In Re Alice Maenzanise (For her appointment as the legal guardian of P.A.N a minor)

The applicant, Alice Maenzanise, a UK citizen residing in West Yorkshire since 2000, applied to be appointed legal guardian of her minor niece, P.A.N (aged 17). The applicant is the sister of the minor child's biological mother, Grace Ndoro. The applicant is married to George Miti, the Dean of Students at Africa University in Mutare, Zimbabwe. The applicant has two children of her own, one studying in the UK and another residing in Zimbabwe with the applicant's sister. The basis of the application was that the minor child's biological parents, James Tendayi Ndoro and Grace Ndoro, had fallen on financial hardship. They previously ran a thriving farming business but accrued debts with extant court orders against them. The minor child had been moved from private schools (Arial and Wise Owl) to UMAA Institute due to financial constraints. The applicant claimed she would provide better educational opportunities and access to UK's National Health Service if appointed guardian. Both biological parents and the child's siblings filed supporting affidavits. The curator ad litem recommended granting guardianship. However, the court noted inconsistencies in the evidence, including that the applicant's own child was residing and attending school in Zimbabwe despite claims that Zimbabwe offered inferior opportunities.

• Whether guardianship of a minor child should be granted to a third party when both biological parents are alive and willing to consent
• Whether financial hardship of biological parents constitutes exceptional circumstances justifying the granting of guardianship to a third party
• What constitutes the best interests of the child in guardianship applications
• The standard of proof and evidence required to justify depriving biological parents of guardianship

The application was dismissed with no order as to costs.

Courts should be slow and extremely cautious in granting guardianship to a third party when biological parents are alive. Guardianship may only be granted to a third party in exceptional circumstances. The willing consent of biological parents to surrender guardianship is not sufficient on its own to justify such an order. An inquiry into guardianship requires not only an examination of advantages that may accrue to the child but also an inquiry into why the biological parent(s) should be deprived of guardianship, focusing on the suitability of parents to discharge the legal obligations imposed by law on guardians. Economic hardship of biological parents, without clear demonstration of specific exceptional circumstances affecting the child, does not justify the drastic order of transferring guardianship from biological parents to a third party. The best interests of the child standard requires specific, detailed evidence of problems the child is facing, not merely general assertions of better opportunities elsewhere.

The court made several non-binding observations: (1) Legal practitioners do not make the best curators ad litem, and their reports should be investigative and factual rather than outlining the law or making legal conclusions about best interests. (2) Legal practitioners should refrain from drafting affidavits for litigants that read like heads of argument. (3) There is a concerning trend of guardianship applications motivated by migration and economic hardships in Zimbabwe. (4) The court noted the importance of hearing directly from mature minor children (the 17-year-old in this case) in accordance with internationally recognized rights of children to be involved and heard. (5) The court questioned the sincerity of the applicant's motives, noting the irony that her own children were residing and educated in Zimbabwe despite her claims that Zimbabwe offered inferior opportunities. (6) The court observed technical defects in the authentication of one affidavit signed before a solicitor rather than a notary public as required by the High Court (Authentication of Documents) Rules of 1971. (7) Section 80(2) of the Constitution, which provides for equal guardianship rights between women and men, should be understood in the context of addressing historical disadvantages to mothers under the Guardianship of Minors Act, not as placing third parties on the same level as natural parents.

This case is significant in Zimbabwean family law as it reinforces the principle that courts must exercise extreme caution when considering applications by third parties for guardianship of minor children whose biological parents are alive. It clarifies that: (1) Economic hardship of parents, standing alone, does not constitute exceptional circumstances justifying the transfer of guardianship to third parties. (2) The best interests of the child standard requires specific evidence of problems affecting the child, not merely general assertions of better opportunities elsewhere. (3) The willing consent of biological parents to surrender guardianship is not determinative; courts must independently assess whether exceptional circumstances exist. (4) Applications must demonstrate why parents are unsuitable to discharge guardianship duties, not just show advantages a third party might offer. (5) The case addresses the growing trend of guardianship applications motivated by migration and economic challenges in Zimbabwe, setting a strict standard to prevent potential child trafficking and abuse. (6) It emphasizes the court's role as upper guardian of minors and the need for rigorous scrutiny of such applications. The judgment also provides important guidance on the proper role of curators ad litem, emphasizing that their reports should be investigative and factual rather than legal conclusions.