Mon | Oct 16, 2017

Laws of Eve | Applying for guardianship ... While the parents are still alive

Published:Monday | November 14, 2016 | 12:00 AM

In recent times, the issue of applying for guardianship while parents are still alive has become a challenging one in the courts, because some Supreme Court judges are of the view that they have no jurisdiction to make orders for guardianship while the biological parents of a child are alive and were not, themselves, the applicants.

It is hoped that the recent decision of the Court of Appeal in the case of B and C (The Children's Advocate as Interested Party) [2016] JMCA Civ 48 will clarify the issue.

In B and C, the grandparents applied to the Supreme Court to be appointed as the guardians of their granddaughter - A. A had been living with B and C since she was just over a year old, and although her biological father lived in the same home, he was frequently absent. There was no evidence as to the involvement of A's mother in her life.

B and C's application was premised on the need for them to be legally recognised as having the responsibility "to take charge of ... [A's] life and upbringing". They wanted to be able to represent her in respect of her primary schooling, health matters and higher education, and to be able to travel overseas with her.

The judge refused the application, and B and C appealed. The Children's Advocate intervened as an interested party at the invitation of a single judge in the Court of Appeal.

The judgment is a thorough review of the history of the manner in which the Supreme Court's jurisdiction over children was established through the Court of Chancery. In that regard, the conclusion was that the Supreme Court is entitled to make an order appointing guardians for A although both her parents are alive. However, in doing so during the parents' lifetime, the judge is entitled to exercise his discretion. The word of caution from the judgment is that the discretion is to be exercised in favour of a person who is not the biological parent only in extreme cases.

This word of caution begs the question as to whether the court would be more inclined to exercise its discretion in favour of an applicant if the biological parents gave their consent.

 

WARD OF THE COURT

 

One of the consequences of an application for guardianship of a child in these circumstances is that the child becomes a ward of the court - which means that severe restrictions are placed on the child and the guardians. Breach of those restrictions, even innocently, may place any of those parties in the position of being in contempt of court.

The restrictions imposed as a result of wardship include the obligation not to leave the jurisdiction or to marry without the leave of the court, and to carefully ensure the circumstances of the child, and monitor his future if he has property.

An application for guardianship may be made by someone who has a close relationship to the child, to warrant that person's intervention. While the parents are usually given priority in the decision of who should be appointed guardian of a child, other persons (in rare cases) may be preferred over a parent.

The best interests of the child remains paramount in guardianship applications, and the bond between parent and child is an important factor in that regard.

• Sherry-Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.