Legal guardianship of children

ONE OF the issues about which I receive frequent inquiries is the question of the legal guardianship of children. Quite often, it is because the sibling of one of the parents is interested in becoming the legal guardian of a niece or nephew, sometimes with the intention of taking that child to live outside of Jamaica. In some cases, a guardianship order is being sought by a total stranger.

The reasons for seeking that advice vary from the parents being deceased to the fact that the aunt or uncle has no children and has been giving financial support to that niece or nephew. Invariably, this is because the parents are facing financial challenges and have had to lean on other family members for support.

Happily, since 2016, the Jamaican court confirmed that guardianship orders may be granted in reliance on the court’s inherent jurisdiction. The law in this area is explained in two cases: B v C and the Office of the Children’s Advocate [2016] JMCA Civ 48 and Re: Application for Guardianship of a Minor Child F [2016] JMSC Civ 193.

From these cases, the following relevant points may be noted:

1. Where both of a child’s parents are alive and they wished to grant temporary care and control to someone, they could do so by executing an appropriate deed.

2. If the parents wish to appoint someone as a guardian for their child in the event of their death, they may appoint that guardian under their wills. The relevant provision under which this is done is Section 4 of the Children (Guardianship and Custody) Act.

3. In making an application for guardianship of a child, a proposed guardian is asking the court “to consider issues related to the voluntary relinquishing of legal [parental] responsibility, on a ... temporary basis ...”. The issues include the fitness of the intended guardian, the physical, mental, and economic circumstances of all parties, what is in the best interests of the child, the preparation of the parents for separation from the child, and whether they knowingly consented to do so. 4. “Save in exceptional circumstances, the statutory agencies [that is, the Child Protection and Family Services Agency (CPFSA) or ... Office of the Children’s Advocate (OCA)] are best able to enquire into and determine the issues”, so their input will usually be required by the court when considering an application for guardianship.

5. Parents should be respondents to applications for legal guardianship; the child should be independently represented where the application is by the proposed guardian, and any consent of the parents must be proved to be informed consent, whether by independent legal advice or otherwise.

It is not a simple exercise to get guardianship orders. This was confirmed in the following statement from the Court of Appeal in the case of B v C:

“... It is permissible for the court, even during the lifetime of the biological parents, to award guardianship of a child to a person who is not a biological parent of that child. It seems, however, that it is only in extreme circumstances that the court will exercise that discretion.”

Further, “... the appointment of guardian, would mean that the child remains a ward of the court until the child either attains majority, or until further order of the court. The guardian, upon appointment as such, becomes an officer of the court, for the purposes set out in the appointment.”

These are important warnings to potential guardians that the decision to apply to become a legal guardian is to be taken seriously.