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GUARDIANSHIP OF INFANTS (CHAPTER 191)

LAWS OF BRUNEI

CHAPTER 191

GUARDIANSHIP OF INFANTS

S 31/99

REVISED EDITION 2000

(30th December 2000)

ARRANGEMENT OF SECTIONS

Section

1. Citation.

2. Non-application.

3. Interpretation.

4. Welfare of infant to be paramount consideration.

5. Equal right of mother to apply to court.

6. Power of court to make, discharge or amend orders for custody andmaintenance of infants.

7. Rights of surviving parent as to guardianship.

8. Power of father and mother to appoint testamentary guardians.

9. Dispute between joint guardians.

10. Enforcement of orders for payment of money.

11. Removal of guardian.

12. Matters to be considered.

13. Variation of trusts for maintenance of infant.

14. Production of infant.

15. Placing infant in custody of guardian.

16. Security to be given.

17. Limitation of guardian’s powers.

18. Guardian may not give discharge for capital property.

19. Guardian may support infant out of income.

20. Special order in case of small estate.

21. Application for opinion etc.

22. Exception for money paid into a subordinate court.

23. Rules.

_______________________

GUARDIANSHIP OF INFANTS ACT

An Act to provide for the guardianship of infants, and to provide for matters incidental thereto

Commencement: 1st August 1999

Citation.

1. This Act may be cited as the Guardianship of Infants Act.

Non-application.

2. This Act shall not apply in any matter if any of the partiesprofesses the Islamic religion.

Interpretation.

3. (1) In this Act unless the context otherwise requires —

“court” means the High Court or a judge thereof when sitting inopen court;

“judge” means a judge of the High Court sitting in chambers.

(2) Any reference in this Act to “this Act” shall bedeemed to include reference to any other law in force in Brunei Darussalambefore the commencement of this Act, in relation to the guardianship ofinfants.

Welfare of infant to be paramount consideration.

4. Where in any proceedings before the court the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and, save in so far as such welfare otherwise requires, the father of an infant shall not be deemed to have any right superior to that of the mother in respect of such custody, administration or application nor shall the mother be deemed to have any claim superior to that of the father.

Equal right of mother to apply to court.

5. The mother of an infant shall have the like powers of applying tothe court in respect of any matter affecting the infant as are possessed bythe father.

Power of court to make, discharge or amend orders for custody andmaintenance of infants.

6. The court may, upon the application of either parent or ofany guardian appointed under this Act, make such orders as it may think fitregarding the custody of such infant, the right of access thereto and thepayment of any sum towards the maintenance of the infant and may alter, vary or discharge such order on the application of either parent or of anyguardian appointed under this Act.

Rights of surviving parent as to guardianship.

7. (1) On the death of the father of an infant, the mother, ifsurviving, shall, subject to the provisions of this Act, be guardian of theinfant, either alone or jointly with any guardian appointed by the father. Whenno guardian has been appointed by the father, or if the guardian appointed bythe father is dead or refuses to act, the court may, if it thinks fit, appoint aguardian to act jointly with the mother.

(2) On the death of the mother of an infant, the father, if surviving,shall, subject to the provisions of this Act, be guardian of the infant, eitheralone or jointly with any guardian appointed by the mother. When noguardian has been appointed by the mother, or if the guardian appointed by themother is dead or refuses to act, the court may, if it thinks fit, appoint aguardian to act jointly with the father.

(3) Where an infant has no parent, no guardian of the person and no otherperson having parental rights with respect to him, the court may, on theapplication of any person, if it thinks fit, appoint the applicant to bethe guardian of the infant.

Power of father and mother to appoint testamentary guardians.

8. (1) The father of an infant may by deed or will appoint any person to be guardian of the infant after the father’s death.

(2) The mother of an infant may by deed or will appoint any person to beguardian of the infant after the mother’s death.

(3) Any guardian so appointed shall act jointly with the mother or father, as the case may be, of the infant so long as the mother or father remainsalive, unless the mother or father objects to the guardian so acting.

(4) If the mother or father so objects, or if the guardian so appointedconsiders that the mother or father is unfit to have the custody of the infant,the guardian may apply to the court.

(5) If an application is made under subsection (4), the court may either refuse to make any order (in which case the mother or father shallremain sole guardian) or make an order that the guardian so appointed shall actjointly with the mother or father, or that he shall be sole guardian of theinfant, and in the latter case may make such order regarding the custody of theinfant and the right of access thereto of the mother or father as, having regardto the welfare of the infant, the court may think fit.

(6) If an application is made under subsection (4), the court may furtherorder that the mother or father shall pay to the guardian towards themaintenance of the infant such weekly or other periodical sum as, havingregard to the means of the mother or father, the court may considerreasonable.

(7) Where guardians are appointed by both parents, the guardians soappointed shall, after the death of the surviving parent, act jointly.

(8) A guardian who has been appointed by the court to act jointly with asurviving parent shall continue to act as guardian after the death of thesurviving parent. If the surviving parent has appointed a guardian, theguardian appointed by the court shall act jointly with the guardian appointed bythe surviving parent.

Dispute between joint guardians.

9. (1) Where 2 or more persons act as joint guardians of an infantand are unable to agree on any question affecting the welfare of the infant, anyof them may apply to the court for its direction, and the court may make suchorder regarding the matters in dispute as it may think proper.

(2) If an application is made under subsection (1), the court shall, in addition to any other of its powers, have power —

(a) to make such orders regarding the custody of the infant and theright of access thereto of the mother or father as, having regard to the welfareof the infant, the court may think fit;

(b) to order the mother or father to pay towards the maintenance oreducation of the infant such weekly or other periodical sum as, havingregard to the means of the mother or father, the court may considerreasonable; and

(c) to vary or discharge any order previously made under thissection.

Enforcement of orders for payment of money.

10. (1) When the court has made any order under this Act for paymentof money, it shall, in addition to any other powers for enforcing compliancewith the order, have power, if there is any pension or income payable to theperson against whom the order was made which is capable of being attached, aftergiving the person by whom the pension or income is payable an opportunityof being heard, to order that such part as the court may think fit of any suchpension or income be attached and paid to the persons named by the court.

(2) An order made under subsection (1) shall be an authority to the personby whom such pension or income is payable to make the payment so ordered. The receipt of the person to whom the payment is ordered to be made shall bea good discharge to the person by whom the pension or income is payable.

(3) This section shall be binding on the Government.

Removal of guardian.

11. The court or a judge may remove any guardian from his guardianshipand may appoint another guardian in his place.

Matters to be considered.

12. The court or a judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be.

Variation of trusts for maintenance of infant.

13. Where an infant is, by an order of the court made under this Act, removed from the care of any person who is entitled under any trust to receive any sum of money in respect of the maintenance of the infant,the court may order the whole or any part of the sum so payable under the trustto be paid to the person to whose care the infant is committed, to be applied bythat latter person for the benefit of the infant in such manner as, havingregard to the terms of the trust, the court may direct.

Production of infant.

14. A judge may, for the purpose of any application under this Act,direct that any person appearing to have the custody of an infant shall producethe infant in the judge’s chambers or at such other place as the judge may appoint. The judge may make such order for the temporary custody and protection of the infant as he thinks fit.

Placing infant in custody of guardian.

15. Where an infant leaves, or is removed from, the custody of hislawful guardian, the court or a judge may order that he be returned to suchcustody. For the purposes of enforcing such order, the court or judge may directthe sheriff to seize the person of the infant and deliver him into the custodyof his lawful guardian.

Security to be given.

16. (1) A person appointed by the court as the guardian of aninfant’ property shall, unless the judge otherwise orders, give securityin such sum as may be specified by the court for the due performance of hisduties as such guardian.

(2) Such security shall be given in the manner prescribed for the time being in the case of receivers appointed by the court, and the guardian so appointed shall prepare his accounts at such periods as may be ordered, and shall pay any balance certified to be due from him into court in the manner prescribed for receivers.

Limitation of guardian’s powers.

17. (1) A guardian of the property of an infant shall not, without the leave of the court or a judge —

(a) sell, mortgage, exchange or otherwise part with the possession of any of the movable or immovable property of the infant; or

(b) lease any land belonging to the infant for a term exceeding oneyear.

(2) Any disposal of an infant’s property in contravention of thissection may be declared void, and on such declaration the judge may make suchorder as appears requisite for restoring to the infant’s estate theproperty so disposed of.

(3) The court or a judge shall not make any order under subsection

(1) unless it is necessary or advisable in the interests of the infant.

Guardian may not give discharge for capital property.

18. A guardian of the property of an infant shall not, unless in anycase the court or a judge otherwise orders, be empowered to give a gooddischarge for any legacy or other capital moneys payable to or receivable by aninfant.

Guardian may support infant out of income.

19. (1) A guardian of the property of an infant may make reasonable provision out of the income of such property for hismaintenance and education, having regard to his station in life; but no sumexceeding $1,000 per month may be so applied without the leave of the court or ajudge.

(2) Where the income of the infant’s property in the hands of the guardian is insufficient for such purpose, or money is required for the infant’s advancement, a judge may order that provision for such purpose be made out of the capital of the infant’s property, and for such purpose may authorise the sale or mortgage of any part of the infant’s property, and give such directions in regard thereto as may be necessary in the interests of the infant.

Special order in case of small estate.

20. (1) If it appears that, having regard to the station in life ofan infant and to the value of his property and to all the circumstances of thecase, it would be expedient that the capital property of the infant should be made available for his maintenance, education or advancement in such manneras to avoid the expense of applications to the court, a judge may,instead of appointing a guardian of the property of the infant, order that allthe property of the infant of whatsoever description shall be placed inthe hands of a person to be appointed by the judge, with full power in thatperson to deal with and apply the same for such purpose in his sole anduncontrolled discretion. In such a case, the receipt of the person so appointedshall be a good discharge to any person making any payment or transfer of any property to him on behalf of the infant.

(2) Any person so appointed may be ordered by the court or a judge torender an account of his dealings with the infant’s estate.

(3) The court or a judge may for any sufficient reason discharge any order,or revoke any appointment, made under subsection (1), and may appointanother person with the same power or such greater or less power as may appearadvisable, or may appoint a guardian of the infant’s property.

Application for opinion etc.

21. A guardian may apply to a judge for his opinion, advice ordirection on any question respecting the management or administration of theinfant’s property.

Exception for money paid into a subordinate court.

22. Nothing in this Act shall apply to any money paid into asubordinate court to the credit of an infant in any action or proceeding in asubordinate court ordered to be transferred to the credit of an infant, but thesame shall be dealt with according to such rules as may apply thereto, unless inany case the court or a judge otherwise orders.

Rules.

23. The Chief Justice may, with the approval of His Majesty the Sultanand Yang Di-Pertuan, make rules generally for the carrying out of theprovisions of this Act.