Guardianship

Guardianship of Infants Act

The modern position as expressed in the Guardianship of Infants Act and in the Constitution is that the welfare of the child is the first and paramount consideration.  This means that it should be the deciding factor but not necessarily the exclusive factor.

At common law, the mother of a child born outside marriage was the sole guardian.  This remains the position.  However, the natural father may apply for and seek a court order affording guardianship.  He may also seek custody and access.

The Guardianship of Infants Act deals with questions relating to guardianship custody and access to children.  The mother and father of a child born within the marriage are joint guardians of the child.  The guardians are entitled to joint custody of the children.

Under common law rules, the father is the sole guardian of a child born within the marriage.  The court would only deprive the father of custody in exceptional circumstances.  Courts of equity developed the principle of the primacy of the child’s welfare so that the father might be deprived of custody on the basis of the child’s welfare even where there was no misconduct.

Guardianship

Under the Guardianship of Infants Act, any guardian may apply to court to determine any question relating to the child’s welfare. A child is a person under 18 years in this context.

The court may make such order relating to the child’s welfare as it thinks proper. The orders may relate to guardianship, custody, access and other welfare issues.

A guardian is a person who has parental responsibility.  Guardianship involves duties on the part of the guardian to the child as well as rights.

It does not necessarily equate with day to day custody of the child. It refers to the overall responsibility for the child’s welfare and upbringing. The choices such as education, religious belief, location of rearing, key medical decisions etc. are encompassed within the concept of guardianship.

Best Interests

The Guardianship of Infants Act was amended in 2015 to restate the provisions regarding the best interests of child.  It sets out a list of factors that the Court may take into account when determining the best interests of the child.  The factors include:

the benefit to the child of having a meaningful relationship with each parent;

• the child’s views, where ascertainable;
• the physical, psychological or emotional needs of the child;
• the child’s religious, spiritual, cultural and linguistic upbringing and needs;
• the child’s social, intellectual and educational upbringing and needs;
• proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child;
• the capacity of each person for whom an application is made under the Act to care for or meet the child’s needs.

The Court is to have regard to family violence and the impact or likely impact on the safety of the child and on other members of his family and the child’s personal wellbeing.

Welfare Report

The Court has the option to seek a report in writing from an expert on the welfare of the child.  It may appoint an expert to determine and convey the child’s views.  When considering whether to seek a welfare report or the child’s views, the court will have regard to the age and maturity of the child, the nature of the issues at dispute in the proceedings, any previous report, the best interests of the child and whether this will assist the child in conveying his or her views.

The expert appointed to ascertain a child’s views has the role of ascertaining the maturity of the child and of assessing whether the child is sufficiently mature to be capable of forming views on the issues at dispute in the proceeding.  Where the expert considers the child to be capable of forming views, the expert will have the role of ascertaining those views and of preparing a report on them.  The Department, Minister may make regulations on e fees, qualifications, experience and standards applicable.

Guardianship & Divorce / JS

Spouses continue to be guardians, notwithstanding judicial separation or divorce. Parties to voidable marriages are joint guardians of the children of the marriage, provided that the decree of nullity is granted after or not later than 10 months before the birth of the child concerned.

In the case of children born to parents who are married at the time, the parents are joint and equal guardians. If one should die, the survivor is the guardian. A spouse may appoint a testamentary guardian to act with the surviving guardian if any. In the case of a non-marital child, the natural mother is deemed the guardian. The natural father may become a guardian in later marriage or in accordance with an application to the court by court order.

A testamentary guardian may be appointed by will or by deed. The appointee takes the place of the person concerned as guardian but would not necessarily or usually have custody of the child concerned. The maker, on death, will act with the other surviving guardians, if any.

The surviving parent, whether married or divorced at the time of death, may object to the appointment of a guardian. In this case, that guardian may only act if, following application to the court, the court orders that the guardian is to act jointly or exclusively with the surviving guardian.

Appointment by Court

Any person may apply to the court to be appointed a guardian in the event that both parents have died. Alternatively, that party’s testamentary guardians may act. The court may appoint guardians in addition to the testamentary guardian.

Where a child has no guardian, any person may apply to be appointed guardian under the Guardianship of Infants Act. Where a parent has died and has not appointed a testamentary guardian or where the guardian has refused to act, the appointee will act jointly with the surviving parent. The court should not exclude the surviving parent.

A husband and wife may make an agreement regarding custody of children.  However, in the event of a dispute, this is only enforceable if the court is satisfied that it is in the child’s best interest.

Grandparents may, for example, be appointed guardians. The court may order the removal of a person from being a guardian. A substitute guardian may be appointed.

Decisions

The court will rarely give sole custody to a parent without affording rights of access to the other parent or guardian.  However, in such exceptional cases where a parent is guilty of serious misconduct such that contact would endanger the child’s welfare, there may be a denial of custody or access.

Decisions of the courts in relation to guardianship and custody may be varied from time to time.  No decision is final if new facts or considerations apply.  If however, there has been no substantial change in circumstances, the existing decision will not usually be varied.

Role of Guardian

A guardian is the guardian of both the assets and person of the child. The guardian is entitled to make decisions or participate in discussions with other guardians in relation to the care and welfare of the child, including his or her education and religious upbringing.

It is possible for a person to be appointed a guardian on more limited terms. In this case, the instrument may limit functions to particular aspects of the child’s welfare or for particular types of decisions.

A guardian is presumed to be entitled to custody of the child as between a third party and the guardian. The guardian may take proceedings for custody of a child who is detained or in the custody of a third person. The guardian may recover damages for trespass or injury to the child for and on behalf of the child.

The guardian is entitled to possession of all assets of the child. They must be managed for the benefit of the child until the child attains the age of majority. A shorter or other period may be specified by the terms of an underlying deed relating to the grant of the property.

Rights & Duties

Guardianship refers to parental rights and duties in relation to a child.  Custody refers to the physical control and care of the child.  The right to custody may arise in the context of guardianship.  Both parents will generally have guardianship. Custody may be shared or one parent may not have custody at all.

Parents have rights and duties in relation to their children.  They may exercise discipline and control.  They make take legal proceedings on behalf of the child and defend legal proceedings brought against the child.  They may apply for a passport.  They may consent to medical treatment.

Conversely, parents have duties in relation to their children.  They must maintain their child.  They must educate the child and positively protect him or her.

Guardianship involves a right to have a say in relation to matters affecting the child’s welfare.  The child’s welfare under legislation includes his or her religious, moral, intellectual, physical and social welfare.  Even if one child parent has custody of the child, whether total or shared, the other parent retains rights of guardianship.

Non-Marital Child

The father of a non-marital child is not automatically a guardian.  However, he may apply to the court to be appointed guardian.  The court has discretion as to whether he should be appointed guardian.

The mother and father of a non-marital child may agree that the father shall be appointed guardian.  They may also enter arrangements regarding custody of and access to the child.  They may make a declaration in a form prescribed by the legislation.

A father of a non-marital child may apply to the court for access or custody.  An application may be made that non-marital parents have joint custody.  Agreements by which parents permit a third party to have custody are unlawful and void.

Access

It is widely accepted that both parents ought to have access to their children.  Only in exceptional circumstances will a complete denial of access be justifiable.

Parents may and should agree in terms of access.  The courts will make a decision in the event of a dispute about the interests and welfare of the child. The needs and wishes of the children will be considered.  The child’s best interests will be the paramount consideration.

The courts may apply conditions in relation to access.  If the matter cannot be agreed upon, the courts may specify times and places of access.  If a parent is in a relationship with a third party, the courts formerly placed conditions that the children should not come into contact with that third party.  This approach is less common in modern times.

A person who is related to a child may apply for an order granting access on such terms as may be specified by the court.  The prior consent of the court is required for the application.  The court may grant consent having regard to the applicant’s connection with the child,the possible disruption to the child’s life and the wishes of the child’s guardian.

Death of Parent

On the death of a parent, the survivor is the guardian of the children of the marriage.  Both parents are entitled to appoint a testamentary guardian by deed or by a will to act as joint guardians with the surviving spouse.

Where the surviving spouse objects to the appointment, the matter may be referred to court.  The court may refuse to make an order that the appointed party be joint guardians.

Equally, if the guardian considers the surviving parent unfit to act, an application may be made to court.  The court has the power to make an order that the testamentary guardian will be the sole guardian to the exclusion of the surviving parent.

Where a child has no guardian, an application may be made to the court to appoint any person to be a guardian.  The court may appoint a guardian to act where the deceased parent did not appoint one.  Similarly, if the appointed guardian has predeceased the parent or is otherwise not available to act, a replacement guardian may be appointed.

Upon the death of the parents, the guardians acquire the duties and rights of the parents.  A guardian is the trustee of the child’s assets.

A guardian appointed by will or court order or by agreement between a father and mother of a non-marital child, may be removed on certain grounds by court order.