Makara v Makara (CIV/APN 158 of 86) [1986] LSCA 73 (12 June 1986)

Key Facts

Issues

• The court considered whether the custodial parent (appellant) had the legal authority to take the minor children to her graduation ceremony in England without the non-custodial parent's consent, and whether the non-custodial parent's fear of permanent removal was justified based on the circumstances.
• The court evaluated whether the respondent's concern that the applicant intended to permanently remove the children from Lesotho by taking them to Britain for the graduation was supported by reasonable evidence, particularly considering the applicant's permanent employment and the temporary nature of the trip.

Holdings

• The court directed the respondent to sign the necessary papers for passport issuance to enable the children's travel to Britain. This was upheld based on the custodian parent's entitlement to manage educational and travel decisions for the minors, with no reasonable grounds to oppose the application.
• The court granted the applicant's request to take the minor children Motheba and Ntsepase to her graduation ceremony at the University of Hull in July 1986, determining that the trip would broaden the children's educational horizons and align with their best interests. The judge emphasized that the custodian parent's decision to attend the ceremony as part of the children's education was within her legal rights, and the respondent's fears of permanent removal were not substantiated by evidence.
• The court denied the applicant's request for the respondent to pay the costs of the application, as the respondent's genuine concerns, though not based on reasonable grounds, were acknowledged. Both parties were instructed to bear their own costs.

Remedies

• The court granted the applicant's request directing the respondent to allow the minor children Motheba and Ntsepase to attend her graduation ceremony at the University of Hull in Great Britain in July 1986.
• The court also directed the respondent to sign the necessary papers for the issue of passports to enable the children to travel to Britain for the graduation ceremony.

Legal Principles

• The court applied the burden of proof, requiring the respondent to demonstrate on a balance of probabilities that the applicant intended to deprive him of access to the children by taking them out of Lesotho. The respondent failed to meet this burden, as his fears were not substantiated by sufficient evidence.
• The standard of proof required was a balance of probabilities. The respondent's allegations about the applicant's intent to permanently leave Lesotho were based on unverified information and lacked the necessary evidentiary weight to satisfy this standard.

Passage Text

• As the upper guardian of minors this Court must always take into account the interests of the minors where the custodian parent and the non-custodian parent cannot agree. In the instant case the custodian parent is going to attend a graduation ceremony in England at which a degree of Doctor of Philosophy in Education is to be conferred upon her. The children have expressed their desire to go with her and she has promised to do so.
• The respondent has failed to do so; his fear is not based on reasonable grounds. The mere fact that the applicant made some inquiries at the Immigration Office about the procedure as to how to include her children in her passport or to get them their own passports does not mean or indicate that she intends to leave Lesotho permanently.
• Our law is that the mother, as the custodian parent, is entitled to have the children with her; to control their daily lives; to decide all questions relating to their education, training and religious upbringing; to determine what homes or houses the children may or may not enter and with whom they may or may not associate.