IN RE MAPOSA 2007 (2) ZLR 333 (H)

Flynote

Family law ” child ” guardianship ” grant of to person other than child's parent ” principles ” removal of child from jurisdiction by such person ” what must be shown

Headnote

The applicant was the aunt of a minor child. The child's mother had died but his father, who was unemployed, was still alive. With the consent of the child's father, she applied for sole guardianship of the child, her intention being to remove the child from Zimbabwe to the United Kingdom, where she lived and worked.

Held, that while guardianship of a minor child can be granted to one parent to the exclusion of the other, the courts should be slow in granting that status to a third party. The reason is that the court, being the upper guardian of all minors, should grant guardianship and order subsequent removal from its own jurisdiction only after serious consideration of the circumstances surrounding such application. While the best interests of the child are the first and paramount consideration, they are not the sole consideration in the determination of the suitability of an applicant for guardianship. Other considerations come into play. The wishes of an unimpeachable parent undoubtedly stand first. Although in casu the minor's father expressed wish was in favour of guardianship by the applicant, the applicant still had to satisfy the court as to her suitability as a new parent. She should satisfy the court that she was in a position to look after the child adequately and was a fit and proper person to adopt the child. In that regard, the child's welfare should not be measured only by money or physical comforts, but by all factors that will affect its future. The court should not rely on the applicant's ability to support the child by her mere say-so in an affidavit; she must go further and convince the court by authentic documentary proof of her capacity to do so. This she had failed to do.

Cheda J