Childcare and Protection Act 2003

Link to law: http://laws.gov.ag/acts/2003/a2003-29.pdf

No. 29 of 2003. The Childcare and Protection
Act, 2003.

1 ANTIGUA
AND

BARBUDA

[ L.S. - ]
I Assent,

James B. Carlisle,
Governor-General.

20th February, 2004.

ANTIGUA AND BARBUDA

No. 29 of 2003

AN ACT to provide for the establishment and functions of a
Childcare and Protection Agency, the licensing of childcare
facilities, the maintenance of appropriate standards in respect
of their operations and for other matters relating to the safety,
care and protection of children.

[ 26th February, 2004 ]

ENACTED by the Parliament of Antigua and Barbuda as
follows:

PART I
PRELIMINARY

1. This Act may be cited as the Childcare and Protection Act, short title.
2003 and shall come into operation on a date to be appointed by
the Minister by Notice published in the Gazette.

2. (1) In this Act, unless the context otherwise requires - Interpretation and
application.

"abuse" includes -

(a) the physical infliction of injury or harm by a
person having authority, care or custody over
a child;

(b) the sexual exploitation of a child, molestation
of a child, or the involvement of a child in
unlawful sexual activity, prostitution or
pornography; and

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(c) any other unlawful act likely to cause
psychological harm to a child;

"Agency" means the Childcare and Protection Agency
established by section 3;

"child" means a person who has not attained the age of
eighteen years;

"childcare facility" means a place where children are
cared for and includes a children's home, a foster home,
a children's nursery and a pre-school;

"Committee" means the Childcare Protection Policy
Committee established by section 5;

"Minister" means the Minister responsible for social
services;

"neglect" means the failure or refusal, without reasonable
cause, of a person having care of a child to provide the
child with basic needs such as food, clothing, shelter,
adequate supervision or medical attention.

(2) This Act shall also apply to a person who attains the age
of eighteen years while under care or protection in accordance
with this Act and is, because of some disability, certified by the
Director as being in need of care or protection under this Act on
and after attaining that age for such period as may be specified
by the Director.

PART 11
ESTABLISHMENT AND FUNCTIONS OF

CHILDCARE AND PROTECTION AGENCY

Establishment of 3. There is established by this Act an agency of the Govern-
Agency. ment to be known as the Childcare and Protection Agency.

Functions of 4. The functions of the Agency are -
Agency.

(a) to monitor private childcare facilities and to provide
and maintain childcare facilities in order to promote
care and protection for children;

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provide counselling and similar therapeutic services
for children in need of care and protection and for
the parents and guardians of those children;

to promote the permanent placement of children at
risk, including placement in foster homes, and to
promote re-unification with their families;

to assess applications for foster care, guardianship
and adoption and to make recommendations and
provide any other assistance to the courts and other
authorities involved in determining such
applications;

to make timely interventions in cases where the
actions or conduct of a person (whether that person
has authority, care or custody of a child) have
resulted in, or are likely to give rise to any harm or
injury to the child;

to provide services for the recovery and rehabilitation
of children who have suffered harm or injury;

to investigate allegations, reports or complaints of
abuse or neglect of children;

to provide care and protection for children under
special vulnerability including orphans, children
infected with or affected by HIVIAIDS and children
with mental or physical disabilities;

to enforce prescribed standards and other
requirements of care for children who are in childcare
facilities or in any other educational setting in order
to promote the best development of the child which
is compatible with early childhood development
goals, primary health and public healthrequirements;

to promote gmd parenting education, parental
responsibility and practice;

to provide training for persons engaged in the care
and protection of children;

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(I) to coordinate and monitor the activities of otber
persbns engaged in the management of cases of
child abuse and neglect;

(m) to promote the rights of the child and the pyblic
awareness of those rights;

(n) to license and register private childcare facilities
and to ensure their compliance with such standards
and other requirements as may be prescribed by the
Minister;

(0) to liaise withregional and international organizations
in matters relating to the welfare of children;

@) to make proposals and recommendations for the
enactment or improvement of laws relating to the
welfare of children.

PART m
CHILDCARE AND PROTECTION POLICY

COMMITTEE

Childcare and 5. (1) There is hereby established a Childcare and Protection
Protection Policy Policy Committee for the Agency consisting of the following
Committee. members -

(a) a Chairperson, appointed by the Minister;

(b) the Director of the Agency;

(c) a representative of the Ministry responsible for
Social Services appointed by the Minister;

(d) the Chief Medical Officer;

(e) a representative of the Ministry of Education
appointed by the Minister;

fl the Commissioner of Police;

(a, a representative of the Judiciary appointed by the
Minister on the recoIfimendationof the Chief Justice;

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Act, 2003.

fi) a representative from BqbuQa appointed by the
Minister on the r e c o ~ d a t i o n of the Barbuda
Council;

(i) a representative of the Antigua and Barbuda
Christian Council appointed by the Minister on tde
recommendation of the Council;

0) a representative of the United Evangelical
Association appointed by the Minister on the
recommendation of the Association;

(k) a representative of a religious body other than an
organization referred to in paragraphs 0) and 0);

(I) two other persons representing civil society
appointed by the Minister on the recommendation
of such persons as he may consider appropriate..

(2) A member appointed under paragraphs (b) to (g), in this
Part referred to as "an ex oficio member", may assign an officer
from his office to represent him at any meeting ofthe Committee.

6. A member of the Committee, other than an ex o@io
membcr, shall hold office for a period not exceeding three years
and is qualified for re-appointment.

7. Amember of the Committee, other than an exoBw member,
may resign fiom office in writing addressed to the Minister.

8. The Minister may, on the written recommendation of the
Chairperson and after consultation with the authority that
recommended the appointment of a member who is not an ex
oficio member, revoke the appointment of the member for the
member's failure to perform his functions.

9. The functions of the Committee are -

(a) to formulate and recommend policies and
programmes of the Agency for approval by the
Minister;

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Tenun of office.

Resignation.

Revocation of
appoi&t.

Functions of
Cpmmittee.

(b) to monitor and evaluate the performance by the
Agency, of its function, and its compliance with the

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AND

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Procedure of
Committee.

Director and staff
of the Agency.

Performance of
functions.

The Childcare and Protection No. 29 of 2003.
Act, 2003.

policies and programmes approved by the Minister
and to reportits findings andmake recommendations
to the Minister.

10. The Committee shall make its own rules of procedure Md
the rules shall take effect after they have been approved by the
Minister.

PART IV
DIRECTOR AND STAFF OF AGENCY

11. (1) The Governor-General, acting in accordance with the
the advice of the Public Service Commission, shall appoint a
Director of the Agency.

(2) The Director shall be responsible for the management of
the affairs of the Agency and for the performance of its functions
under this Act in accordance with any directions issued by the
Minister under section 28.

(3) The Public Service Commission shall appoint to the
service of the Agency such suitable persons, including persons
seconded fiom other sectors of the public service, who possess
the requisite qualifications and skills for the effective perform-
ance of the functions of the Agency.

(4) The Ministry responsible for the Agency may, on the
recommendation of the Director, engage such other suitable
persons as m y be required from time to time for the perform-
ance of the functions of the Agency.

PART v
INVESTIGATING AND REPORTING

12. For the purpose of performing the functions of the
Agency, the Director or an employee of the Agency 1~1thobd
by the Director in writing, either generally or in any particulu
case, may -

(a) investigate the abuse or neglect of a child or a
need for protection, whether or not ra
complaint orrepoxthas b e e n d iathrsmg@

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(b) take, or assist other persons or authorities to take,
remedial measures, including court proceedings -

(i) against any person involved in the abuse or
neglect;

(ii) for the purpose of placing a child affected by
abuse or neglect in foster care or protective
custody;

(iii) in any case of imminent harm or injury or risk
of abuse or neglect, by the removal of a child
to a place of safety as may be ordered by a
court or with the consent of the person having
lawful custody of the child;

(c) take such other measures as will ensure the safety
and welfare of the child.

13. (1) A person within any of the categories set out in Obligation to
subsection (2) who, in the course of duty in relation to a child, report abuse or
suspects on reasonable grounds, or knows that the child is being
or has been subjected to abuse or neglect or is in imminent risk
of harm or injury or is in need of protection from harm or injury,
shall report that factto the Agency.

(2) Subsection (1) applies to the following persons -

(a) parents or legal guardians;

(b) persons engaged in the provision of educational,
medical or mental health services;

(c) social service workers;

(d) Childcare or foster care workers;

(e) members of the clergy;

police officers;

( ' guidance counselors.

(3) The Minister may, by Order published in the Gazette, vary
the categories of persons referred to in subsection (2).

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Failure to report
abuse or neglect,
etc.

Making false
allegation report
or complaint.

Agency to
provide certain
information to
person reporting.

Prohibition of
disclosure of
identity of
complainant or
person reporting.

Immunity from
personal l i w .

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(4) Nothing in this section shall be construed as prohibiting
any other p q o n not within the categories set out in subsection
(2) from reporting to the Agency or to any other person or
authority, ,any incident of child abuse or neglect; but a person
who is not under an obligation to report such incident in terms
of subsection (1) need not disclose his identity.

14. A personwithin any of the categories set out in subsection
(2) of section 13 who, without reasonable excuse, fails to report
to the Agency as required by subsection (1) of that section
commits an offence and the Director may -

(a) for a first offence, issue to the person a written
reprimand and also order the person to make the
report that he should have made under subsection
(1) of section 13; or

(b) irrespective of whether the failure to report is a first
offence, notify the failure to the Police or other
competent authority, with a request to institute
against him appropriate criminal or disciplinary
proceedings by the competent authority.

15. Any person who, without reasonable excuse, makes an
allegation, report or complaint of abuse or neglect to the Agency
in relation to a child which he knows to be false in any material
particular, commits an offence.

16. The Agency shall,%so requested by a person who has
reported an incident of child abuse or neglect or who has lodged
a complaint, provide that person with information regarding the
steps that are contemplated or are being taken by the Agency in
connection with the report or complaint and the Agency shall
ensure that the information is provided in a manner that does not
prejudice the steps contemplated or being taken.

17. The Agency shall not disclose the identity of a person
reporting an incident of child abuse or neglect to the person
against whom the report is made unless the person reporting
consents to the disclosure.

18. (1) A member of staff shall not, in the performance of his
functions under this Act, be personally liable in civil proceedings
for any act done in good faith.

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(2) A person who reports an incident of child abuse, whether
or not the report is made pursuant to an obligation under sub-
section (1) of section 13, shall have the same immunity as is
provided for in subsection (1) of this section.

PART VI
LICENSING, REGISTRATION AND

SUPERVISION OF CHILDCARE FACILITIES

19. (1) A person shall not establish, manage or operate a Application for
Childcare facility, other than a Childcare facility belonging to licence.
the Agency, except under a licence granted under this Act.

(2) An applicant for a licence to operate a Childcare facility
shall submit an application to the Director in the prescribed form
and the application shall be accompanied by the prescribed fee,
such documents and information as may be prescribed and such
additional documents and information as may be required by the
Agency.

(3) The Director may approve or refuse to approve the
application and shall communicate the approval or refusal to the
applicant and, in the case of a refusal to grant a licence, shall
communicate the reasons for the refusal.

(4) A licence may be issued subject to such conditions as the
Director may consider appropriate and the Director may, after
giving notice to the holder of a licence and an opportunity for the
latter to make representations, vary the conditions of a licence if
there are changes relating to the Childcare facility, or if an
application has been made by the holder to vary the conditions
of the licence.

(5) The proprietor of a Childcare facility in existence on the
commencement of this Act shall, if he intends to continue
operating the facility after the commencement of this Act, apply
for a licence within six months from the commencement of this
Act and may continue to operate pending the grant or refusal of
a licence.

20. A licence shall remain valid for a period of one year from Period of validity
the date of issue or for such shorter period as may be indicated l

icence.

on the licence and may, on application to the Director, be
renewed for further periods.

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Registration of 21. The Director shall maintain a register containing the
Childcare following information -
facilities.

(a) the name and location of each Childcare facility in
respect of which a licence is granted;

(b) the name and address of the proprietor and the
person in charge of each Childcare facility;

(c) the conditions attached to each licence and any
variation of the conditions of the licence or any
suspension or revocation of the licence.

Suspension or 22. (1) The Director may suspend or revoke a licence where
revocation of the holder of the licence -
licence.

(a) obtained the licence through fraud or negligent
misrepresentation or any false or misleading
statement; or

(b) is convicted of an offence under this Act, an offence
involving moral turpitude or any other offence
which, in the opinion of the Director, makes him
unfit to hold a licence; or

(c) fails to comply with any conditions applicable to the
licence.

(2) The Director shall, before taking any action in terms of
subsection (I), notifiy the holder of the licence of his intention
to suspend or revoke the licence and the reasons therefore and
call upon the holder of the licence to show cause, within such
reasonable period as may be specified in the notice, why the
licence should not be suspended or revoked, as the case may be.

(3) If, at the expiration of the period specified in the notice
given under subsection (2) -

(a) the holder of the licence fails to show cause within
that period; or

(b) the Director is satisfied for any reason specified in
subsection (1) that the licence should be suspended
or revoked,

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the Director may, by notice in writing, suspend or revoke the
licence or take any such other action as he considers appropriate.

23. (1) An applicant for a licence under section 19 or the Appeals.
holder of a licence who is aggrieved by a decisionor determination
of the Director in respect of the matters set out in subsection (2),
may appeal to the Minister in such manner and within such
period as the Minister may, by Regulations, prescribe.

(2) The mister may hear and determine appeals in respect
of any of the following matters -

(a) a refusal to grant a licence under section 19;

(b) the conditions imposed on a licence;

(c) a refusal to renew a licence;

(d) a suspension or revocation of a licence; and

(e) any administrative decision on a matter arising from
the application of this Act.

24. (1) The Agency shall - Supervision and
monitoring of
childcare (a) supervise andmonitor Childcare facilities registered facilities.

under this Act;

(b) enforce compliance with the prescribed standards
and with other requirements under this Act relating
to Childcare facilities;

(c) provide guidance and training for persons engaged
in the care or custody of children to whom this Act
applies.

(2) For the purposes of paragraphs (a) and (b) of subsection
(I), a member of staff of the Agency authorized by the Director
in writing may, at all reasonable times, enter and inspect the
premises of a Childcare facility and cany out any investigation
with regard to compliance with the requirements of this Act.

(3) Where, pursuant to an investigation a member of staff of
the Agency is, on reasonable groutlds, satisfied that the Childcare

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facility does not, in any particular respect, comply with the
requirements of this Act, the employee shall report that fact to
h e Director and .the Director may -

(a) serve the person in charge of the Childcare facility
or the holder of the licence with an order in writing
requiring that person to comply with any particular
requirement within the period prescribed in the
order; or

(b) suspend or revoke the licence in accordance with
this Act and make appropriate arrangements for the
continued care of the children in the facility in
respect ofwhichthe licence is suspendedor revoked.

PART VII
GUIDING PRINCIPLES AND PROTECTION OF

PRIVACY

Welfare of child 25. (1) In determining any matter relating to -
paramount.

(a) the upbringing of a child; or

(b) the administration of a child's property or income,

the person who has authority to determine the matter shall
ensure that the welfare of the child is paramount.

(2) In all matters relating to a child, whether before a court of
law or any other authority regard shall be had to the need to
determine the matter without undue delay in order to ensure that
the welfare of the child is not prejudiced or adversely affected
by the delay.

Criteria for 26. In determining any question relating to the circumstances
decisions. provided for in section 25, the person who has authority to

determine the question shall have regard in particular to -

(a) the ascertainable wishes and feelings of the child
concerned, inthe light ofthe child's age and capacity
to understand the matter to be detemined;

(b) the child's physical, emotional and educational
needs;

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(c) the likely effects of any changes in the child's
circumstances;

(d) the age, sex and background of the child and any
other relevant factors;

(e) any harm or injury the child has suffered, or is likely
to suffer; or

Ct) the capacity of the child's parents, guardians or
other persons involved in the care of the child in
meeting the needs of the child.

27. (1) In any proceedings involving a child, whether before Protection of
a court or any other authority established by or under any law, pTivacy in

and for the purpose of protecting the welfare of the child, the proceedings.

court or other authority may exclude from the proceedings any
person whose presence is not necessary for the conduct or
determination of those proceedings.

(2) Subject to the regulations made under subsection (5 ) , no
person shall publish any information relating to the proceedings
referred to in subsection (1) in a manner that discloses -

(a) the name of the child or any information from which
the identity of the child may be inferred; or

(b) the name of a person concerned in the matter or any
information on that person from which the identity
of the person may be inferred.

(3) For the purposes of subsection (2), proceedings involve
a child if the child is -

(a) the subject of the proceedings;

(b) a witness in the proceedings;

(c) a person aggrieved by or the victim of the alleged
abuse or neglect in the proceedings.

(4) Subsection (2) shall not be construed as prohibiting the
disclosure of information -

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(a) in the course of the administration of this Act or the
administration of justice;

(b) to a professional or other person engaged in the care
or supervision of a child;

(c) in order to ensure the safety of the child or other
persons if the child poses a risk of serious harm or
injury to himself or to other persons; or

(d) if the disclosure of the information is necessary to
assist in apprehending the child in connection with
a criminal offence or for the purpose of placing or
restoring the child under care or protection.

(5) The Minister may make Regulations providing for
additional circumstances, conditions and other matters under
which the information referred to in subsection (2) may be
published.

PART VIII
MISCELLANEOUS

Power of 28. The Minister may give the Agency directions of a general
Minister to give nature relating to the perfonnance of its functions and may
directions. direct the Agency on any matter which, in the opinion of the

Minister, affects Government policy.

Offences and 29. (1) Any person who -
penalties.

(a) establishes, manages or operates, or participates in
the management or operation of, a childcare facility
without a licence granted under this Act;

(b) being a person to whom subsections (1) and (2) of
section 13 apply, contravenes that section;

(c) contravenes section 15; or

(d) fails, without reasonable excuse, to comply with an
order served upon him under paragraph (a) of
subsection (3) of section 24, commits an offence.

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(2) A person convicted of an offence under subsection (1) is
liable -

(a) on sunmary conviction to a fine not exceeding
$1500 or to a term of imprisonment not exceeding
six months or both;

(b) - upon conviction on indictment to a f i e not exceeding
$10,000 or to a term of imprisonment not exceeding
two years or both.

30. (1) The Minister may make Regulations for carrying out Regulations.
the purposes of this Act.

(2) Regulations made under subsection (1) may prescribe,
in respect of any contravention of those Regulations in relation
to child abuse or neglect, penalties not exceeding the penalties
set out in subsection (2) of section 29.

Passed the House of Representatives Passed the Senate this 6th day
this 24th day of October, 2003. of November, 2003.

B. Harris,
Speaker.

M. Percival,
President.

S. Walker, S. Walker,
Clerk to the House of Representatives. Clerk to the Senate.

Printed at the Governmat Printing Office, Antigua and Barbuda,
by Walter A. Massiah, Government Printer

- By Authority, 2004.
1000-3.04 [Price $6.10]
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