Access by Guardians

Section 49(d) of LAFOIP states that any right or power conferred on an individual by LAFOIP can be exercised by the individual’s legal custodian where the individual is less than 18 years of age. A legal custodian can include a guardian.

In section (2) of The Education Act, 1995  “guardian” is defined.

For purposes of The Education act, 1995 a guardian is treated in the same way a parent. A guardian has care and custody of the student and must make educational decisions for the student the guardian will also need educational information about the child. Therefore, personal information of the student can be shared with a guardian in the same way as with a parent with custody.

Informal Guardianship

This is probably the most common form of guardianship with which school division must deal. Parents may ask an aunt or grandparent to take over the parenting of a child on a temporary, or even permanent, basis without getting a court order.

It is best practice to get something in writing from the parent indicating that the guardian has been given the care and custody of the child. In some cases this is not possible and a reasonable investigation into the circumstances will often be enough to satisfy the school division of the legitimacy of the guardianship. If there is any doubt about the right or ability of the guardian to have the care and custody of the child it should be immediately reported to social services or to the police.

Court Order

A person may apply to the court for official guardianship of a child. This is most often done as part of custody and access litigation or in situations where a child over 18 requires a guardian the child does not have the capacity to handle his or her own affairs. Unless there are specific restrictions contained in the order itself the guardian can be treated in exactly the same way as the parent of the student.

Social Services

The Ministry of Social Services has the legal authority in certain circumstances to remove children from their homes. The ministry can take legal custody of the children and may obtain various forms of court orders relating to the custody of the child. As the legal custodian of the child, the appropriate representative of social services will be able to exercise the same rights of access as a custodial parent.

When a child is put into foster care, the foster parents become the guardians or legal custodians of the child for purposes of The Education Act, 1995 and would exercise the same rights of access to information as would a custodial parent.