Michael Craft v Sarah Craft (nee Moss)

The applicant and respondent are estranged husband and wife. The respondent has custody of their two minor children, Zach Antony Craft (born 15 December 2010) and Leah Rebecca Craft (born 22 February 2013). On 18 January 2022, the applicant emailed the respondent advising of his plan to travel to the United Kingdom with the children from 15-24 April 2022 to visit his mother. On 26 January 2022, he advised of his intention to take the children to a wedding in Nairobi, Kenya from 5-8 July 2022. The respondent did not immediately respond and parties continued to interact normally. However, on 28 March 2022, the respondent's legal practitioners wrote objecting to the trips. The applicant then brought an urgent chamber application seeking permission to travel with the children to the United Kingdom (13-25 April 2022) and interdicting the respondent from interfering with the Kenya trip.

• Whether the correct procedure was followed in seeking a final order through an urgent chamber application rather than an urgent court application
• Whether it is in the best interests of the minor children to travel with the applicant to the United Kingdom and Kenya
• Whether the respondent's objections to the travel were legitimate or vexatious
• The application of the constitutional principle of the best interests of the child under section 81(2) of the Constitution of Zimbabwe
• Whether costs on the attorney-client scale were warranted

The court granted the application: (1) The applicant was authorized to travel to the United Kingdom with the minor children from 13-25 April 2022 for a family holiday; (2) The applicant was ordered to return the children to the respondent at Harare on 25 April 2022; (3) The respondent was interdicted from interfering with the applicant travelling with the children to Nairobi, Kenya from 5-8 July 2022 to attend a wedding; (4) The respondent was ordered to pay costs on the attorney-client scale.

The binding legal principles established are: (1) Under Rule 57(13) of the High Court Rules 2021, failure to use the correct application procedure (chamber vs court application) is not grounds for dismissal unless an interested party has been or may be prejudiced and such prejudice cannot be remedied by appropriate directions or costs orders; (2) The "best interests of the child" principle under section 81(2) of the Constitution of Zimbabwe is a fundamental right, constitutional value, and national objective that applies to every matter concerning children, not just custody and guardianship issues; (3) The best interests principle permeates and governs even the exercise of custodian parents' discretionary powers regarding children; (4) As upper guardian of children under section 81(3) of the Constitution, the High Court has a constitutional mandate to protect children's interests in all matters concerning them; (5) The best interests principle applies to decisions about children's access to non-custodian parents and travel for purposes of maintaining family relationships and social development.

The court made several non-binding observations: (1) The court noted that the best interests principle can limit the enjoyment of other rights and is applicable in determining the ambit of other rights, citing South African jurisprudence (De Reuck v Director of Public Prosecutions); (2) The court observed that the scope of the best interests principle is not limited to matters prescribed in section 81(1) of the Constitution, citing Minister of Welfare and Population Development v Fitzpatrick from South Africa; (3) The court commented that the manner in which separated parents had been relating regarding their children's affairs provided evidence of their capacity to cooperate in the children's interests; (4) The court suggested that the respondent's true motivation appeared to be her concern about the applicant's views of her contribution to the marriage breakdown rather than genuine concerns about the children's welfare; (5) The court noted that while draft orders are proposals, the exact wording of orders is ultimately the court's responsibility as long as the substance of the claimed relief does not change.

This case is significant in Zimbabwean family law for its comprehensive exposition of the constitutional entrenchment of the "best interests of the child" principle under the Constitution of Zimbabwe. The judgment clarifies that section 81(2) elevates the best interests principle from its previous status in ordinary legislation to a constitutional value, national objective, and fundamental right. The court emphasized that the principle applies to "every matter" concerning children, not just custody and guardianship issues, and permeates the exercise of all parental rights including those of custodian parents. The case demonstrates the court's role as upper guardian of children and its mandate under section 81(3) to protect children's interests. It also provides guidance on when costs on the attorney-client scale may be awarded in family law matters involving vexatious opposition.