Zimbabwe – Children’s Amendment Bill H.B. 12, 2021

1. by the repeal of the definitions of “child” and “child in need of care” the substitution of—

   “child” means a person under the age of eighteen years and includes an infant;

   “child in need of care or protection or both” means a child or young person—

   1. who is destitute or has been abandoned; or
   2. both of whose parents are dead or cannot be traced and who has no legal guardian; or
   3. whose legal guardian or parents do not exercise proper control and care over him or her; or
   4. whose legal guardian or parents are unfit to have or exercise control over him or her; or
   5. who is in the custody of a person who has been convicted of committing upon or in connection with that child any offence specified in the First Schedule; or
   6. who cannot be controlled by his or her parents or guardian; or
   7. who is a habitual truant; or
   8. who frequents the company of any immoral or vicious person or is otherwise living in circumstances calculated to cause or conduce to his or her seduction, corruption or prostitution; or
   9. who begs or, being a child, engages in street trading contrary to this Act or any other enactment; or
   10. who is being maintained in circumstances which are detrimental to his or her welfare or interests; or
   11. who is found in possession, without reasonable excuse, of any drug to which the Dangerous Drugs Act [Chapter 15:02] applies or of any specified drug as defined in the Drugs and 45 Allied Substances Control Act [Chapter 15:03]; or
   12. who suffers from a mental or physical disability and requires treatment, training or facilities which his or her parents or guardian are unable to provide; or
   13. whose parent or guardian has given him or her up to another person in settlement of a dispute in accordance with custom; or
   14. whose parent or guardian makes him or her perform work that is likely to be hazardous or to interfere with his or her education or to be harmful to his or her health or to his or her physical or mental development; or
   15. whose parent or guardian has unlawfully removed him or her from lawful custody; or
   16. is an unaccompanied child; or
   17. is pregnant; or
   18. is purported to be married or pledged in marriage or is at risk of being unlawfully married or pledged in marriage; “;
2. in the definition of “council” by the insertion after “Welfare” of “and Protection”;
3. by the repeal of the definitions of “Director” the substitution of —

   “Director” means a person holding the office of Director responsible for social welfare or any person lawfully acting in that capacity;”;

4. in the definition of “earnings”, by the repeal of (b), and the substitution
   2. “by way of pensions or remittances, or by way of income generated through informal trade or subletting;”;
5. in the definition of “legal guardian” by the deletion of “and includes a husband of a girl who is under eighteen years of age”;
6. by the repeal of the definition of “parent” and the substitution of —

   “parent” means the biological father or mother of a child, or an adopter or step parent of a child;”

7. by the repeal of the definition of “probation officer”;
8. in the definition of “pupil” by the deletion of “or South African institution”;
9. by the insertion of the following definitions—

   “child grooming” means when someone builds an emotional connection with a child to gain their trust for the purposes of sexual abuse, child sexual abuse material, exploitation of the child, or trafficking the child in contravention of the Trafficking in Persons Act [Chapter 9:25];

   “child protection officer” means a child protection officer appointed in terms of section 46;”;

   “child sexual abuse material” includes any representation through publication, exhibition, cinematography, electronic means or any other means whatsoever, of a child engaged in real or simulated explicit sexual activities, or any representation of sexual parts or of a child for primarily sexual purposes;

   “evolving capacity” in relation to a child means the capacity of a child to form his or her own views in accordance with his or her age and maturity;

   “hazardous child labour” means work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children;

   “social worker” means a person registered in terms of the Social Workers Act [Chapter 27:21];

   “unaccompanied child” means—

1. a child who is lacking or apparently lacking parental 10 oversight; or
2. a child who is travelling within or outside Zimbabwe without a parent, guardian or anyone who has parental responsibility over him or her;

   in circumstances that would lead a reasonable person to believe 15 that the child is not under adult supervision;”.

1. in subsection (1) —
   1. by the insertion after “Child “of “Protection and”;
   2. by the insertion after paragraph (f) of —
      “and
      g. two representatives from organisations which in the opinion of the Minister represent parents of children with 25 disabilities;”;

2. by the insertion after subsection (2) of the following subsection—
   “(2a) In appointing members to the Council, the Minister shall—
   1. ensure that both genders are equally represented and for the avoidance of doubt that women constitute half the 30 membership of the Council; and
   2. ensure that there’s fair regional representation.”

(a) by the insertion after paragraph (c) of the following paragraphs—

(b) by the insertion of the following subsection, the existing section becoming subsection (1)—

“(2) In carrying out any of its functions under subsection (1), the Council must ensure that they seek the views of children and that there is full participation of children through already existing child participation structures or where necessary other appropriate methods.”.

“8 Corruption of children (1) Any person who—

1. allows a child to reside in or to frequent a brothel shall be guilty of an offence and liable to fine not exceeding level 12 or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment;
2. causes or conduces to the seduction, abduction or commercial sexual exploitation of a child or the commission by a child of immoral acts shall be guilty of an offence and be liable to an a fine not exceeding level 13 and imprisonment not exceeding fifteen years or to both such fine and such imprisonment;
3. causes a child to participate in child sexual abuse material or produces such material shall be guilty of an offence and liable to a fine not exceeding level 14 or to imprisonment for a period not exceeding fifteen years or to both such fine and such imprisonment;
4. participates in child grooming shall be guilty of an offence and liable to a fine not exceeding level 14 or to imprisonment for a period not exceeding fifteen years or to both such fine and such imprisonment.”

“(13) Any parent or guardian who, without reasonable cause, denies medical treatment or access to medical treatment to a child in their care who is in need of such treatment, shall be guilty of an offence and liable to a fine not exceeding level 5 or imprisonment for period not exceeding six months or to both such fine or such imprisonment.”

“9A Duty to report abuse of child (1) In this section—

“abuse”, in relation to a child means, any action for which under this Act a child would be treated as a child in need of care or protection or both, or in respect of whom there is a reasonable suspicion that any person having custody of the child is committing or has committed any offence specified in the First Schedule.

(2) Any person who is required or likely to interact with children in his or her professional or vocational capacity, such as a medical 10 practitioner, a teacher, a legal practitioner, or a minister of religion, and ho becomes aware or suspects on reasonable grounds that a child has been, is being, or is likely to be abused, shall have a duty to report such abuse or suspected abuse to a police officer or child protection officer as soon as reasonably possible after becoming aware of such abuse or 15 suspected abuse.

(3) Any person who fails in his or her duty under subsection (2) shall be liable to be sanctioned by the professional or vocational body of which he or she is a member (or in the case of an employee of the State, by the Public Service Commission or other commission, Ministry or body 20 of which that person is an employee) upon a complaint to that effect made at the instance of a child protection officer or any other complainant.

(4) If no express provision is made by or under any enactment for the institution of disciplinary proceedings against a person in the circumstances referred to in subsection (3), such person shall nevertheless 25 be liable to be disciplined and sanctioned by the professional or vocational body of which he or she is a member by virtue of this section as if it was part of the code of conduct or ethics or other instrument by whose terms his or her professional or vocational conduct is governed, and the sanction therefor shall, according to the gravity of the complaint, 30 include a reprimand, a fine, suspension from practice or employment in the profession or vocation concerned for a specified period, or expulsion from the professional or vocational body concerned.”.

(1) of the principal Act is amended—

1. in paragraph (a) by the deletion of “a girl under the age of eighteen years” and substitution of “a child”;
2. in paragraph (b) —
   1. by the deletion of “or young person”;
   2. by the insertion after “neglected” of “ill-treated, abused or exploited”;
3. by the deletion of “girl, child or young person”, wherever it occurs, and the substitution of “child”.

(1) Any person including a parent or guardian of a child who—

1. encourages a child to commit an offence;
2. or trains a child in the commission of an offence; or
3. knowingly provides a child with facilities to commit an offence; or
4. being a parent or guardian of a child fails to take reasonable steps to ensure that the child does not commit an offence where the parent or guardian of the child was in a position to take such steps;
5. shall be guilty of an offence and liable to the penalties that could have been imposed on him or her had he been guilty of the offence that the child committed.

(2) If a person is convicted under subsection (1) the court may, on its own motion or at the request of the injured party communicated through the prosecutor, order (in addition to imposing the penalty provided under subsection (1)), order the convicted person to pay any damages for personal injury or patrimonial loss proved in the course of the trial to have been caused to the injured party by the child.”.

(1) In this section—

“family type accommodation” in relation to an institution, means a housing unit consisting of—

1. not less than two or more than eight bedrooms for the accommodation of not more than eight children; and
2. at least one bathroom and one toilet; and
3. at least one kitchen and one dining room; and
4. where the care giver or care givers are in residence, at least one bedroom for the caregiver in residence and additional bedrooms for the accommodation of additional care givers; and
5. unless such facility is provided in a separate building, a room or rooms for use by the management and staff of the institution for administrative purposes that is clearly separated or distinct from the part of the housing unit used for the accommodation of the children; and
6. ventilation that is satisfactory to the Chief Health Officer or other person mentioned in subsection 5(b);

“dormitory type accommodation” in relation to an institution, bears the same meaning as that for family type accommodation except that instead of paragraph (a) of that definition the place where the children sleep consists of a hall (or 2 halls in the case where children of both sexes are accommodated) such that each child in the dormitory shall have a sleeping space of not less than 3 metres by 2 metres, or where bunks are provided, each bunk shall occupy a space of 3metres by 2 metres and not have more than 2 levels;

“material change” in relation to the amendment of the particulars of the original application for registration means—

1. any change in the constitution governing the institution for what happens upon the termination for any reason of the institution with respect to the disposal of its assets on the date of its termination; or
2. any institutional or personnel change in the management of the institution; or
3. any variation of the capacity of the institution to accommodate children;

“operator” in relation to an institution means the holder of the 20 certificate of registration of that institution;

“receive, maintain and supervise any child” in relation to an institution means—

1. that the institution is open within the limits of its capacity to receiving children in need of care or protection or 25 both, or children removed in terms of section 14 to a place of safety;
2. that the institution is able to provide for the basic needs of the children in its care, that is to say food, shelter (whether full board or overnight accommodation), clothing and access to basic health and basic education;
3. that the institution has in residence at least one full time care giver able to act in loco parentis.

(2) Subject to subsection (3), no person shall receive, maintain, and supervise any child in an institution unless that institution has been registered in terms of this section in the name of that person or otherwise than in accordance with the conditions on which that institution has been so registered.

(3) Application for the registration of an institution in terms of this section shall be made in two stages to the Minister in writing in the 40 prescribed form consisting of a preliminary and a final application.

(4) In the preliminary application, the applicant must satisfy the Minister that—

1. he or she is registered as a private voluntary organisation in terms of the Private Voluntary Organisation Act 45 [Chapter 17:05] (for which purpose the appropriate certificate of registration shall be attached to the application); and
2. adequate provision is made in the constitution governing the institution for what happens upon the termination for any reason of the institution with respect to the disposal of its assets on the date of its termination; and
3. all the prescribed particulars in the application form have been adequately completed by the applicant (for which purpose the Minster may request additional written information in support of the application);

and if the Minister is so satisfied, the Minister shall direct a child protection officer to prepare the report referred to in subsection (5)(c).

(5) In the final application, the applicant must satisfy the Minister that—

1. the applicant has published in one or more newspapers named by the Minister a notice in a form to be fixed by the Minister to the effect that he or she has applied for the registration of the institution in question; and
2. from the report of the Chief Health Officer (or any medical officer of health of a local authority or any person authorised thereto in writing by either of them) attached to the application, the Chief Health Officer has visited and inspected the proposed institution and approved it as a safe and healthy environment for the children;
3. and from the report of a child protection officer attached to the application,that—
   1. with respect to the accommodation provided at the proposed institution, the accommodation is family type accommodation or if it is dormitory type accommodation that it meets the following conditions—
      1. that the part of the premises consisting of the dormitory does not offend against the by-laws of the locality on overcrowding; and
      2. that there is are separate dormitories for the sexes if the institution caters for both sexes; and
      3. that suitable arrangements are proposed in or together with the application for the dormitories to be phased out in favour of family type accommodation within a period not exceeding 2 years from the date of the initial registration of the institution;
   2. that the management of the proposed institution, the transport or other facilities provided for, or the treatment of, the children therein is such as not to endanger the welfare of the children, for which purpose the applicant must produce a police clearance certificate for himself or herself and the members of the management and staff of the proposed institution on the date of its commencement;
   3. that at least one member of the management or staff is registered in terms of the Social Workers Act [Chapter 27:21] as a social worker;

and the Minister may reject any such final application or grant it either unconditionally or on such conditions as he or she may think fit and issue to the applicant a certificate of registration in the prescribed form.

(6) A certificate of registration issued in terms of subsection (5) may at any time be cancelled by the Minister or surrendered to the Minister by the person in whose name it was issued:

Provided that no such certificate shall be cancelled unless at least 10 one month’s written notice of intention to cancel that certificate has been given to the person in whose name it was issued and the Minister has considered any representations submitted by such person in pursuance of such notice.

(7) The Minister shall cause notice of the registration of any 15 institution and of the cancellation or surrender of any certificate of registration issued in terms of this section to be published in the Gazette.

(8) If there is any material change in the particulars furnished together with the application for the registration of an institution, the operator of the institution must make application to the Minister in the 20 prescribed form to amend the particulars of registration in relation to the institution, for which purpose the operator must submit to the Minister an amendment application in the prescribed form no later than one month from the date when the material change occurred.

(9) Upon receiving an amendment application in terms of subsection 25 (8) the Minister may—

1. approve the application and cause the appropriate entry in the register of institutions to be made and notify the operator accordingly; or
2. reject the application and order the reversal of the material 30 change that prompted the application within a specified period; or
3. before approving the application require all or any combination of the following—
   1. the applicant has published in one or more newspapers 35 named by the Minister a notice in a form to be fixed by the Minister to the effect that he or she has applied for the registration of the institution in question;
   2. a Chief Medical Officer’s report referred to in subsection (5)(b);
   3. a child protection officer report referred to in subsection (5)(c).

(10) A certificate of registration may subject to subsections (11) and (12) be transferred to another person in the following circumstances—

1. (a) to another operator of an institution; or
2. (b) to another person who is not an operator of an institution.

(11) An operator of an institution referred to in subsection (10) (a) must before the proposed transfer is completed make application to the Minister in the prescribed form for approval of the transfer, and the Minister shall thereafter treat the application as if it is an application for the approval of a material change to which the provisions of subsection (8) and (9) shall apply:

Provided that in approving the transfer, the Minister may cancel the certificate of registration of the institution being transferred or permit the applicant operator to hold it as a separate certificate, and in doing so may take into account the express wishes of the applicant operator.

(12) An operator of an institution referred to in subsection (10) (b) must before the proposed transfer takes place apply for the cancellation of the certificate of registration of the institution and make a new application for the registration of the institution in terms of subsections (4) and (5).

(13) The Chief Health Officer or any medical officer of health of a local authority or any person authorised thereto in writing by either of them may at any time visit and inspect any proposed or existing institution, and no person shall obstruct him or her in the exercise of his or her powers in terms of this subsection.

(14) Any person who —

1. contravenes subsection (2) (and a person who contravenes subsections (11) and (12) shall be taken to have contravened subsection (2));
2. wilfully makes a false statement pursuant to an application under subsection (4), (5) or (8);
3. contravenes subsection (6) or (8);
4. obstructs a chief health officer or any other person in the exercise of his or her duties under subsection (13);

   shall be guilty of an offence and liable—

5. in circumstances described in paragraph (a) and (b) to a fine not exceeding level 11 or to imprisonment for a period not exceeding seven years or to both such fine and such imprisonment; or
6. in circumstances described in paragraphs (b) and (d) to a fine not exceeding level 4 or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.”.

(1) In this Part—

“early childhood development” means an integrated concept that cuts across multiple sectors including health and nutrition, education, and social protection and refers to the physical, cognitive, linguistic and socio-emotional development of young children. The five stages of child development being cognitive development, social and emotional development, speech and language development, fine motor skill development and gross motor skill development;

“family environment” means the environment within a family structure descriptive of the interpersonal relationships within that structure;

“family structure” describes a household containing at least one child whose members are linked by marriage, adoption or consanguinity;

“early intervention and family preservation programme” or “programme” means a programme —

1. designed the serve the purposes mentioned in section
   49B for the benefit of families where there are children identified as being vulnerable or at risk of harm or removal into alternative care in order to strengthen 20 and build the family’s capacity and self-reliance; and
2. implemented by the social welfare department,
   a designated child protection organisation, any other relevant organ of state or any other person or organisation;

“private programme” means the private intervention and family preservation programme referred to in section 49D;

(1) Every programme must make provision for all or any combination of the following—

1. preserving to the extent possible a child’s family structure and promoting a conducive family environment;
2. developing appropriate parenting skills and the capacity of parents and care-givers to safeguard the well-being and best 35 interests of any child in their care, including the promotion
   of positive and non-violent forms of discipline;
3. developing appropriate parenting skills and the capacity of parents and care-givers to safeguard the well-being and best interests of children with disabilities and chronic illnesses;
4. providing for psychological, rehabilitation and therapeutic programmes for children in the context of the children’s family structure;
5. preventing the neglect, exploitation, abuse or inadequate supervision of children and preventing other failures in the family environment to meet children’s needs;
6. preventing the recurrence of problems in the family environment that may harm children or adversely affect their development;
7. diverting children away from the child care system and the criminal justice system;
8. avoiding the removal of a child from the family environment.

(2) In expansion of the foregoing, a programme may include all or any combination of the following—

1. assisting families to obtain the basic necessities of life;
2. empowering families to obtain such necessities for themselves;
3. providing families with information to enable them to access services;
4. supporting and assisting families with a chronically ill or terminally ill family member;
5. early childhood development and generally promoting

(1) The Minister, shall after consultation with the Ministers responsible for Primary and Secondary Education, Finance, Health, Local Government, and any other relevant Minister or organ of State, develop a national policy for early intervention and family preservation programmes to families, parents, care-givers and children.

(2) The Director shall in consultation within the Ministry and with other interested Ministries and interested stakeholders frame a draft national programme consistent with the national policy referred to in subsection (3), which the Director shall submit to the Minister for his or her Minister comment or approval.

(3) If the Minister approves a draft national programme, he or she shall give notice of the programme in the Gazetteand shall invite all interested stakeholders to make representations thereof at a public hearing on the programme convened in each of the Provinces of Zimbabwe.

(4) No later than six months after the conclusion of the last public hearing referred to in subsection (3), the Director shall in consultation within the Ministry and with other interested Ministries frame a final national programme, which the Director shall submit to the Minister for his or her Minister approval.

(5) If the Minister approves the final national programme, he or she shall give notice of such programme in the Gazetteand thereafter the applicable provisions of this Part shall apply to that programme.

(6) The national programme shall be administered in the form of one or more annual courses of instruction at a specified venue or venues for fixed periods of time for attendance by groups of families presided over or moderated over by a child protection officer with the assistance of one or more facilitators or institutions on a voluntary or other basis.

(7) A national programme qualifies for financial assistance from the Fund in the form of an administration grant (to pay for training materials, subsistence during training, transport to and from the venue and a communication allowance for the facilitators) and per capitagrants for the families participating in the programme.

(8) Where a court orders a person who is subject to and principally responsible (whether as the custodian, parent or guardian or otherwise) for participating in a programme, the Director shall assign a child protection officer to ensure that the person participates in the programme.

(1) The Minister must determine norms and standards for national and private early intervention and family preservation programmes by regulation after consultation the Ministers responsible for Education, Finance, Health, Local Government, and any other relevant Minister or organ of State.

(2) The national norms and standards contemplated in subsection (1) may relate to—

1. outreach services;
2. education, information and promotion;
3. therapeutic programmes;
4. family preservation;
5. skills development programmes;
6. temporary safe care; and
7. assessment of programmes.

(1)A childp rotection officer, instead of seeking an order concerning the temporary or permanent removal of a child from that child’s family or environment (but without prejudice to the power of the child protection officer to bring such an order later), may apply to the court for the family of the child or parent or caregiver of the child to partake in a national or private early intervention and family preservation programme.

(2) If the court is satisfied in the circumstances of the case that the programme will enable the child concerned to stay with its family, the court shall (after taking into consideration the representations, if any, made by any party interested in the application) order the child’s family and the child to participate in the programme.

(3) An order made in terms of subsection (2) must be for a period not exceeding six months, at the end of which period, and in any case no later than six months after the end such period, a child protection officer shall present a report setting out the outcome or progress of the programme provided to the child and the family, parent or care-giver of the child, upon consideration of which (and the representations, if any, made by any party interested in the application) the court may—

1. decide whether the child should be removed; or
2. order the continuation of the programme for a further specified period not exceeding six months; or
3. discharge the order.

(4) A child protection officer or a person who is subject to and principally responsible (whether as the custodian, parent or guardian or otherwise) for participating in a programme, may at any time apply to the court that granted the order for participation in the programme, to vary the order so as to permit the child in question to be taken to a place of residence outside the jurisdiction of the court, or to vary the order in any other way sought by the applicant, and the court may upon consideration of the representations , if any, made by any party interested in the application, grant the application with or without conditions or reject it.

(5) Any person who, being subject to and principally responsible (whether as the custodian, parent or guardian or otherwise) for participating in a programme, removes the child in question to a place of residence outside the jurisdiction of the court that ordered the programme without seeking a variation of the order under subsection (4), shall be guilty of contempt of court.

(6) Subsection (1) does not apply where the safety or well-being of the child is seriously or imminently at risk.

“75O. Child Protection Officer may obtain birth certificate for child without parental care

Subject to the Births and Deaths Registrations Act [Chapter 5:02], a [Chapter 5:02], a child protection officer may obtain a birth certificate for a child without parental care and is identified as a child in need of care 15 and protection or both in terms of this Act.”.

“89 Transitional provisions

(1) Subject to subsection (2), all registered institutions on the date of commencement of this Act shall continue in operation.

(2) Where an institution—

1. is transferred; or
2. has a material change in the particulars furnished together with the application for the registration; or
3. ceases to operate;

it must comply with section 14 (6), (8), (11) and (12) as the case may be.”.