Laws of Eve | Settling the law on legal guardianship of children

Within the legal community, an application for a legal guardianship order to be made for a relative of a child while the child's parents are still alive presented a viable alternative to seeking custody or adoption order. The process was often uncomplicated and, unlike adoption, the parental rights were not permanently revoked.

To make that application, reliance was placed on the provisions of the Children (Guardianship and Custody) Act ('the act'), which defines a guardian to be "a person appointed by deed or will or by a court of competent jurisdiction, to be his guardian".

The two most recent decisions - B v C and The Office of the Children's Advocate [2016] JMCA Civ 48 and Re: Application for Guardianship of a Minor Child F [2016] JMSC Civ 193 - have clarified the law regarding the Supreme Court's jurisdiction to make orders for legal guardianship of a child, and confirmed that the process is not as simple as it once appeared.

COURT'S JURISDICTION

In explaining the court's jurisdiction, the Court of Appeal in B v C, stated that, "The Supreme Court does have an inherent jurisdiction to appoint and remove guardians for children." This, it said, is based on the doctrine of parens patriae, by which the state is "regarded as having the right to make decisions concerning people who were not able to take care of themselves". In the most recent decision concerning the minor child F, the Supreme Court acknowledged the restrictions that are placed on the exercise of the court's jurisdiction to grant the orders.

The minor child F was the subject of an adoption order, and the proposed adopter, with the consent of F's parents, sought an order for legal guardianship. In refusing the application, the following points were made by the learned judge:

1. F's parents were both alive, and if they wished to grant temporary care and control to the applicant, they could do so by executing an appropriate deed. They could also appoint the applicant as F's guardian under their wills. The relevant provision under which this is done is Section 4 of the act.

2. A guardianship or adoption application asks the court "to consider issues related to voluntary relinquishing legal [parental] responsibility, on a permanent or temporary basis ... ". The issues include the fitness of the intended custodian, the physical, mental and economic circumstances of all parties, what is in the best interests of the child, the preparation of the parents for separation from the child and whether they knowingly consented to do so.

3. "Save in exceptional circumstances, the statutory agencies [that is, the Child Development Agency or the Adoption Board or the Office of the Children's Advocate] are best able to enquire into and determine the issues."

4. Parents should be respondents to applications for legal guardianship, the child should be independently represented where the application is by the proposed guardian, and any consent of the parents must be proved to be informed consent, whether by independent legal advice or otherwise.

In F's case, because the adoption process was pending, the learned judge stated that "decisions as to whether the intended guardian was 'fit and proper', whether interim custody is in the best interest of the child, and whether it is understood and agreed to by the parents, can and should be made under the auspices of the Adoption Board ... ". The court was not prepared to usurp the responsibilities of the Adoption Board or pre-empt the determination as to whether the proposed adopter was fit and proper to be appointed as F's legal guardian.

We are grateful to the judges who took the time to establish a road map in this very important area of the law. We are now certain that the court has the discretion to make the orders, and we now know what evidence to place before the court when making the applications.

• Sherry-Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.