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Guardianship and parental fights

Opinion & Analysis
Sometimes parents have conflicting views regarding the raising of their minor children when the shared values, philosophies, morals, principles and opinions clash.

Sometimes parents have conflicting views regarding the raising of their minor children when the shared values, philosophies, morals, principles and opinions clash.


Not all parents are equipped to know, how to act in the best interests of their minor children.

Section 19 of the Constitution prescribes that in all matters involving minor children their best interests are paramount.

Whatever, is done if it affects children must always be done to ensure that the children are protected and that they enjoy the rights accorded them as children in the Constitution.

This is regarding their shelter, nutrition, education, health care, social services and more.

Children must be protected from maltreatment, neglect and all forms of abuse such as exploitative labour practices.

Oftentimes, parents themselves are at the forefront of abusing their own children and exposing them to danger.

Guardianship of minors infers the responsibility of looking after children and having the right to make decisions regarding their welfare such as day to day care, accommodation, schooling, health and other normal activities.

Serious conflicts do arise regarding any of the many aspects of guardianship. The question is who has the final say in decisions to do with children between the father and the mother.

The Law

The Guardianship of Minors Act Chapter 5:08 confers guardianship to either or both parents or relatives or any other adult deemed suitable.

If both parents of the minor child are still alive and live together the father of the child has to exercise his guardianship rights in consultation with the mother of the child.

This is regarding all normal decisions such as choice of school, healthcare, discipline etc.

If the parents are divorced or live apart and there is no court order conferring guardianship on either of them they have to exercise consultative guardianship.

Disputes over children

When a serious dispute on any guardianship aspect arises either parent whether they are married to each other or not can approach the High Court for resolution of the dispute.

The High Court is the upper guardian of minors and has the last say in all matters regarding the welfare of the minor child. And who has the final decision between the custodial and non-custodial parent? Custody and guardianship are not the same. A non-custodial parent can still have guardianship over the child.

No one parent is allowed or should be allowed to make unilateral decisions that are harmful to a child or expose the child to harm.

Section 3 of the Act states that if a decision made by the father on any matter relating to guardianship is contrary to the mother’s wishes and in her opinion such decision is likely to negatively affect the life, health or morals of the minor child the mother can make a High Court application.

A judge will give an appropriate order regarding the matter. One parent may withhold or prevent a child from enjoying their Constitutional and natural rights to their detriment.

Common disputes relate to choice of schools, medical care and travel. In Berens vs Berens HC7039/08 HH28-2009 the mother and father clashed over the choice of school for the child.

One parent may unreasonably withhold consent for a vital surgical procedure or unreasonably withhold consent regarding travel outside the country. In such cases the other parent can approach the court for relief if they can prove the decision by the other parent exposes the child to harm or deprives the child of their rights.

Appointing a Guardian

Where a minor child is orphaned a relative or the person with custody of the child or a probation officer can apply for an order of guardianship to the Children’s Court.

The prospective guardian has to be a fit and proper person meaning not just anybody can be a guardian of a minor child.

It does not matter, if that person is the child’s only relative. There is no obligation to confer guardianship on relatives or even natural parents of the child.

Some parents are simply unfit to be guardians for their own children, if for example they are drug addicts, paedophiles or violent, abusive or just irresponsible people.

In making an assessment, the Children’s Court is guided by whatever is in the best interests of the child.

Relatives living outside the country are not precluded from applying for guardianship of minor children that live in Zimbabwe.

So many Zimbabweans live outside the country and may be suitable or interested in assuming responsibility over orphan relatives in the country.

If relatives living abroad are granted guardianship they may be allowed to take the children out of the country and live with them.

The guardianship order might help in their visa applications than to just try and relocate minor children to foreign countries without any legal status over the child.

Issues surrounding guardianship of minors are fraught with many controversies within families.

In order to make the process as transparent as possible it is a requirement to publish the application for the guardianship of a minor child in the Government Gazette and one other public newspaper.

The advertisement will call on people to lodge objections, if they are opposed to the application.

Advertising promotes transparency and ensures greater protection of the child, as it maximises the chances of the guardianship being given to a fit and proper person.

Objections against the process or the applicant should be brought to the court’s attention and if no objections are received, the application will go ahead as scheduled.

Even on the day of the hearing the court can still receive oral objections.

If no objections are filed, the court will grant or deny the guardianship as it sees fit.

The guardianship order still has to be confirmed by the High Court, which it may well rescind if it sees fit.

Aggrieved persons can appeal against decisions of the court.

The directors of registered orphanages and homes assume guardianship for the minor children under their care.