The care, custody and welfare of children (under the age of 18) in Nigeria are strict functions of an intricate regulatory framework comprising institutions and laws; beginning quite naturally with the Constitution of the Federal Republic of Nigeria 1999, as amended. Section 17(3) (f) of the law particularly imposes a non-actionable obligation on the Nigerian Government to ensure that children and young persons are adequately shielded from exploitation, moral and material neglect.
This protection is also deemed an inherent responsibility of parents and therefore, it is not uncommon to see our substantive criminal laws impose an obligation on parents to avail their children or wards with basic life needs as well as prescribe punishments for failure to intentionally make such provisions (See sections 300 – 305 of the Criminal Code Act). In the absence of parents or guardians on which to foist these obligations, the law provides for a number of alternative measures to protect children that would otherwise be deprived.
The same basic principles generally apply in all Nigerian states with minimal disparities. For the purpose of contextual streamlining however, the relevant operational framework in Lagos State will be examined.
When a child is without a parent or guardian, the Lagos state government is expected to take custody of the child and facilitate his/her placement in one of the select orphanages in Lagos state. Consequently, the child becomes a ward of the State, subject to the supervision of the Ministry of Youth, Sports and Social Development.
The existing legal and regulatory framework is further structured to provide a number of ways by which the average Nigerian citizen or a foreigner can formally seek to be vested with the capacity to take optimum care and responsibility of such children, pursuant to an order of a court of competent jurisdiction. Thus, it is an offence punishable by law for any person to exercise certain rights, powers and obligations over a child within contemplation prior to applying for and obtaining the requisite approval from the relevant authorities. These legal arrangements are identified and discussed below:
A person or couple may appropriately make an application for a “Fostering Order” in respect of a child that is orphaned, abandoned, deserted by relatives, abused, found wandering or destitute (See Section 92 Child Rights Law of Lagos State 2015). The application may be made by a sole applicant or jointly by a couple. The Court may however require the consent of a relative i.e. a grandparent or other persons related to the child before it makes the grant.
Upon the grant of the Fostering Order, the child will stand to the foster parents in the same position as the children born to the foster parents in a lawful marriage. The Fostering Order may subsequently be revoked by the court if it deems it appropriate.
Note the following additional details about fostering:-
Once an application for fostering is made, the Adoption Unit of the Lagos State Ministry of Youths, Sports and Social Development (The Unit) must also be notified. If the child is not already in the custody of the Unit, it is the Unit’s practice to immediately take custody of the child and place it in an approved orphanage pending the ruling of the court.
If the order is granted, the custody of the child may be released to the foster parents but the Unit must be constantly apprised of the child’s status at all times and a designated social worker may periodically visit the home of the parents to conduct this assessment.
If the child is to be taken out of the country by the foster parents, the court must be notified before and after the child returns.
Giving possession of the fostered child to another person for fostering outside Lagos or Nigeria attracts prison terms of 10 and 15 years respectively. See section 108 (2) & (3) of the CRL respectively.
Execution Timeline: 2 – 4 months from date of application
This is perhaps the most flexible and quickest legal arrangement for taking care and custody of the children in contemplation. The parents of a child are his/her default guardians. However, in the absence of the parents or any other family member of the child or appropriate authority, an unrelated party may apply to be appointed a guardian and vested with the capacity to exercise parental responsibilities over such a child.
(See sections 75 & 76 of the CRL of Lagos State 2015. If unconditionally granted, a guardian will have all parental and incidental responsibilities over the child to the full extent permissible by law. A guardianship Order can subsequently be revoked or substituted by the guardian, a natural parent or an appropriate authority. Otherwise, the order will subsist until the child attains the age of majority.
Note that unlike a fostering order which can only be granted solely to an applicant or jointly to a couple, a guardianship order can be granted to the parents of the child and an unrelated person, appointing them all as joint guardians of the child. In addition, the supervision of guardianship applications is within the ambit of the court and not the Lagos State Ministry of Youth, Sports and Social Development (MYSD).
Hence the MYSD need not be involved in a guardianship application as long as the child is not yet a ward of the government and resident in an orphanage. Note that a guardian is also empowered to appoint by deed in his or her lifetime, another guardian of the child in the event of such guardian’s death.
Execution Timeline: 1 – 3 months from date of application