Ap­ply­ing for guardian­ship ... While the par­ents are still alive

Jamaica Gleaner - - LAWS OF EVE - 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.

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.

MCGRE­GOR

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