Laws of Eve | Challenges in getting orders for legal guardianship
Requests by clients for applications to be made for relatives to be appointed as legal guardians of children continue to increase. Despite the number of such applications that are heard by the courts, the results of the applications are not predictable and depend largely on each judge's determination as to whether he or she has jurisdiction to consider the applications.
Within the past several years, I have debated whether the court has the jurisdiction to appoint a relative as the guardian of a child while both parents are alive. Initially, I had concluded that it did not, because the Children (Guardianship and Custody) Act makes provision in relation to the appointment of testamentary guardians. However, upon closer reflection, I was persuaded to accept that the court can appoint and remove guardians in the same way that it did before the act came into effect. (Not all judges agree with this position).
Here are some of the challenges applicants for legal guardianship of children must be prepared to face:
• Legal guardianship is not defined in the act, so its scope and effect are not easily explained.
• Although the court still has the inherent jurisdiction to make orders that are in the best interest of children by virtue of the provisions of the Judicature (Supreme Court) Act, that act does not provide any details in relation to the instances in which that jurisdiction can be invoked or the factors to be established before any such order can be made.
• There are some judges who do not believe that there is a need for a court order to be made in order to appoint a legal guardian for a child, because Section 4 of the Children (Guardianship and Custody) Act states that a parent may appoint a guardian for a child by signing a deed.
Some effective solutions are needed.
• There needs to be a consistent position from the court as to whether an order granting legal guardianship of children to others while the parents are still alive is permissible.
• In the absence of a clear statement from the court, our legislators may need to confirm whether legal guardianship of children while their parents are still alive is sanctioned.
• If so, the factors to be considered when such applications are made need to be clearly stated.
• If there is to be legislative intervention, England's Children Act
1989 may provide a good example of a simple and clear procedure on which our local legislation could be modelled.
For those who continue to wonder where guardianship fits into the legal landscape, family.findlaw.com sets out the following useful statement:
"A guardianship is a legal relationship between a minor child and a guardian that gives the guardian certain rights and obligations regarding the child. A guardianship does not sever the legal relationship that exists between a child and his or her biological parents, however. Instead, it co-exists with that legal relationship.
"An adoption, on the other hand, permanently alters the legal relationship between a child and his or her biological parents. Adopted parents become the legal parents and biological parents give up all parental rights and obligations. This means that biological parents no longer owe child support, and that the child can no longer automatically inherit from his or her biological parents."
The uncertainty in this area is becoming a source of anxiety to would-be guardians, so there is urgent need for clarity.