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Caring for children

We have all probably heard of someone who has raised a child who was not their own. Those were the days when a quick word with the headmaster would result in enrolment of the child in an educational institution and no one asked any questions when medical treatment was sought.

Given that everything on earth now requires some official documentation and people appear not to be able to manage the simplest aspects of life without court intervention, such loose child care arrangements are becoming infrequent.

The least involved method of undertaking the guardianship of a minor (a person 18 years and under) is by means of the signing of a witnessed document by the parent(s) appointing the individual as guardian. Of course, in a majority of circumstances that scenario amounts to wishful thinking since these children’s parents have completely neglected them in the first place or perhaps cannot be found and corralled into a lawyer’s office to sign anything and, but for the tender mercies of the person who accepts them, would be cast upon the State.

If this method fails then one is left to seek an order from the court legitimising the relationship. The High Court, pursuant to section 16 and Schedule 1 of the Supreme Court of Judicature Act, Cap. 117 A has jurisdiction to entertain “[p]roceedings under the Minors Act, and otherwise in relation to the guardianship of minors”.

In the case of Re D (Infants) [1943] 2 All E.R. 411, on an application for the appointment of guardians for children brought to England as refugees whose parents remained resident abroad, the court found that its “jurisdiction to … appoint a guardian of an infant is based on the infant’s need for protection … if in all the circumstances the appointment of a guardian is desirable”.

The courts have never been shy to extend the scope and interpretation of their powers as far as possible and the panel in Re D went on to state that “the jurisdiction being indisputable, the exercise of it in particular cases becomes a matter of discretion and expediency, depending on the peculiar circumstances of each case”.

In other words, the court at first instance will take whatever matters it thinks fit into account and where the court’s discretion is so wide any exercise of it will hardly be overturned on an appeal.

The Minors Act, Cap. 215 is largely concerned with the appointment of guardians after the death of either parent pursuant to their wishes as expressed in a deed or will by virtue of section 5. However, section 7 provides that the “Court may upon the application of any parent of a minor make such order as it may think proper regarding the custody of such minor … having regard to the welfare of the minor and to the conduct of the parents and to the wishes of the [parents]”.

Section 8 makes it abundantly clear that the “first and paramount” consideration is the welfare of the minor child. The Child Care Board can facilitate persons in moving the court as outlined above.

Unless a child is adopted, the original parental rights and responsibilities do not cease. In that vein the court may order any costs associated with the care of the child to be reimbursed by the parents where the child is being “brought up” by any other person. Usually the responsibility is undertaken willingly by the guardian, the parents are most likely impecunious and therefore such applications for reimbursement appear to be rare if not non-existent.

All orders in relation to the custody or guardianship of a minor are subject to review by the court since the welfare of the minor is an ongoing concern. The parent[s] may at any time seek the return of the child to their care and custody but in cases where they have abandoned or deserted the child or allowed him to be brought up by another person while being “unmindful of [their] parental duty”, they must satisfy the court that they are fit and proper persons to have custody of the child.

Children do have rights, no matter how much we scoff at the UNICEF advertisements and the court has the power pursuant to section 18 to consult the wishes of the child in considering what order should be made in relation to their wellbeing or conversely to disregard such wishes.

This holiday season give a gift to or make a donation to a children’s charity for the forgotten and neglected young persons in our midst and remember that life continues after Christmas.

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