Does The Child Rights Act
of 2003 Require a Reform?

Contributor: Ene Iwodi

The institution of marriage and in particular, the children of such marriages, are revered by societies all over the world. The reason for this isn’t far-fetched: a plethora of studies have found links between criminal behaviour and absentee parents. [1] Societies allow for institutions (orphanages, foster parenting etc.), and legal frameworks to ensure the holistic development of children as members of society, to alleviate the hardships of children in these circumstances.

The Child Rights Act[2] in Nigeria contains lofty provisions on children’s rights and general welfare. These include;

Right to Dignity of The Child;[3]
Prohibition of Child Marriage[4] and;
The prohibition of exploitative labour[5] amongst others.

Section 83 of the Act outlines three ways for the Court, or the parent of a child to appoint a guardian over a child, in order to fill the parental vacuum in the case of children without parents, or incapacitated parents. An application by a person seeking guardianship over a child with no parental figure overseeing his affairs, is added to Section 84(1) of the Act as another instance where guardianship may arise.

However, the aforementioned instance of guardianship under Section 84 of the Act, does not list any conditions that must be met by such an applicant for him to be granted guardianship. The view expressed here is that the same is problematic, as it does not ensure that children are only entrusted to those who are most qualified to be their guardians.

The rationale for this article is informed by Section 84 of the Act’s silence. As a result, this article will examine the efficacy of the Child Rights Act’s guardianship provisions in comparison to those in other jurisdictions in order to provide a practical framework in this area.

THE CONCEPT OF GUARDIANSHIP UNDER THE CHILD RIGHTS ACT

The Childs Rights Act does not define the term “guardianship.” A guardian, according to Black’s Law Dictionary, is “a person who has legal authority and a duty of care for another person, particularly because of the other’s infancy, incapacity, or disability”. [6]

Indeed, the legal authority to act in locus parentis over a child due to parental absence, can be correctly inferred from the concept of guardianship.

Although the Act does not define guardianship or who a guardian is, it provides clearly that the parents of a child are the guardians as of the first instance. Section 83(1) in this regard, provides that “the parents of a child shall have guardianship of the child and, in the event of the death of a parent, the surviving parent shall be the guardian of the child.”

The Act also mentions two different types of guardians. The first is a guardian, who has parental responsibilities (custody, maintenance, welfare, and so on), and the second is a guardian ad litem, who is charged with representing a child in certain proceedings. [7] By the collective provisions of Section 83 and 84(1), the four ways in which guardianship arises under the Act include:

1. Incapacitation:

Where the parents of a child are not fit to be guardians of a child jointly or severally, the court shall, on the application of a member of the family or an appropriate authority, appoint a person to be a joint guardian with the parent or parents of the child.

2. Appointment by Deed by a Surviving Parent:

A surviving parent of a child via the execution of a deed, may appoint another to act as a guardian of a child, in the event that such a parent dies.

3. Appointment by Deed by a Single Parent:

A single parent of a child via the execution of a deed, may appoint another to act as a guardian of a child upon the death of the single parent.

4. Children Without Parents or Children in Respect of Whom a Residence Order has been Made:

By the extant provisions of Section 84(1) of the Act, the court may grant guardianship to a person, who has made an application in respect of a child without parents or parental care, or one in respect of whom a residence order had been made, at the instance of a deceased parent or guardian.[8]

Owing to the fact that the Act enumerates the grounds for guardianship, it is evident that, in addition to guardianship as a result of incapacitated parents, another rationale for an application under Section 84(1) would typically arise from situations, in which the highlighted factors causing guardianship are not met. For instance, an application would be necessitated where deeds appointing a guardian were not executed under Sections 83(3) and (4) of the Act.[9]

For clarity, Section 84(1) reads:

“Where an application for the guardianship of a child is made to the Court by a person, the Court may, by order, appoint that person to be the guardian of the child if-

(a) the child has no parent with parental responsibility for him; or

(b) a residence order has been made in respect to the child in favour of a parent or guardian of the child who has died, while the order was in force.”

The inherent problem identified in the preceding section is that, while it empowers a person to make guardianship applications for obviously orphaned children, it fails to specify any criteria for determining the competence of persons qualified to make such applications. From a socioeconomic perspective, it can be legitimately argued that this would spell doom for children with unconscionable guardians, who might, for example, mismanage the estate of an orphaned child. This is possible in light of Section 87 of the Act, which states that a guardian appointed by will or otherwise by the rules of common law, equity, or appropriate personal law shall have all such powers over the estate, as the case may be, of a child as a guardian appointed by will or otherwise by the rules of common law, equity, or appropriate personal law.

From a social standpoint, the lack of criteria to be met by potential guardians, would allow a child to be raised in a manner that is contrary to his deceased parents’ wishes. For example, the moral codes, religious beliefs, and light philosophies instilled in the child by a guardian appointed under Section 84 of the Act, may be incompatible with the values instilled by the parent(s).

AN AMENDMENT OF THE ACT, A POSSIBLE SOLUTION?

To tackle the hypothetical ills outlined above, the obvious flaw in the Child’s Right Act, regarding the competence of persons making guardianship applications must be addressed.

An examination of the English Children Act of 1989, the equivalent of the Nigerian Childs Right Act offers no better alternative. Section 5[10], the equivalent of Section 84(1)[11] makes no mention of the competence of the guardian to be appointed.

For clarity, Section 5(1) reads:

“(1) Where an application concerning a child is made to the court by any individual, the court may by order appoint that individual to be the child’s guardian if—

(a)the child has no parent with parental responsibility for him; or

(b) a parent, guardian or special guardian of the child was named in a child arrangement order as a person with whom the child was to live, and has died while the order was in force or,

(c) the child’s only or last surviving special guardian dies.”

Aside from the above provision of Section 5 of the Act, the entire legislation is silent on any issue concerning the guardian’s competence. The views expressed here, is that the lack of disparity between English and Nigerian law on the subject is unsurprising, given that the majority of our laws are based on English law.

While it may be suggested that the Childs Right Act is not necessarily a model of English law because it was essentially a domestication of the United Nations Convention on the Rights of the Child,[12] the important point is that neither the English Law nor the UN Convention offer any solutions to the problem.

As a result, it is proposed that the legislature performs two functions. To begin, it must codify the various principles defining what constitutes a competent guardian, when orphan guardianship applications are made under Section 84(1) of the Childs Right Act. Secondly, it should establish a hierarchy of preference for alleged family members, who may validly file a guardianship application under Section 83 of the Act, in order of their closeness to the said Child. [13]

CONCLUSION

As rightly pointed out by the American Author Timothy Pina, “if we are the guardian of the flame of humanity, then we must care for all of its children, for in its spirit…they are all sacred!” As a result, it is critical that the necessary steps as outlined above, be taken to ensure that the issue of determining guardianship of children, is not taken lightly. As the country continues to face massive security challenges, now is more than ever, the time to strengthen family institutions.

[1] Kevin Wright and Karen Wright, ‘Family Life and Delinquency and Crime: A Policymakers’ Guide to the Literature’ < https://www.ojp.gov/pdffiles1/Digitization/140517NCJRS.pdf > Accessed May 2, 2021.

[2] Child Rights Act, 2004

[3] Section 11, Child Rights Act, 2004

[4] Section 21, Child Rights Act, 2004

[5] Section 28, Child Rig hts Act, 2004

[6] Black Law’s Dictionary

[7] See generally Section 82(1) and (2) CRA, Cap C50 LFN 2004.

[8] A residence order in Family Law is basically an order of court stating the parent or other relevant person with whom a child shall reside.

[9] CRA Cap C50, LFN 2004

[10] Childrens Act, 1989

[11] CRA, LFN 2004

[12] UNCRC 1989

[13] The order of preference of family offered by the Administration of Estate Laws of Lagos State 2015 can be a helpful guide in this regard. Institutions of the state such as orphanages and then well-meaning organisations such as NGOs, charities and religious bodies can also follow in the order of credence for guardianship.

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