FAMILY LAW 2.6 GUARDIANSHIP
A guardian is a person that is formally placed in loco parentis to a child by appointment. The “child” in this context is an unmarried person below 21 years. Appointment may be for the child or his property.
A guardian may be;
- Appointed by parent(s) (Testamentary).
- Appointed by the court.
- Guardian ad litem.
- Testamentary Guardians:
:: Are appointed by the parent(s).
:: The Tenures Abolition Act provides that the father and (or) mother can appoint, (by will or deed) a guardian for his unmarried child below 21 years. Re Parnell.
:: On the death of the father, the mother would act as guardian or in conjunction with a person appointed by the father-Section 2 Of the Guardianship of Infants Act 1886, Sction 8 Infants Law 1958.
:: Where both parents appoint guardians, they shall act jointly Section 8 GIA 1886.
:: Section 9, Infant Law 1958 applying to Lagos, Osun, Oyo, Ogun, Bayelsa and Bendel states completely equates the rights of both parents. Also, under the law, a testamentary guardian can be appointed for a married child. For an illegitimate child, it is the mother that appoints.
- Guardians Appointed by the Court.
:: The High Court then has the power to appoint guardian(s) to act jointly with the mother or father (In the case of a father, where the court is satisfied that the father is unfit to act alone)-See Section 8 Infant Law 1958.
:: It should be in the best interest of the child.
:: The power of the Court to appoint a guardian can be exercised even when the parents are alive if the court is of the opinion that the parents are unfit or have abandoned the child. This shows that the court has wide discretion and power here-Taylor CJ noted in Enwonwu V Enwonwu
:: No high court has jurisdiction in respect of guardianship of children under customary law it is the customary court that has jurisdiction.
- Guardian ad litem.
An infant or the court can appoint a guardian ad litem to defend the infant in a suit. Provided the interest of the guardian and the infant does not conflict in the suit.
RIGHTS AND DUTIES OF A GUARDIAN
:: Custody: When acting alone. If he is acting with a parent, the parent usually has custody. This right to custody is enforceable against third parties by writ of habeas corpus to compel the third party to “present the body” wrongfully detained.
:: The guardian has the right (just like a parent) to reasonably chastise and correct the ward under the age of 16. He should not cause grievous bodily harm.
:: The guardian (unlike a parent) does NOT have a right to services of the ward.
:: To maintain, care and provide necessaries for the child: Section 32 of the Children and Young Persons Law and Section 300 of the Criminal Code provides that a person who has care of a child must not fail to provide necessaries.
:: To provide physical and moral protection for the ward (i.e. the child).
:: Account for Ward’s property and how it has been used: upon the termination of the guardianship. It is rebuttably presumed that the guardian had used the property judiciously. In Martins v. Martins the court noted that the guardian should produce payments and receipts which should be scrutinised properly.
:: Duty not to unduly influence the child: Undue influence may be construed where the ward makes gifts to the guardian while under his care. The guardian may plead (as a defence) that the gift was offered and accepted under independent advice-Hylton V Hylton.
:: The guardian is liable to third parties for the child’s tort or contract especially where he authorised it or did not take necessary care to prevent the commission of the tort.
Where disputes arise between guardians or between a guardian and a ward, an application should be made to the court for directions.
Guardianship may be terminated upon;
- Death of the guardian(s)/ward.
- Attainment of majority by the ward (21 years).
- Marriage of the ward. Usually the female ward.
- Discharge by the court: The High Court may discharge a guardian where it is satisfied that the guardian is not fit, or does not want to act as guardian or where a surviving parent rejects him. An application for leave of the court may then be made.
GUARDIANSHIP UNDER CUSTOMARY LAW.
Involves placing a person in loco parentis in relation to the child. The person (guardian) is usually a blood relation or a person with close family ties. In some customs, the next mature male relation usually assumes parental responsibilities when the father dies.
A guardian may be appointed by the father (orally) or the head of the extended family. Usually in a gathering of family members or relations of the parent and child.
The various State Customary Court Law Rules grants original jurisdiction in respect of customary law guardianship on the Customary Courts.
Guardianship under customary law may terminate upon the death of the guardian/ward or by order of the court. There is not provision/limitation of age or marriage because customary guardianship relationship usually lasts longer than that under statute.