Guardianship
A guardian is a person given powers in relation to the upbringing of particular children. The parent is not a guardian under the modern legislative scheme.
Parental responsibility is the capacity both spouses acquire in relation to the child at the time of the birth. A parent has parental rights and responsibilities. This substitutes the former concept of guardianship which included the rights of the parent.
A parent may appoint a guardian who performs certain parental functions. The modern law of guardianship is in the Children NI Order 1995 following the Children’s Act 1989 in England and Wales.
A non-marital father may be appointed a guardian instead of being given parental responsibility under the legislation.
A guardian must be an individual. Once appointed, a guardian has the same responsibilities as parents.
The High Court and County Court have the power to appoint a guardian. An application made to the High Court or County Court may appoint an individual to be a guardian if the child has no parental responsibility or a residence order has been made in favour of a parent or guardian of his or her who has died while the order was in force.
A parent who has parental responsibility may appoint an individual to be a child’s guardian on the death of the parent.More than one guardian may be appointed. The appointment of a guardian may be made by will or a deed or some other witness document.
The appointment will take effect if there is no other parent with parental responsibility or the person in whose favour immediately before the death of any person making such an appointment, a residence order in his favour was in force with respect to the child
A guardianship order passes the equivalent of parental responsibility to the guardian. The guardian assumes the rights and roles of parents. A guardianship has most of the same responsibilities as a parent. He can be prosecuted for failure to educate the child, neglect, and ill-treatment.
A guardianship as such, does not have responsibility for maintenance. There is a guardianship allowance which may be paid as a social welfare payment.
A guardian is precluded from inheriting from the child and has no right of succession. Rights of citizenship do not follow the appointment of a guardian.
Guardianship terminates on the death of the child or on the child reaching the age of 18 years. The guardian may appoint another guardian by will. On his death, the guardianship acts, but the person appointed may, by will, become a guardian.
The child may apply with the leave of court to terminate the guardianship. The court may decide to terminate guardianship of its own accord in the course of proceedings.
A guardian may be removed for misconduct or for abandoning its role. The court may appoint a substitute guardian if this occurs.
An appointment of a guardian made by deed or will may be revoked expressly by the appointment of a substitute guardian. The intentional destruction of the document appointing a guardian with the intention of revoking or so done in his presence in the presence of two witnesses, revokes the appointment.
A person appointed guardian may disclaim their role. This must be done by instant in writing within a reasonable time of becoming aware of the appointment.
The 1995 order fundamentally changed the law of guardianship. Formerly, guardianship is a mechanism that issues some part to afford access rights for unmarried fathers.
An unmarried father may make an application to be appointed as guardians, for example, after the mother’s death. However, it may also apply for an order granting him parental responsibilities.
While a remaining spouse is alive, that spouse’s rights prevail over those of a guardian appointed by deceased spouse. This is not the case if the deceased had sole custody or a residence order. The exercise of guardian’s rights are subject to the court’s jurisdiction.
Where parents are divorced, the guardian appointed by the parent with care and possession will have equal standing with the divorced parent. The court order made then determine with whom the child should live.
Guardians have certain duties in relation to the child’s assets. A third party may be appointed guardian of the child’s assets. The official solicitor may make an application in that regard.
An application for appointment of the official solicitor or other persons to be appointed guardian may occur where moneys are paid into court on behalf of a child where it is just. It may apply where there are moneys in court, the child is entitled to the pension funds, or it is otherwise desirable.