirectly hinders, obstructs, delays, assaults, or threatens a person with violence in the exercise of functions under the Act commits an offence — protecting Child Protection Officers conducting searches, inspections and emergency removals.
Section 85 — false representation. Falsely representing oneself as officially associated in any capacity with the Office is an offence — complementing section 36(3), which penalises exercising the powers of a Child Protection Officer without appointment.
Section 117 indemnifies persons acting in good faith under the Act, and section 119 directs that where a child is subject to violence covered by the Family Protection Act 2013, or is the subject of a criminal proceeding, that other legislation applies. Serious harm to a child may of course also be charged under the Criminal Code, which carries far heavier penalties.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 4–8, 36, 60, 78–86, 98, 117, 119
- 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.