All Woman

Revoking a guardianship

By Margarette MACAULAY

Monday, August 20, 2012    

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Dear Mrs Macaulay,

I have been taking care of a child who has been living with me for a few years now. Some years ago, her aunt was appointed guardianship of her. Her aunt is now living in the States and does not contribute in any way to the child's well-being. I want to know how I can go about having the aunt's guardianship revoked.

I have noted your letter with great interest. You have not disclosed how the child started living with you, how old the child is, and whether you and the child are related by blood. You have not said what happened to the biological parents of the child. You have also not stated how the aunt of this child came to be appointed guardian, or by what authority and by what means.

Are the parents dead? Did they together appoint the aunt to be the child's guardian in the event of their deaths? Or did one parent do so and the other has been and is still absent from the child's life? Or was it obtained by way of an order following an application to the Supreme Court?

You see, the law with power to appoint and the means by which a guardian can be appointed is the Children (Guardianship and Custody) Act. This Act initially became law on the first day of July 1957. Despite some amendments, I am of the firm view that the provisions of this Act are archaic and far removed from the realities for many years and of present day of too many children in Jamaica.

The provisions of this Act are old, too old, and patently out of date. For example, it is not only in circumstances of death that a guardian is needed for a child, as the Act allows. This Act needs to be repealed and a new Act with comprehensive provisions for the appointment of guardians be enacted in its place.

Provisions for custody, care and control and access must be likewise in clear language and the court must satisfy itself on these issues when considering any application for the appointment of a guardian. All these provisions must, of course, relate to and deal with the real situations of children now in Jamaica. And for those in whose care children are left, or who take up the care of abandoned children, they should have the capacity to apply for and be appointed guardians by way of applications to the Supreme, Family and Resident Magistrate's courts.

This must be done as quickly as possible in order to ensure that good and proper decisions are taken about children's lives and welfare and that this adult shall bear the responsibility to account for the fact that all decisions are being made in the best interests of the child.

With the present Act, a guardian may or may not have custody of the child and a guardianship sometimes only relates to the 'estate' of the child and not to the 'person' of that child. So the guardian's powers and duties will depend on the parameters of the appointment.

You have asked a specific question about how you can have the aunt removed as the guardian of this child who you have had fully in your care and for whom you have been responsible for in every way.

I hope you understand why I tried to explain the provisions of the Act and expound on the need for a new Act. Now let me deal with your direct question.

The existing Act, even such as it is, gives the court (Supreme) the power to remove any guardian when it is satisfied that such a move is for the welfare of the child. And then it may appoint someone else as the guardian of the child, as long as this is also shown to be for the welfare of the child.

The final section of the Act provides that the jurisdiction of the Supreme Court to appoint or remove guardians cannot be restricted or affected by anything stated in the Act. In other words, this last section preserves and does not restrict the inherent power of the Supreme Court to make orders to appoint or remove guardians on applications made to it, on the grounds of being in the best interests of, and for the welfare of children who are the subjects of the claim.

You must therefore make your application to the Supreme Court to (1) have the aunt removed as the child's guardian; (2) to appoint you as the child's guardian; (3) grant you custody, care and control of the child; and (4) an order for maintenance or reimbursement of your expenditures for the child's maintenance during the years when the aunt abandoned her duties and responsibilities as a guardian .

You should therefore obtain the services of an attorney-at-law to prepare and pursue your applications in the court, so that you and the child can be assured the best chance of success.

Good luck to you both.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women's and children's rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. Mrs Macaulay cannot give personal advice.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.

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