Aunt seeks GUARDIANSHIP

Dear Mrs Macaulay,

I am a teacher, teaching on a programme in the United Kingdom(UK). I used to take care of my sister’s two children while I was in Jamaica. I am no longer there and I am paying someone to stay with them at my house. My nephew’s father’s whereabouts are unknown at the moment and he is not active in his life. My sister is in the Cayman Islands, doing a cleaning job. She finds it difficult to take care of her children. I would like to receive legal guardianship, so I could let them live with me in the UK until my sister furthers her studies and can take care of them. They are not up to standard in school and are in need of assistance and proper parental guidance. I am a Christian and I always instil good values in them. I am concerned about them and would like to secure them, by acting on my sister’s behalf. My nephew is 11 and my niece is three. My nephew has been living with me for over six years. I would not want to adopt them to cut ties with their parents. I would like to be their legal guardian. I am single and would be able to care for them here in the UK. Please advise me on what to do.

Your nephew’s father is clearly out of the picture and your sister has been and is his sole legal custodian, and as such, she would be named as the respondent in your application to the court for you to be appointed legal guardian, and for you to be granted sole legal custody and care and control of him. Your sister would have to be served with your application and she should file her answer to it in her affidavit, which would no doubt be her clear agreement to your application.

As to your niece, you would have to make the same application as her brother’s. However, you have not referred to her biological father at all. If he is accessible, he would have to be named as the second respondent, and your sister as the first respondent in your application in relation to your niece, and he would be served too. Then he and your sister should respond to your application in separate affidavits in which they must make clear their agreement to you being appointed her legal guardian, and for you to have care and control of her.

Your applications must be made under the Children (Guardianship and Custody) Act to the Supreme Court of Judicature of Jamaica and such appointments and orders when made in respect of each child shall remain in force until they each reach 18, unless before their 18th birthday, you apply for the guardanship to be extended until they complete their undergraduate degrees or reach 23 years of age, whichever comes first. This is to ensure that the children, who are being cared for and whose welfare are under the jurisdiction of the court, are and remain the primary focus and legal obligation of you the legal guardian and legal custodian and caregiver. This is necessary as you wish to have them join you in the UK. This is an admirable plan you have conceived for your nephew and niece.

Your application should not only be for you to be appointed the children’s sole legal guardian, but also specifically for orders granting you solely their legal custody and their care and control. This is so that the immigration services/officers perusing your orders shall be in no doubt about the full extent of your authority, rights, responsibilities and obligations to make all decisions about the lives, welfare and development of the children. Legal guardianship and legal custody grant to you the full extent of legal authority over the children, and this sometimes does not include the children living with the legal guardian and/or legal custodian. The addition of an order for you to have care and control ensures that only you shall have them in your daily care and see to their daily needs.

You would need to have available certified copies of their birth certificates, which must be exhibited to your affidavit in support of your application. You must state clearly that you are applying to be appointed the sole legal guardian of your nephew and niece, and secondly, that you are to be granted sole legal custody and care and control of them. You may also add an order that you be permitted to take them out of the jurisdiction to reside with you in the UK, and finally for such further and/or other order as to the court deems just.

In your affidavit in support of your application, you must state all the facts related to your sister and her being the mother of each of the children, their dates of birth, and her circumstances which made it necessary for you to assume the responsibility of de facto custody and care and control. You must make sure that you also relate the situation of the children’s biological fathers and every relevant detail of the children’s current lives — their educational level, religious education and practice, and the provisions you made and are making for them. You must not leave out any material detail of fact which the judge may need to decide the matter as this will delay their completion, as you would have to have it adjourned to another date. It is therefore best to state all relevant matters and facts so that your matter can be determined on the date fixed for its hearing.

And, in order to ensure that your application is dealt with as soon as possible, you should also do an affidavit of urgency, wherein you will explain why you, but especially the children, need the court to determine your application as one of urgency, rather than for it to be put in with the others filed in the ordinary course of the court timetable.

So how do you do all this and make sure that your application is properly done, filed and served and heard in good time? Well, you must retain the services of an attorney who is versed in doing applications for appointments of sole legal guardians, and for orders of sole legal custody and care and control of children.

Do not get worried, as online services are available and even for the hearing of applications. Your lawyer can assist you to get your applications right so that no time is wasted.

I wish you all the very best.

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. All responses are published. Mrs Macaulay cannot provide personal responses.