Harare – In Zimbabwe, the Guardianship of Minors Act [Chapter 5:08] regulates the law regarding minors, in accordance with the constitution of the Republic of Zimbabwe, 2013. A child`s best interests are of paramount importance in every matter concerning the child. This is in terms of section 81(2) of the Constitution. Therefore, the state must adopt policies and measures that ensure that in matters relating to children, the best interests of the children concerned are paramount this is in terms of section 19(1) of the Constitution.
Guardianship is defined in Section 2 of the Guardianship of Minors Amendment Act 2 of 2022, Guardianship is simply defined as a legal right allowing either parent to manage a minor`s affairs including health, education needs, financial security, or any welfare needs.
When it comes to matters relating to minors, The High Court is the upper guardian of minors by Law. This is to assure that whatever is done on behalf of the minors conforms to the best interests of the minor child involved.
The process of applying for Guardianship of a minor is a complex one. The legislature has attempted to provide what should guide the courts by enacting such laws as the Maintenance Act [Chapter 5:09], the Guardianship of Minors Act [Chapter 5:08], and the Children
s Act [Chapter 5:06]. Applications for Guardianship are usually done in the High Court unless in cases where the minor child involved has no natural guardians, only can this application be made in the Magistrates Court sitting as the Childrens Court.
When filling out an Application for Guardianship, the first step is to appoint a curator ad litem. A Curator ad litem is a person who is appointed by the court to represent the interests of a minor. The Applicant identifies a potential curator ad litem and obtains written consent from this person. Applicant files a chamber application annexing written consent and seeks an order that this person be appointed a Curator ad litem. The Chamber Application for the Appointment of a Curator ad litem is served on the Master who is expected to make a written report to the Judge. This report pertains to the application for appointment of a Curator ad litem. It could be that the Master has misgivings about the proposed appointment of the curator.
After the appointment of the proposed curator ad litem, the substantive application is then served on him/her. The Application must cite the curator in their capacity as such. S/he is expected to conduct such investigations as necessary and must file a written report with the registrar of the High Court.
It is important to note that the role of the curator ad litem is to assist the court to make a decision that is always based on the best interests of the child involved. The report must be served on the applicant and other interested parties.
The report by a curator in this matter is very crucial in assisting the court to determine whether or not it will be in the best interests of the child to divert guardianship to a 3rd party or either of the parties.
Once the report has been issued, an Application for Guardianship can then be filed at the High Court, attaching Applicant
s Founding affidavit, supporting affidavits from paternal and maternal relatives, and the Curators report. If the Court is satisfied that such an appointment is in the best interests of the Child, Guardianship will be granted. After confirmation of the Application, an order for Guardianship will be issued.