ON July 18, the Supreme Court sitting in Lusaka delivered a judgment to settle a dispute over the custody of two children born from two ex-lovers Zanetta Nyendwa, a Zambian and Kenneth Spooner a Briton.

The coram comprised of acting Deputy Chief Justice, Mrs Justice Forence Mumba, Mr Justice Marvin Mwanamwambwa and Mr Justice Muyinda Wanki.

The decision of the Supreme Court to uphold the High Court judgment means that Mr Spooner is free to take back the two boys Devlan and Caelan aged six and eight respectively to Britain to live with them as he desired to do so.

A decision which has elated Mr Spooner but on the other hand left Ms Nyendwa devastated and in a way that has made her feel deprived of her right to nurture the two boys as a biological mother.

The two boys have been living in Zambia with their mother since the time they came on vacation in 2008.

But it may be interesting to have a glimpse at some of the facts that gave rise to this custody suit and arguments thereafter, as various schools of thought may be making attempts at building up all sorts of debates around the case as this article will try to delve into the entire judgment.

The judgment in issue could be referred to as land mark as the matter was earlier on adjudicated upon by a London court in a civil suit instituted by Mr Spooner which dragged on for five years until recently when it was finally settled.

Some would recall that the matter was initially reported in the media few years ago at a point when Mr Spooner attempted to evacuate the two boys to Britain after rescuing them from their mother's residence in Lusaka but his efforts were blocked due to interception by police.

Facts of this case were that Ms Nyendwa and Mr Spooner had a relationship while in the UK (UK) in 2003.

That during the period 2004 to 2008, the parties lived together and had two children namely Devlan Nicholas Spooner born on June 29, 2005 and and Caelan Alexander Spooner born on June 17, 2007.

The relationship between the two broke down when things went sour in January 2008.

After the break-up the duo entered into an agreement on the maintenance and custody of the children.

In this regard, Mr Spooner was to be the primary provider for the off-springs.

The children were to live in the UK. But sometime in October, 2008, Ms Nyendwa requested Mr Spooner to sign a letter of consent so that she could visit Zambia with the children. Mr Spooner signed the said letter. Both parties agreed in the letter of consent that the children would return to the UK on or before November 4, 2008. But Ms Nyendwa did not return with the children as earlier agreed instead she kept the children back in Zambia.

It was at that point when Mr Spooner decided to take out an action in the High Court of England and Wales, for an order of custody which order was granted. The respondent travelled to Zambia to try and enforce the foreign order but to no avail.

In 2010 Ms Nyendwa applied by originating summons in the High Court seeking certain reliefs to be granted in her favour.

In the affidavit in support she deposed that Mr Spooner issued a lot of derogatory text messages to her and her mother. That Mr Spooner had been disrespectful, untrustworthy and controlling. She also accused him of attempting to abduct the children from her home in conjunction with her maid.

She stated that she is in gainful employment and better placed to look after the children since Mr Spooner is not in employment.

Mr Spooner on the other hand deposed in his opposing affidavit that he was the primary provider for the children and fully maintained them as Ms Nyendwa was not in gainful employment.

That Ms Nyendwa took the children out of the UK and went to live with her brother as she did not have a home of her own.

Mr Spooner stated that during this period Devlan, the eldest child was attacked by a dog while in the custody of the mother and that she was intoxicated.

The child sustained injuries and he had to under-go extensive treatment.

He further deposed that sometime in October 2009, Devlan was attacked by a dog within the premises of the mother in Lusaka while swimming unattended.

Mr Spooner deposed in his affidavit that Ms Nyendwa applied for passports for the two boys in the names of Devlan Nicholas Nyendwa and Caelan Alexandaer Nyendwa, which is contrary to the names that appear on the children's British passports.

After evaluating the affidavit evidence and considering the submissions on both sides, the learned trial judge held that the two children should remain in the custody of the father Mr Spooner as was the case before the minors were brought to Zambia by Ms Nyendwa.

The court observed that Ms Nyendwa came with the two boys to Zambia on vacation purely on the understanding that she would return them (boys) to their father in England where the duo had joint custody of them in accordance with the agreement.

The court further ruled that Mr Spooner had ably demonstrated that he was capable of taking care of the children emotionally and financially.

Being dissatisfied with the high-court decision Ms Nyendwa then appealed to the Supreme Court stating three grounds; ground one that the court below misdirected itself in law and in fact when it refused to grant her the order for custody of the minor children when it dismissed the application with costs.

Ground two; the court below misdirected itself in law and In fact when it failed to consider all the relevant factors in deciding that the minor children of the relationship should remain under the sole custody of the respondent who resides outside the jurisdiction of this court.

Ground three; the court below misdirected itself in law and in fact when it made a finding that there was evidence to show that Mr Spooner was capable of taking care of the minor children emotionally and financially.

In arguing the case, Counsel Nchima Nchito of Nchito and advocates on behalf of Ms Nyendwa submitted that it was a well settled principle in custody matters, the courts primary consideration was the welfare of the children.

He said it was a well settled matter that children below the age of seven were better left with their mother due to their tender age and the maternal bond that children enjoy with their mums during the crucial formative stage.

He submitted that the court misdirected itself in law by awarding Mr Spooner sole custody of the children without making the welfare of the children paramount consideration.

But in response to the arguments Linus Eya of KBF and partners representing Mr Spooner referred to the holding of learned trial judge and submitted that she correctly addressed her mind to the welfare of the children as the paramount consideration as required by section 14(2)of the legitimacy act cap 52 of the laws of Zambia.

He said that pursuant to the separation agreement, between the parties hereto, in October 2008 Mr Nyendwa brought the children to Zambia for a school vacation and to visit their Zambian grand parents.

That she undertook in writing to take them back to their father in the UK in November 2008 in time for them to attend school.

That Ms Nyendwa breached her undertaking and never returned the children to the UK as agreed and as such should not be allowed to use her wrongful retention of the children in Zambia to obtain their custody.

In delivering judgment the Supreme Court agreed with and adopted the holding and observations of the high court.

The court noted that the two boys were born in the UK from the two parents but after the relationship broke down they went on separation subsiquently an agreement was signed on March 14, 2008 substantially devoted to the joint custody and maintenance of the children.

By consent of the parties on October 16, 2008, Ms Nyendwa travelled with the boys to Zambia for a short vacation with the aim of visiting their grandparents to which she undertook to take them back on or before November 8, before resumption of school.

The trip was made but Ms Nyendwa never returned the children to the UK as per agreement instead she obtained them Zambian passports and changed their sir-name from Spooner to Nyendwa .

The Supreme Court observed from the evidence on record that it was clear that Ms Nyendwa's move not to take back the children to the UK was deliberate and also a clear breach of the separation agreement and her undertaking to return them to the UK.

And that when she requested to have the boys accompany her to Zambia she did not do it in good faith as she had no intentions of taking them back to the UK.

The separation agreement was working well all along until November 4, 2008 when Ms Nyendwa breached it.

"In our view, the learned trial judge properly looked at the whole background of the children's life and the circumstances of this case.And in the process she came to the conclusion that it was in the interest of the children that their custody be granted to their father Mr Spooner and that they live in the UK.

We are satisfied that the learned trial judge considered the welfare of the children as the paramount factor," the Supreme Court ruled.

The Supreme Court also observed that when Ms Nyendwa applied for custody of the children in the court below she did not disclose that there was a separation agreement which governed custody and maintenance of the two children.

"We consider this to be a deliberate concealment of a material fact. This affects her credibility. And it must react against her," the court ruled.

In paragraph 19 and 21 of the affidavit in support, Ms Nyendwa disclosed that she earns a salary of K4,000 but commenting on this financial aspect the court said it was not enough to cover their boy's educational needs in the UK, as education was one of the elements of the children's welfare.

The Cupreme Court further noted that UK had better education than Zambia therefore, the children in issue would have better education in the UK.

On the financial means of Mr Spooner the court said there was evidence on record that to show that he owned a house which is on rent and that he is also the major provider for the children's education and maintenance.

Further the children came to Zambia as British citizens and on British passports.

The court found it reprehensible that their mother went to the extent of unilaterally getting the boys Zambian passports.

In the process she abitrarily changed their surname from Spooner to Nyendwa.

By so doing she purportedly changed their citizenships from British to Zambian.

As the laws stands now dual citizenships is not allowed in Zambia.

"In our view it was illegal for the appellant to unilaterally purport to change the minor children's citizenships by simply getting them Zambian passports, under normal circumstances, the passport authorities would not have issued the Zambian passports to the two minors if it was disclosed that they were British passport holders.

Therefore, we would conclude that she obtained Zambian passports fraudulently and illegally. We are of the view that the appellant's unlawful conduct renders her an unsuitable parent to have custody of the children," the court ruled.

While appreciating the predicament Mr Spooner had found himself in, due to the turn of events surrounding the wrongful retention of the children, the court disapproved of his actions of the move he resorted to of grabbing the children and attempting to fly with them into UK.

The court counselled both parents that the children would remain a permanent link between them so they need to be in constant touch with each other for years to come that being so it would be unwise to create enmity between themselves.

For the reasons advanced in this case the court dismissed the appeal filed by Ms Nyendwa for lack of merit and upheld the decision of the lower court.

Four days later after the judgment the children reunited back with their father as the court had ordered the mother to harmoniously hand them over to avoid further altercations.