As more Zimbabwean families spread their wings globally, a critical question arises: what happens to the children? In Zimbabwe’s interconnected extended families, migration is not always just about parents and their biological children. It often involves nieces, nephews, and other young relatives who need continued care and support, legally and practically. This piece delves into the essential legal tools—guardianship and adoption—that empower caregivers to navigate borders and ensure that every child in their care remains legally protected and nurtured, no matter where life takes them.
What is Guardianship?
Guardianship refers to the legal right and obligation to care for a minor child’s daily well being, including their education, training and religious upbringing, as well as managing their property and business affairs. A guardian of a minor may be appointed by a Zimbabwean court after it considers the child’s best interest, which is of paramount importance in all matters concerning children as outlined in section 81(2) of the Constitution.
The Guardianship of Minors Act [Chapter 5:08] provides guidance on the appointment of a legal guardian. If both parents are deceased and no testamentary guardian has been appointed, a relative or any person overseeing the daily care of the minor may make an application for guardianship under Section 9 Guardianship of Minors Act to the Magistrate’s Court sitting as the children’s court. However, if one or both parents are still alive, any application for guardianship must be made to the High Court which is the upper guardian of all minors in Zimbabwe.
Despite this legal pathway, challenges arise. For instance, where the minor’s parent(s) are still alive, the High Court is generally reluctant to appoint guardianship as illustrated in Usore & Anor v Chigwada & Anor HH-483-2020. The court is inclined to conduct a thorough inquiry to assess into the suitability of the person to be appointed as guardian, rather than simply assess the potential (financial) benefits to the child if the applicant is appointed as guardian. Additionally, the courts are inclined to inquire why the biological parent(s) should be deprived of natural guardianship, especially if the relative to be appointed as a guardian intends to migrate abroad with the minor. It is therefore crucial for the applicant seeking guardianship to provide details that will enable the court to make a proper determination.
What is adoption?
Adoption refers to the legal process that transfers all rights, duties and obligations towards a child from the biological parents or legal guardians to the adoptive parents. An application for adoption is made in terms of section 58 of the Children’s Act [5:06] to the Magistrate’s Court sitting as the children’s court. Unlike guardianship, an adoption order terminates the legal relationship between the child and the biological parents or legal guardians, and the adoptive parents assume the legal position of the child’s biological parents.
However, the Children’s Act [5:06] imposes several restrictions on making an adoption application. For instance, if the person wishing to adopt the child is less than 25 years old, or less than 21 years older than the minor, consent from the Minister of Public Service, Labour and Social Welfare (the Minister) is required. However, there are circumstances where the Minister’s consent is not required, including but not limited to cases where the adopter and minor are close relatives, or when a person seeks to adopt their spouse’s child (stepparent adoption).
Crucially, Section 59(3) of the Children’s Act [5:06] provides that an adoption order shall only be granted if every parent, legal guardian or any person responsible for financially supporting the minor in respect of whom the application is made gives their consent to the adoption. This requirement can be a serious challenge where the prospective adopters need to first locate the child’s parents in cases where the children may have been abandoned.
Additionally, the Department of Social Welfare plays a critical role even before the court process. Their role includes but is not limited to doing a local home visit in the country of the prospective adoptive family and this can be a time consuming process particularly for adopters who are migrating abroad. Due to the drastic nature of adoption, prospective adopters should place sufficient information before the court for a proper determination on why the parents or legal guardians should be divested of their parental rights in respect of the child.
Ultimately, whether through the protective embrace of guardianship or the profound commitment of adoption, the goal remains the same: to ensure that children in migrating Zimbabwean families receive continuous, legal, and loving care. The courts, as upper guardians of these vulnerable rights, demand a rigorous justification for any transfer of parental responsibility, prioritizing the child’s best interests above all. For families embarking on this journey, meticulous preparation, a clear understanding of the legal landscape, and a steadfast commitment to the child’s well-being are not just recommended—they are essential to building a secure future for the next generation, wherever they may call home.
By Tanyaradzwa Gwenhure
Intern at Scanlen and Holderness
For further information and updates please contact Scanlen & Holderness on info@scanlen.co.za, LEX Africa’s member in Zimbabwe, or visit www.scanlenandholderness.com.
