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APPENDIX 4. Excerpts from the Guardianship Act 1968

Natural Guardianship

6 Guardianship of children

(1) Subject to the provisions of this Act, the father and the mother of a child shall each be a guardian of the child.

(2) Subject to the provisions of this Act, the mother of a child shall be the sole guardian of the child if—

(a) She is not married to the father of the child, and either:

(i) Has never been married to the father; or

(ii) Her marriage to the father of the child was dissolved before the child was conceived; and

(b) She and the father of the child were not living together as husband and wife at the time the child was born.

(3) Where the mother of a child is, or was at the time of her death, its sole guardian by virtue of subsection (2) of this section the father of the child may apply to the Court to be appointed as guardian of the child, either in addition to or instead of the mother or any guardian appointed by her, and the Court may in its discretion make such order on the application as it thinks proper.

(4) On the death of the father or the mother the surviving parent, if he or she was then a guardian of the child, shall, subject to the provisions of this Act, be the sole guardian of the child.

6A Declaration as to guardianship of father

(1) Any man who alleges that he is a guardian of a child by virtue of the provisions of section 6 of this Act (other than by virtue of an order under subsection (3) of that section) may apply to the Court for an order declaring that he is a guardian of the child, and, if it is proved to the satisfaction of the Court that the allegation is true and that the man has not been deprived of his guardianship, the Court may make the order.

(2) The provisions of the Declaratory Judgments Act 1908 shall extend and apply to every application under subsection (1) of this section with all necessary modifications.

Appointment And Removal Of Guardians

8 Court-appointed guardians

(1) Subject to the provisions of this section, the Court may at any time, on application made for the purpose or on the making of an order under section 10 of this Act, appoint a guardian of a child either as sole guardian or in addition to any other guardian, and either generally or for any particular purpose, and either until the child attains the age of 20 years or sooner marries, or for any shorter period.

(2) The High Court shall have exclusive jurisdiction to appoint and remove a guardian ad litem in respect of any proceedings before that or any higher Court, and may appoint or remove a guardian ad litem in respect of any proceedings before any other Court. 

10 Removal of guardian

(1) The Court may at any time on application by the other parent or by a guardian or near relative or, with the leave of the Court, by any other person deprive a parent of the guardianship of his child or remove from his office any testamentary guardian or any guardian appointed by the Court.

(2) No parent shall be deprived of the guardianship of his child pursuant to subsection (1) of this section unless the Court is satisfied that the parent is for some grave reason unfit to be a guardian of the child or is unwilling to exercise the responsibilities of a guardian.

Custody Orders And Orders In Other Proceedings

11 Custody orders

(1) Subject to section 24 of this Act, the Court may from time to time,—

(a) On application by the father or mother, or a step-parent, or a guardian, of a child; or

(b) With the leave of the Court, on application by any other person,—make such interim or permanent order with respect to the custody of the child as it thinks fit.

(2) Any order made under subsection (1) of this section may be made subject to such conditions as the Court thinks fit.

Disputes

13 Disputes between guardians

(1) When more than one person is a guardian of a child, and they are unable to agree on any matter concerning the exercise of their guardianship, any of them may apply to the Court for its direction, and the Court may make such order relating to the matter as it thinks proper.

(2) Where more than one person has custody of a child, and they are unable to agree on any matter affecting the welfare of the child, any of them may apply to the Court for its direction, and the Court may make such order relating to the matter as it thinks proper.

(3) Where pursuant to an order of the High Court more than one person is a guardian or has custody of a child the High Court shall have exclusive jurisdiction to settle disputes unless the order has been removed into a District Court pursuant to section 26 of this Act.

14 Review of guardian’s decision or refusal to give consent

(1) A child of or over the age of 16 years who is affected by a decision or by a refusal of consent by a parent or guardian in an important matter may (unless the child is under the guardianship of the Court apply to a Family Court Judge who may, if he thinks it reasonable in all the circumstances to do so, review the decision or refusal and make such order in respect thereto as he thinks fit.

(2) Any consent given by a Family Court Judge pursuant to this section shall have the same effect as if it had been given by the parent or guardian.

(3) Nothing in this section shall limit or affect the provisions of the Marriage Act 1955 with respect to consents to the marriage of minors.

Access

15 Access rights

(1) On making any order with respect to the custody of a child the Court may make such order with respect to access to the child by a parent who does not have custody of it under the order as it thinks fit.

(2) A parent who does not have custody of his child may apply to the Court for an order granting him access to the child, and the Court may make such order with respect thereto as it thinks fit.

(2A) Any order made under subsection (1) or subsection (2) of this section may be made subject to such conditions as the Court thinks fit.]

(2B) Without limiting subsection (2A) of this section or section 16B of this Act, where—

(a) The Court makes an order under subsection (1) or subsection (2) of this section with respect to access to a child by a parent; and

(b) The Court is satisfied that the parent has used violence (as defined in section 16A of this Act) against the child or the other parent of the child,—the Court shall consider whether or not the order should be subject to any conditions for the purpose of protecting the safety of that other parent while the right of access conferred by the order is being exercised (including while the child is being collected from, or returned to, that other parent).

(3) In this section the term parent includes a step-parent; and the term child has a corresponding meaning.]

16 Access of other relatives

(1) If a parent of a child has died, or has been refused access to the child by a Court, or if a parent who has access to a child is not making any attempt to exercise access to the child, the Court may if it thinks fit order that—

(a) The parents of that parent of the child, or either of them; or

(b) Any brother or sister of that parent of the child; or

(c) Any brother or sister of the child—shall have access to the child at such times and places as the Court thinks fit.

(2) Any order made under subsection (1) of this section may be made subject to such conditions as the Court thinks fit.]