In Nigeria, the responsibility to care for a child (one who is below 18 years[1]) lies inherently with the parents. The law imposes an obligation on parents to provide their children with basic needs[2] as well as prescribes punishment for failure to intentionally make such provisions[3]. However, there are unavoidable instances where some children lack parental care in one way or another, creating a gap that must be filled. Guardianship aims to create a means to look after the interests of children who are unavoidably missing parental care at a tender age. The law establishes various means through which people other than the parents of a child may be granted the authority and responsibility to care for the well-being and protect the interest of a child; these include Fostering, adoption, and guardianship. This article would focus on guardianship.
Regulatory Framework
The welfare and the rights of children and young persons are established by first, the constitution (which mandate the Nigerian government to ensure that children and young persons are protected against exploitation and moral and material neglect)[4] and several other laws in Nigeria[5], particularly the Child’s Right Act (CRA) 2003 which is the principal legislation. The CRA 2003 has been domesticated by various states in Nigeria; therefore, we will be considering the Lagos State Child’s Right Law (LSCRL)2015 and the Family Court of Lagos State (Civil Procedure) Rules 2012. The jurisdiction to hear applications for custody and welfare of minors lies with the magistrate and high courts designated as family courts across various states in Nigeria.[6]
What is Guardianship?
The parents of a child are his/ her natural guardians[7], however, in some cases where the parents are incapable of taking up the responsibility of caring for the child due to death, financial incapacity, disability of the parents, or are unfit jointly or severally guardianship becomes necessary.[8] A person (maybe a relative or not) may apply to the court to be granted guardianship of the child.
Guardianship is a legal means through which the court vests upon an applicant with authority and responsibility to care for a child and make decisions as it relates to the management of the property /estate of that child.[9]
The CRL recognizes two types of guardians: a guardian who shall have parental responsibility (general guardian) and a guardian appointed only to represent the child and his interest in certain proceedings (guardian ad litem)[10].
Legal implications/ nature of Guardianship[11]
Once guardianship is granted, a guardian is vested with all the parental and incidental responsibilities for the child. The guardian has the right to the custody of a child; however, guardianship does not terminate the right of the parents over that child, and the legal relationship between the child and the parents remains unaffected. The guardianship can be revoked by the parents or any appropriate authority. Guardianship is temporary, such that custody and care for the child subsist until the child reaches 18 years of age. It is also worth noting that a guardian cannot confer the right of inheritance to the child in his care. A guardian can also in his/her lifetime, appoint by deed another guardian in the event of death. Where a guardian dies intestate the child is not entitled to inherit the property. Therefore, except there is a specific bequest, the child cannot inherit the guardian’s property.
How is a Guardian appointed?[12]
Guardianship can be created through the following:
Appointment by a surviving parent through a Deed
Appointment by the court
Application to the court.
Application for legal guardianship
The application for legal guardianship may be brought under Oder 6 Rule 2 of the Family Court of Lagos State Civil Procedure Rules. The suit may be commenced by filing an originating Motion containing the relevant information such as the contact details of the applicant, the respondent, and the legal practitioner that filed the application. The originating Motion must be supported by the evidence of fitness of the applicant, a statement of the case, an affidavit of facts, and the required personal documents of the applicant and the child.
Where an applicant has fully satisfied the requirement, the court may make an order appointing an applicant as a person fit and suitable as a child’s guardian. On the other hand, the court can reject an application where the applicant fails to competently conduct the proceedings, where in the opinion of the court the applicant has an ulterior motive towards the child and does not undertake to pay the cost of the proceedings.
Termination of Guardianship[13]
Guardianship terminates through various means;
- The application of the natural parent of the child or a person who has parental responsibility towards the child.
- The Death of the Guardian
- Removal of the guardian by the court
- Attainment of a majority by the child i.e. When the child reaches 18 years.
Conclusion
The welfare and best interest of a child are paramount in every action concerning a child in Nigeria, hence, the law preserves the right to the dignity of a child and establishes the protection and care necessary for the wellbeing of the child[14]. Legal guardianship is a legal strategy utilized by the law to solve the problem/need that might be created by the lack or absence of adequate parental care, it becomes even more needful as the issue of insecurity in the country has left many children without parental care, especially in the northern part of the country. As of November 2022, 34 states out of the 36 states in the country have domesticated the Child’s Right Act[15]. This is a huge step in the right direction in safeguarding the interests of the Nigerian child. Finally, it is at the discretion of the court to grant the application to a person it deems to be fit and proper to take care of the child.
[1] Article 1 of the Convention on the Rights of the Child & The Child Right Act 2003
[2] Lagos State Child Right Law (LSCRL) 2015 Sec. 2(1)
[3] Criminal Code Act section 300-305
[4] The Constitution of the federal republic of Nigeria1999 (as amended) section 17(3)(f)
[5] Matrimonial Causes Act, Criminal Code Act
[6] Child’s Right Act 2003, section 149-153, Matrimonial Causes Act, section 71(1), (LSCRL) Section 85,
[7] CRA 2003 S.83
[8] Lagos State Child Right Law (LSCRL) 2015 Sec. 75
[9] (LSCRL) 2015 Sec …..
[10](LSCRL) 2015 Sec 81-83
[11](LSCRL) 2015 Sec 74
[12] CRL 2015 Sec 76
[13] CRL 2015 Sec. 78
[14] LSCRL 2015 Section 10
[15] https://www.thisdaylive.com/index.php/2022/11/29/fg-34-states-have-domesticated-childs-rights-act/
