By Miriam Ouma
Practice Area: Family Law – Guardianship and Adoption
The comprehensive legal framework for Guardianship and Adoption is provided under the Children’s Act 2022, a pivotal document in this area of law. Let’s delve into the details:
Part X of the Children’s Act 2022 defines a guardian as a person appointed, through a will or deed, by a child’s parent or through an order of the Court to assume parental responsibility over a child. A guardian can act alone or jointly with the child’s surviving parent.
Power of the Court to Appoint a Guardian
- Testamentary guardianship:
When the guardian appointed by a deceased parent is no longer able to fulfil their duties, the court steps in to ensure the child’s welfare is protected. - Customary guardianship:
A court of law has the power to appoint a guardian upon application made by any person by customs, culture, or tradition of a specific community in the prescribed manner where: –
A child’s parents are deceased and untraceable, and the child has no guardian or other person exercising parental responsibility over the child.
The child has been neglected by the person or parent responsible for their daily care.
Applying for Guardianship and the Prerequisite Documents
An application for guardianship is filed using the originating summons and a supporting affidavit sworn by the applicant.
Various documents are to be attached to the application, and they include:
A copy of the child’s birth certificate.
The identification documents of the applicants.
A deceased parent’s death certificate, as the case may be.
Tangible proof of the ability to care for the child, such as an applicant’s financial earnings.
Consent from the biological parent.
School reports of a school-going child.
Upon filing the abovementioned application, a court of law will direct a children’s officer to visit the applicant’s home and present their findings to the Court. Then, the Court will set the application for hearing.
End and Extension of Guardianship
Generally, guardianship ends when a child turns 18; however, the guardian can seek an extension of guardianship under exceptional circumstances, such as when the child suffers from a mental or physical disability or from an illness that will render him incapable of maintaining himself.
Revocation of Guardianship
It’s important to note that the person who appointed a guardian has the right to revoke it, a process that involves the presence of two witnesses and the two guardians.
Termination of Guardianship Appointment.
Guardianship may be terminated by a court order on an application made by: –
- any parent or guardian of the child
- the child to whom the appointment relates
- a relative of the child
- a person acting on behalf and in the child’s best interest.
Disclaimer
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