family law -maintenance and guardianship

Maintenance was defined in the South African case of Tutor Vs Tortor and another (2012) SA, to mean any order for the payment, including the periodical payment of sums of money towards the maintenance of any person under the order of court.

Under article 34(1) of the 1995 constitution  of the republic of Uganda, it is  provided that subject to laws enacted to their best  interest children shall have the right to know and be cared by their parents or those entitled by the law to  bring them up.

Maintenance is fortified further under s.5 (1) of the children’s Act which stipulates that it shall be the duty on the parent, guardian or any person having custody of the child to maintain them and in particular that duty gives a child the right to education and guidance, immunization, adequate diet, clothing, shelter and medical attention.

Further to say, section 76(8) of the (CA cap 59) maintenance also includes feeding, clothing, education and the general welfare of the child.

However when court is granting a maintenance order the welfare principle shall be paramount consideration as stated under S.3 of the children Act and due regard should be focused on:-.

a.    The ascertainment wishes and feelings of the child concerned with due regard to his or her age and understanding.

b.   The child’s physical, emotional and educational needs.

c.    The likely effects of any change in the child’s circumstances.

d.   The child’s sex, age, background and any other circumstances relevant in the mater.

e.    Any harm that the child has suffered or is at the risk of suffering.

f.     Where relevant, the capacity of the child’s parents, guardian or any other person involved in the care of the child.

.        In the case of Fenzi v Nabbosa Natasha.

        The issue was whether the applicant is entitled the maintenance order as prayed.

      court held that the child’s welfare should be a paramount consideration when determining who to grant maintenance of a child.

S.6 of the Act also requires every parent to have parental responsibility for his or her child.

However where the natural parents of a child are deceased, parental responsibility may be passed on to relatives of either parent or by way of a care order to the warden of an approved home, or to a foster parent.

Who can apply for maintenance?

Under section 76 of the CA cap 59, the following persons can apply for maintenance.

a.    The mother of the child

b.   The father of the child

c.    The guardian of the child may make application for maintenance against the father or mother of the child.

Also to mention S.76 (2) a child in respect of whom a declaration of parentage has been made may also make an application for maintenance order through a next of friend.

The position of the law is that a minor can apply for maintenance order through a next of friend where by such persons name shall be used in the suit or any action as provided for under order 32 rules 1 of the civil procedure rules.

When can an application for maintenance be made.

Under section 76(3) of the children’s Act, An application for maintenance shall be made,

a)    During subsisting marriage

b).   during proceeding for divorce, separation, or nullity of marriage.

c.)    during the separation

d).   during proceeding for declaration of parentage

e.)   After a declaration of parentage has been made

Under S. 76 (4) the application may be made at any time during pregnancy or before the child attains eighteen years of age.

PROCEDURE AND FORUM

Under S. (76)5 an application for a maintenance order shall be made by complaint on oath to a family and children court having jurisdiction in the place where the applicant resides and  summons shall be served on the father of the child or the mother of the child.

s.76 (6) the court shall issue a summons to the father or mother of the child to appear before the court on a day named in the summons.

s.76 (7) on the appearance of the person summoned or on proof that the summons were duly served on him or her seven days or more before the hearing, the court shall hear evidence at the applicant and shall also hear any evidence tendered by or on behalf of the father or mother and the court may then having regard to all the circumstances of the case, proceed to make an order against the father or mother for the payment to the applicant of:-

a. A monthly sum of money as may be determined by the court, having regard to the circumstances of the case and financial means of the father or mother, for the maintenance of the child.

b. The funeral expresses of the child if the child has died before the making of the order, and

c. The costs incurred in obtaining the order

s.76(9) if the court thinks fit, it may put in place  a monthly payment, order that a lump sum determined by the court be paid into court and that the sum be  expended on the maintenance of the child.

Failure to pay can result into a warrant to attach earning or levy the distress for the recovery of maintenance money. Under S.77, if at any time after the expiration of one month from making of a maintenance order, it is made to appear to a magistrate on oath that any sum to be paid under the order has not been paid, the magistrate may by warrant signed by him cause the person against whom the Order was made to be  before him or her and if that person neglects or refuses to pay the sum due from him/ her under the order, the magistrate may by warrant signed by him or her direct.

a. That an attachment of earnings be made.

b. that the sum due together with any costs incurred both be recovered by distress and sales or redistribution of the property of the father or mother unless he or she gives sufficient security by way of recognizance or other wise to the satisfaction of the court for his or her appearance before the court on a day appointed for the return of the  warrant of distress but not more than seven days from the taking of the security.

ENFORCEMNT AND VARIATION OF MAINTENANCE ORDERS.

Under S.78(1) of Act on an application to vary an order for maintenance or to whom such orders were made can be filed in court upon inquiry into the circumstances, court will make orders either to increase or decrease the amount of money previously ordered to be paid under the initial order.

In the case of Wright V Wright EWCA

 court held that the husband should no longer be paying maintenance fee to the wife since he had reached his retirement age and he could no longer work.

Under s. 78(2) an order for maintenance against the father or mother shall cease to have effect on custody of the child being granted to that father or mother or other person in his or her place by the court. This implies the moment the father or mother is granted custody, where upon a maintenance order was initially issued, such order automatically ceases.

Under section 78(3) an order for maintenance may be made and enforced against the estate of a deceased person who has been declared the father or mother of the child under declaration of parentage.

Under section 37 of the  succession act, it is stated that notwithstanding section 36 (relating to the making of a will) where a person by his or her will, disposes of all his or her property without making reasonable provision for maintenance of his or her dependent relatives, this section 38 shall apply.

Section 38 of the succession Act provides that where a person dies domiciled in Uganda leaving a dependent relative, then if court ,on application by or on behalf of the dependent relative of the deceased, is opinion that the disposition of the deceased’s estate effected by his or her will is not such as to make reasonable provision for the maintenance of that dependent relative the court may order that such reasonable provisions as the court thinks fit shall subject to such conditions or restrictions if any, as the court may impose, be made out of the deceased’s estate for the maintenance of that dependent relative

Under section 78(4) where declaration of parentage has been made an order for recovery of arrears of expenses incurred on the maintenance of a child may be made even after the death of the child.

Under section 79 the money can be paid to the applicant or custodian accordingly under section 79(1) provides that all money payable under a maintenance order shall be due and payable to the custodian.

However the court may also under section 79 (2) of the Act order that the money shall be paid into court upon which the applicant or the custodian shall receive it.

According to section 80(1) whenever a maintenance order is made against the mother or father and at the time of making the order or from time to time, thereafter on being satisfied that the applicant is not a fit and proper person to have custody of a child, is dead or has become of unsound mind or is in prison, court may appoint a person who is willing to have custody of the child to be the custodian of the child such a person is referred to as a custodian.

More so the appointment of a custodian may be made on the application of a probation and social welfare officer or by the person having custody of the child or by a person against whom the maintenance order is made (section 80(2).

Under section 80(3) the appointment of the custodian may be revoked and another person appointed to have the custody of the child. However where an appointment or an order of revocation of a custodian is made the court may also order the child to be delivered to the person appointed to have the custody of the child.

Section 80(4) a custodian has power to apply for the recovery of all payments in arrears becoming due under a maintenance order as any other applicant would have been entitled to do.

    Section 80(6) of the children Act is to the effect that where a child in respect of whom a maintenance order subsists is wrongfully removed from such person in whose custody was placed; court may on application of custody make an order that custody of the child be recommitted to the applicant.

Section 80(7) any person who contravenes an order made under subsection (6) and commits an offence shall be dealt with in a accordance to the act.

Under section 81 where upon a person, court placed custody of a child committees an offence or misapplies any money paid for the maintenance of a child, the grant of custody may be varied in the best interests of the child.

CESSATION OF MAINTENANCE ORDER

Section 82 provides that a maintenance order ceases to have any force or validity on the child upon attaining eighteen years.

This was seen in the case of Brossy V Brossy (2012) ZASCCA where the issue was whether the child who was a major was still entitled to maintenance. Court held that the maintenance order ceased to apply since Christopher was a major.

 

LEGAL GUARDIANSHIP

Guardianship has been defined in section 1 (k) of the children’s Act cap 59 as (amended) to mean a person with parental responsibility for a child. For example a guardian is a person who is ready to place himself /herself in relation to the child, in loco parentis. For purpose of its care and welfare.

Guardianship was defined in the case of Re Prosy Nalunga misc application 500/97 to mean a process by which court grants an order appointing a person to be responsible for an infant.

Application for legal guardianship is made by way of notice of motion supported by Article 139(1) of the constitution of Uganda 1995, section 14 of the judicature Act, section 2, 3,4,5,6 and 7 of the children’s Act cap 59, order 52 rules 1 and 3.of the civil procedure rules.

A guardian is a person who is expected to take any action which may be necessary and desirable on behalf of a minor as it was stipulated in the case of  Nabya Moses alias Nabyama Abasa family cause No.76/2011.

When courts are granting a guardianship order they put into consideration the welfare principle this was seen in the case of Deborah Joyce Alitubeera and Richard Masaba civil appeal No70 and 81 of 2011. Court emphasized the importance of the welfare principle. 

Section 43 A of the children amendment Act of 2016 under subsection 2 provide that application for legal guardianship cannot be done by a foreigner and this was stated in the case of Re:micheal an infant UGHC 40 24 June 2009.

Section 43 B of the children amendment Act provide for who may apply for legal guardianship of the child, to which court the application is made and the format 

a)    May be made by any person above the age of eighteen years

b)   Shall be made to the high court

c)    Shall be by petition in form 1 \set out in the third schedule: and..

d)   Shall be accompanied by a report of the probation and social welfare.

Revocation or termination of guardianship order.

Revocation is the act of recall or annulment or the act of starting official that an agreement right or legal document is no longer effective order Cambridge British English dictionary.

The children’s amendment Act s.43k (1) A probation and social welfare officer or a relative of child under guardianship may apply to court to revoke a guardianship order.

Revocation of guardianship order as spelled in s.43 (1) of the court before granting the revocation the order; it may consider some factors prescribed under section 43(2)

Where the court is satisfied that the guardianship order was obtained by fraud or misrepresentation under this fraud can be defined as a deliberate deception to secure unfair or unlawful gain or to deprive a victim of a legal right. Whereas misrepresentation is a false statement of fact or law which induces the representee to enter into an agreement

Therefore when the court detects the supra normally court will revoke the guardianship.

The guardian has not complied with the condition ns issued by the court in respect of the child or the guardianship. For instance where the court ordered the guardian to permanently consider the welfare principle to the a child in upbringing up the child and late the guardian fails to provide all the necessary interest of the child the court will revoke the guardianship order.

Where the guardian has neglected the parent6 responsibility over the child

Under s.6 of the children’s Act parents are supposed to have a parental responsibility over their children or guardian has to have a parental responsibility of the child under his custody. However where court find outs that the guardian or parent has failed to provide basic to the child and core the court will revoke the order.

There is also a circumstance where the court will determine whether the change of religion can amount to revocation of guardianship which was laid in the case of FVF (1902) ICH 688 where court held late that under the such where court held later that under such circumstance, it was for the benefit of the infant that the testator’s sister should be removed fro0m guardianship since she changed her religion.

Under section 43 (3) of the CAA, where the court revokes guardianship order, the minister responsible for children affairs, place the child under alternative care.

Section 43L

Any person aggrieved by a decision of the high court under this post may appeal to the court of appeal.

Condition for guardianship

According to bromleys family law 8^th edition page 338 when the courts are applying the welfare principle the best interest of the child must be considered

Article 3(1) of the international convention on the rights of the child, states that the best interest of a child must be given primary consideration in matters regarding a child. This is also provided for under article 4 of the African charter on the rights of the child.

This is further supported by article 34 of the 1995 constitution of Uganda where it provides for the best interest of the child being of primary consideration in all matters regarding a child.

Before court grants a guardianship order it must satisfy itself on the following as provided under section 43f (1) of the children amendment Act

a)    There is no known relative or next of the kin of the child .where the relative or next of kin is known the guardian order is not granted this was held in the case of Jackline Namubiru family court 203 of 2013

b)   The relative or next of kin are unwilling or unable to take parental responsibility of the child .in Jackline Namubiru supra, the child lived with the mother since birth and had guardians who took care of him and they had shown no signs of abandoning the child ever since and therefore the applicants of the guardianship order where not granted the order.

c)    All alternative care options available to the child are exhausted

d)   The child is suffering or likely to suffer significant harm under present custody

e)    Consideration has been given to the wishes of the child, having regard to the age and understanding of the child. in the matter of Nassozi immaculate misc application 208/2014 court held that before granting a guardianship order the physical ,emotional, and educational needs of a child must be considered  with regard to the likely effect of any changes in the child’s circumstances, age and background .

f)     Where the child is 12 years of the age or above his or her consent must be obtained, unless it is impossible for the child to express his or her consent.

Under section 43f subsection 2 of the act court shall also satisfy itself on the following grounds before granting the order.

a)    Has continuously lived in Uganda for at least three years

b)   Does not have a criminal record and has a recommendation concerning his or her ability as a guardian from a probation and social welfare officer or other competent authority in Uganda or applicants country of residence.

(3) The court shall not make an order for guardianship unless it is satisfied that the applicant has not made, given or agreed to make any payment or other reward in consideration of the guardianship

Under section 43 f subsection 4 the court may dispense any consent required under this section if satisfied that the person whose consent is to dispensed with has abandoned, or deserted the child cannot be found or is incapable of giving a consent or being a person responsible for the support of a child, has persistently neglected or refused to contribute to the support of the child.

Under section 43f subsection 5 the court may, in addition to the report of the probation and social welfare office require a local authority, the probation and social welfare office in a relevant district in Uganda or any other person to make a report in respect of the guardianship application.

Under section 43G (1) of the act court may grant a guardianship order where it is satisfied that the above conditions for guardianship have been fulfilled.

Under 43G (2) states that except for spouses no guardianship order can be granted to more than one person.

Under section 43H the effects and duration of a guardianship order are provided for and they include

(1)  A guardianship order vests parental responsibility of a child in the guardian.

(2)  Guardianship order remains in force until the child in relation to whom it is issued attains the age of 18 years.

(3)  The guardianship order ceases to apply where the guardian dies or is suffering from infirmity of the body or mind.

In a nutshell though the children’s act cap 59 does not provide for guardianship orders, section 98 of the civil procedure act empowers the high court to invoke its inherent powers to grant remedies where there are no specific provisions and finally article 139(1) of the constitution and section 14 of the judicature act gives high court original unlimited jurisdiction in all matters.

 FORMS OF GUARDIANSHIPS

There two forms of guardianship

1.   Customary guardianship

2.   Appointment by agreement / deed

1.    1.CUSTOMARY GUARDIANSHIP

The Hindu marriage and divorce act under S.1 (1) defines a custom as a rule which has been continuously observed for a long time and has attained the force of law among a community, group or family and the rule is not unreasonable or opposed to public policy.

Sec 43 c (4) of the children Act as Amended, defines customary guardianship as parental responsibility of a Ugandan child by a Ugandan citizen resident in Uganda in accordance with the customs culture or tradition of the respective people.

In a matter of an application for guardianship of the estates of the minors by Nakabugo Cate.

The applicant was a paternal aunt to the minors. She was given powers to take care of the minors, after death of their father though she had never been appointed as their guardian by a court of law. She applied for administration of the childrens property in order to meet their welfare.                                  

Lady Justice Mulyagonja observed that ordinarily under the customary laws of Ugandan traditional communities the paternal aunt would have guardianship of the children. Subject    to Section 2 of the Succession Act.               

It reinforces dominance of the male who in this case is the father. It provides that with regard to kindred and consanguinity a paternal ancestor shall be preferred to a material ancestor.

  However the above position of law was changed in the case of :

 

Law and advocacy of women in Uganda V A.G

Where court observed that most customary law was known as a tool to subordinate children and women’s rights  hence being inconsistent with Articles 21 (2) (3) 31 and 33 (6) of the constitution.         

S. 43 c of the Children Amendment Act

 Provides that family members may appoint a guardian of a child in accordance to their customs, culture or tradition where.

-          Both parents are deceased or cannot be found

-          Where the serving parent is incapacitated

-          When the child has no guardian or any person having parental responsibility over him/her 

It also provides under S.5 (2) that the person appointed under S.5 (1) shall act as a trustee in respect to the child’s estate.

All the scenarios above are discussed in the case of Namugerwa Joyce and others supra.

Subsection (3) of S.43c provides for liability of any person who misappropriates an estate of a child. Such a person upon conviction for not more than 5 years or a fine   not exceeding 150 currency points.         

 2.   APPOINTMENT OF GUARDIANSHIP BY AGREEMENT OR DEED

 Section 43(d) of the children’s Act Cap 59 (as amended)

Provides that a parent of a child may by agreement or deed appoint any person to be a guardian.

Section 43(d) 2.  An appointment made under subsection( 1) shall not take effect unless the agreement or deed is dated and signed by the parent in presence of two witnesses  one of whom must be a probation and social welfare officer  and the other  must be  a local councilor at LC 1 level .

A guardian is a person lawfully invested with the power and charged with the duty of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status or defect of age, understanding or self-control is considered incapable of administering his own affairs.

The condition for guardianship as espoused in Halsburys laws of England 3^rd edition Para. 460 consider that in all matters related to the child the welfare principle is paramount.

In some circumstances, people other than a child’s parents can become guardians of a child.

Priority should be given to family members and longtime friends though the parents would consider the religious views, opinion about education and whether such a person is willing to accept the responsibility.

There are two circumstances where a person can be appointed as a guardian by agreement or deed:-

1. Testamentary guardians

Testamentary guardians are appointed by a will or deed of a parent of the child. The person appointed becomes a testamentary guardian automatically when the parent dies.

Dying and leaving behind minor children is something no one wants to consider and the consequences of not making guardianship plans have a long devastating consequences in case one passes on without appointing a guardian .for instance such a minor may be sent to a foster care and with uncertain future.

While in the contrary a parent who appoints a guardian will experience a peace of mind in the event of a tragic accident or illness.

Usually the deceased parent who leaves behind a surviving spouse can rely on her to care for the minor children however if either parents pass on or if one has abandoned the children, it’s pertinent for the custodial parents to choose a guardian.

Thus a guardian by agreement or deed can be appointed by will, deed, or by signing documents (agreements) appointing him /her.

Because appointing a guardian mandates the holder of certificate to take responsibility of a child as would be the parent until the conditions enumerated here in are discovered.

 For the appointment of guardianship to be legally binding, the appointing parent should inculcate it in his will and consent of the guardian should be sought for prior.

The rationale is the wishes of the deceased tend to be respected by all courts as they are the last words and what he intended his children to have.

yet by having the person sign and having the document attested by at least two witnesses this goes back to the validity of a will one of the conditions to be valid it must be signed by the author and attested by at least two witness and since this is a matter affecting the child the law is clear that the two witnesses must be the probation and welfare officer and the councilor at   L .C. 1 level..

The case of Haigh vs. spencer Justice Elliot labored to differentiate guardianship and custody, in the former he indicated it involved the capacity to make decisions regarding major issues impacting a child’s life such as medical or educational needs while in the later it’s all about having the right to have physical care and control of a child.

It’s worth to note that testamentary guardians have the guardianship responsibilities of contributing to the child’s development and helping to make the important decisions in a child’s life. However, they do not have the automatic right to provide day-to-day care for the child. They must apply to the court if they want to be involved in the child’s day-to-day care.

 2. Court-appointed guardians

The Family Court may appoint someone who is not already a natural guardian of a child to be that child’s guardian. The court can do this when someone applies to be a guardian, or on its own initiative when making an order to remove a guardian. A court-appointed guardian can be appointed as a joint guardian along with any other guardian, or a sole guardian.

How long will the guardian be appointed for, and for what purpose?

The court can appoint the guardian for all purposes and for an indefinite period – for example, if neither parent is able to look after the child.

However, in some cases the court may decide to appoint the guardian for a particular purpose only – for example, to consent to medical treatment that the child’s parents won’t consent to, like a blood transfusion. Or it may appoint the guardian for a specific period of time – for example, while a parent is overseas, ill or in prison.

The child’s welfare and best interests are the most important factors for the court to consider when deciding whether to appoint an additional guardian.

Appointing a new spouse or partner as a guardian

In some situations a new spouse or partner of a parent can be appointed as an additional guardian by the Family Court registrar, without the need to go through a court hearing.

The new spouse or partner can only be appointed if:-

• they have shared responsibility for the day-to-day care of the child for at least one year, and
• They have never been involved in any care of children under the family and children’s court
• they have never been a respondent in proceedings of  Domestic Violence 
• They have never been convicted of an offence involving harm to children.

• Already has a testamentary guardian or a court-appointed guardian.
• Such applicant has been deprived of his or her guardianship

Who has a say in whether an additional guardian is appointed?

If both parents are alive, whether or not they are both guardians of the child, they must both agree to the appointment. If the child has any additional guardians, they must also consent to the appointment. The child must also be consulted about the new partner being appointed a guardian.

What is the process for appointing a new partner as guardian?

There is a special form for making the appointment, and usually both parents and the new partner must sign the form. The form must be accompanied by:

• statutory declarations from the parent or parents making the appointment and the new partner, and
• a copy of the new partner’s criminal record

In some situations the High Court or Family Court will appoint itself to be a child’s guardian. The court usually appoints the Ministry of gender, youth and Social Development

The people who can apply for a child to be placed under the court’s guardianship are:

• a parent or guardian of the child
• a grandparent, aunt or uncle of the child
• a sibling (including a half-sibling) of the child
• a spouse or partner of a parent of the child
• the child themselves
• Child, Youth and Family
• Any other person granted leave to apply by the court.

When the court becomes the guardian of a child, the court takes priority over the rights of existing guardians. The guardianship rights of any other people become subject to the approval of the court.

Disputes between guardians

Section 43 (e) of the children’s act cap 59 as amended

 Provides that where court appoints two or more persons to act as joint guardians of the child

2. where two or more persons appointed to act as joint guardians in respect of a child are unable to agree on any matter affecting the welfare of a child, for example about what school they should - go any of them may apply to the court for its discretion so long as they have tried to resolve the dispute through family dispute resolution.

The welfare and best interests of the child will be the first and most important factor when the Family Court makes its decision.

Guardians usually can’t take a dispute to the Family Court unless they’ve already attempted to resolve the dispute through the Family Dispute Resolution (for more reference see. the family court dispute resolution rules and mediation rules)

The rules are compulsory to prove that mediation was conducted though it failed.

How the Family Court process works in guardian disputes

If you apply to the Family Court for it to resolve a dispute with your child’s other guardian, the application process and the court processes after you apply will be basically the same as if you had applied for a parenting order to settle a dispute about care arrangements

The general principles the judge will apply in deciding the dispute will also be the same as in a parenting order case

Resolving guardianship disputes by agreement

If guardians reach agreement on an issue to do with the child’s care and upbringing, such as their school, hobbies or religion, they have the option of asking the Family Court to formalize the agreement by turning the agreed terms into a court order. The agreement can then be enforced like any other court order.

As well as guardianship issues, agreements brought to the Family Court in this way sometimes also include parenting arrangements for day-to-day care and contact.

When guardianship ends

Guardianship ends when the child:

• turns 18, or
• Gets married, enters into a civil union, or lives with someone as a de facto partner (if the child is 16 or 17, they need written permission from their guardian).

Guardianship also ends if a guardian is removed by the Court or if the guardian was appointed for a specific period or purpose and the period ends or the purpose is achieved.

Note: Guardianship has been described as a “dwindling right”. This means that even though guardianship may not have legally come to an end, as a child gets older and gains in maturity and understanding, their views become more important and the rights of a guardian to make decisions for the child decrease.

Removal of guardians by the courts

The Family Court can remove a guardian if it is satisfied that:

• for some very serious reason the person is unfit to be a guardian, or
• the person is unwilling to be a guardian, and
• The removal will be in the welfare and best interests of the child.

In practice this means that there will have to be a very serious reason before a parent is removed as guardian.

Removing a testamentary, court-appointed, or additional guardian

In the case of removal of a testamentary guardian, or court-appointed guardian, or new spouse or partner appointed as an additional guardian, the only question is whether the order for removal will serve the welfare and best interests of the child.