In response to last week's article, a reader wrote to seek advice regarding a five-year-old boy. His mother is deceased and his father is crippled. The child is cared for by an aunt who wishes to acquire legal rights to care for him.
In this case, section 3 (2) of the Children (Guardianship and Custody) Act offers a solution. It states that, "On the death of the mother of a child, the father, if surviving, shall, subject to the provisions of this act, be guardian of the child, either alone or jointly with any guardian appointed by the mother. When no guardian has been appointed by the mother or if the guardian or guardians appointed by the mother is or are dead or refuses to act, the Court may if it thinks fit appoint a guardian to act jointly with the father."
The reader's email did not say whether the child's mother left behind a will in which she appointed a guardian. Based on section 3 of the act, if there was a guardian appointed under the deceased parent's will, the surviving parent and that guardian will be required to act jointly to care for the child. However, if there is no guardian named in a will of the deceased parent, the surviving parent will be the sole guardian of the child.
I have assumed that the father is the sole guardian of the child, the child's aunt will be able to rely on section 3 (2) of the act to make an application to the court to be appointed his guardian. Assuming that his father has no objection, or is willing to consent to the application, the appointment of the child's aunt as his guardian will entitle her to act jointly with the father. However, the application can be made even if the father does not consent and, once appointed, the aunt will have the right to continue to be the child's guardian even after his father passes.
No specific power
Rather than outlining the powers of a guardian, the act states that a guardian appointed by the court "shall have all such powers over the estate and the person, or over the estate, as the case may be, of a child as a guardian appointed by will or otherwise has in England." When I examined the English Family Law Reform Act 1987 I noted that many of the sections are similar to our act, but it still does not say what the powers of a guardian are.
I resorted to textbooks to ascertain the meaning of the word "guardianship" in relation to children. According to Bromley's Family Law, it is " a legal process by which a person is given parental responsibility for a child on the death of one or both of the child's parents". Therefore, a guardian is "someone who has been formally appointed to take the place of a child's deceased parents", so when the aunt is appointed as the guardian of her nephew, she will be able to exercise parental responsibilities in the way his mother would have.
In terms of the next steps, the aunt should proceed with an application to be appointed the guardian of her nephew, and the written consent of the father would be helpful in that process. The father should also prepare a will and appoint one or more persons to be the guardian for the child in the event of his death. One of those guardians could be the child's aunt.
From my research, it is clear that our act is in need of reform. Far too many persons are left without an effective solution when there is a need to appoint someone to exercise care over a child whose parents are alive but incapable of caring for that child. In many such cases, the parents are willing to consent to that person becoming the child's guardian, but do not wish to give up parental rights and go through the tedious adoption process.