Le­gal guardian­ship hold-up af­ter par­ents aban­don child

Daily Observer (Jamaica) - - ALL WOMEN - DEAR MRS MA­CAULAY,

I’ve had a child in my cus­tody over two years now. I am her sole provider since the death of her guardian. The mother and fa­ther want noth­ing to do with her. I have been seek­ing le­gal guardian­ship through the Fam­ily Court but with­out suc­cess. The fa­ther, mother and my­self have been to the court on sev­eral oc­ca­sions but the fa­ther de­nies pa­ter­nity and re­fuses to do a DNA test. The mother is not in a po­si­tion to care for the child and does not even want to see her. The mother and fa­ther have now dis­ap­peared and I do not know where to find them. I want to adopt this child. What do I do? The Fam­ily Court is say­ing that I have to find the par­ents.

I need your help.

It seems to me that you have had de facto cus­tody, care and con­trol of the child for over two years, since the death of her guardian. What I un­der­stand from this is that this child had been in the care of an­other per­son and you as­sumed this po­si­tion fol­low­ing the death of that per­son. You have not stated whether the de­ceased guardian was ap­pointed by both or ei­ther par­ent or by a court. You did not say how long this per­son was the guardian of the child. One thing which is clear is that the par­ents of this child gave up their cus­tody and the care and con­trol to an­other per­son and then ac­qui­esced with you tak­ing over the role of de facto guardian.

I am not sure why you ap­plied for le­gal guardian­ship in the Fam­ily Court and did not ap­ply in­stead for le­gal cus­tody and care and con­trol of the child. As you have not said that you are a grand­par­ent of the child, I am sur­prised that the ap­pli­ca­tion they as­sisted you to make in the Fam­ily Court was for guardian­ship and not le­gal cus­tody, care and con­trol, as I have men­tioned.

For the ap­pli­ca­tion you made for guardian­ship, not be­ing a grand­par­ent, you should have ap­plied to the Supreme Court which apart from be­ing able to act pur­suant to the le­gal pro­vi­sions and to ap­ply the cor­rect prin­ci­ples, can act un­der its in­her­ent ju­ris­dic­tion to en­sure that it makes or­ders nec­es­sary for the wel­fare and best in­ter­ests of the child. You still can, and since the Fam­ily Court has frus­trated your ef­forts to put your re­la­tion­ship and re­spon­si­bil­ity for the child on a le­gal basis, you ought to con­sider mak­ing your ap­pli­ca­tion to the Supreme Court which has wider pow­ers than the Fam­ily Court.

I am also con­cerned about your state­ment that the fa­ther and mother were in at­ten­dance dur­ing some of the ap­pear­ances you made in the Fam­ily Court, and the judge in the fac­tual cir­cum­stances of the par­ents, who had clearly aban­doned and de­serted their child, did not act and ap­ply the pro­vi­sion in sec­tion 18 of the Chil­dren (Guardian­ship and Cus­tody) Act, which sets out the prin­ci­ple and di­rec­tion that in any pro­ceed­ing be­fore any court for cus­tody or up­bring­ing of a child, the court, “SHALL re­gard the wel­fare of the child as the first and para­mount con­sid­er­a­tion”.

If this prin­ci­ple was ap­plied and acted upon, the court ought to have di­rected ei­ther a substitution of your ap­pli­ca­tion for guardian­ship to that for le­gal cus­tody, care and con­trol of the child, or could have acted un­der sec­tion 4(4) of the Act made an or­der that the par­ents are un­fit to have cus­tody of the child and made an or­der for you to be the sole guardian of the child.

The fact that the fa­ther dis­putes pa­ter­nity and re­fused to do a DNA ought not to have barred fur­ther ac­tion by the court, hav­ing re­gard to the wel­fare of the child. When the fa­ther made clear that he was not go­ing to do a DNA test, the court act­ing pur­suant to sec­tion 13 of the Sta­tus of Chil­dren Act could draw what­ever in­fer­ences ap­peared proper to the judge from such a re­fusal. That is to say, the judge could con­clude that the fa­ther re­fused be­cause he knew he was the fa­ther and did not want to be con­clu­sively proved to be so. In such cir­cum­stances, the court should have gone on to make the ap­pro­pri­ate or­ders to en­sure the wel­fare and best in­ter­ests of the child.

The fact that the par­ents have now dis­ap­peared should not im­pede you pro­ceed­ing with your ap­pli­ca­tion, as the court has power to or­der you to put ad­ver­tise­ments in a spec­i­fied pop­u­lar daily news­pa­per to alert them of your in­ten­tions. Upon your pro­duc­tion of the pub­lished news­pa­per ad­ver­tise­ments to the court, and if the par­ents do not ap­pear in court on the date spec­i­fied in the ad­vert, the pro­ceed­ings can con­tinue to the mak­ing of the or­der in your favour, so that you have sole le­gal cus­tody, care and con­trol of the child and can thereby pro­vide the child with cer­tainty and se­cu­rity in her life.

You must re­tain a lawyer to as­sist you and en­sure that whether in the Supreme Court or in the Fam­ily Court, the cor­rect and ap­pro­pri­ate ap­pli­ca­tions are filed.

You can, of course, ap­ply to adopt the child through the Adop­tion

Board at the Child Pro­tec­tion and Fam­ily Ser­vices Agency. You can go and speak with them and tell them what you have done and how the mother and fa­ther seem to have dis­ap­peared. This process also uses ad­ver­tise­ments when nec­es­sary.

I do how­ever feel strongly that you ought to pur­sue your ap­pli­ca­tion and ob­tain le­gal or­ders for cus­tody, care and con­trol of the child, as be­ing in the present limbo sit­u­a­tion, you can­not make any de­ci­sions for the child’s wel­fare ur­gently — for ex­am­ple, giv­ing con­sent for a med­i­cal pro­ce­dure to be per­formed for a health prob­lem. So please get a lawyer to as­sist you with the ap­pli­ca­tions in court and then you can ap­ply to adopt the child.

I hope that I have clar­i­fied the mat­ter for you and that you will act with all dis­patch to ob­tain the nec­es­sary court or­ders and then pro­ceed with your ap­pli­ca­tion to adopt the child.

I com­mend you for your in­ter­est in car­ing and pro­tect­ing the in­ter­est of this child and I wish you both suc­cess in your ap­pli­ca­tions and a happy life to­gether.

Mar­garette May Ma­caulay is an at­tor­ney-at­law, Supreme Court me­di­a­tor, no­tary pub­lic, and women’s and chil­dren’s rights ad­vo­cate. Send ques­tions via e-mail to all­[email protected] ja­maicaob­server.com; or write to All Woman, 40-42 1/2 Beech­wood Av­enue, Kingston 5. All re­sponses are pub­lished. Mrs Ma­caulay can­not pro­vide per­sonal re­sponses.


The con­tents of this ar­ti­cle are for in­for­ma­tional pur­poses only, and must not be re­lied upon as an al­ter­na­tive to le­gal ad­vice from your own at­tor­ney.

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