We want guardianship of this child in need

Q: Dear Mrs Macaulay,

My son-in-law, Jamaican-born, now living in Canada, is married to my daughter, Canadian-born and raised. My son-in-law has two Jamaican-born sons also living here in Canada, and my daughter gave birth to a beautiful baby boy. Their lifestyle in Canada is good; they are both employed although my daughter is currently off work since before the baby’s birth, and the two older boys enjoy a good education, good health care and a very healthy and active social life. Additionally, they are embraced by a loving extended family and many friends.

Last year my son-in-law’s male cousin living in Jamaica died early in life due to complications of diabetes. He left behind three sons — two teens and a 10-year-old. The mother abandoned the family many years ago and she has not been heard from or seen since. No one appears to know where she is. On a recent visit to Jamaica my daughter was shocked to see the poor health of the youngest boy. He has festering sores all over him. He was taken to the physician and he has been diagnosed with diabetes. Given the poor financial circumstances of these boys, and given that their father died of diabetes, my daughter and her husband are thinking to apply for guardianship for the youngest boy and do their best to bring him to Canada to have access to the local children’s hospital for treatment. Many individuals living near these boys will confirm the details regarding the abandonment by their mother.

I understand that to proceed with obtaining guardianship my son-in-law would need to hire an attorney and would need to apply to the Jamaican Supreme Court. It is their long-term wish to adopt this boy. Can they apply for adoption without going through the steps of applying for guardianship? How different would the process be? Because there are concerns about this boy’s health, how expedient can the process be? What are the costs for attorney fees and court costs?

Any assistance and direction you can provide would be so very much appreciated.

A: I have noted the contents of the letter of enquiry you sent to me on behalf of your daughter and your son-in-law. Your enquiry relates to a 10-year-old boy who is now for all intents and purposes an orphan since the early demise of his diabetic father last year here in Jamaica.

Your daughter and her husband are contemplating applying to be declared the guardians of the 10-year-old who cannot be properly cared for financially and medically in Jamaica. They wish to have him live with them and their family in Canada and to later adopt him.

You have asked a number of questions which I now attempt to answer.

Your daughter and her husband can apply to adopt the 10-year-old boy without applying to be appointed his guardians. However, the adoption process takes a longer period of time to complete.

My suggestion is for your daughter and your son-in-law to apply to the Supreme Court to be appointed the boy’s guardians, and also in the same application, to apply for an order for them to have joint custody and care and control of the child and for him to reside with them in Canada.

I suggest this, as it seems to me that their ability to have the child with them in Canada is a matter of some urgency. Obtaining the appointment and orders I have suggested is the quickest way to achieve such a goal. I shall also point out that your daughter and son-in-law can apply to adopt at the same time as their application for their appointment as his guardians and for orders granting them custody and care and control having been filed is being heard.

When their application to the Supreme Court is filed for what I have suggested, apart from their Affidavit in Support of their application detailing all the facts relating to the child’s circumstances (which can be a joint affidavit or singular ones as the lawyer retained decides) and the circumstances of their lives, family, description of their family home and plans for their care of him, they should also file an Affidavit of Urgency explaining that the health situation of the child and his living conditions require that they quickly have full charge of him because of their inability to ensure proper treatment of him from Canada due to their distance from him, and that, because of the distance, they cannot guarantee that monies they send would be actually spent for his necessities and care.

Such an affidavit would ensure that their application is set down for hearing on the earliest date possible. Upon the hearing being done (which either your daughter or your son-in-law must attend if they cannot both do so) and the appointment as guardians with the orders for custody care and control with them in Canada having been done, they can immediately apply for the child to travel with them and to reside with them in Canada, producing a sealed original or sealed certified copy of the court order to the Canadian authorities.

When they are about to leave with the child for Canada, they could fill out and file their application to adopt him which will then progress as their assigned case officer determines.

I trust I have made it clear that the quickest route is to obtain the appointment of guardianship with orders of custody, care and control of the child by your daughter and son-in-law. I cannot tell you what the attorneys’ fees would be. as a learned judge pointed out recently, just like cars — Rolls-Royce, Mercedes Benz, Toyota Camry and so on — there are different categories of attorneys. The fees would be in keeping with which category the attorney falls within and the level of work involved. The court fees are J$2,000 for filing the application in the Supreme Court.

The application for the appointment of guardians and for orders of custody, care and control and for the child to reside with you is not a complicated one. The attorney must, however, be very careful to include in the affidavit(s) in support of the application, all the facts which the court would require to enable it to make the appointment and orders, convinced that it is in the child best interests on the date fixed for the hearing.

Since the mother abandoned the children, it would be necessary to obtain an order for substituted service by way of advertisement in a newspaper. When this has been done, the adverts must be filed in court attached to a Notice or an Affidavit. If the mother does not appear in court on the date of hearing that would have been stated in the advert, the matter would then proceed to completion.

You see, the court must be satisfied that the mother indeed has no interest in assuming her position as ‘mother’ of the child again and when she does not respond, the judge can be satisfied about this.

I trust that I have clarified the processing for you and I wish your daughter and son-in-law, who are clearly very good and caring people, all happiness and success in their lives.

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.

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.