BILL WATCH 23/2022

[30th May 2022]

The Children’s Amendment Bill

The Children’s Amendment Bill was published in the Gazette on the 3rd December 2021 and is awaiting its second reading in the National Assembly.  It can be accessed on the Veritas website [link].  The Bill’s broad objective is to update the Children’s Act [link] in line with the Constitution and Zimbabwe’s international obligations.  Most of the Bill’s provisions seem progressive, but a couple are questionable as we shall explain in this bulletin.  Before dealing with the contents of the Bill, however, we should say a word or two about its memorandum.

The Bill’s Memorandum

Most Bills presented in Parliament have a memorandum attached to them explaining their contents.  The purpose of a memorandum is to give Members of Parliament sufficient information about the Bill’s contents and purpose so that they can debate the Bill sensibly.  A memorandum is particularly important in the case of amendment Bills like this one, where the individual clauses cannot be understood by themselves, without careful examination of the Acts which the Bills will amend.

A great many memorandums attached to Bills in recent years fail in their purpose, being too brief and enigmatic to explain anything to anyone.  That is not so with the memorandum to this Bill, which is admirably full.  Unfortunately there is a serious mismatch between some of what the memorandum says and what the clauses of the Bill will do.  For example:

• According to the memorandum, clause 4 will insert two new Parts into the Children’s Act.  It won’t, nor will any other clause.
• The memorandum says that clause 5 of the Bill will amend section 2A of the Act.  It won’t:  it will amend section 2B.

And so on.  These discrepancies will have to be rectified if Members are to debate the Bill sensibly.

We now turn to look at the more important amendments the Bill will make to the Children’s Act [which we shall refer to as “the Act”].

Insertion of a Preamble

The Bill proposes to insert a preamble into the Act referring sections of the Constitution and international conventions, such as the UN Convention on the Rights of the Child, which confer rights on children.

Comment:  The new preamble does not set out or summarise the rights conferred on children, which is a pity, but it will serve to alert readers to provisions of the Constitution and conventions concerned.  It would be helpful if, in addition to the preamble, the Bill inserted a new section setting out the Act’s objectives and how it is to be applied.

Definitions

The Bill will make significant changes to several definitions in section 2 of the Act:

Definition of child

At present the Act distinguishes between infants (children under seven years of age), children (children below the age of 16) and young persons (children between the ages of 16 and 18).  The Bill proposes to scrap the distinction between children and young persons, calling everyone under the age of 18 a child.  It will not repeal the definition of infant, though elsewhere in the Act the word “infant” will be substituted with “child under the age of seven”.

Comment:  The distinction between children above and below the age of seven should be reconsidered.  The Child Justice Bill will alter the age of criminal responsibility of children – legally the age at which children cease to be infants – from seven to 12 years.  This Bill and the Child Justice Bill should be aligned.

Definition of “child in need of care or protection”

The Bill will alter the designation of “child in need of care” to the rather long-winded “child in need of care or protection or both”.  It will widen the scope of the definition to include children at risk of being unlawfully married or pledged in married, as well as pregnant children and “unaccompanied children”, i.e. children who are not under adult supervision when they should be.

Definition of “parent”

This definition will be expanded to cover biological parents, whether they are married or not.

Comment:  The amendment will remove any distinction between children born in and out of wedlock, and will give fathers of children born out of wedlock rights which they do not possess under the common law.

Child Protection and Welfare Council

Clauses 4 and 5 of the Bill will alter the membership of the Child Welfare Council, change its name to the Child Protection and Welfare Council, and give it additional functions.

• Membership:  the council will have two representatives from organisations representing children with disabilities.  Women will have to make up at least half the council’s membership.
• Functions:  the council will be given additional functions:  every five years it will prepare a national action plan for implementation by the government to protect vulnerable children and promote children’s rights, and it will make recommendations to the responsible Minister for strategies to protect children and promote their rights.  In carrying out its functions, the council will have to seek the views of children and ensure their full participation.

New Criminal Offences

Corruption of children

Clause 7 of the Bill will add two new crimes to the Act:

• Causing a child to participate in child sexual abuse material, which apparently (it’s not very clear) means using a child to produce pornographic material depicting children.  This crime will carry a fine of up to level 14 (currently Z$500 000) or imprisonment for up to 15 years or both.
• Participating in child grooming, i.e. inducing them to engage in sexual activity.  This crime will carry the same sentence.

Comment:  Both these crimes are probably covered by an existing crime created by the Act, namely causing or conducing to the seduction or commercial sexual exploitation of a child.  The Bill will not change that crime and perhaps it should, because it is wide enough to cover teenage boys who persuade their girlfriends to engage in sexual activity with them.  That may be immoral, but should it be criminalised?

• Denying medical treatment to a child.  This crime will be created by clause 8 of the Bill, and will penalise parents or guardians who “without reasonable cause” deny their children access to medical treatment when they need it.  They will be liable to a fine of up to level 5 (currently Z$20 000) or six months’ imprisonment or both.

Comment:  This crime seems aimed at parents and guardians who, because of their religious beliefs or distrust of orthodox medicine, refuse to allow their children to be vaccinated or medically treated.  The crime is probably constitutional, because although section 60 of the Constitution protects the right of parents to decide on their children’s religion, they may do so only so long as they do not prejudice the children’s right to health, safety and welfare.

• Conducing to commission of crime by a child.  Clause 12 of the Bill will add another new crime.  Parents or guardians who fail to take reasonable steps to ensure their children do not commit crimes will themselves be guilty of a crime and liable to the penalties that would have been imposed on them had they committed their children’s crimes.

Comment:  The Bible tells us that the iniquity of the fathers will be visited on their children;  this provision seems to reverse that.  Whether it will be effective in getting parents to control their children remains to be seen.

Duty to Report Child Abuse

Clause 9 of the Bill will insert a provision in the Act which states that medical practitioners, teachers, legal practitioners, ministers of religion, and anyone else who interacts with children in their professional or vocational capacity, must report to the police or a child protection officer any instance of child abuse they reasonably suspect has occurred or is likely to occur.  Failure to report will result in obligatory disciplinary action against the professional persons concerned.

Comment:  This provision is well intentioned, no doubt, but it will cause serious problems to people who are bound by a duty of professional secrecy or confidentiality:

• Medical professionals are bound to keep confidential any information they get concerning their patients’ personal or family life.
• Roman Catholic priests are bound to keep secret anything they hear in a confessional.  If they don’t they are liable to excommunication and risk eternal damnation.  It is unrealistic, to put it mildly, to expect the Roman Catholic Church to discipline a priest for refusing to breach the secrecy of the confessional.
• Legal practitioners are bound by a very strong rule of professional confidentiality which forbids them to disclose any information they receive about their clients’ personal or business affairs.  Privileged information cannot be revealed even to a court.  So important is legal practitioner-client privilege that it is protected as part of the constitutional right to a fair trial.

If legal practitioners are required to report suspected child abuse there will be additional problems.  It is by no means unknown for parties in divorce proceedings to accuse each other falsely of child abuse, in an attempt to secure custody of their children.  If those accusations have to be reported it will involve the police in divorce actions, adding whole new levels of acrimony and distress to the proceedings.

Registration of Institutions Housing Children

The Bill will introduce stricter requirements for registering institutions where children are housed [note that these requirements will not apply to schools, which are covered by the Education Act].  Among the new requirements are the following:

• Institutions will have to provide family-type accommodation for children (i.e. bedrooms accommodating up to eight children) or dormitory type accommodation (i.e. rooms accommodating more than eight children).
• Organisations operating institutions will have to be registered under the PVO Act.
• Management and staff of institutions will have to have police clearance certificates.
• At least one member of staff will have to be a registered social worker.
• Before registration, institutions will have to be inspected by health officials and child protection officers to ensure that they are suitable.

Early Intervention and Family Preservation Programmes

Clause 14 of the Bill will insert a new Part VA providing for Early Intervention and Family Preservation Programmes, designed to preserve family structures, develop parenting skills, rehabilitate children and prevent their neglect or abuse.  The Minister, in consultation with interested stakeholders, will develop a national programme and private voluntary organisations will be able to develop their own programmes in line with norms and standards determined by the Minister or prescribed in regulations.  The national programme will be funded from the Child Welfare Fund established by section 75H of the Act.

A child protection officer will be able to apply to “the court” (presumably a children’s court) for an order directing a child and its family to participate in a programme.  Although the Bill does not say so, failure to comply with such an order will be punishable as contempt of court.

Comment:  These measures are progressive but will require diligence on the part of child protection officers and children’s courts if they are to be effective.  The programmes will also need a lot of trained personnel to run them.

Consultation with Children

Under clause 15 of the Bill, before issuing an adoption order a court will have to consult the child “to the extent possible given the evolving capacity of the child”.  This will give effect to section 81(1)(a) of the Constitution.

Birth Certificates

Clause 16 of the Bill will insert a new provision in the Act allowing child protection officers to obtain birth certificates for children in need of care or protection.

Comment:  This will not solve the serious and long-standing problem we have with providing birth certificates for children, but it may help a little.

Long Title

The Bill proposes to replace the long title of the Act with a new one.  It is not clear why the long title should be replaced and the Bill‘s memorandum does not give an explanation, but the proposed new long title is defective in at least two respects:

• It begins with the words “To amend the Children’s Act” – hardly appropriate in a long title of the Act itself.
• It does not mention three things the Act does, namely establishing the (now renamed) Child Protection and Welfare Council, setting up children’s courts, and establishing the Child Welfare Fund.  Long titles are supposed to mention everything substantial that is contained in the Acts, so these three things should be mentioned in the new long title.

General Comments

There are problems that need to be sorted out before the Bill is passed by Parliament – we have mentioned some, in particular the provisions requiring child abuse to be reported by professionals who are bound by ethical duties of confidentiality.  There are others:

• The Bill fails to amend provisions of the Act which give children’s courts power to deal with criminal cases.  They will be deprived of this power by the Child Justice Bill, which states that only child justice courts will have jurisdiction to hear criminal cases involving children.
• More fundamentally, why should there be two distinct court systems – children’s courts and child justice courts – dealing with cases involving children?

If those problems are remedied, the amendments that will be made by this Bill will probably benefit children in the long term, but they will start to take effect only when there is sufficient public money to pay for the programmes and councils it will set up.