CONDITIONS FOR LEGAL GUARDIANSHIP IN NIGERIA
Legal Guardianship is the quickest legal arrangement for the maintenance and care of a child or children whose parents are no longer capable of raising them due to financial incapacitation or any other issues. The care, custody and welfare of children under the age of 18 years are enshrined in the regulatory framework that includes institutions and laws. The purpose of this is to ensure children and young persons are not exploited or neglected by unsuspecting parties.
For a person to exercise legal rights, power, and obligations over a child or young person, there must be a prior application and obtainment of the requisite approval from the relevant authorities. Failure to obtain approval for the child in contemplation is an offense punishable by law.
The rules of court that regulate proceedings relating to the rights, advancement, and welfare of a child in Lagos State are the Childs Right Law of Lagos State 2007 and the Family court of Lagos State (Civil Procedure Rules). Generally, the Child Rights Act provides and guarantees protection to children and young persons throughout Nigeria.
Legal guardianship is one of the options of legal arrangements to be applied for in care, custody, benefits, and welfare of a child whose parents are incapable of raising them. In this option, there is usually an existing parental tie such as a relationship between a child and a step-parent or grandparent. In ordinary parlance, the parents of a child automatically retain the positions of legal guardians for the child. However, in the absence of the parents or one of the parents, a family member or an unrelated party or the proper authority can be appointed as the Legal Guardian with the capacity to exercise parental responsibilities of the child.
The supervision for Legal Guardianship’s application is within the jurisdiction of the Nigerian Court and not the Ministry of Youth and Social Development. The ministry is only involved where the child in contemplation is a ward of the Government or resident in an orphanage.
It is important to state that an application for guardianship may be rejected by the court where there is no strict compliance with the rules of the court. In processing a legal guardianship, all documents submitted must be vetted and deemed satisfactory by the court, and the court will also determine if the applicant is capable of adequately caring for a child to warrant a grant of the approval.
Appropriate courts for the application of legal guardianship
The Courts that have the jurisdiction to hear the application for Legal Guardianship are the High Courts and Magistrate Courts designated as Family Courts in all States in Nigeria.
The proceedings for the suit or application for Legal Guardianship under Order 6 of the Family court of Lagos State Rules is commenced by an Originating Motion filed at the Registry of the High Court or Magistrate Court as decided by the applicant. The Originating Motion is heard by the High Court Judge or a Magistrate of the Magistrate Court.
The Originating Motion shall contain the following information:
- The relief and remedy sought by the applicant of legal guardianship
- The full name, address, phone number, and email address of the applicant
- The full name, address, phone number, and email address of the Respondent (person to respond or likely to object to the application.
- The address, phone number, and email address of the legal practitioner that filed the application.
- The motion must be supported by evidence of the fitness of the applicant.
The Originating Motion must also be supported by the followings:
- A statement of Case: this contains the name and full description of the applicant and respondent, the reliefs sought by the applicant, the grounds for relief which fully explains the reason why the applicant is seeking guardianship for the contemplated child, and facts in support of the grounds listed.
- An affidavit of facts: this generally contains the summary of facts already stated in the statement of the case. It must also contain the documents attached which would aid the application for guardianship. For example, in the case of dead parents, a certificate of death will be attached; respondents consent if any; evidence of medical fitness of the applicant; any document that evidences sufficient financial means of the applicant and in some cases photographs of the house the child will live in after the application is granted.
- Statement of arrangement for children if any
- Statement of truth verifying the above processes filed by the applicant as true and within the best knowledge of the person deposing to the statement.
- And any other necessary documents
By and large, the following documents must accompany the suit or application for Legal guardianship:
- International Passport data page of the Applicant
- Birth certificate of the applicant
- Birth certificate of the children to be adopted
- Marriage certificate of the applicant (if applicable)
- Evidence of school fees payment for subjects (if any)
- Death certificate of any parent of the children to be adopted (if applicable)
- Applicant consent to the guardianship
- Respondent consent to the guardianship
- Evidence of a medical certificate of fitness of the applicant
- Contract of employment of applicant (if any)
- Photograph of the applicant’s home.
It is important to further state that Legal Guardianship can come to an end when the child reaches the age of 18 years.
The Court can make an order appointing a person fit and suitable as a child’s guardian after a satisfactory assessment report of the applicant. The conditions upon which the Court can reject the application is where the applicant cannot competently conduct proceedings on behalf of the child, the applicant has an adverse interest in that child, and does not undertake to pay any cost in relation to the proceedings.
Finally, where the order of guardianship has been granted to anyone in respect of a child, such person shall also be permitted to travel outside the country with the child, if the order to do so is sought together with the guardianship order from the court during the filing of the application or suit.
By Family Law Department at Resolution Law Firm, Lagos, Nigeria