Urgent Chamber Application
CHITAKUNYE J: The
applicant and the respondent are husband and wife. In HC4530/07 the
respondent instituted divorce proceedings. That divorce action is
still pending. Arising from difficulties in their marriage the
parties separated in or about April 2007 and they have been living
apart since. On separation the custody of their three minor children
remained with the respondent.
The respondent subsequently moved to Victoria Falls in or about
December 2007. She took the children with her and enrolled them at a
school in Victoria Falls. Their eldest child Mathew Lewis Berens born
on 28 July 1996 is due to start secondary education this year 2009.
Each parent has purportedly secured a secondary school place for him
at their own school of choice. The Applicant said he has secured a
place for Mathew at St. Johns College Harare as a day scholar whereas
the Respondent said she had secured a place for Matthew at Falcon
College, Esigodin as a boarder.
The applicant seeks an interim order to the effect that:-
The respondent be interdicted with immediate effect from interfering
in or obstructing in any way the attendance at St. Johns College,
Borrowdale, Harare of the minor child Matthew Lewis Berens to
undertake his secondary education with effect from 12 January 2009.
The terms of the final order were that:-
“1. That the enrolment of the
minor child MATTHEW LEWIS BERENS at St. Johns College Harare from
January 2009 be and is hereby confirmed.
2. that the secondary education
of MATTHEW LEWIS BERENS at St. Johns College shall commence on the
1st
day of the 2009 Calendar year and shall continue thereafter at the
said College unless and until the parties may agree to change the
school, or until his attendance at the said school may for good cause
no longer be permissible or in his best interests”.
In seeking the above order the applicant in paragraph 31 of his
founding affidavit alleged that:-
“In my capacity as Matthew's
natural father and co-guardian I do hereby request this Honourable
Court to intervene as upper guardian of all minors, and to overrule
what is, in my respectful submission the unreasonable decision by
Matthew's mother to enroll him at Falcon College in Esigodini near
Bulawayo, where he has no family and friends at all, and to direct
that he be enrolled at St. Johns College in Harare where he has his
father and his devoted and caring grand mother (being my mother). And
for which school (unlike Falcon) he has passed the entrance exam.
I should also point out that the respondent's parents also live in
Harare.”
The respondent's response was to the effect that:-
“I oppose the relief sought
vehemently. I have not acted unreasonably. Passing an entrance
examination for St. Johns was excellent. However all private schools
have the same criteria. I have already denied that it is a good
ground to insist on a child attending a day school merely because his
parents and grand parents will have access to him daily. Living away
from applicant and the grand parents is of course not a new
experience to Matthew.”
On her efforts at securing a place at Falcon respondent said that: -
“My position is that Matthew
must attend Falcon College. He has been placed in Chubb House and he
is wanted at the school on 10 January 2009. I attach and mark 'H'
a copy of an e-mail confirming this.”
The parties are agreed that the
respondent has sole custody of Matthew in terms of section 5(1) of
the Guardian of Minors Act [Cap
5:08]. That section
provides that:
“Where either of the parents of
a minor leaves the other and such parents commence to live apart, the
mother of that minor shall have the sole custody of that minor until
an order regulating the custody of that minor is made under section
four or this section or by a superior court such as is referred to in
subparagraph (ii) of paragraph (a) of subsection (7).”
As the custodian parent respondent is given certain rights and powers
in the exercise of such custody.
In Makuni
v Makuni 2001 (1) ZLR
189 GOWORA J alluded to the fact that a custodian parent is vested
with all the rights that entail the nurturing, shaping and bringing
up of the minor children. She quoted with approval from Boberg Family
Law at page 460 wherein the author stated that:
“An award of custody to a
mother entrusts to her all that is meant by the nurture and
upbringing of the minor children, in this is included all that makes
up the ordinary daily life of the child – shelter, nourishment and
the training of the mind….The child…passes into the home of the
mother, and there it must find all that is necessary to its growth in
mind and body…A custodian parent has therefore the right to
regulate the life of the child, determining with whom he should or
should not associate, how he should be educated, what religious
training he should receive and how his health should be cared for.
The non-custodian parent has no right to interfere in these matters,
though he may petition the court to do so if it appears that the
custodian parent has exercised his discretion in a manner contrary to
the interests of the child or in conflict with an order of court.
Otherwise, he is confined to his right of access to the child.”
It should thus be clear that the custodian parent is empowered to
make decisions on the day to day needs of the child without having to
refer to the non custodian parent.
One of those decisions is the choice of school for the child. In the
exercise of such custody she may, if she so desires, consult the
non-custodian parent. The non-custodian parent can apply for
intervention in the choice or decision made by the custodian parent
where such decision is not in the best interest of the child or the
decision is inimical to the child. In such intervention the applicant
needs to establish or show that the choice or decision is
unreasonable or irrational or that no reasonable custodian parent can
make such a decision and that such a decision is therefore not in the
best interest of the child.
In casu,
it is clear that each parent opted for a school of their own choice
for their own reasons. In as far as respondent's choice is
concerned as the custodian parent the question is: is the decision by
respondent to secure a place for Matthew at Falcon College
unreasonable irrational or one such that no reasonable custodian
parent can make? Can it be said the decision is not in the best
interest of the child?
There is no dispute that the school chosen by respondent is an
equally good school to that chosen by applicant. The applicant did
not point at any areas of inferiority of that school as compared to
St. Johns College. No differences in the quality of education offered
thereat were alluded to. There was no challenge to the assertion on
the well structured nature and disciplinary aspect of Falcon College.
The applicant's borne of contention was simply on the fact of the
College being a boarding school and the lack of family or friends of
Matthew at or near the school. Applicant was averse to Matthew
attending a boarding school apparently because of his own childhood
experience at a boarding school.
The question that naturally arises is whether being a boarding school
and in a place where Matthew has no family members or friends makes
the choice of the school unreasonable or irrational and one that no
reasonable custodian parent can make?
In my considered view, that is not so.
The boarding facilities were not shown to be unsuitable for Matthew's
needs.
The issue of lack of friends is one that should not turn a good
decision into a bad decision. As a child grows up whether in a new
environment or familiar environment they make friends. In my view a
child should not be denied a good education at a good school just
because he has no friends at that school.
As for family members unless there is a particular need for family
members to be close by in order to attend say to the child's
special needs, I do not see this as cause for concern.
The question of what is in the best interest of the minor has to be
looked at from both short term and long term. In assessing such court
has to consider that which will assist the child to grow up and not
that which serves selfish parental interests but end up spoiling the
child. Emotional or sentimental feelings maybe disturbed in the short
term for the long term interest of the child.
On consultation it is my view that the custodian parent may consult
the non custodial parent as this would in some cases be in the best
interest of the minor. However failure to consult would not on its
own turn a good decision into an unreasonable or irrational decision.
Even where consultation has taken place the final decision is still
with the custodian parent with the non custodian parent left to
challenge such decision.
The non custodian parent is at liberty to apply for custody as
provided for in the Act.
It may also be pertinent to point out that the net effect of what the
applicant seeks is to be granted custody without having applied for
it in terms of the Act.
This cannot be.
I am of the view that the application cannot succeed. Accordingly the
application is hereby dismissed with each party to bear their own
costs.
Atherstone & Cook, legal practitioners for the applicant
T. H. Chitapi & Associates, legal practitioners for the
respondent
