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The phrase “best interests of a minor child” is used, by the courts, usually in the context of separation or divorce. So often, it is typically associated with a bitter situation where two people are fighting for custody, access, and or guardianship of a minor child in such an unfriendly condition. However, contrary to this thinking, this expression applies in broader situations than that. The best interest of the minor child is a human rights principle that is derived from Article 3 of the United Nations (UN) Convention on the Rights of the child. The foundation of this concept is based on the acknowledgment that an adult is only able to undertake decisions on behalf of a child because of its lack of experience and perceptions.
The phrase does not carry a standard definition. It generally refers to the deliberation that courts undertake when deciding what type of actions and orders will best serve the child as well as who is best suited to take care of the child. “Best interests” determinations are made by considering several factors related to the child’s circumstances and the parent’s circumstances and capacity to parent, with the child’s ultimate safety and well-being the paramount concern. Consideration must also be given to all possible impacts of the decision on the child in question. In the regional and international arena, this expression is used, so does our constitution and several local laws.
When making laws, the state should seriously consider what is in the best interest of a minor child. This is provided for in Section 19(1) of our Constitution and Section 81(2) simply rewords and confirms this position by stating that “The child’s best interests are paramount in every matter concerning the child”. Because the constitution has provisions for the bests interests of a minor child, this confirms how important it is.
The Customary Law and Local Courts Act [Chapter 7:05], Guardianship of Minors Act [Chapter 5:08] and Children’s Act [Chapter 5:06] have provisions on the best interest of a minor child. According to these laws where custody or guardianship is involved aside which law or principle, the best interests of the child should be paramount. In adoption matters, the best interests of a minor child should also be preferred.
Our constitution states that when making laws, the state should consider regional and international instruments. It, therefore, follows that where the best interest of the minor child is provided for in such treaties, Zimbabwe must include them in its laws. Article 3 (1) and 4 of the United Nations Convention on the Rights of the child are two such international provisions to which Zimbabwe is supposed to comply.
Our local courts have delivered judgments which emphasize the importance of this principle especially in matters of guardianship, custody access, and proceedings for termination of parental rights. When magistrates and judges make decisions in divorce cases, for instance, they also consider that the child needs an environment that is conducive and which of the parents can potentially offer such. The child’s physical, moral, emotional, and spiritual welfare are some of the essentials that are considered. The Courts have considered some of the following aspects when determining the best interests of the child namely, the fitness or otherwise of the custodian parent, the age and sex of the child, the length of time the child has lived with either parent, the degree of emotional stress which the child will suffer in the event of the child being separated from the other parent, any risk of ill-treatment by either party or member of his or her household and educational and religious needs of the child coupled with the social and financial position of each parent.
The financial stability of a party is not the only factor that can determine the best interests of a minor child in, for instance, an award of sole custody. In such a situation, the financially stable party can be ordered by the Court to pay maintenance for the minor child. Similarly, the best interests cannot be measured purely in terms of superior accommodation and facilities. What is critical is that the child must feel that it is welcome, wanted, and loved.
Courts have also stated that a custodian parent oversees the day to day needs of the child. This parent decides, among other things, where the child goes for its schooling, which church they attend, which friends they associate with, what food they eat, and so on. This parent need not consult the non-custodial parent for as long as whatever decision she or he makes is in the best interests of the child, she or he cannot be questioned and/or challenged.
Until recently, guardianship and custody of a child born out of wedlock were solely for the mother. However, this this position has changed. The Court decided in one case that there is nothing wrong with granting joint guardianship and joint custody between parents in respect of a minor child. What the Court considered were the best interests of the child in awarding these rights jointly.
There is, nonetheless, no formula to determine the best interests of the child. The Court must use its discretion by adopting a realistic approach after weighing all the evidence placed before it. The process however is subjective. In some instances, the best interests test standard is described as indeterminable and vague since the Court considers its understanding, hence the criticism. To minimise this subjectivity, the Court can come up with a more accurate position in this regard if the voice of the child is also considered. Considering the child’s age, maturity and their capability and/or growing capacity, the views of the child will be of crucial importance to coming up with a decision and hence why it is dubbed the best interests of a minor child.ss
By Isabel Palasida
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