27 February 2013

Kenya: What Are the Roles of Guardians?

Children are supposed to be under the care of their biological parents. However this is not always the case. Sometimes children find themselves in the hands of other people who take care of them like their biological parents.

The people who find themselves in such positions have to get an order from the court. There are a wide number of reasons why guardians are appointed, ranging from the death of a parent to the need to have the child taken care of and protected. The legal provisions regarding the appointment of guardians are found in the Children's Act.

A guardian, in a broad definition, is somebody who is legally entrusted to manage someone else's affairs. Section 2 of the Children's Act defines a guardian to include any person who in the opinion of the court has charge or control of the child.

A guardian can be appointed by an agreement, order of the court or through a will of a person. The Children's Act provides that a guardian is legally appointed by will or deed by a parent of the child or by an order of the court to assume parental responsibility for the child upon the death of the parent.

This is exercised either alone or in conjunction with the surviving parent of the child or the father of a child born out of wedlock who has acquired parental responsibility for the child in accordance with the Act.

Once appointed, the guardian assumes all the roles and responsibility of a parent over the child. Foreign citizens can also be appointed as guardians.

The guardianship arrangement and the duties and responsibilities thereof come to an end once the minor reaches the age of majority. The Children's Act, in sections 107 (1) provides that the appointment of a guardian shall be determined upon the child attaining the age of 18 years, unless exceptional circumstances exist that would require a court to make an order that the appointment be extended.

Exceptional circumstances include if the child suffers from a mental or physical disability or from an illness that will render him incapable of maintaining himself, or of managing his own affairs and his property without the assistance of a guardian after his 18th birthday or such other exceptional circumstances with regard to the child as the court may deem proper to warrant the making of an order under this section.

An application for the extension of the duties and responsibilities of the guardian may be by the concerned child, the parent or guardian of the child, a relative of the child or the Director of Children Services.

There are instances when a guardian ad litem may be appointed to a minor. A guardian ad litem is a guardian appointed for a specific function only.

When an application for adoption has been filed in court, the court may, before the hearing and determination of the application, appoint a guardian ad litem.

Section 160 (1) of the Children's Act provides that, for the purposes of any application for an adoption order, the court shall upon the application of the applicant or of its own motion, appoint a guardian ad litem for the child pending the hearing and determination of the adoption application.

The duties of a guardian ad litem are to:

- safeguard the interests of the child pending the determination of the adoption proceedings;

- investigate and apprise the court as to the circumstances pertinent to the adoption of the child in the prescribed manner;

- make recommendations as to the propriety of making any interim orders or an adoption order in respect of the child;

- intervene on behalf of the child and arrange for the care of the child in the event of the withdrawal of any consent prescribed by this Act;

- undertake such duties as the court may assign from time to time.

The foregoing clearly shows a guardian plays a pivotal role in the life of our children.

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