CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE)

AT TEMEKE CIVIL APPEAL No. 13852 OF 2024 (Arising from the decision of Civil Application No. 3894 of2022 ofJuvenile Court of Dar es salaam at Temeke One Stop Judicial Centre) JERRY WILLIAM SILAA......................................................................... APPELLANT

VERSUS NEEMA ALEX........................................................................................ RESPONDENT

JUDGMENT 30th August & 13th September, 2024 BARTHY, J.: The appellant, being aggrieved by the decision of the Juvenile Court of Dar es Salaam at Temeke One Stop Judicial Centre, has filed this appeal to challenge the ruling delivered by the court on 29th May 2024. In support of the appeal, the appellant has advanced the following grounds for consideration; 1. The trial Court erred in law and in fact by failing to apply and consider the best interest and welfare of the child. i 2. The trial Magistrate erred in law and/or otherwise misdirected herself in fact for relying on a defective Social Inquiry Report which was issued by a social welfare officer who did not visit or consider the best interest of the child.

3. The trial Magistrate erred in law and in fact by erroneously granting access to the above-named respondent without addressing the core reason for the respondent wilfully abandoning the child for 5 years and the possibility of the Respondent repeating the same which is detrimental to the welfare of the child.

4. The trial Court erred in law and in fact by not considering the fact that the Respondent had never been denied access to the child and the erroneous error by the court not to address the Respondent's unwillingness to help the child's psychological needs and development. Wherefore, the applicant prays that this court dismiss the entire decision of the trial court, allow the appeal, and issue any other orders it deems fit for the best interest and welfare of the child. ~4 2 At the hearing of this matter, the appellant was represented by Ms. Shamim Kikoti, learned advocate, while the respondent was represented under the gratis services of the Tanzania Women Lawyers Association (TAWLA). The court, therefore, deemed it prudent to order that the hearing be disposed of by way of written submissions. Both parties submitted their arguments timely, and the court will now consider these submissions in determining this appeal. In her submission for the first ground, Ms. Diana Matondane, learned advocate for the appellant, argued that the trial court granted access rights to the respondent without considering that she had abandoned the child since January 2019. She stated the court also failed to prioritize the best interest and welfare of the child. Ms. Matondane emphasized that the respondent did not dispute the abandonment or provide a valid explanation. She insisted the respondent

had not participated in the child's upbringing, leaving the appellant to care for the child since she was three years old. She further contended that the trial court erred by granting visitation without any conditions, which could have negative psychological effects on the child. Ms. Matondane insisted on sending the respondent to a government psychologist to prevent a recurrence of the abandonment for 3 the best interest of the child, and argued that the respondent is now a stranger to the child. To reinforce her argument, she referred to Amini Rashid Msabilo vs. Rehema Ausi, Civil Appeal No. 308 of 2021 [2022] TZHC 14544, where the court emphasized that the best interest of the child was of paramount consideration. She criticized the trial court for focusing on the respondent's status as the mother rather than the child's welfare. On the second ground, she argued that the social inquiry report was incomplete and failed to comply with section 72(2) of the Law of the Child Act, Cap 13 R.E. 2019, which requires consultation with the child separately. She urged the court to re-evaluate the evidence under section 72(5) of the same Act and cited Lucas Keya vs. Marry Burule Mwita, Civil Appeal No. 8 of 2020 [2022] TZHC 10972, to support her argument that the trial court did not properly investigate the report. On the third ground, Ms. Matondane pointed out that the respondent had

left the child at a young age and abandoned her for a long period. She argued that visitation should have been granted with conditions to safeguard the child's psychological welfare, referring to Sajjad Ibrahim Dharamsi and Another vs. Shabbir Ghulamabbas Nathan, Civil Appeal No. 42 of 2020 [2020] 4 TZHC 3703, where the court outlined five criteria for determining the best interest of the child, which were not considered in this case. On the fourth ground, she contended that while the appellant did not deny the respondent access, the respondent should first address the psychological impact of the earlier abandonment before being granted access. Ms. Matondane concluded by praying for the appeal to be allowed and the trial court's decision dismissed. In response, Ms. Glory Sandewa, under the gratis of TAWLA, argued that the respondent is the biological mother of the child and should not be easily denied access. She noted that after the dissolution of the marriage in 2019, the court granted full custody to the appellant without granting the respondent any access rights. As a result, the child had been deprived of maternal love, which had psychological effects. Ms. Sandewa emphasized that the court, in determining the right to access, must consider the best interest of the child as per section 77(l)(a)-(d) of the Law of the Child (Juvenile Court Procedure) Rules. The trial court

considered that the respondent is the mother and that access would not harm the child as outlined in subsection (c) of the same 5 rule. Additionally, Ms. Sandewa argued that there was no risk of harm to the child under subsection (d). Ms. Sandewa contested the appellant's argument regarding mandatory psychological counseling, asserting that no evidence was presented showing that such counseling was necessary. She also argued that the trial court properly relied on the social inquiry report, which was admitted and adopted by both parties. On the second ground, she insisted that the trial court did not err in relying on the social welfare report, and neither party had challenged its accuracy during the trial. Ms. Sandewa dismissed the relevance of Lucas Keya vs. Marry Burule Mwita, stating that the case did not apply since the appellant admitted the trial court had performed its role. Addressing the third and fourth grounds together, Ms. Sandewa contended that the trial magistrate did not err by granting access to the respondent after fully considering the legal conditions. The trial court had carefully evaluated all pleadings, submissions and the social inquiry report, which did not suggest any psychological harm to the child. Therefore, she argued that the appeal should be dismissed and the trial court's ruling upheld Upon reviewing the submissions from both parties, along with

the grounds of appeal and the records of the trial court, this court is now tasked with determining whether the appeal holds merit. To effectively address the issues raised in the grounds of appeal, the court finds it appropriate to consolidate them into the following key issues for determination; 1. Whether the trial court failed to properly apply and consider the best interest and welfare of the child in its decision, in light of the respondent's potential risk of future abandonment.

2. Whether the trial magistrate erred in law by relying on a defective Social Inquiry Report. Before delving into the issues raised in this matter, it is important to outline the background, as derived from the submissions of both parties and records of the trial case. It is the common ground that the appellant and respondent were once married and had a child (name withheld), who is now the focal point of this matter. The facts reveal that the appellant has had sole custody of the child since January 2019, when the child was 3 years old. During this period, the respondent was absent from the child's life, having neither shared custody 7 nor any formal right to visitation. It was only after the respondent applied to the trial court that she was granted visitation rights. In the court's ruling, the respondent was allowed to visit the child on the first and third weekends of every month, from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. Additionally, the respondent was granted access to the child during school holidays, with the arrangement that she would spend half of the holidays with the child. The court ordered that a social welfare officer supervise the pick-up and drop-off of the child during these visits. This decision, however, did not sit well with the appellant, leading to the current appeal. The appellant has raised four grounds, which have been distilled into the

framed issues mentioned earlier for consideration in this appeal. The key issue raised on appeal involves whether the trial court properly considered the child's best interest, particularly in light of the respondent's five-year absence since 2019. Ms. Matondane, argued that this abandonment could have harmful psychological effects on the child, and therefore the respondent should not have been granted unrestricted visitation without addressing the impact of her absence. 8 In response, Ms. Sandewa, explained that the respondent's absence was due to a lack of access rights following the dissolution of the marriage. She emphasized that the trial court correctly prioritized the child's best interest by granting the child a relationship with both parents, despite the respondent's prior absence. The best interest of the child is a paramount consideration in custody and visitation cases, as outlined in sections 26(c) and 39 of the Law of the Child Act, Cap 13 R.E. 2019, and Rule 77(l)(a)-(d) of the Law of the Child (Juvenile Court Procedure) Rules, 2016 (GN No. 182 of 2016). These provisions require the court to consider factors such as the child's well-being, safety, and the nature of the relationship with the parent seeking access. Despite concerns about the respondent's absence, there was no evidence that her access would harm the child. The court found that there was a reasonable

explanation for the initial denial of visitation rights and that any risks could be mitigated with appropriate safeguards. The law outlined the importance of avoiding risks and protect the child's emotional well-being when granting access, the risks can be mitigated in these ways: 9 1. Gradual Reintroduction: Begin with shorter, supervised visits to prevent overwhelming the child, gradually increasing the duration as the child adjusts.

2. Supervised Visitation: If there's a risk to the child's psychological well­ being, visits should be monitored by professionals like social workers.

3. Psychological Evaluation: Courts can require evaluations of the parent to ensure they are emotionally capable of supporting the child.

4. Counseling for the Child: Therapy can help the child manage emotional challenges related to family changes.

5. Consistent Schedule: A predictable visitation schedule provides stability and reduces anxiety for the child.

6. Parenting Plans: A clear plan outlining expectations helps avoid conflicts and prioritize the child's needs.

7. Monitoring and Review: Regular check-ins by social services or the court allow adjustments to ensure the child's welfare is protected. The court highlighted the need to safeguard the child's best interest. The trial court acted appropriately in granting access rights under the supervision of a social welfare officer. The respondent's absence was not due to intentional neglect but rather the result of legal circumstances. — 10 Furthermore, no medical evidence had been presented to question the respondent's psychological fitness. The court determined that granting the respondent supervised access promotes a balanced and supportive environment for the child, enabling both parents to contribute to the child's emotional and developmental needs. Both parents should remain involved in the child's life, since there are no compelling reasons to deny access, as this serves the child's emotional, psychological, and developmental well-being. I find no reason to fault the trial court's analysis on this issue, as it aligns with the best interest of the child. Therefore, the first, third and fourth grounds of appeal are devoid of merit and are dismissed. The second issue on appeal challenges the trial magistrate's reliance on a potentially defective Social Inquiry Report. The appellant's counsel, Ms. Matondane, argued that the report did not comply with section 72(2) of the Law of the

Child Act, Cap 13 R.E. 2019, which mandates that the child be consulted separately to safeguard their best interests. She contended that the social welfare officer failed to conduct a thorough evaluation of the child's welfare. li The respondent's counsel, Ms. Sandewa, countered that the report was not contested during the trial, nor was it identified as defective at that time. She asserted that the report was sufficient for the trial court to rely on, and the magistrate properly considered all relevant factors, including the respondent's status as the child's biological mother. Upon review, the court found that the trial court had the discretion to rely on the report, especially since no evidence suggested that the child's best interests were disregarded. According to section 45 of the Law of the Child Act, the court can order a social welfare officer to prepare such a report, which must comply with Rule 72 of the Law of the Child (Juvenile Court Procedure) Rules. The social inquiry report aims to assist the court in obtaining all necessary information for determining custody and access rights to the child, in accordance to the requirement of the law. As stated in the case of Anyingisye Mlawa vs. Tukulamba Kibweja (Civil Appeal No. 27 of 2020) High Court at Mbeya [2021] TZHC 7104 (5 November 2021), where Hon. Judge Karayemaha emphasized the crucial role of social inquiry

report in child matters. 0 12 The inquiry must comply with sections 39 and 26 of the Law of the Child Act, and the trial court properly incorporated the social inquiry report's findings in its decision. The court reaffirmed that the best interest of the child is the primary consideration in custody and access matters. The trial court took the social inquiry report into account alongside other relevant factors. The law, specifically section 26 and 39 of the Law of the Child Act, prioritizes the child's emotional, psychological, and developmental well-being, which is best supported by the involvement of both parents. The interests of the parents may not be suitable for the child. In Rajab Shaban Bwanga vs. Lilian Richard Haule (Civil Appeal No. 54 of 2022) High Court at Dar es Salaam [2022] tzhc 11411 (11 July 2022), highlighted the principle that custody disputes should focus on the child's welfare, not personal grievances between parents. Access and custody decisions must balance parental rights and responsibilities while keeping the child's best interest at the forefront. In the upshot, I find no merit in the appellant's claim that the trial magistrate relied on a defective social inquiry report. The court is not bound to consider the social inquiry report only, but other factors as well in line with law in safeguarding the child's best interest. The second ground is

also devoid of merit and it is dismissed. This court emphasizes that a child benefits from the involvement of both parents, and access rights should not be denied without compelling reasons. The law prioritizes the child's overall well-being, ensuring they receive the necessary emotional and developmental support from both parents. In the upshot, I find no reason to fault the decision of the trial court, which remains unchanged. The appeal is entirely dismissed. Considering the nature of this case, I make no order as to costs. It is so ordered. Dated at Temeke this 13th of September, 2024. N. BAR

JUDGE Delivered in s. Shamim Kikoti Learned Advocate for the Appellant, Respondent in person and Ms. Bernadina Tayari, RMA 14