A Legal Guardian is one who has the legal authority and duty to take care of another person especially because of the other’s infancy, incapacity or disability or has parents who are incapacitated or unable to provide for the welfare of their child. Legal guardianship is granted to someone who is not the parent of the child.
Legal guardianship is a legal arrangement applied for and granted by the court for the care, custody, benefits, and welfare of a child whose parents are incapable of raising them. Often times there is usually an existing parental tie such as a relationship between the child and a step-parent or grandparent.
Ordinarily, the parents of the child have guardianship of the child, however, in the event of death or in the absence of the parents, the surviving parent, a family member or an unrelated party or the appropriate authority can be appointed as the Legal Guardian. The person appointed as guardian will have parental responsibilities for the child.
The rules of court that regulate proceedings relating to the rights, advancement and welfare of a child in Lagos State are the Child’s Right Law of Lagos State 2007 and the Family court of Lagos State (Civil Procedure Rules) 2012. Generally, the Child Rights Act provides and guarantees protection to children and young persons in Nigeria.
The Child Rights Law of Lagos State 2015 states the effect of guardianship under Section 75 that;
“A person appointed as guardian will be a guardian only for the purposes of representing the child and interest of the child in certain proceedings, but will otherwise have no parental responsibility for the child”.
To prevent the exploitation and neglect by unsuspecting persons, the care, custody, and welfare of children under the age of 18 years are enshrined in the regulatory framework that includes institutions and laws. It is important to state that Legal Guardianship can come to an end when the child reaches the age of 18 years.
For a person to exercise legal rights, power and obligations over a child or young person, there must be a prior application to the court and obtainment of the requisite approval from the relevant authorities. Failure to obtain approval for the child in contemplation is an offense punishable by law. Often times the courts will review the situation for the application to see whether a potential guardian is capable of adequately caring for a child, including (but not limited to) providing food, shelter, education, and medical care.
The supervision for Legal Guardianship’s application is within the jurisdiction of the Nigerian Court and not the Ministry of Youth and Social Development. The ministry is only involved in the application for adoption of a child or where the child in contemplation is a ward of the Government or resident in an orphanage.
Rejection and Revocation of a guardianship application
An application for guardianship may be rejected by the court 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.
However, the order of appointment of a legal guardianship granted can be revoked by the following persons as provided under Section 78 of the Child Rights Law, which states that;
- Upon the application of a natural person or any person who has parental responsibility of the child.
- On the application of the child concerned with the leave of the court
- In any family proceedings, if the court considers that it should be brought to an end and
- On the application of an appropriate authority.
This means that a guardianship Order can subsequently be revoked or substituted by the guardian, a natural parent or an appropriate authority. Otherwise, the order will still subsist until the child attains the age of majority.
The appropriate 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 in Nigeria. The Originating Motion is heard by the High Court Judge or a Magistrate of the Magistrate Court and during the hearing of the application, the applicant is expected to give evidence before the court, on why the application should be granted.
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 originating motion must be supported the following;
- Evidence of medical fitness of the applicant.
- A statement of Case which contains 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 child and facts in support of the grounds listed.
- An affidavit of facts which contains the summary of facts already stated in the statement of case.
- Statement of arrangement for children if any.
- Statement of truth 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 that may be required by the court.
The following documents must accompany the application for Legal guardianship:
- International Passport data page of the Applicant OR other means of identification.
- Birth certificate of the applicant
- Birth certificate of the child
- Marriage certificate of the applicant (if applicable)
- Evidence of school fees payment for the child (if any)
- Death certificate of any parent of the children to be adopted (if applicable)
- Applicant consent to the application of guardianship
- Respondent consent to the application of guardianship
- Evidence of medical certificate of fitness of applicant
- Contract of employment of applicant (if any)
- Photograph of the applicant’s home.
Finally, upon the completion of the court proceeding, the Court can make an order appointing the applicant who is considered fit and suitable as a child’s guardian. The Court can also reject the application is where the fails to conduct proceedings on behalf of the child, the applicant has an adverse interest in that child and does not undertake to pay any cost in relation to the proceedings.
In conclusion, where the order of guardianship has been granted, the applicant shall also be permitted to travel outside the country with the child, where the order was sought and contained in the Originating Motion.
BY: RESOLUTION LAW FIRM