natural guardian

English translation: The person who would automatically be assumed to be the child's guardian

GLOSSARY ENTRY (DERIVED FROM QUESTION BELOW)
English term or phrase:natural guardian
Selected answer:The person who would automatically be assumed to be the child's guardian
Entered by: B D Finch

18:09 Aug 31, 2019
English language (monolingual) [PRO]
Law/Patents - Law (general)
English term or phrase: natural guardian
A natural guardian of a minor prescribed in Points a and b Clause .....shall be determined as follows:
1. The eldest brother or sister shall be the guardian of the ward, if the eldest brother or sister fails to satisfy all requirements for acting as a guardian, the next eldest brother or sister shall be the guardian, unless otherwise agreed that another biological brother or sister shall e the guardian
...
Jakubikova
Local time: 17:44
The person who would automatically be assumed to be the child's guardian
Explanation:
I think that there has been a great deal of misguided discussion about what person might be a natural guardian, rather than trying to define what the term "natural guardian" actually means.

It seems to me that this term means the person who would automatically be assumed, by law, to be the guardian of the child without the need for that guardianship to be specifically attributed by a court.

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Note added at 1 day 21 hrs (2019-09-02 15:13:31 GMT)
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What is "natural"

One might think that it would have been "natural" in the days before paternity testing, for a child's guardian to be its mother, as the mother was the only parent who could be identified with certainty. However, in Britain and the US, the child's natural guardian was held to be the father. Now that we are blessed with DNA tests that can establish paternity with a fair degree of accuracy, mothers are recognised by law as natural guardians of their children (though not in some countries, e.g. Israel and Saudi Arabia). So, what seems natural and what is automatically assumed to be the natural state of affairs has less to do with biology than with with social and economic power.

Note that "automatically" in my answer is an adverb modifying the verb "to assume", not an adjective qualifying the noun "guardian".

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Note added at 1 day 21 hrs (2019-09-02 15:26:40 GMT)
--------------------------------------------------

Of course, there are those who bring god and creation into it:

"Although natural law is often conflated with common law, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation.[3] Natural law theories have, however, exercised a profound influence on the development of English common law,[4] and have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in United States Declaration of Independence and the Constitution of the United States. The essence of Declarationism is that the founding of the United States is based on Natural law.

It has been a part of British law for generations

Coke's discussion of natural law appears in his report of Calvin's Case (1608): "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support these findings, the assembled judges (as reported by Coke, who was one of them) cited as authorities Aristotle, Cicero, and the Apostle Paul; as well as Bracton, Fortescue, and St. Germain.

These are strong words that one can only conclude from that British Law should reflect natural law!

And Ergo Parents should in law be the Natural Guardians of their children!

Can the Prime Minister provide copies of information that he holds that states why this should not be so?"

https://www.whatdotheyknow.com/request/why_does_british_law_...
Selected response from:

B D Finch
France
Local time: 17:44
Grading comment
Selected automatically based on peer agreement.
4 KudoZ points were awarded for this answer



SUMMARY OF ALL EXPLANATIONS PROVIDED
4 +3The person who would automatically be assumed to be the child's guardian
B D Finch
4blood relative legally fit for guardianship
Duarte Leal
3 -1blood relative old enough to assume guardianship
jccantrell
5 -3natural parent/ guardian/ lawful custodian/ or an individual acting as a parent of a pupil in
Tanja Vernić
Summary of reference entries provided
Section 4. GUARDIANSHIP
Daryo

Discussion entries: 21





  

Answers


3 hrs   confidence: Answerer confidence 5/5 peer agreement (net): -3
natural parent/ guardian/ lawful custodian/ or an individual acting as a parent of a pupil in


Explanation:
"parent" is defined as:
natural parent, guardian, lawful custodian, or an individual acting as a parent of a pupil in the absence of a parent or guardian.


    https://www.linguee.com/english-spanish/search?source=auto&query=natural+guardian
Tanja Vernić
Croatia
Local time: 17:44
Specializes in field
Native speaker of: Croatian

Peer comments on this answer (and responses from the answerer)
disagree  Daryo: you expect "linguee" to explain the fine points of Vietnamese legal concepts regarding family relations?+A serious problem in your method: you take a definition of another term containing "natural" and "guardian" *separately* and make it a definition of??
15 mins
  -> Daryo give us a pleasure of your suggestion, as Lawyer I don t see problem in this, if is asked for sinonims to this frase englis to english

disagree  Yvonne Gallagher: you're trying to define (inadequately) "loco parentis" NOT natural guardian
22 hrs

disagree  B D Finch: It would seem clear from the text that parents are not included. Also, there is no justification at all for the term "pupil".
1 day 12 hrs
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1 day 3 hrs   confidence: Answerer confidence 3/5Answerer confidence 3/5 peer agreement (net): -1
blood relative old enough to assume guardianship


Explanation:
Based on all the chatter, this is what I would assume it to be.

a 10 year old brother does not cut it, an 18 year old brother (in the USA) could do it.
Aunts, uncles (not by marriage), grandparents, etc. would also be acceptable.

jccantrell
United States
Local time: 08:44
Native speaker of: Native in EnglishEnglish
PRO pts in category: 24

Peer comments on this answer (and responses from the answerer)
neutral  Yvonne Gallagher: age is not the only/main factor to be taken into account
16 hrs

disagree  Daryo: that not what the relevant Vietnamese law says. Which BTW is easy to find ... and a tiny bit more relevant than "all the chatter".
1 day 1 hr
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1 day 17 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5
blood relative legally fit for guardianship


Explanation:
Being a guardian of a child means having all duties, powers, rights and responsibilities that a parent (The Natural Guardian by definition) has in bringing up the child.
In this case, it seems the law is listing the order in which a Natural Guardian (other than the parents) is to be appointed; here the word "Natural" seems so point out a certain difference from the expression "legal guardian", in the sense that it prescribes the order in which blood relatives are (can be) considered the Natural Guardian of a ward - although I'm not sure the only limitation here is based merely on age:

mental health, physical dexterity and even criminal record might make a given person ineligible for guardianship.

Duarte Leal
Portugal
Local time: 16:44
Specializes in field
Native speaker of: Native in PortuguesePortuguese

Peer comments on this answer (and responses from the answerer)
agree  Yvonne Gallagher: yes, have to be legally fit as well as next-of-kin rule
3 hrs

disagree  Daryo: that's not what the relevant Vietnamese law says. it's NOT about being fit/unfit it's about being presumed to be / designated by default as guardian.
12 hrs
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1 day 18 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +3
The person who would automatically be assumed to be the child's guardian


Explanation:
I think that there has been a great deal of misguided discussion about what person might be a natural guardian, rather than trying to define what the term "natural guardian" actually means.

It seems to me that this term means the person who would automatically be assumed, by law, to be the guardian of the child without the need for that guardianship to be specifically attributed by a court.

--------------------------------------------------
Note added at 1 day 21 hrs (2019-09-02 15:13:31 GMT)
--------------------------------------------------

What is "natural"

One might think that it would have been "natural" in the days before paternity testing, for a child's guardian to be its mother, as the mother was the only parent who could be identified with certainty. However, in Britain and the US, the child's natural guardian was held to be the father. Now that we are blessed with DNA tests that can establish paternity with a fair degree of accuracy, mothers are recognised by law as natural guardians of their children (though not in some countries, e.g. Israel and Saudi Arabia). So, what seems natural and what is automatically assumed to be the natural state of affairs has less to do with biology than with with social and economic power.

Note that "automatically" in my answer is an adverb modifying the verb "to assume", not an adjective qualifying the noun "guardian".

--------------------------------------------------
Note added at 1 day 21 hrs (2019-09-02 15:26:40 GMT)
--------------------------------------------------

Of course, there are those who bring god and creation into it:

"Although natural law is often conflated with common law, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation.[3] Natural law theories have, however, exercised a profound influence on the development of English common law,[4] and have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in United States Declaration of Independence and the Constitution of the United States. The essence of Declarationism is that the founding of the United States is based on Natural law.

It has been a part of British law for generations

Coke's discussion of natural law appears in his report of Calvin's Case (1608): "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support these findings, the assembled judges (as reported by Coke, who was one of them) cited as authorities Aristotle, Cicero, and the Apostle Paul; as well as Bracton, Fortescue, and St. Germain.

These are strong words that one can only conclude from that British Law should reflect natural law!

And Ergo Parents should in law be the Natural Guardians of their children!

Can the Prime Minister provide copies of information that he holds that states why this should not be so?"

https://www.whatdotheyknow.com/request/why_does_british_law_...


B D Finch
France
Local time: 17:44
Works in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 72
Grading comment
Selected automatically based on peer agreement.

Peer comments on this answer (and responses from the answerer)
agree  David Moore (X)
16 mins
  -> Thanks David

agree  Björn Vrooman: Good compromise. It's confusing; if your maternal/paternal grandfather/grandmother is still alive (but you have no siblings), he or she can just "appoint a person or some persons to be guardian(s)." If not, your auncle/aunt may get the "job."
52 mins
  -> Thanks Björn. Not really, because the detail depends upon the system in the country concerned. However, the point here is to define the general term.

disagree  Yvonne Gallagher: since when did "natural" =automatic?//nothing in law "automatically assumed". All is spelled out and social services always make final decisions on most suitable designated guardian(s), in every jurisdiction I know.// Last link totally irrelevent here
2 hrs
  -> It didn't. However, because people (and the law) automatically assume that what seems to them to be natural is actually the case, "natural" is commonly used to mean something that is automatically assumed if there's no reason for it to be otherwise.

agree  Daryo: as it happens, this corresponds to what you would conclude from reading the whole relevant chapter 3 of the Vietnamese Civil Code - but you got it right more by luck (the translation was pretty good) than by design ...
11 hrs
  -> Thanks Daryo, but forgive me if I find your comment a wee bit patronising. My answer was an attempt to explain the meaning of the English term "natural guardian", not to explain it in the context of the Vietnamese law or language.

agree  Charlesp
2 days 21 hrs
  -> Thanks Charles
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Reference comments


2 days 6 hrs
Reference: Section 4. GUARDIANSHIP

Reference information:
2015 – Civil Code (Vietnam)

Chapter 3 NATURAL PERSONS

Section 1. LEGAL PERSONALITY AND LEGAL CAPACITY OF NATURAL PERSONS

Section 2. PERSONAL RIGHTS

Section 3. PLACE OF RESIDENCE

Section 4. GUARDIANSHIP

Article 46. Guardianship

1. Guardianship means an individual or organization (hereinafter referred collectively to as guardian) is required by law or appointed to take care of and protect legitimate rights and interests of a minor or a legally incapacitated person or a person with limited cognition and behavior control (hereinafter referred to as a ward).

2. When a person with limited cognition and behavior control is capable of expressing his/her will anytime when he/she requests the guardianship, his/her consent is required.

3. The guardianship must be registered at a competent authority as prescribed in law on civil status affairs.
Natural guardians must fulfil their obligations regardless of their registration of guardianship.

Article 52. Natural guardians of minors

A natural guardian of a minor prescribed in Points a and b Clause 1 Article 47 of this Code shall be determined as follows:

1. The eldest brother or sister shall be the guardian of the ward; if the eldest brother or sister fails to satisfy all requirements for acting as a guardian, the next eldest brother or sister shall be the guardian, unless otherwise agreed that another biological brother or sister shall be the guardian;

2. If there is no guardian prescribed in Clause 1 of this Article, the paternal grandfather, grandmother or the maternal grandfather, grandmother shall be the guardian; or those persons shall agree to appoint a person or some persons to be guardian(s);

3. If there is no guardian prescribed in Clause 1 and Clause 2 of this Article, a biological uncle or aunt of the ward shall be the guardian.

Article 53. Natural guardians of incapacitated persons

If there is no guardian prescribed in Clause 2 Article48 of this Code, the natural guardian of a legally incapacitated person shall be determined as follows:

1. If a wife is a legally incapacitated person, her husband shall be the guardian; if a husband is a legally incapacitated person, her wife shall be the guardian;

2. If both parents are incapacitated persons or either of them is a legally incapacitated person and the other does not fully meet requirements to be a guardian, the eldest child shall be the guardian; if the eldest child does not fully meet the requirements to be a guardian, the next eldest child shall be the guardian;

3. If an adult being a legally incapacitated person has no spouse or child or such person has spouse or children but they do not fully meet the requirements to be a guardian, his/her father and/or mother shall be the guardian.

Section 5. NOTICE OF SEARCH FOR PERSONS WHO ARE ABSENT FROM THEIR PLACES OF RESIDENCE, DECLARATION OF MISSING PERSONS AND DECLARATION OF DEATH

Daryo
United Kingdom
Native speaker of: Native in SerbianSerbian, Native in FrenchFrench
PRO pts in category: 4
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