The applicant was married to the third respondent and
they divorced by order of the 23rd June 2005. In terms of the Divorce
Order, custody of the minor child of their marriage, Eric Henry Harrison, born
on 3rd February 2001, was awarded to the applicant with the third respondent
accorded certain visitation rights set out in that Order.
Problems started about May 2010 when the minor child
visited his father who stays with his parents, Eric Richard Harrison and
Barbara Juan Harrison, in Avondale West, Harare. Certain allegations of sexual
abuse of the minor child were levelled against the applicant's current husband,
one Michael Sutherland. The matter was reported at Highlands Police Station and
although the crime docket was later transferred to Bulawayo Central Police
Station, the police did not prefer any charges against Michael Sutherland
suggesting that the allegations may have been baseless. Police in Harare
allowed the applicant and her husband to recover the child and take him to
Bulawayo. This did not stop the child's grandparents from eliciting reports
from a psychologist Doctor, Jonathan Brakash, a Clinical Social Worker, Trish
Swift, and a Traumatised Child Counsellor, Kerry Lynn Kay, who all recommended
that the child be removed from the applicant to ''a place of safety'' which
happens to be the grandparents' home in Avondale Harare where the third respondent
also stays.
At the probing of the third respondent, and presumably
his parents, the grandparents of the minor child, who appear to have taken a
very leading role in this dispute, Mr Cowel, the second respondent attempted on
two (2) separate occasions to remove the child from the applicant. He submitted
that he intends to take the child to his grandparents in Harare. Mr Cowell told
the court that the reason he wants to remove the child is because he has
received a lot of literature from a number of people complaining about the
welfare of the child. The literature in question is the reports made by the
individuals I have already alluded to. He also pointed out that he was under
pressure from his Head-Office in Harare to take action. Mr Cowel, however,
admitted that he has not investigated the matter personally to formulating an
opinion on the truthfulness or otherwise of the allegations made. Instead, he
has only spoken to the child, Eric Henry Harrison, very briefly at his office
and has not interviewed the applicant or her husband, Michael Sutherland.
Asked about the implications of the order of this
court granting custody of the minor child to the applicant, Mr Cowel insisted
that the best interests of the child override any court order for custody.
Section 14 of the Children's Act [Chapter 5:06]
provides:
''(1) Any police officer, health officer or probation
officer may remove a child or young person from any place to a place of safety
-
(a) If he is, in the opinion of that police officer,
health officer or probation officer a child in need of care; or
(b) If there are reasonable grounds for believing that
an offence specified in the First Schedule is being or has been committed upon
or in connection with the child or young person.''
The issue which therefore arises is whether there are
reasonable grounds for the Probation Officer, in this case Mr Cowel, to believe
that the child was or is being abused so as to entitle him to remove the child
to a place of safety.
As already stated, the allegations against the applicant's
husband surfaced in May 2010 and the police brought him to the police station
in Highlands, Harare, where they obviously interrogated him and witnesses. At
the conclusion of that inquiry, they must have formulated the opinion that
there was no case against Michael Sutherland otherwise there would have been no
reason to let him go without any charges being preferred against him. They also
released the minor child to the same person who was being accused of abusing
him and his wife. Since then, absolutely nothing has been done and Michael Sutherland
has not been prosecuted. For the second respondent to then attempt to remove
the child now without even conducting his own independent inquiry as to the
allegations is not justifiable at all. The second respondent relies entirely on
reports compiled by individuals who were contracted by the third respondent and
his parents. The evidentiary value of the reports is badly compromised by the
fact that not only were they approached by the third respondent and his parents
but they are also unbalanced as no attempt was made by any of them to interview
the applicant and indeed Michael Sutherland. It is therefore extremely unsafe
for anyone to swallow the reports hook, line and sinker as it were.
It is also pertinent to note that in contradistinction
on there are reports compiled by Doctor Aleksandra Maksimovic, Mrs C S Steyn, Eric
Henry Harrison's class teacher at Petra School, and V.N Mhlaba a
psychologist/counsellor. Doctor Maksimovic observed a couple of bruises not
relevant to the accusations made and concluded that Eric Henry Harrison was
free of any illness. His class teacher was of the view that Eric Henry Harrison's
visit to Harare was not good for him as he came back showing signs of having
lost self-esteem and confidence and looked troubled. The psychologist/
counsellor who investigated the matter at Petra School reported that Eric Henry
Harrison ''denied any improper contact with his step-father.''
I therefore came to the conclusion that at the moment
the second respondent has no basis for removing the child from the applicant
who, in any event, has the benefit of an order of this Court awarding her
custody of the minor child.
Accordingly,
I grant the provisional order in terms of the draft order annexed to the
application.
