Kamanga v Kasongo (Miscellaneous Cause 1 of 2025) [2025] MWHCFam 3 (14 March 2025)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY FAMILY AND PROBATE DIVISION MISCELLANEOUS CAUSE NO. 01 OF 2025 (Before Honourable Justice Mambulasa) BETWEEN: GRACE ULEDI-KAMANGA...............cceccesesesceccssececeeeesceees APPLICANT -AND- HASTINGS KASONGO............cccccceece eee ceececeeccessescseesens RESPONDENT CORAM: HON. JUSTICE MR. MANDALA D. MAMBULASA Mr. Patrick Mphatso Chinguwo, Advocate for the Applicant Mr. Bruno Matumbi, Advocate for the Respondent Mr. Lovemore Chikopa Jnr, Advocate for the Respondent Mr. Cedric McDonald, Court Clerk/Official Court Interpreter RULING MAMBULASA, J [1] [2] [3] [4] [5] [6] [7] Introduction The Applicant filed with the Court a without-notice application seeking consent to leave the jurisdiction for Canada with three of her children, A., B and C that she had with the Respondent. The said application was taken out under Order 10, rule 3 of the Courts (High Court) (Civil Procedure) Rules and under the inherent jurisdiction of the Court. The application was supported by a Sworn Statement made by her previous advocate, Ms. Leah Masowa, of Legal Aid Bureau. When the Court read and considered the application, it was of the firm view that it could not grant the consent being sought without hearing the Respondent. Thus, it made an order directing that the application for consent should come on with-notice to the Respondent. The Court took the firm view that it needed to understand why consent was being withheld by the Respondent, thereby compelling the Applicant to seek it from the Court. Upon being served with the application, the Respondent engaged a firm of advocates of his choice, Messrs Excellence Law Partners, and filed a Sworn Statement in Opposition to the application. [8] [9] [10] [11] [12] [13] [14] In order to put the application in its proper context, it 1s important that the Court reproduces the case of each party starting with that of the Applicant followed by that of the Respondent. The Applicant’s Case The parties herein were husband and wife having been married on 12" July, 2009, Sadly, on 6" September, 2024 their marriage was dissolved by the Senior Resident Magistrate Court in Blantyre on the ground that it had irretrievably broken down. The parties were blessed with three children, A., B and C being 2 boys and 1 girl. The oldest is 14 years old, then there is a 12-year-old and the last born is 7 years old. Following the dissolution of their marriage, the lower court, among other things, granted joint custody of the children to them and visitation rights on prior arrangement. On the same date that the marriage was dissolved by the lower court, the Applicant left the jurisdiction for Canada where she stayed for a period of 3 months. She returned to the jurisdiction in the month of December, 2024. [15] [16] [17] [18] [19] [20] [21] During the 3 months period that the Applicant was in Canada, the three children were staying with the Respondent. On her return from Canada in December 2024, the Applicant assumed custody of the children. The Applicant and the children are currently staying with the Applicant’s parents at Kanjedza Forest in Blantyre. The Applicant now holds a Canadian passport having been born at Halifax, Canada when her parents were studying there. She now intends to return to Canada and take with her the three children. When the Applicant sought consent from the Respondent herein being the father of the children to travel with the children to Canada, consent was withheld. There is in evidence a WhatsApp message between the parties showing that the Respondent declined to give the consent sought to the Applicant. It is the withholding of the consent to leave the jurisdiction with the children by the Respondent that triggered the present application by the Applicant. The Applicant applied for Canadian citizenship certificates for the children and the same were granted. The said citizenship certificates were also exhibited to the Sworn Statement in Support of the application. [22] [23] [24] [25] [26] [27] [28] It 1s deponed that if consent to travel with the children to Canada will be granted to the Applicant by this Court, the children will be entitled to various privileges, just like any other Canadian citizen. The privileges include, but are not limited to, free education and social security benefits. In addition to the above benefits, the Applicant avers that she will also secure a job in Canada to provide various other needs for the children. The Applicant states that if consent will be granted to her to travel with her children to Canada, the Respondent will easily be granted a Canadian visa creating access to visit and see his children. The Applicant will also give the children access to their father through telephone, WhatsApp messaging and other forms of modern communication. In addition to the above, the Applicant avers that she and the children will be visiting Malawi annually during festive season holidays during which time, the Respondent will also be able to access his children. Thus, in the circumstances, the Applicant prays to the Court that this is an appropriate case where consent to travel with the children to Canada should be granted to her by the Court, the Respondent having withheld it for no apparent reason. The Respondent’s Case [29] [30] [31] [32] [33] [34] [35] [36] As alluded to elsewhere above, the Respondent opposes the application by the Applicant for consent to travel with their children to Canada. He depones that he is gainfully employed and that he has consistently provided for all the needs of the children, including paying for a high-quality education for them at St Patrick’s Academy - a school which operates at international standards. The Respondent claims that the Applicant has a history of concealing her whereabouts. She travelled to Canada without informing him or the children, leaving them in uncertainty over her return date or purpose of the travel. A screenshot of a conversation between the Respondent and the first-born son reveals that the son was lied to by the Applicant when she traveled to Canada in September, 2024. The Applicant told the child that she was going to South Africa for work. The Applicant’s father also refused to disclose the whereabouts of her daughter to the Respondent. Such secrecy adversely affected the emotional and psychological welfare and stability of the children as they were left unaware of their mother’s location or expected date of return. The Applicant’s father outright forbade the Respondent from visiting his residence when he attempted to learn about the Applicant’s whereabouts for [37] [38] [39] [40] [41] [42] the children’s peace of mind and also to collect their clothes which they had left at his residence. Screenshots of the conversation that the Respondent had with his father-in- law about the Applicant’s whereabouts were also tendered in evidence. The Applicant has, without the Respondent’s prior knowledge or consent, obtained foreign citizenship for the children. The Applicant never also consulted any of the Respondent’s relations on this significant action. The Respondent avers that allowing the children to be moved permanently out of Malawi, in circumstances where the Applicant has no clear financial capacity or permanent address in Canada is against their best interests. He states that he remains resolutely willing and able to care for his children here in Malawi. While the Applicant has alleged that there are better opportunities for the children abroad, she has failed to show how these prospects outweigh the stable and proven environment the Respondent currently provides for them in Malawi. The Applicant alleges that Malawi offers suboptimal educational opportunities, yet the children have been enrolled at a reputable institution, St Patrick’s Academy, where they receive high quality, internationally recognized schooling. [43] [44] [45] [46] [47] [48] [49] [50] Despite the Respondent’s continued commitment to the children’s education, the Applicant recently stopped the children from attending the said school. The Respondent was not informed nor consulted about this decision and only learned of it through the school faculty who reached out to him to inquire about the children’s unexplained absence. The eldest child who is in Form 3 was set to sit for Cambridge Lower IGSCE Checkpoint examinations in March and April this year and the Applicant told him not to register for the same and now he is out of time. Again, this decision not to register the eldest child for the examinations was taken by the Applicant without consulting the Respondent. At the moment, the children are not attending any school, apparently, in anticipation that they are leaving the jurisdiction for Canada. This is detrimental to their welfare. This act alone shows a disregard for the children’s stability and undermines the educational environment already in place for them. Further, access to education is not the only other important factor in the best interests of the children as they will grow up and acquire a foreign culture alien to their own culture. The Respondent verily believes that acquisition and maintaining the African culture is the best for the children’s mental, social and psychological wellbeing. [51] [52] [53] [54] [55] [56] [57] The Applicant admits that she is currently unemployed and plans to find a job in Canada to support the children. This indicates that she has no present income or established means of supporting the children. There is no demonstrated financial capacity on the Applicant’s part, no evidence of a stable income, no documentary proof of housing arrangements, and no social security/welfare benefits verification from Canada. Conversely, the Respondent has steady employment and has seamlessly supported the children’s school fees, healthcare and everyday needs. During the Applicant’s previous prolonged absence, the Respondent cared for the children, ensuring they did not want for food, shelter, medical care or education. Malawi remains the children’s home country and they are Malawian citizens. Removing them to a foreign land under the guardianship of the Applicant who holds foreign citizenship and lacks a stable residence and job jeopardizes their continuity, community ties and access to parental care. Given the Applicant’s foreign citizenship, once the children are taken outside Malawi, the Court’s jurisdiction and the Respondent’s own parental authority could be severely hindered. This prospect raises serious concerns regarding the Respondent’s ability to remain active in the lives of his children and ensure their welfare. [58] [59] [60] [61] In the premises, the Respondent prays that the application by the Applicant should be dismissed and that the Court should maintain its existing jurisdiction and continue safeguarding the best interests of the children - a role best achieved with the children residing in Malawi under stable living and educational arrangements. The totality of the circumstances, including the Respondent’s gainful employment, the children’s established education, the Applicant’s lack of financial stability, and her record of secrecy strongly favours the conclusion that the children’s best interests lie in continuing their upbringing in Malawi. Issue for Determination There is only one issue for determination before this Court. It is whether or not this Court should grant consent to the Applicant for her to leave the jurisdiction with the three children for Canada? The Law The starting point is section 23 of the Constitution.' It is on the rights of children. Subsection (1) provides as follows: All children, regardless of the circumstances of their birth, are entitled to equal treatment before the law, and the best interests and welfare of children shall be a primary consideration in all decisions affecting them. ' Republic of Malawi (Constitution) Act. 10 [62] Section 23 (3) of the Constitution is to the effect that children have the right to know and to be raised by their parents. [63] The Child Care, Protection and Justice Act? is also founded on the underlying principle of the “best interests of the child” and constitutes the first Act of Parliament to expressly embrace this principle in Malawi.° [64] Section 23 (1) of the Constitution and the general scheme of the Child Care, Protection and Justice Act in so far as they entrench the underlying principle of the “best interests of the child” are in syne with Malawi’s international obligations under both the United Nations Convention on the Rights of the Child (article 3) and the African Charter on the Rights and Welfare of the Child (article 4) to which it is a state party.4 [65] The underlying principle of the “best interests of the child” has been affirmed and re-affirmed in a number of decisions by courts in Malawi dealing with custody of children,’ adoptions® and child justice.’ ? Cap. 26:03 of the Laws of Malawi. 3 Violet Odala, “Childhood Under Malawian Laws” (2012) Vol. 6 (1) Malawi Law Journal 97 at 99. See also section 88 (b) and the Third Schedule to the Child Care, Protection and Justice Act. + Malawi ratified the United Nations Convention on the Rights of the Child on 2"? January, 1999 and the African Charter on the Rights and Welfare of the Child on 10" September, 1999 both without any reservation. > See for instance, Chanza -vs- Kadawati [2017] MLR 14 and EA -vs- IC and another [2017] MLR 82. ° See for instance, In re: the Adoption of Children Act and P. S. (a male infant) [2012] MLR 182. 7 See for instance, The Republic -and- Children in Detention at Bvumbwe and Kachere Prisons, Review Case No. 21 of 2017 (High Court of Malawi) (Principal Registry) (Criminal Division) 11 [66] [67] [68] [69] [70] Dual citizenship of minors requires compliance with section 7 (1) of the Malawi Citizenship Act.® Similarly, the Malawi Citizenship (Dual Citizenship) Regulations, 2021 more particularly regulation 4, requires notification and registration of dual citizenship for minors. Dual citizenship under the Malawi laws has very serious implications. For instance, a person shall not be eligible to hold Office of President or Member of Parliament if he holds a citizenship status of another country apart from the Malawi citizenship. He or she may also not be appointed to certain public offices including that of Attorney General, Law Commissioner, Ombudsman, Principal Secretary, Judge of the High Court.’ In determining the best interests of the child, the court must consider the practical implications of removing a child from the jurisdiction, including the impact on the non-custodial parent’s ability to maintain a meaningful relationship with the child. Similarly, the financial stability of the parent seeking to relocate is a critical factor in determining whether relocation 1s in the child’s best interests. (Unreported); Francis Kapu & 7 others -and- The State, Miscellaneous Criminal Review Case No. 5 of 2021 (High Court of Malawi) (Principal Registry) (Unreported). 8 Cap. 15:01 of the Laws of Malawi. ? See Section 6 (2) of the Malawi Citizenship (Amendment) Act, No. 11 of 2019. 12 [71] [72] [73] [74] [75] In addition, the relocating parent must also demonstrate that the proposed living arrangements in the foreign jurisdiction will provide stability and security for the child or children, as the case may be. Analysis and Application of the Law to the Facts In deciding whether or not to grant consent to the Applicant to leave the jurisdiction with the three children herein for Canada, the Court shall be guided by the underlying principle of the best interests of the child as provided for in the Constitution, the Child Care, Protection and Justice Act, the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. This principle entails that courts, administrative authorities, legislative bodies and other decision makers must focus on what is most beneficial for the child, even if it conflicts with the parents’ desires or preferences. In deciding where the best interests of the child lie a number of factors ought to be considered including but not limited to: safety and well-being (general health, welfare); parental capacity to provide care; child’s needs and wishes; family relationships and continuity and stability. The Court will now consider these factors starting with safety and well-being (general health, welfare). It is in evidence that the Applicant stayed in Canada for 3 months last year. 13 [76] [77] [78] [79] [80] The details of the province, city, town or place where she stayed and the residence (housing arrangements) and its suitability for herself and the three children were not given in evidence to enable the Court make a decision on her application for consent. It is also not clear to the Court how their general health would be taken care of by the Applicant and whether they would be enrolled on a medical scheme or whether the Canadian social assistance benefits extend to free medical care. The Applicant as a relocating parent, had a duty and responsibility to demonstrate that the proposed living arrangements in Cananda will provide stability and security for the children. She was also under duty to inform the Court how their general health would be taken care of. In the absence of this crucial information, the Court agrees with the argument by the Respondent that these raise serious concerns about the children’s welfare and stability. On this factor, the Court is not satisfied that it would be in the best interests of the children to remove them from the jurisdiction. Second, on the factor of parental capacity to provide care, the Applicant deponed that in the event that the children will be allowed to travel to Canada, they will be entitled to various privileges just like any Canadian citizen. Specifically, they will be entitled to free education and social assistance benefits. 14 [81] [82] [83] [84] [85] [86] In addition to the above, the Applicant will secure a job in Canada to provide for the various needs of the children. In this case, the Applicant exhibited citizenship certificates to her application showing that the three children, A., B and C were indeed registered as Canadian citizens. However, registration of the children as Canadian citizens was done by the Applicant without consulting the Respondent as the father of the children or indeed any of his relations. This was indeed a significant action and decision that required the Respondent and his family members to be consulted on before it was taken. As we have seen, dual citizenship has serious legal consequences in Malawi. It would also appear that the children themselves were not consulted on the same and did not participate in making the decision. The law requires that depending on their age and evolving capacity, children should be consulted on decisions that affect them.!° In addition, 1t was also done without complying with the requirements of section 7 of the Malawi Citizenship Act as well as regulation 4 of the Malawi Citizenship (Dual Citizenship) Regulations, 2021. This also raises serious concerns whether indeed in law the three children would be said to hold dual citizenship. It also raises concerns whether the children would indeed be entitled to various state social assistance benefits 10 See article 12 (1) of the United Nations Convention of the Rights of the Child. 15 [87] [88] [89] [90] and privileges like any Canadian citizen as was deponed and argued by the Applicant. The Applicant did not also state her academic qualifications and whether they are recognized in Canada and how easy or difficult it would be for her to secure a job that would enable her maintain herself and the three children. This the Court is saying because even though the Applicant was born at Halifax in Canada, she grew up in Malawi and most likely acquired her education here unless the contrary would be proved to the satisfaction of the Court. Considering the number of children that the Applicant has, the type of job that would be secured and the earnings per week, month or annum would have been an important piece of information that the Court would have been interested to know in order to make a decision. In the circumstances, there is no guarantee that the Applicant will secure a job in Canada that would enable her maintain herself and the three children. In addition, no evidence was led in this Court on how the children would be supported in the interim and the adequacy of the state social assistance benefits and privileges. Financial stability of a parent seeking to relocate being a critical factor in determining whether relocation is in the children’s best interests, the Court 1s not satisfied that there is one on the part of the Applicant. State welfare support can only do so much. 16 [91] [92] [93] [94] [95] [96] The Court is of the considered view that in would not be in the best interests of the children to rely only on social assistance benefits in the event that the Applicant was not able to secure a job in Canada soon enough. The Court would rather err on the side of caution than grant the consent being sought in this application and expose the children to an uncertain life and future. The Respondent, on the other hand, has demonstrated an ability and willingness to provide for the children’s educational, emotional and financial needs in Malawi. He is gainfully employed. He has a home. The children are attending one of the best schools Malawi offers. The Respondent has been able to support his children while the Applicant was away in Canada and states that he will continue to do so. The evidence presented by the Respondent indicates that the children would have a stable and supportive environment should they remain in Malawi. The Court was also entertaining this wandering thought. What would happen to the children if something worse happened to the Applicant while in Canada? Who would take care of the children? In Malawi and other countries in Africa, we believe so much in the extended family and other community ties. If something worse happened to the Respondent, it would be easy for relations from his side or that of the Applicant to step in and deal with the situation and take care of the children. The point is that the third factor of family relationships weighs in favour of the children remaining in Malawi where they have a far much better support 17 [97] [98] [99] system from both sides of their parents. Malawi is also their habitual residence. The Applicant did not deny that she kept her whereabouts secret. The children did not know where she was for the 3 months period that she left the jurisdiction and so too the Respondent. The children and the Respondent did not also know when the Applicant would return to Malawi or not. The parties are not in talking terms. They are still bitter against each other following the dissolution of their marriage. The Court entertains serious doubts whether if consent to travel with the children to Canada would be granted to the Applicant, the Respondent would be allowed contact with his children and whether he would be actively involved in and influence their lives. The Respondent has demonstrated to this Court that he is able to provide fairly adequately all the needs and wishes of his children. [100] On the contrary, as the previous discussion has shown, the Court has serious doubts whether the Applicant would be able to provide fairly adequately all the needs and wishes of the children in a foreign land. The factor of continuity and stability weighs in favour of the children remaining in Malawi. [101] In view of all the foregoing, the Court holds that it is not in the best interests of the children to be uprooted from their homeland to an uncertain future and 18 life in a foreign country when their father 1s able and willing to continue taking good care of them. [102] Accordingly, the application by the Applicant for consent to travel with the children to Canada is denied. [103] The Applicant is, however, at liberty to file a fresh application should she develop concrete plans that address the concerns raised regarding seeking consent of the Respondent and his family to acquire Canadian citizenship for the children and complying with the Malawi law on dual citizenship, housing arrangements, financial stability, educational arrangements etc. [104] Each party will bear their own costs. [105] Made in Chambers this 14" day of March, 2025 at Blantyre, Malawi. LZ ve M. D. MAMBULASA JUDGE 19