Court/Judicial body: High Court of Zimbabwe, Bulawayo
Date: March 11, 2005; May 12, 2005 CRC
Provisions: Article 3: Best Interests of the Child Article 27: Adequate Standard of Living
Other international provisions:The African Charter on the Rights and Welfare of the Child, Article 4: Best Interests of the Child, Article 20: Parental Responsibilities
Background: A mother applied for a new court order to increase maintenance payments from her ex-husband for their four children. The father opposed increasing the amount of the payments, arguing that the amount requested was too high.
Issue and resolution: Child support. Finding that the mother’s application was reasonable and that the father could afford to pay the amount requested, the Court increased the level of maintenance payments for the couple’s four children.
Court reasoning: First, the court had to determine how much money was reasonably required for the children’s upkeep. In determining this amount, the mother’s knowledge of the children’s needs was superior to the respondent’s – she lived with the children whereas the father saw them only occasionally. The father did not challenge the necessity of items of expenditure listed by the mother, but instead raised issues regarding her choice of shop, brand and so on. Unless prices differ by a very wide margin, these choices must be left within the discretion of the custodial parent. The father did not live with the children and the applicant, besides the quantified expenses listed, had to pay the hidden costs occasioned by being the custodial parent. The second issue in question was whether the respondent was able to pay this amount. Looking in part to the Convention on the Rights of the Child, the court held that a child of divorced parents is end to be maintained by them, and that parents are obliged to provide the child with ‘everything that it reasonably requires for its proper living and upbringing according to their means, standard of living and station in life’. This obligation attaches to both parents jointly, but each parent’s financial circumstances must be examined to determine their share. In this case, the amount claimed was reasonable and necessary for the upkeep of the children (the mother was end to claim for, among other things, a full time domestic worker, a vehicle, and the children’s social life). Generally, although the father took issue with what the mother spent on the upkeep of the children, he did not seem to apply the same standard to his own expenditure. If his children had been forced to ‘tighten their belts’, he must do likewise, and having considered the father’s income and necessary expenses, the court held that he was able to afford the amount claimed.
Excerpt citing CRC and other relevant human rights “The general principles are that a child of divorced parents is end to [be] maintained by them, and they are correspondingly obliged to provide it with everything that it reasonably requires for its proper living and upbringing according to their means, standard of living and station in life… This principle has a foundation in international law. The provisions of the relevant international and regional instruments that Zimbabwe has ratified are the following: ‘The Convention on the Rights of the Child’ (adopted by the General Assembly of the United Nations on 20 November 1989- Resolution 44 – 25) in Article 27 (2) provides: ‘The parents or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.’ Further, in Article 3 (1) it is provided that in all actions concerning the child undertaken by any person or authority ‘ the best interests of the child shall be the primary consideration.’ Regionally ‘The African Charter on the Rights and Welfare of the Child’ has in Article 4 provisions that are similar Article 3 (1) supra. Further in Article 20 (1) it provides- ‘Parents or other persons responsible for the child shall have the primary responsibility of the upbringing and development of the child and shall have the duty: a) To ensure that the best interests of the child are their basic concern at all times, b) To secure, within their abilities and financial capacities, conditions of living necessary to the child’s development.’ From the foregoing it is apparent that the said obligation attaches to both parents jointly, but, their respective shaves of that obligation are apportioned according to the financial sources and circumstances of each of them.”
CRIN comments: CRIN believes that this decision is consistent with the CRC in that children have a right to an adequate standard of living and those responsible for a child have an obligation to support that child within their means. Where a parent is able to but does not meet this responsibility, as in this case, courts must be empowered to enforce that obligation.
Citation:  ZWBHC 40
Link to full judgement: http://www.zimlii.org/zw/judgment/bulawayo-high-court/2005/40/