Legal guardianship is an order of the court conferring legal authority and duty of care to an applicant appointed for the best interest and welfare of a child, usually called a Ward. A legal guardian appointed and conferred authority will have all parental and incidental responsibilities over the child to full extent permissible by law in Nigeria
It is a form of legal arrangement where individuals with financial capacity are granted an order by the Magistrate court upon application for the maintenance and care of a child(en) whose parents are no longer capable of raising them due to financial incapacitation or any other issues.
The care, custody and welfare of children under the age of 18 years are enshrined in the regulatory framework that includes institutions and laws, which is the Child’s Right Law of Lagos State 2007 and the Family court of Lagos state (Civil Procedure Rules) 2012. The Child Rights Act provides and guarantees protections to every child and young person throughout Nigeria.
To exercise legal rights, power and obligations over a child, one must have applied and obtained the necessary approval from the appropriate authorities. Where such interested person fails to obtain approval for the child in contemplation is an offence punishable by law.
A guardian is a formally placed in loco parentis to a child usually by appointment has the same rights and duties as a parent. Legal guardianship is an alternative for legal arrangement to be applied for in care, custody, benefits and welfare of a child whose parents are incapable of raising them.
Difference between Legal Guardianship and Adoption
In ordinary parlance, the parents of the child still retain their positions as parents for the child. The ability of the parents of the child to retain their positions as parents is what differentiates it from Adoption. However, where the parents or one of the parents is absent from the child’s life for one reason or the other, a family member or one who is not related to the child in any way or the proper authority can be appointed as the Legal Guardian with the ability to exercise parental responsibilities of the child.
There is a wrong notion that the supervision for Legal Guardianship’s application is within the ambit of the Ministry of Youth and Social Development. The ministry is only involved where the child in contemplation is a ward of the Government or resident in an orphanage or during application for Adoption. The supervision for Legal Guardianship’s application is within the jurisdiction of Nigerian Court.
It is also important to state that Legal Guardianship can come to an end when the child reaches the age of 18 years.
Jurisdiction of the court for the application of legal guardianship
The Courts that have the jurisdiction to hear the application for Legal Guardianship are the High Courts and Magistrate Courts designated as Family Courts in all States in Nigeria.
The proceedings for the suit or application for Legal Guardianship under Order 6 of the Family court of Lagos State Rules is commenced by an Originating Motion filed at the Registry of the High Court or Magistrate Court as decided by the applicant. The Originating Motion is heard by the High Court Judge or a Magistrate of the Magistrate Court.
The Originating Motion shall contain the following information:
- The relief and remedy sought by the applicant of legal guardianship
- The full name, address, phone number and email address of the applicant
- The full name, address, phone number and email address of the Respondent (person to respond or likely to object to the application.
- The address, phone number and email address of the legal practitioner that filed the application.
- The motion must be supported by evidence of fitness of the applicant.
The Originating Motion must also be supported by the following:
- A statement of Case: The name and full description of the applicant and respondent, the reliefs sought by the applicant, the grounds for relief which fully explains the reason why the applicant is seeking guardianship for the contemplated child and facts in support of the grounds listed must be in a document. This is referred to as a statement of case.
- An affidavit of facts: This contains the summary of facts already contained in the statement of case and other documents which would aid the application for guardianship. For example, in the case of dead parents, the death certificate will be attached; respondents consent if any; evidence of medical fitness of the applicant; any document that evidences sufficient financial means of the applicant and in some cases, photographs of the house the child will live in after the application is granted.
- Statement of arrangement for children if any, verifying the above processes filed by the applicant as true and within the best knowledge of the person deposing to the statement.
- And any other necessary documents
By and large, the following supporting documents must accompany the application for Legal guardianship to prove the genuineness and competence of the applicant.
- International Passport data page of the Applicant
- Birth certificate of the applicant
- Birth certificate of the children to be adopted
- Marriage certificate of the applicant (if applicable)
- Evidence of school fees payment for subjects (if any)
- Death certificate of any parent of the children to be adopted (if applicable)
- Applicant consent to guardianship
- Respondent consent to guardianship
- Evidence of medical certificate of fitness of applicant
- Contract of employment of applicant (if any)
- Photograph of the applicant’s home.
The Court can make an order appointing a person fit and suitable as a child’s guardian after a satisfactory assessment report of the applicant. The conditions upon which the Court can reject the application is where the applicant cannot competently conduct proceedings on behalf of the child, the applicant has adverse interest in that child and does not undertake to pay any cost in relations to the proceedings.
In conclusion, where the order of guardianship has been granted to anyone in respect of a child, such person shall also be permitted to travel outside the country with the child, if the order to do so is sought together with the guardianship order from the court during the filing of the application or suit.
The court may reject an application for guardianship where there is no strict compliance with the rules of the court. In processing a legal guardianship, all documents submitted must be vetted and deemed satisfactory by the court, and the court will also determine if the applicant is capable of adequately caring for a child to warrant a grant of the approval during trial.
BY : RESOLUTION LAW FIRM