In 2003, the Child’s Rights Act2003 (the 2003 Act) was passed into law by the Federal Government of the Federal Republic of Nigeria. This Act is the product of the 1987 United Nations Convention on the Rights of the Child, as domesticated under section 12 of the 1999 Constitution of Federal Republic of Nigeria (as amended). Since the passage of this Act, most of the States in Nigeria have followed suit and enacted exact versions of it as their state laws. Four years into the enactment of the Act, Lagos State enacted its own Child’s Rights Law 2007 (the 2007 Law).
Prior to the enactment of the 2007 Law, there was no Family Court in Lagos State. Issues pertaining to the child were dealt with in the juvenile court, constituted by the Chief Judge of Lagos State under section 6 of the Children and Young Persons Law Cap. C10, Laws of Lagos State 2003. Family Court in Lagos State was first introduced and established under section 138 of the 2007 Law. The 2007 Law is, therefore, the origin of and the enabling law for the Family Court in Lagos State.
In order to give the Family Court of Lagos (FCL) its own procedural regulation, the Chief Judge of Lagos State made the Family Court of Lagos State (Civil Procedure) Rules 2012(the 2012 Rules), to regulate proceedings relating to the rights and welfare of the child under the 2007 law. At the moment, the jurisdiction and proceedings of the Family Court of Lagos are as contained in the 2007 Law and the 2012 Rules.
Civil Jurisdiction of the FCL:
Because of its jurisdictional specialization on the child’s welfare,the FCL may be said to be a specialized court. A specialized court is one that has specific subject(s) that it deals with, unlike a court that deals with an array of different subjects. The FCL’s jurisdiction is as captured in section 140 of the 2007 Laws thus:
“(1) Subject to the provisions of this Law and to such other jurisdiction conferred by any law, the Court shall have unlimited jurisdiction to hear and determine—
- any civil proceeding in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim in respect of a child is in issue;
From this provision, it is clear that the civil jurisdiction of the FCL pertains only to issues and matters relating to the child’s legal rights, interests, claims and obligations owed to the child and liabilities that may be incurred by people who owe parental responsibilities towards the child. The FCL will have unlimited jurisdiction to determine applications pertaining to the child and enforcement of all the rights granted to the child under the 2007 Law.
In addition to this, issues relating to custody, guardianship and maintenance of the child (whether during the subsistence of marriage or after its dissolution) are to be adjudicated upon by the FCL. It is also immaterial that the parents of the child are not legally married or they married under native law and customary law or under Islam law. The FCL has jurisdiction to make orders such as contribution order, care order, child assessment order, education supervision order, emergency protection order, guardianship order, financial compensation order, maintenance order and custody order.
Operation of the Family Court of Lagos:
The FCL by its establishment is just one across Lagos State. However, it operates at two different levels— (a.) as a division of the High Court of Lagos State; and (b.) at the Magistrate court level. A question may be asked as to what differentiates the two levels in relation to what they can exercise jurisdiction on in their respective capacities. It should be noted that two categories of actions can be commenced under the 2007 Law. The first category comprises applications for enforcement of the right of the child (e.g enforcement of the child’s right to education) while the second category comprises applications brought in respect of the child other than enforcement of the right of the child (e.g application for adoption, maintenance or custody of the child).
In respect of second category, the FCL both at the High Court level and the Magisterial level have jurisdiction to entertain such applications, and this is what is obtainable in practice. Thus, application for adoption, custody or maintenance of the child may be brought at both levels. However, in respect of the first category (enforcement of rights), only the FCL at the High Court level has exclusively jurisdiction to act in that regard. Section 141(4) vests on the FCL at the High Court level the exclusive power to try and determine matters relating to the enforcement of the rights of the child as set out in the 2007 Law.
What this means is that such applications cannot be brought at the Magistrate Court level of the FCL. The civil jurisdiction of the FCL at the Magistrate Court level in respect of enforcement of the right of the child is merely residual. This position is evident in the provision of section 142(4) which provides that:
“The Court at the Magisterial level shall have power to try and determine all matters not specifically assigned to it at the High Court level under Section 141 of this Law.”
Enforcement of all the rights of the child under the 2007 Law is expressly vested on the High Court level of the FCL. The question that arises is where does that leave the Magisterial level of the FCL in respect of enforcement of the rights of the child. It will appear, for all intents and purposes, that the Magisterial level of the FCL cannot try and determine matters of enforcement of rights of the child under its enabling law, the 2007 Law. It will only be able to determine applications brought in respect of the child other than enforcement of the right of such child.
Bolaji S. Ramos