Musa Abednego Simelane v. Principal Secretary Deputy Prime Ministers Office and Another
High Court of Swaziland
Musa Abednego Simelane v. Principal Secretary Deputy Prime Ministers Office and Another (60/2013)  SZHC 32 (28 February 2013)
28 February 2013
Children Protection and Welfare Act of 2012, sections 24 and 25
A father petitioned for the return of his 15 year old daughter, who removed to a safe place by social welfare officers under the Children Protection and Welfare Act of 2012. He argued that the officers did not comply with the requirements under the Act that they either obtain a court order prior to taking the child or approach the court within 48 hours after taking the child. A family acquaintance intervened, seeking custody of the child on the grounds that the child was abused by the father’s partner.
Issue and resolution:
Child custody. The court held that the failure to comply with the technical requirements of the Child Protection and Welfare Act was not, in this case, prejudicial to the interests of the child. The court also granted custody of the child to the family acquaintance.
The evidence before the Court suggested that the child was being abused by her stepmother and that her father was complicit. The father did not offer evidence to dispute the specific allegations of abuse, and further admitted to removing the child from school and enrolling her in a school for “convicted juveniles” because of her allegedly “unruly behavior,” the specific nature of which the father did not provide. In this case the social welfare officers who removed the child were entitled to take the child into a place of safety, and their failure to comply with the requirements of the Child Protection and Welfare Act did not prejudice the child. With respect to custody, the prime consideration is the well-being and interests of the minor child, and each case must be decided on its facts. The family acquaintance was awarded custody of the child because she had formerly cared for the child’s mother, she was willing and able to look after the child and the child’s sibling, and she had “undertaken to give the children all the love and support they need both materially and emotionally.”
Link to Full Judgment:
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