1. Guardianship
Guardianship refers to a legal relationship where a person (the guardian) is vested with the responsibility to care for a child or manage the child’s property when the child cannot act in law due to age or incapacity.
Section 1 of the Children Act Cap 62 (Children Act) defines a guardian as a person having parental responsibility for a child.
2. Forms Of Guardianship
2.1 Legal Guardianship
This type of guardianship grants an individual (guardian) parental responsibility for a child through a court order.
2.1.1 Procedure for Applying for Legal Guardianship
By way of Petition - Section 74(c) Children Act. In the format of FORM 1 - Schedule 4 of the Children Act.
Under Section 74 of the Children Act, an application for legal guardianship of a child can be made by any person, being a Ugandan citizen, who is at least eighteen years old.
Such an application must be filed in the High Court through a petition using FORM 1 as provided in Schedule 4 of the Act. Additionally, the petition must be accompanied by a report from a probation and social welfare officer per section 74(d) of the CA.
2.2 Guardianship in relation to the Proprietary Interests of a Child
This form of guardianship is granted specifically to enable a person to manage or transact on behalf of a minor in relation to a minor’s property.
In the Matter of Atuheirwe Pauline Muhumuza HCT-00-FD-MC-0010-2009, court defined a guardian as a person with parental responsibility for a child. It further clarified that, under Section 6 of the Children Act, a parent is also considered a natural guardian of a child by virtue of their parental responsibility over a child. However, the court emphasized that being a parent does not automatically confer the right to manage a child’s estate or real property. For this, a guardian must be appointed by the court under the common law doctrine of parens patriae (translated as parent of the country), which clothes court with power under article 126 of the Constitution as a guardian of persons under legal disability, such as minors or individuals of unsound mind.
See also In the Matter of Application for Legal Guardianship by Abaasa Miscellaneous Application 33 Of 2024.
Thus, before dealing with a child’s property, every person including biological parents must first obtain a guardianship order from court. Even then, the subsequent dealings on the property must be in the child's best interests.
2.2.1 Procedure for Applying for Grant of Guardianship in relation to the Proprietary Interests of a Child
By way of Notice of Motion - Order 52 Rules 1 & 3 of the Civil Procedure Rules.
Supported by Affidavit.
2.2.2 Considerations for Grant of Guardianship in Relation to the Proprietary Interests of a Child
In The Matter Of Tumwesigye Gift (A Minor) Hct Misc Cause No.5 Of 2022, court laid down the following considerations before the appointment of a guardian concerning a minor’s proprietary rights;
Age of the minor
Relationship of the applicant to the minor
Nature of the minor’s property
Purpose of the application
Best wishes of the minor
2.3 Guardianship Ad Litem
This is a form of guardianship where a guardian is appointed by a court to represent a child’s interests during legal proceedings.
Order 32 Rule 1 of the Civil Procedure Rules provides that where the defendant is a minor, the court, on being satisfied of the fact of his or her minority, shall appoint a proper person to be guardian ad litem of the minor. (emphasis is mine)
2.3.1 Procedure for Applying for Grant of Guardianship Ad Litem
By way of Notice of Motion - Orders 52 and 32, Rule 3(3) of the CPR
Supported by an Affidavit - Order 32 Rule 3(3).
2.4 Customary Guardianship
According to section 75(1) of the Children Act and section 41 of the Succession Act Cap 286 (Succession Act), customary guardianship is a form of guardianship where a guardian is appointed in respect of a child based on the traditions and customs of a specific family.
Sections 75(2) of the CA and 41(1) of the Succession Act provide that appointment of a customary guardian occurs when;
Both parents of the minor are deceased or cannot be located
When the surviving parent is incapacitated or unable to fulfill the role of guardian or is ineligible to be appointed as one, or
when the minor has no other legal guardian or person holding parental responsibility.
For this form of guardianship, there is no need to apply to court and the appointment is made in line with a family’s culture. However, these cultures must be in line with the Constitution per article 2(2).
A customary guardian is conferred with parental responsibility over a child and they act as a trustee in respect of the property of a child.
2.5 Testamentary Guardianship
According to section 39 of the Succession Act, testamentary guardianship is a form of guardianship where a guardian is appointed by the parents of a child through a will.
2.6 Statutory Guardianship
This form of guardianship arises by operation of law in situations where a child’s parents (or one of them) die without appointing a guardian in a will, or if an appointed guardian dies or refuses to act.
According to section 40(1) of the Succession Act, where parents die without appointing a guardian or the appointed guardian dies or refuses to act, the following persons in order of priority are automatically regarded as guardians of the minor;
The father or mother of the deceased parent of the minor;
The brothers and sisters of the deceased parent of the minor; and
The brothers and sisters of the father or mother of the deceased parent of the minor.
Where the above persons are not willing to be guardians of the minor, section 40(2) of the Succession Act provides that the court may on the application of a person interested in the welfare of the minor grant a guardianship order.
NB: According to section 40(3) of the Succession Act, a statutory guardian must be a Ugandan citizen.
2.7 Joint Guardianship
This is a form of guardianship where guardianship is granted jointly to two persons. See section 77 of the CA.
2.8 Guardianship by Agreement
This is a form of guardianship where both parents agree in writing (agreement or deed) on who should be the guardian of their child.
Section 76(2) CA provides that an appointment of a guardian by agreement must be;
Dated
Signed by the parents
Witnessed by at least two witnesses. One of whom shall be a probation and social welfare officer and the other be a local councillor at the village level.
3. Who Can Apply For Guardianship?
Person of 18 years or above (adult) - Section 74(a) Children Act.
Ugandan citizen - Section 73(2) Children Act (for legal guardianship); Section 40(3) Succession Act (for statutory guardianship); Section 75(4) Children Act and Section 41(2) Succession Act (for customar guardianship).
4. Conditions for Grant of Guardianship
Before a guardianship order is made, various conditions laid out in section 78 of the Children Act must be met to ensure the child's well-being and the suitability of the applicant.
4.1 Court’s Duty Before Making a Guardianship Order;
Before issuing a guardianship order, the court must ensure that;
There are no known relatives or next of kin of the child.
The child's relatives or next of kin are unwilling or unable to take on parental responsibility.
All other care options for the child have been considered and exhausted.
The child is suffering or likely to suffer significant harm under the current custody arrangement.
The child’s wishes have been considered, based on their age and understanding, if they are capable of understanding the proceedings.
If the child is 12 years or older, their consent to the guardianship must be obtained, unless the child can’t express it. However, according to section 78(4) of the CA, The court can waive the need for consent if the person whose consent is required has abandoned or deserted the child; cannot be found or is incapable of giving consent; is not contributing to the child’s support, or has persistently neglected or refused to do so.
4.2 Applicant’s Requirements
According to section 78(2) of the CA, the court must ensure that the applicant:
Has lived in Uganda for at least three continuous months.
Does not have a criminal record.
Has a recommendation from a probation and social welfare officer, or a competent authority in Uganda or their country of residence regarding their ability to act as a guardian.
Has not given any payment or reward in consideration of the guardianship
Additional Reports. Section 78(5) of the CA provides that the court may ask for additional reports, aside from the probation and social welfare officer’s report, from a local authority, probation officer, or other relevant persons regarding the guardianship application.
5. Effect of a Guardianship Order
Depending on the type of guardianship granted, a guardianship order has various implications as discussed below;
5.1 Parental responsibility
Whether a guardian is appointed (eg., guardianship by agreement), guardianship order is issued (eg., legal guardianship) or guardianship takes effect by operation of law (eg., statutory guardianship), the guardian assumes parental responsibility for the child.
This means the guardian has the legal right and duty to make important decisions regarding the child’s life, including matters related to education, health and general welfare. The guardian effectively steps into the role of a parent in terms of responsibility.
However, the parental responsibility of the child’s biological parents is not extinguished as is the case with adoption.
5.2 Management of a Child’s Property
A Legal guardianship order grants the guardian authority to manage, transact and protect the property of a child on behalf of the child. Additionally, section 75(2) of the CA provides that a customary guardian is meant to act as a trustee in respect to the property of a child. The guardian must ensure that the child’s property is used in the child’s best interests, safeguarding it until the child can take legal control of it upon reaching adulthood.
5.3 Making Legal Decisions on behalf of a child
A guardian, under the authority of the Guardianship ad litem order, is empowered to make legal decisions in a suit on behalf of the child. This might involve ensuring that the child receives adequate and able representation.
6. Revocation and Termination of a Guardianship Order
A guardianship order is not absolute. It may be revoked or terminated in specific instances under the law.
6.1 Revocation of a Guardianship Order
According to section 83(1) of the Children Act, a guardianship order may be revoked by the court if a probation and social welfare officer or a relative of the child applies for revocation.
Section 83(2) of the Children Act provides for the grounds for revocation of a guardianship order stating that the court may revoke such an order if:
It was obtained through fraud or misrepresentation,
The guardian has failed to comply with court conditions, or,
The guardian has neglected their parental responsibilities.
Upon revocation, the court, after considering submissions by the Minister responsible for children’s affairs, will place the child under alternative care per section 83(3) of the Children Act.
6.2 Termination of Guardianship
Termination of a guardianship is the conclusion of a legal relationship between a guardian and a child in respect of which the guardianship relationship existed
A guardianship may be terminated in the following ways;
6.2.1 Upon Attainment of the age of majority
According to section 82 CA, the guardianship order automatically ceases when the child reaches the age of eighteen.
6.2.2 Revocation of a Guardianship Order by Court
The court may revoke a guardianship order under section 83(2) CA upon application by a probation and social welfare officer or a relative of the child if the order was obtained through fraud or misrepresentation, if the guardian fails to comply with court-imposed conditions, or if the guardian neglects their parental responsibilities.
6.2.3 Death of a guardian
Section 80(3) of the CA provides that a guardianship order ceases to apply upon the death of a guardian. Additionally, under section 41(1) of the Succession Act, when a guardian appointed by will dies, guardianship ceases and a statutory guardian is automatically apppointed by operation of law.
6.2.4 Infirmity of a guardian’s mind
A guardianship order may also be terminated if the guardian is deemed incapable of fulfilling their responsibilities due to mental infirmity, rendering them unfit to act in the best interests of the child. See section 80(3) CA.
7. Conclusion
This write up discusses the definition, types, and considerations or conditions to fulfill before grant of a guardianship. It also disucssess the procedures for applying for different forms of guardianship, the effect of a guardianship order and the instances of revocation and termination of a guardianship order.
I hope you found this write up on guardianship helpful.