Kaipa v Chinzenga (Matrimonial Review Cause No. 2 of 2025 (Being Civil Cause No. 682 of 2025)) [2025] MWHC 2 (22 January 2025)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY FAMILY AND PROBATE DIVISION MATRIMONIAL REVIEW CAUSE NUMBER 2 OF 2025 (Being Civil Cause Number 682 of 2024) (BEFORE JUSTICE J. R. KAYIRA] BETWEEN: TREZA KAIPA...........00cc0ccccceceecessesaeeceeeescessaeaeeceesescasaaeaeesuesescaeseeseesuseesessaneeeeee ess APPLICANT AND JOSHUA CHINZENGA ...............cc:ccccceceecescesseeaeeceeseseesaeeaeeeesseseaeeseesesesssseaeeens RESPONDENT CORAM: HONOURABLE JUSTICE JEAN ROSEMARY KAYIRA Ms. Kazembe Court Clerk and Official Interpreter ORDER ON REVIEW Kayira J INTRODUCTION Today, 22:4 January, 2025 this Court received a request from the Chief Resident Magistrate (South) to review the present case under Section 26 of the Courts Act. The main issue in this case relates to the decision of the lower court-the Child Justice Magistrate Court sitting at Soche Blantyre granted custody of a four months’ child to the father. After that order, the record shows that the mother of the child requested that she should take the child back but the decision on custody of the child was not varied. The record is clear that the child is still breast feeding. At the time the order was made, it was due to the fact that the mother to the child refused to take her because she was angry with the maintenance order that the lower court made to the Respondentin this matter. In exercising the supervisory powers of review, this Court fully recognises the importance of flexing its muscles sparingly and judiciously. Considering that time is of essence in this case, this Court finds it necessary to exercise the review powers in this Case. JURISDICTION UNLIMITED ORIGINAL JURISDICTION Under section 108 of the Constitution, this Court has unlimited original jurisdiction over civil and criminal issues. The said provision states as follows: “(1) There shall be a High Court for the Republic which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law. (2) The High Court shall have original jurisdiction to review any law, and any action or decision of the Government, for conformity with this Constitution, save as otherwise provided by this Constitution and shall have such other jurisdiction and powers as may be conferred on it by this Constitution or any other ” law. Although the inherent, unlimited, original jurisdiction in terms of handling civil and criminal matters applies to the entire High Court bench, it has to be made clear that Section 6 of the Courts Act was recently amended to establish specialized Divisions of the High Court. This provision creates six (6) Divisions of the High Court. In terms of this case, Section 6A(d) is the most relevant because it specifically creates the Family and Probate Division of the High Court with a mandate to hear any family or probate matter. The definition of a “family matter” is provided in Section 2 of the Courts (Amendment) Act which states that a family matter is “a civil matter which concems the entry, subsistence and exit from a marriage, and incidental matters thereto”. The issues in this Court relate to a child and such falls within the mandate of this Division. SUPERVISORY POWERS Apart from the general powers, this Court has supervisory powers over subordinate courts to examine the legality, appropriateness, procedural fairness and correctness of findings and decisions of the lower Court. Section 26 of the Courts Act provides that in addition to the powers conferred upon the High Court by this or any other Act, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts and may, in particular, but without prejudice to the generality of the foregoing provision, if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof and may remove the same into the High Court or may give to such subordinate court such directions as to the further conduct of the same as justice may require. 2 Upon the High Court calling for any record under subsection (1), the matter or proceeding in question shall be stayed in the subordinate court pending the further order of the High Court. Therefore, this Court exercises its powers under these provisions. PROCEDURE Having received the request from the CRM this Court bore in mind the fact that a review does not lie to the High Court is a party would have appealed. This is according to Section 27 of the Courts Act which states that where an appeal lies from any judgment in any civil matter and no appeal is brought, no proceedings by way of review shall be entertained at the instance of the party who could have appealed. In this case, what is most fundamental is the fact that the ancillary orders relate to the life and welfare of a child born between the parties. In this case, the child needs urgent intervention of the court. It is for that reason that this Court finds it necessary to review the present matter. This Court did not hear from any party in this case in compliance of Section 28 of the Courts Act which provides that no party shall have any right to be heard, either personally or by a legal practitioner, before the High Court when exercising its powers of review or supervision under sections 25 and 26: Provided that no order shall be made to the prejudice of any person unless such person has had an opportunity of being so heard. This is the order on review. REASONED ANALYSIS OF THE COURT Our Constitution is very visionary and progressive. It is a strategic piece of law which envisaged various circumstances towards child which must be dealt with legally in order to protect and promote the general well-being of a child in Malawi. Section 23 of the Constitution is very key in the present case. Section 23 (1) of the Constitution state that 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. The existence of the child in this Court, emanates from a romantic relationship between the parties herein. Unfortunately, what started in love is no longer existing now. The two are no longer in a relationship. It is this status which has compelled the Applicant to seek for child maintenance from the Respondent by virtue of being a biological father to the child. It is also this status which has created animosity and frustration between the parents of the child such that there is a decision which this Court is reviewing. First and foremost, the subject matter of the present proceeding is a four months old child who has been separated from the mother by a court order. The Court reminds itself that it is essential that the age of a child is critical in making decisions about the child because that informs what is the best solution for him or her. In the present case, the child is in her infancy stage. She is 4 months’ old. This is a stage that is critical for one’s development such that at all cost, she should not be exposed to conditions or circumstances that are hazardous to her development. One critical and key point about a 4 months old child is her health. This entails breast feeding continuously without any interference or hindrance. The record of the lower court shows that the mother of the child was angry on this day. It is further on the record that the mother of the infant left the child to the father at some point when she was very angry with him as her former boyfriend. In essence, this is the second time that the mother had refused to take the child from the father in this case the Respondent. The two instances are the points which compelled the lower court as a way of protecting the child to order that the custody of the infant should be and remains with the father of the child. It is right to have a reasonable apprehension of fear for the safety of the child following the two incidences of leaving the child to the father. Itis also reasonably understandable that the father’s side would be extremely reluctant to release the child because they are not sure as to the actions that the mother is capable to do should she be granted custody of the child. This court fully notes that the infant is amongst children in Malawi who should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, It is unclear as to whether the frustration and anger so far demonstrated was dealt with such that the mother will not vent the anger she has against the former boyfriend who is a father of the child towards the innocent and vulnerable child. Whilst the lower court considered these issues, this court does not lose sight of the fact that the law mandates each and every parent to provide nutritious food to a child until they are independent. This includes breastfeeding a child unless there are legitimate and medically acceptable reasons for not doing so. The child is thereby allowed to bond with the mother s she or he breastfeeds and with the father as he or she is assisted in the nursing process such as burping. In cases where the parents do not stay together, such privileges are not curtailed. The parents can bond with the child through such stages of life. This Court is fully aware that a child still grows into a health person by feeding on processed milk and not breastfeeding. It is a fact though that such processed milk is different to the natural milk from the mother. Itis the considered view of this Court that such an arrangement is only logical where the biological mother is either dead or has a medical condition that prevents her to perform such a noble task. The arrangement 4 of using processed milk also makes sense where the parents are able to purchase and provide for the processed milk. In the present case, the applicant was forced to file this application because the respondent was not freely providing for the infant. In short, the parents are already struggling to provide shelter, clothes and other amenities of life to the child. It therefore defeats logic to order that the infant should be feeding on synthetic milk whilst the mother is alive, willing and able to provide naturally nutritious feed to the child at no cost. This Court therefore holds that as we consider the very legitimate concerns and fears as raised on the record, it remains a fact that the age of the child is peculiar in that she needs to have milk from her mother as recommended by the medical practitioners. It is therefore in the best interest of the infant to be breastfed by her biological mother. It is striking to note that the child is actually not in the custody of the father but of her grandmother. The record actually confirms that the custody of this child is with her grandmother and not necessarily the father. The father to the child has actually confessed that this arrangement is not worrisome because his mother was able to raise the four of them without any challenges. Section 23 (3) of the Constitution states that children have the right to know, and to be raised by, their parents. The emphasis in this position is not cosmetic. It is a clear acknowledgement that parents have primary duty to raise their children. That is why it remains unreasonable for a child to be raised by a grandparent when either or both of the biological parents are alive. As to their capacity, the law in Section 23 (4) of the Constitution states that all children shall be entitled to reasonable maintenance from their parents, whether such parents are married, unmarried or divorced, and from their guardians; and, in addition, all children, and particularly orphans, children with disabilities and other children in situations of disadvantage shall be entitled to live in safety and security and, where appropriate, to State assistance. This Court finds it necessary that the infant should immediately be under the primary and physical custody of the mother-the Applicant. The order of the lower court on custody is hereby quashed and set aside. The child must be under the primary custody of the Applicant. The Respondent can access the child once every fortnight on a Saturday from Yam to 4pm. During that time the child can be provided with synthetic milk or expressed milk from her mother whichever is practical and affordable. The court is duty bound to ensure to the maximum extent possible the survival and development of the child. In order to address the concerns raised by the father, this Court orders that; 1. The Applicant must be assessed by the Obstetrician and/or gynaecologist at the Queen Elizabeth Central Hospital. 2. The assessments must be done in the next 4 months from today. The Applicant has to be assessed and observed atleast once every fortnight for a minimum of 1 hour. 3. A comprehensive report must be furnished to this Court by 31st May, 2025. 4, The Director at Queen Elizabeth Central Hospital must facilitate performance of this task. 5. The District Social Welfare Office is ordered to assess this Applicant for four months from today and provide a home assessment and social inquiry report by 31st May, 2025. This Court will make further orders on 30 June, 2025@9am. If the parties consider it necessary, the order may be varied s and when the need arises. Itis so ordered. PRONOUNCED IN CHAMBERS ON 22"4 JANUARY, 2025@4:30PM = HONORABLE (MRS.) JEAN ROSEMARY KAYIRA JUDGE