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 a marriage are joint guardians of the child. The guardians are entitled to joint custody of the children.

Under common law rules, the father was the sole guardian of a child born within a 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. In this context, a child is a person under 18 years.

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 overall responsibility for the child’s welfare and upbringing. Choices such as education, religious belief, location of rearing, key medical decisions, etc. are encompassed within the concept of guardianship.

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 as 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 by 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 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 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 on 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 child 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 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 and surviving spouse 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.