What is Guardianship?
Guardianship can be defined as the authority given to a person to take responsibility for someone who is incapable of handling their own affairs.
Legal guardianship in this context is described as the legal authorization given by law to a person to take charge and see to the affairs of another. As opposed to popular opinion, guardianship does not only center around children, as it also encompasses/relates to the welfare of an incapacitated senior (due to old age or infirmity), or that of a developmentally disabled adult.
Our primary focus, however, shall be centered on the guardianship of children, who are also referred to as “wards”. The law regulating the affairs and issues bordering on children is the Childs Right Act, 2003, which has been domesticated in most of the states in Nigeria. Under the law, a child whom the court can appoint a legal guardian for, is one who is under the age of eighteen (18) years.
Why Do People Take Over Guardianship of Children?
Individuals seek to obtain guardianship of a child in situations where the natural parents are incapable or unfit to cater to the needs and requirements of the child, or in circumstances of an established case of maltreatment or abuse, either by the parent of the child, or the current guardian.
Guardianship can also be sought due to the death of the child’s parents, in which relatives or notable friends of the family can apply to see to the welfare and upkeep of the child. The court itself can appoint a guardian usually referred to as “Guardian ad litem” to safeguard the interest of the child.
Guardianship and Adoption Distinguished:
Most times, people intermix guardianship and adoption. This should not be so. While guardianship and adoption basically involves attaining a position of being placed as a child’s care-giver, there are some distinctive elements between the two, some of which are:
1. Guardianship gives an individual the right to be responsible for the welfare of a child, and in some cases, physically accommodate the child. However, it doesn’t confer parental title on the guardian as the legal relationship between the child and the biological parents still subsists and remains binding under the law. Adoption, on the other hand, completely severs the legal right the natural parents have with the child, transferring same to the adoptive parents. The biological parents, as soon as the adoption process is complete, will no longer have any right, duty or claim to the child.
2. Guardianship is temporary in nature, as the relationship terminates when the child attains the age of maturity which is usually 18 years, or subject to the provision of the State Law. It can also be terminated upon application of the natural parents, or anyone who has parental responsibility to the child. An application for termination can also be instituted by an authorized body, or by the child concerned with leave of the court. Adoption, on the other hand, is a binding relationship, just as one between a child and a parent is expected to be, and can only be revoked if it is discovered that false information was given in the course of obtaining the adoption order.
3. A child who is under the guardianship of an individual retains the right to inherit from the biological parents while an adopted child forfeits the right to inherit from the natural parents, and can only exercise the right of inheritance with the new adoptive parents, except in situations where the child has been listed as a beneficiary in the Will of the biological parents.
4. A child who has a legal guardian is still expected to bear the name of the birth parents, whereas an adopted child takes up the name of the new parents.
5. Guardianship is restrictive in nature. As a legal guardian, there is a legal restriction placed on the kind of decisions you are permitted to take on behalf of the child while an adoptive parent is, without constraints, allowed to take legal decisions affecting the life of the child.
6. An application for guardianship is made to the High Court or the Magistrate Court which, under the Childs Right Act 2003, has been designated as the family court in all states in Nigeria. But in the case of an adoption, the appropriate channel to commence the application for adoption is through the Ministry of Women Affairs, Youth and Social Development.
7. The biological parent of a child that has been placed under the care of a guardian can without restriction, visit the child in cases where the child is resident with the guardian. But an adoption order annihilates the right of the birth parents to have access to the child, except in an open adoption Agreement.
Choosing Between Guardianship and Adoption
Due to the discrepancies between guardianship and adoption, an individual is expected to carefully examine the elements of both forms of child custody before proceeding to file the necessary applications. Most individuals lean towards guardianship when their primary concern is centered around catering to the material and financial needs of the child, and not for the purpose of assuming the position of a parent. In most cases, people who opt to become the legal guardian of a child are close relatives such as (grandparents, aunties, uncles, siblings) whose desire is to help the child survive until they can become self-reliant. The choice to adopt however stems from the applicant’s desire to become a parent, and to take up every responsibility required of a parent to a child.
Procedures for Obtaining Legal Guardianship
It is imperative to note that in granting guardianship, the personality of the applicant will be critically examined by the court to determine if it fits that of one who can be appointed as a guardian for the child. Whether or not the applicant is capable of adequately caring for the child in terms of, but not limited to, educational welfare, medical care, food and shelter is another factor often considered.
If the court is satisfied with the profile of the applicant after reviewing the facts presented, it will approve the order for guardianship. Generally, although regulated by State Laws, a person who can bring an application for guardianship must have attained the age of adulthood which ranges from 18- 21 years. Some of the prerequisite documents needed to commence guardianship application are application forms, Birth certificate of the Applicant, Birth certificate of the child, Consent letter of the biological parents of the child and so on. Kindly get in touch with our Sophia (on 09090041104) for the list of the requirements and the procedures.
Contingent on the mode of commencement adopted by the State, these requisite documents documents are to be accompanied by a statement of case, explaining the circumstances surrounding the applicant’s desire to be the child’s guardian, as well as other related factors which should be brought to the notice of the court.
Furthermore, this should be supported by an Affidavit of fact verifying that the applicant’s case is true and valid, within the best knowledge of the person deposing to the affidavit. Also, an applicant who wishes to travel outside the country with the child must seek for approval alongside the application for guardianship, in order to avoid future restrictions.
Upon filing of the required documents, a date will be scheduled for the hearing of the applicant’s case, in which the court will determine if it is in the best interest of the child to grant the guardianship order.
It is however important to note that the procedure and requirements needed to commence an application for legal guardianship varies in each State in Nigeria, and as such, it is necessary to refer to the laws and dictates of the State before commencing with such an application.
Grounds Upon Which an Application for Guardianship Can Be Rejected/Refused:
The interest of the child is of paramount importance to the court, therefore, if the court perceives that there are some elements of deception in the facts presented, the court will not grant such an order.
Some of the reasons for the refusal to grant an order for legal guardianship are:
- The applicant cannot competently conduct proceedings on behalf of the child.
- The applicant has an ulterior motive for wanting to be appointed as the child’s guardian.
- The facts presented before the court are false.
- The applicant cannot be seen to be able to adequately provide for the financial and material needs of the child.
- The applicant is incapacitated or impaired in a way that would limit his ability to supervise the child.
Duties of A Guardian
The basic duties of a guardian include, but are not limited to:
- Providing for the general needs of the child.
- Developing a personal relationship with the child to know the child’s abilities, limitations, needs, opportunities, physical and mental health condition.
- Enforcing complete care to the child’s personal property.
- Where certain amount of money is left for the child, a guardian must appropriate such money in a way that will meet or satisfy the child’s current needs for support, care and welfare.
- A guardian in the exercise of his or her duties must save any excess money the child may have for his or her future needs.
In conclusion, it is advised in all cases that an intending guardian should employ the professional expertise of a legal practitioner versed in this area of the law, to avoid needless hitches that might arise in the course of the application.
For more information, read about Child Adoption HERE, or talk to Grace on 09090041102 or via the email: grace.kalu@harlemsolicitors.com
0 Comments