CHAPTER
132
GUARDIANSHIP AND CUSTODY OF INFANTS |
ARRANGEMENT OF
SECTIONS |
SECTION |
|
|
Rights of surviving parent as to guardianship. |
Power of father and mother to appoint
testamentary guardians. |
|
Equal rights of mother to apply to court. |
The court may make order as to custody. |
Power of court to remove guardian. |
Dispute between joint guardians. |
Guardianship in case of divorce or judicial
separation. |
In case of separation between father and mother. |
Power of court as to production of child. |
Power of court to order repayment of costs of
bringing up child. |
Court in making order to have regard to conduct
of parent. |
Power of court as to child's religious
education. |
Enforcement of orders for payment of money. |
Principle on which questions relating to
custody, upbringing, etc., of children are to be decided. |
|
CHAPTER 132 |
GUARDIANSHIP AND
CUSTODY OF INFANTS |
An Act
relating to the guardianship and custody of infants. | 48 of 1961
27 of 1976
5 of 1987 |
[Commencement 31st
July, 1961] |
1. This Act may be cited as the Guardianship and
Custody of Infants Act. | Short title. |
2. In this Act, unless the context otherwise requires- | Interpretation. |
"child"
means a person under eighteen years of age but does not include a person who is
or has been married; |
"court"
means the Supreme Court; |
"parent"
includes any person liable by law to maintain a child or entitled to its
custody; |
"person"
includes any local authority, school or institution. |
3. (1) On the death of the father of a child, the
mother, if surviving, shall, subject to the provisions of this Act, be the
guardian of the child, either alone or jointly with any guardian appointed by
the father. When no guardian has been appointed by the father or if the
guardian or guardians appointed by the father is or are dead or refuses or
refuse to act, the court may if it thinks fit appoint a guardian to act jointly
with the mother. | Rights of surviving parent as to guardianship. |
(2) On the death
of the mother of a child, the father, if surviving, shall, subject to the
provisions of this Act, be guardian of the child, either alone or jointly with
any guardian appointed by the mother. When no guardian has been appointed by
the mother or if the guardian or guardians appointed by the mother is or are
dead or refuses or refuse to act, the court may if it thinks fit appoint a
guardian to act jointly with the father. |
4. (1) The father of a child may by deed or will appoint
any person to be guardian of the child after his death. | Power of father and mother to appoint testamentary
guardians. |
(2) The mother of
a child may by deed or will appoint any person to be guardian of the child
after her death. |
(3) Any guardian
so appointed shall act jointly with the mother or father as the case may be of
the child so long as the mother or father remains alive unless the mother or
father objects to his so acting. |
(4) If the mother
or father so objects, or if the guardian so appointed as aforesaid considers
that the mother or father is unfit to have the custody of the child, the
guardian may apply to the court, and the court may either refuse to make any
order (in which case the mother or father shall remain sole guardian) or make
an order that the guardian so appointed shall act jointly with the mother or
father, or that he shall be sole guardian of the child, and in the latter case
may make such order regarding the custody of the child and the right of access
thereto of its mother or father as, having regard to the welfare of the child,
the court may think fit, and may further order that the mother or father shall
pay to the guardian towards the maintenance of the child such weekly or other
periodical sum as, having regard to the means of the mother or father, the
court may consider reasonable. |
(5) Where
guardians are appointed by both parents, the guardians so appointed shall after
the death of the surviving parent act jointly. |
(6) If under
section 3 of this Act a guardian has been appointed by the court to act jointly
with the surviving parent, he shall continue to act as guardian after the death
of the surviving parent; but if the surviving parent has appointed a guardian,
the guardian appointed by the court shall act jointly with the guardian
appointed by the surviving parent. |
5. Every guardian appointed under sections 3 and 4 of
this Act shall have all such powers over the estate and the person, or over the
estate, as the case may be, of a child as a guardian appointed by will or
otherwise has in England. | Powers of guardians. |
6. The mother of a child shall have the like powers to
apply to the court in respect of any matter affecting the child as are
possessed by the father. | Equal rights of mother to apply to court. |
7. (1) The court may, upon the application of the
father or mother of a child, make such order as it may think fit regarding the
custody of such child and the right of access thereto of either parent, having
regard to the welfare of the child, and to the conduct of the parents, and to
the wishes as well of the mother as of the father, and may alter, vary, or
discharge such order on the application of either parent, or, after the death
of either parent, of any guardian under this Act; and in every case may make
such order respecting costs as it may think just. | The court may make order as to custody. |
The power of the
court under subsection (1) of this section to make an order as to the custody
of a child and the right of access thereto may be exercised notwithstanding
that the mother of the child is then residing with the father of the child. |
8. The court may, in its discretion, on being satisfied
that it is for the welfare of the child, remove from his office any
testamentary guardian, or any guardian appointed or acting by virtue of this
Act and may also, if the court shall deem it to be for the welfare of the
child, appoint another guardian in place of the guardian so removed. | Power of court to remove guardian. |
9. Where two or more persons act as joint guardians of
a child and they are unable to agree on any question affecting the welfare of
the child, any of them may apply to the court for its directions, and the court
may make such order regarding the matters in difference as it may think proper. | Dispute between joint guardians. |
10. In any case where a decree for judicial
separation, or a decree either nisi or absolute for divorce, shall be
pronounced, the court pronouncing such decree may thereby declare the parent by
reason of whose misconduct such decree is made to be a person unfit to have the
custody of the children (if any) of the marriage and in such case the parent so
declared to be unfit shall not, upon the death of the other parent, be entitled
as of right to the custody or guardianship of such children. | Guardianship in case of divorce or judicial
separation. |
11. No agreement contained in any separation deed made
between the father and the mother of a child may be held to be invalid by
reason only of its providing that the father of such child shall give up the
custody or control thereof to the mother: | In case of separation deed between father and mother. |
Provided always
that the court shall not enforce any such agreement if it is of the opinion
that it will not be for the benefit of the child to give effect thereto. |
12. Where the parent of a child applies to the court
for a writ or order for the production of the child and the court is of the
opinion that such parent has abandoned or deserted the child, or that such
parent has otherwise so conducted himself or herself that the court should
refuse to enforce his or her right to the custody of the child, the court may,
in its discretion, decline to issue the writ or make the order. | Power of court as to production of child. |
13. If at the time of the application for a writ or
order for the production of the child, the child is being brought up by another
person, the court may, in its discretion, if it orders the child to be given up
to the parent, further order that the parent shall pay to such person the whole
of the costs properly incurred in bringing up the child, or such portion
thereof as shall seem to the court to be just and reasonable, having regard to
the circumstances of the case. | Power of court to order repayment of costs of bringing
up child. |
14. Where the parent has- | Court in making order to have regard to conduct of
parent. |
(a) abandoned
or deserted his or her child; or |
(b) allowed his
or her child to be brought up by another person at that person's expense for
such a length of time and under such circumstances as to satisfy the court that
the parent was unmindful of his or her parental duties. |
the court
shall not make an order for the delivery of the child to the parent unless the
parent has satisfied the court that, having regard to the welfare of the child,
he or she is a fit person to have the custody of the child. |
15. (1) Upon any application by the parent for the
production or custody of a child, if the court is of opinion that the parent
ought not to have the custody of the child, and that the child is being brought
up in a different religion to that in which the parent has a legal right to
require that the child should be brought up, the court shall have power to make
such order as it may think fit to secure that the child be brought up in the
religion in which the parent has a legal right to require that the child should
be brought up. | Power of court as to child's religious education. |
(2) Nothing
contained in this section or in sections 12 to 14 (inclusive) of this Act shall
interfere with or affect the power of the court to consult the wishes of the
child in considering what order ought to be made under this section, or
diminish the right which any child now possesses to the exercise of its own
free choice. |
16. (1) Any person for the time being under an
obligation to make payments in pursuance of any order for the payment of money
under this Act shall give notice of any change of address to such person (if
any) as may be specified in the order and any person failing without reasonable
excuse to give such a notice shall be liable on summary conviction
to a fine not exceeding one hundred dollars or to imprisonment for a term not
exceeding three months. | Enforcement of orders for payment of money. |
(2) Where the
court has made any such order, the court shall, in addition to any other powers
for enforcing compliance with the order, have power in any case where there is
any pension or income payable to the person against whom the order is made and
capable of being attached, after giving the person by whom the pension or
income is payable an opportunity of being heard, to order that such part as the
court may think fit of any such pension or income, be attached and paid to the
person named by the court and such further order shall be an authority to the
person by whom such pension or income is payable to make the payment so ordered
and the receipt of the person to whom the payment is ordered to be made shall
be a good discharge to the person by whom the pension or income is payable. |
17. Where in any proceeding before any court the
custody or upbringing of a child or the administration of any property
belonging to or held on trust for a child, or the application of the income
thereof, is in question, the court in deciding that question shall regard the
welfare of the child as the first and paramount consideration and shall not
take into consideration whether from any other point of view the claim of the
father, or any right at common law possessed by the father, in respect of such
custody, upbringing, administration or application is superior to that of the
mother, or the claim of the mother is superior to that of the father. | Principle on which questions relative to custody,
upbringing, etc., of children are to be decided. |
18. The Guardianship of Infants Act, 1897 is hereby
repealed: | Repeal and saving. |
Provided that
notwithstanding the repeal of that Act, any order made under or by virtue
thereof, and in force at the time of the coming into operation of this Act
shall continue in force, so far as the same may not be rendered inapplicable by
this Act, until other provision shall be made under, or by virtue of, this Act. |