It is pertinent to note that the law seeks at all times to ensure the best interest of a child but certain rights are sometimes violated not because the parents are not willing to ensure the wellbeing of a child but because of poverty. Some children are drop outs without formal or informal education, without parental care and guidance, without shelter (some live under bridges and abandoned houses) because they are being neglected. The question is, should the rights of children as rightly enshrined, guaranteed under the United Nations Convention on the Rights of Children (CRC) 1989, the Child’s Right Act 2003(CRA) be violated on the basis of poverty or ignorance?
Guardianship is a way to ensure a child is adequately taken care of where there are no biological parents. The court may order make an order as it deems fit or in any other circumstances. Adoption has been discussed lucidly in my previous article. (Contact the writer for more information). Let’s take a look at Guardianship.
The Black’s Law Dictionary defines a Guardian as one who has legal authority and duty of care for another person especially because of the other’s infancy, incapacity or disability. An individual who, by written or court appointment or by the effect of a statute, is given custody of both or either of the property or the person of one unable to manage their own affairs such as a child (Duhaime’s Law Dictionary). Worthy of note is that the biological parents of a child are the default guardians but an unrelated party may apply for the guardianship of such child and be vested with parental responsibilities over such child.
However there is a due process to be followed before guardianship order is granted by the court. This order can as well be revoked by the court if circumstances warrant so.
APPOINTMENT OF A GUARDIAN. S 84 Child’s Rights Act(2003)
- The court may grant an order to an applicant if
a. The child has no parent with parental responsibility
b. A residence order has been made in respect of a child in favour of a parent or guardian who has died while the residence order was in force. - Where there is no application from any applicant, the Court may grant an order notwithstanding no application was made.
- A guardian by Deed may appoint another to be the guardian of his child at death
- An appointment by a Will not signed by the Testator shall have effect only if it is signed at the direction of the testator.
NOTE: a court can grant the custody of a child to a guardian even when parents are alive but are deemed unfit to take care of the child. S 83(2)CRA; OKWUEZE V OKWUEZE (1989)3NWLR PT 109 PG 321 per Uwais JSC
“The court may refuse to grant custody to either parent, if the court is convinced that none of them is capable of giving the best care. In such case, the Court may decide to grant custody to a guardian”.
OKOBI OKOBI (2020)1NWLR (PT 1705)P301, the paramount consideration is the best interest of the child. Similarly, sanctions may be made where a parent fails to carry out parental responsibilities. S 300-302 Criminal Code:
“It is the duty of every person having charge of another who is unable by reason of age, sickness, unsoundness of mind, detention or any other cause to withdraw himself from such charge and who is unable to provide himself with the necessaries of life, whether the charge is undertaken under a contract or is imposed by law or arises by reason of any act whether lawful or unlawful of the person who has such charge to provide for that other person the necessaries of life; and he is liable to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty”.
s. 301 states that every head of family should provide necessaries for every child under their care and any consequences which results from such failure, he shall be held liable
The consent of such person appointed as guardian is a sine qua non. This implies that it is necessary for the consent of the guardian appointed by court to sought and gotten S. 85 CRA
GUARDIANSHIP AND ADOPTION, any nexus?
Guardianship is different from adoption (for more info on adoption, check my previous article).
●In guardianship, the rights and obligations of the child’s biological parents are suspended not extinguished. The order for guardianship does not confer absolute parental title on the guardian
●Guardianship over a child terminates once the child attains 18years meaning it is not permanent unlike Adoption.
●The biological parents still maintain a right to visit and have access to the child in custody of the guardian, in adoption, biological parents cannot have access to the adopted child.
●Application for guardianship is made to the High Court or Magistrate Court designated as Family court but for adoption it is commenced at the Ministry(in Lagos for example, Ministry of Youth and Development)
Note: where the child is in custody of the state, a letter to the Ministry of Youth and Social Development is required before an originating motion in court
●in Guardianship, the child still retains the right to inherit the property of the biological parents unlike adoption where such right is extinguished.
●In guardianship, the child still bears the name of the biological parents unlike adoption where the child bears the name of the adoptive parents.
REASONS FOR GUARDIANSHIP
- Most times guardianship could be by close relatives who desire to cater for the material need of a child and ensure the child is not denied necessities thereby violating the rights of a child
- Guardianship may be necessary where a parent(s) maltreats or abuses a child.
- It may be needed in a situation where a child’s parent is dead. (note that a single parent can appoint a guardian.S.83(4)
- The court can appoint a Guardian ad litem to protect the welfare and interest of a child.
REVOCATION OF GUARDIASHIP
Appointment of guardianship may be revoked by the court under the following:
a. An application by a parent or any person having parental responsibilities
b. Application by the child with leave of court
c. In any family proceedings, if the court considers it fit without an application.
d. Application of an appropriate authority.
PROCEDURE FOR GUARDIANSHIP.
- An application through originating motion is filed at the court.
- The originating motion must be accompanied :
a. Means of identification
b. Birth certificate of applicant
c. Birth certificate of child
d. Marriage certificate (where applicable)
e. Death certificate of parents (where applicable)
f. Applicant consent evidence of medical certificate of fitness
g. Photograph of applicant’s home
h. Any other document in support of the case
The court then makes appointment to the applicant who is considered fit and suitable for the child
It is advisable to contract the services of a professional/expert in order to avoid unwarranted hitches and difficulty in the process.
Success Oghosa Osasogie is a Lagos based Legal Practitioner and a professional volunteer.
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Email:oghoslegal@gmail.com
