Zimbabwe

Summary and Analysis

The Children’s Protection and Adoption Act [Chapter 5:06] is Zimbabwe’s most relevant and comprehensive statute governing the rights of abused and neglected children to protection.  Although it is intended, in pertinent part, “to make provision for the protection, welfare and supervision of children and juveniles,” the Act is relevantly silent on the right of children to express themselves in child protection proceedings.  Although Part II, sections 5 and 6 suggest that a child may have a legal representative in court, the Act is explicit neither about the scope of this representation nor the mandate of the legal representative.  The juvenile courts – established and tasked by the Act with inquiry into whether a child is in need of care and, if such be the case, inquiry into and determination of the appropriate order to be made – are not required by the statute to take the child’s views into account and may, in fact, hold such inquiry in the absence of the child.

The law most explicitly calls for representation of the child’s best interests and consideration of the child’s views in adoption proceedings.  Part VII of the Children’s Protection and Adoption Act mandates that the court shall appoint a probation officer to act as guardian ad litem of the concerned minor, with the duty of safeguarding the interests of the minor before the court.  The court, before making an adoption order, shall be satisfied that the order if made will be for the welfare of the minor, due consideration being for this purpose given to the wishes of the minor, having regard to the age and understanding of the minor.  The language of the statute indicates that the paramount consideration will thus be the child’s welfare, with his/her wishes as one consideration for the court in making that determination.

Respect for the views of the child – as required by Article 12 of the CRC – is covered by section 20 of the Constitution, which provides that no person shall be hindered in the enjoyment of his freedom of expression – that is, freedom to hold opinions.  However, because of the cultural and societal attitudes and concepts of parental discipline, children are not always awarded the freedom to express these views freely.[2]  Generally speaking, according to the report, the common law and existing legislation dealing with maintenance, divorce, matrimonial causes, adoption, custody, and institutional care are all governed by the principle that the best interests of the child concerned must be paramount.[3]

Zimbabwe has ratified both the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.

Related Sources of Law (In Order of Authority)

Statutes

Children’s Protection and Adoption Act [Chapter 5:06][4]

PART II – Juvenile Courts

5 Procedure of juvenile courts

…

(6) At any sitting of a juvenile court no person shall be present unless—

(a) his presence is necessary in connection with the proceedings of that court or he is an officer of that court; or

(b) he is a parent or guardian of a child or young person whose presence is necessary in connection with the proceedings of that court; or

(c) he is the legal practitioner representing such child or young person or parent or guardian; or

(d) the officer presiding at that sitting has granted him permission to be present; or

(e) he is the person in charge of the home or institution in which the child is residing or the nominee of such person.

6 Certain provisions of Cap 7:10 to apply to juvenile courts

Subject to this Act and any rules, the Magistrates Court Act [Chapter 7:10] and the rules made thereunder as to—

…

(c) the appearance in court of legal practitioners…

shall apply, mutatis mutandis, to juvenile courts.

…

PART IV – Removal of Children and Young Persons to Place of Safety

19 Juvenile court to hold inquiry in respect of child or young person brought before it

(1) A juvenile court before which a child or young person has been brought—

(a) in terms of this Act, shall inquire and determine whether he is a child in need of care and, if such be the case, shall inquire into and determine the appropriate order to be made in terms of this Act…

or may refer the inquiry and determination to the juvenile court of the area in which the child or young person or his parent or guardian resides.

(2) A court holding an inquiry in terms of subsection (1)—

(a) may hold such inquiry in the absence of the child or young person;

(b) may order the child or young person to be removed during the whole or part of such inquiry;

(c) shall order the child or young person to be removed during any part of such inquiry when his presence becomes unnecessary and undesirable.

…

PART VII – Adoption of Children

57 Jurisdiction and procedure in relation to adoption order

(1) The court having jurisdiction to make adoption orders in terms of this Part shall be the juvenile court established in terms of subsection (1) of section threewithin the jurisdiction of which either the applicant or the minor resides at the date of the application for the adoption order.

(2) For the purpose of any application in terms of this Part, the court shall appoint a probation officer to act as guardian ad litem of the minor upon the hearing of the application with the duty of safeguarding the interests of the minor before the court.

…

59 Restrictions on making adoption order

…

(3) An adoption order shall not be made except with the consent of every person or body who is a parent or legal guardian of the minor in respect of whom the application is made or who is liable to contribute to the support of the minor:

Provided that—

…

(iii) the court shall dispense with the consent of the parent or guardian of the minor if, in anticipation of any application for an order of adoption being made, a judge of the High Court has, upon an application made to him in chambers by the guardian ad litem, declared that such parent or guardian has abandoned or neglected such minor in circumstances deemed to be abandonment or neglect…

…

61 Matters with respect to which court to be satisfied

The court, before making an adoption order, shall be satisfied—

…

(c) that the order if made will be for the welfare of the minor, due consideration being for this purpose given to the wishes of the minor, having regard to the age and understanding of the minor…

International Law

United Nations Convention on the Rights of the Child (CRC)[5]

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Regional Agreements

African Charter on the Rights and Welfare of the Child (ACRWC)[6]

Article 4: Best interests of the child

…

2. In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate laws.

Article 7: Freedom of Expression

Every child who is capable of communicating his or her own views shall be assured the rights to express his opinions freely in all matters and to disseminate his opinions subject to such restrictions as are prescribed by laws.

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