Aunt wants guardianship over orphaned kin

Dear Mrs Macaulay,
I’m seeking advice regarding obtaining legal guardianship for my deceased sister’s child. There is no father in the picture or on the birth certificate. I reside in the United Kingdom (UK) and the child is still in Jamaica.

I note from your letter that your sister had a child whose biological father did nothing after the child’s birth to have his name recorded on the birth records, or thereafter to record even just his paternal name as evidence of his claim and acceptance of the rights and obligations of paternity towards the child. Then, I also understand that your sister died leaving the child an orphan, as nothing has ever been heard of nor has any contact been had with anyone claiming to be the child’s father since your sister’s death.
Your letter is so sparse that the only facts in it are that the father is not in the picture at all or on the birth certificate, and that you live in the UK and the child is in Jamaica. You say nothing of the child’s age or with whom the child was and/or is living, or if you had assumed all the responsibility and had been providing for the child after your sister’s death and to the present time. If you have not been doing the latter, I advise you to commence these at once.
You have also not even intimated what your plans are for the child. Do you plan to have the child go and reside with you in the UK? Or is the child to continue residing with whomever has had the day-to-day care and control in Jamaica?
Whichever of the above two choices is the one you plan to proceed with, you must start making plans for the child’s upbringing if none are in place; and, if you already have arrangements in place and continuing, please do a checklist of all that you have caused to be set in place for the child, whether in Jamaica or in the UK if that is your plan. The arrangements must include provision for day-to-day existence and all necessities; safe and healthy shelter; proper nourishing food; medical insurance and/or a general medical practitioner to attend to the child’s medical needs and arrange dental needs as necessary; arrangements for personal hygiene; appropriate clothing for ordinary days and footwear for school and sporting activities; attending church and receiving religious education; and sufficient play and amusements. Then, of course, there’s the provision for all the child’s educational needs, tools and aids, and the means for being transported to and from school or ensuring that the child does attend school.
You must have at least four certified copies of the child’s birth certificate and the same of your sister’s death certificate and I would suggest two certified copies of her birth certificate, if this would prove your sibling relationship through the same mother, or father, or both.
Then, you should retain the services of an attorney-at-law, versed and experienced in child law, to act for you, to prepare, file and argue your application in the Supreme Court, pursuant to the Children (Guardianship and Custody) Act and with the use of decided relevant authorities of similar claims.
The fact that you are in the UK and the child is in Jamaica does not bar you from being appointed her guardian, but the application has to be made to the Supreme Court which has the competence to make such orders in favour of persons other than parents of the child (only parents can also apply to the Family Court for such orders). If you cannot travel here to attend any hearing, an application can be made by your lawyer for you to appear by way of video conferencing/Zoom.
Do you only wish to be this child’s guardian? Do you not wish to have sole legal custody and care and control as well? These should in my considered opinion also be added to your claim, to give you the legal parental rights and obligations for all time for the child.
However, I also strongly advise you to consider the issue of adoption, because from the little you said in your letter, this child is an orphan, and surely if you could become her adoptive parent and provide the fullest, settled familial life and legal status in every particular than mere guardianship, this would give him/her a true feeling of safety and belonging. An adoptive parent takes over the position of legal and factual rights and obligations of the biological parents, but a guardianship does not.
I hope I have given you sufficient information to enable you to proceed and settle this child life through legal certainty and providing a permanent family home and a sense of belonging as soon as possible.
You can proceed to firstly obtain the orders of guardianship, sole legal custody and care and control, and then with those orders, start making arrangements for the child to be able to join you in the UK. The orders would make the acceptance of you by the Adoption Board and the ultimate claim to the Supreme Court for the adoption order a forgone conclusion.

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.