The Principle Of Guardianship Under The Child Rights Act; A Comparative Discuss Of Section 84 Of The Child Rights Act 2003 -By Oyetola Muyiwa Atoyebi

INTRODUCTION

Societies across the globe give credence to the institution of marriage and very particularly to the children of such marriages. The reason for this is not farfetched – several types of research abound that establish links between criminal behaviours and absentee parents.[1] It is in a bid to ameliorate the hardship of children in these circumstances, that societies allow for institutions (orphanages, foster parenting etc.) and legal frameworks to ensure the development of holistic children as members of society.

In Nigeria, the Child Rights Act[2] contains lofty provisions on rights and the general welfare of children. These include;

1. Right to Dignity of The Child;[3]
2. Prohibition of Child Marriage[4] and;
3. The prohibition of exploitative labour[5] amongst others.

In a bid to fill the vacuum of parenthood in respect of children without parents or incapacitated parents, Section 83 of the Act outlines three ways wherein the Court or the parent of a child may appoint a guardian over a child.

Section 84(1) of the Act further adds an instance wherein guardianship may arise in which case it is an application by a person seeking guardianship over a child with no parental figure overseeing his affairs.

The aforementioned instance of guardianship under Section 84 of the Act however, does not enumerate conditions to be satisfied by such an applicant to entitle him to such guardianship status. The view is expressed here that same is problematic as it does not categorically ensure that children only become the wards of persons who are most competent to be their guardians.

The silence of Section 84 of the Act informs the rationale for this article. Accordingly, this article shall comprehensively interrogate the efficacy of the guardianship provisions of the Child Rights Act vis-à-vis the provisions in other jurisdictions to provide a pragmatic framework in this regard.

THE CONCEPT OF GUARDIANSHIP UNDER THE CHILD RIGHTS ACT

The concept of guardianship is not defined under the Childs Rights Act. The Black’s Law Dictionary offers a helpful guide in this regard- it defines a guardian as one who has legal authority and duty of care for another person especially because of the other’s infancy, incapacity or disability.[6]

Indeed, the concept of guardianship can be rightly inferred to mean the legal authority to act in locus parentis over a child owing to parental absence.

Although the Act does not define guardianship or who a guardian is, it provides clearly that the parents of a child are the guardians as of the first instance. Section 83(1) in this regard provides that “the parents of a child shall have guardianship of the child and, in the event of the death of a parent, the surviving parent shall be the guardian of the child.”

Two categories of guardians are also referred to under the Act. The first is a guardian with parental responsibilities (custody, maintenance, welfare etc.) and the second is guardian ad litem, saddled with the responsibility of representing a child in respect of certain proceedings.[7] By the collective provisions of Section 83 and 84(1), the four ways in which guardianship arises under the Act include:

1. Incapacitation:

 Where the parents of a child are not fit to be guardians of a child jointly or severally, the court shall, on the application of a member of the family or an appropriate authority, appoint a person to be a joint guardian with the parent or parents of the child.

• Appointment by Deed by a Surviving Parent:

A surviving parent of a child via the execution of a deed may appoint another to act as a guardian of a child in the event that such a parent dies.

• Appointment by Deed by a Single Parent:

A single parent of a child via the execution of a deed may appoint another to act as a guardian of a child upon the death of the single parent.

• Children Without Parents or Children in Respect of Whom a Residence Order has been Made:

By the extant provisions of Section 84(1) of the Act, the court may grant guardianship to a person who has made an application in respect of a child without parents or parental care or one in respect of whom a residence order had been made at the instance of a deceased parent or guardian.[8]

Owing to the fact that the Act has marshalled out explicitly the grounds upon which guardianship may arise, it is indeed obvious that beyond an application for guardianship as a consequence of incapacitated parents, another rationale for an application under Section 84(1) would typically stem out of situations wherein the enumerated factors creating incidences of guardianship are unfulfilled. For example, an application would be necessitated where deeds appointing a guardian were not executed under Sections 83(3) and (4) of the Act.[9]

For clarity, Section 84(1) reads:

“Where an application for the guardianship of a child is made to the Court by a person, the Court may, by order, appoint that person to be the guardian of the child if-

(a) the child has no parent with parental responsibility for him; or

 (b) a residence order has been made in respect to the child in favour of a parent or guardian of the child who has died while the order was in force.”

Now, the inherent problem identifiable in the above section is that whilst it empowers a person to make applications for guardianship in respect of obviously orphaned children, it fails to stipulate any criteria determining the competence of persons fit to make such applications.  From a socio-economic standpoint, it can be validly argued that this would spell doom in respect of children with unconscionable guardians who may for example mismanage the estate of an orphaned child. This is possible in light of the provisions of Section 87 of the Act which is to the effect that a guardian under the Act shall have all such powers over the estate, as the case may be, of a child as a guardian appointed by will or otherwise by the rules of common law, equity, or appropriate personal law.

From a social standpoint, the absence of criteria to be met by potential guardians would allow for a child to be raised in a manner that may be antithetical to the wishes of his deceased parents. For example, the moral codes, religious beliefs and philosophies of light imbibed on the child by such a guardian appointed under Section 84 of the Act may run repugnant to the initial values instilled by parent(s).

AN AMENDMENT OF THE ACT, A POSSIBLE SOLUTION?

The obvious lacuna under the Child’s Right Act as to the competence of persons making applications for guardianship must be remedied to tackle the hypothetical ills enunciated above.

An examination of the English Children Act of 1989, the equivalent of the Nigerian Childs Right Act offers no better alternative. Section 5[10], the equivalent of Section 84(1)[11] makes no mention of the competence of the guardian to be appointed.

For clarity, Section 5(1) reads:

“(1) Where an application concerning a child is made to the court by any individual, the court may by order appoint that individual to be the child’s guardian if—

(a)the child has no parent with parental responsibility for him; or

(b) a parent, guardian or special guardian of the child was named in a child arrangements order as a person with whom the child was to live and has died while the order was in force or

(c) the child’s only or last surviving special guardian dies.”

Beyond the above provision of Section 5 of the Act, the entire legislation in fact is silent on any matter pertaining to the competence of the guardian. The view is expressed here that it is of little surprise that there is no disparity between English Law and Nigerian Law on the subject as a majority of our laws are modelled after the English law. Whilst it may be suggested that the Childs Right Act is not necessarily a model of English law as it was essentially domestication of the United Nation’s Convention on the Rights of the Child,[12] what is important is both the English Law and the UN Convention provide no solution in the attempt to remedy the situation.

Accordingly, it is suggested here that the legislature does two things. First, it must codify the various principles delineating what would constitute a competent guardian when applications in respect of guardianship for orphans are made under Section 84(1) of the Childs Right Act. Secondly, it should delineate the hierarchy of preference of supposed family members who may validly commence an application for guardianship rights under Section 83 of the Act in order of their closeness to the said child. [13]

CONCLUSION

As rightly pointed out by the American Author Timothy Pina –‘’ if we are the guardian of the flame of humanity, then we must care for all of its children, for in its spirit…they are all sacred!” Accordingly, it is important that adequate steps as recommended above must be taken to ensure that the issue of the determination of guardianship of children should not be treated with levity. As the nation continues to face massive challenges of insecurity, now more than ever is the time to build the strong institutions of the home.

SNIPPET

The American Author Timothy Pina sums it up perfectly when he said: “If we are the guardian of the flame of humanity, then we must care for all of its children…”. This statement embodies the critical place of children in the life of any nation as future leaders and hopes for a better future. It is therefore pertinent that our family-based legislations guarantee comprehensive protection for children. This is essentially what this article sets out to do – to call for a rethink of the current mechanism governing the guardianship of children under the Childs Right Act of 2003, in the hopes that it reawakens some sort of legislative reform.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN.

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.

Mr. Atoyebi has expertise in and a vast knowledge of Family Law and Dispute Resolution and this has seen him advise and represent his vast clientele in a myriad of high level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

COUNTRIBUTOR:  Ene Iwodi

Ene is a member of the Dispute Resolution team at Omaplex Law Firm. She also holds commendable legal expertise in family law with emphasis on advising on future arrangements for children and on the financial claims that arise in divorce and applications to the appropriate court for financial settlement following an overseas divorce.

She can be reached at ene.iwodi@omaplex.com.ng

[1] Kevin Wright and Karen Wright, ‘Family Life and Delinquency and Crime: A Policymakers’ Guide to the Literature’ < https://www.ojp.gov/pdffiles1/Digitization/140517NCJRS.pdf > Accessed May 2, 2021.

[2] Child Rights Act, 2004

[3] Section 11, Child Rights Act, 2004

[4] Section 21, Child Rights Act, 2004

[5] Section 28, Child Rig hts Act, 2004

[6] Black Law’s Dictionary

[7] See generally Section 82(1) and (2) CRA, Cap C50 LFN 2004.

[8] A residence order in Family Law is basically an order of court stating the parent or other relevant person with whom a child shall reside.

[9] CRA Cap C50, LFN 2004

[10] Childrens Act, 1989

[11] CRA, LFN 2004

[12] UNCRC 1989

[13] The order of preference of family offered by the Administration of Estate Laws of Lagos State 2015 can be a helpful guide in this regard. Institutions of the state such as orphanages and then well-meaning organisations such as NGOs, charities and religious bodies can also follow in the order of credence for guardianship.