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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 ...
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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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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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!
Social services, are a recent innovation and there are countries where they might not exist, or be very rudimentary or limited to urban areas.
As for my last reference. I posted it not only because it seemed delightfully nutty and worth sharing on that basis, but also because it demonstrates that ideas of what is natural and just don't spring out of nowhere, but are social constructs and products of history, literature, past political and philosophical debate, religion etc.
There's no room in the comment box to answer your point "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."
I noted that "natural" is commonly used for something that's automatically assumed if there's no reason for it to be otherwise. Life would be utterly impossible if the law never automatically assumed anything. It automatically assumes the people registered on a child's birth certificate as parents are its natural guardians. Otherwise, the courts would have to intervene and make a decision every single time a child was born. The law automatically assumes that, if I am walking down the street and somebody grabs my handbag, the contents of that handbag belong to me and that it isn't a case of the thief having a legitimate claim to them. Otherwise PC Plod who had seen it happen and immediately apprehended the thief would find it impossible to give me back my things without investigating my ownership of them. If, however, the thief, claimed I'd previously grabbed the bag off her, that would suggest a reason for it to be otherwise.
Beware of confusing "natural guardian" with "guardian". I believe that the point of the adjective "natural" is that this is the person who would be the legally recognised guardian if a court had not appointed a guardian. It would almost inevitably be the result of "some kind of next-of-kin rule". From what you mention of the Vietnamese Civil Code, it seems that the same principle applies there as elsewhere. It seems likely that this concept of natural guardianship would be universal, even if the detail of what person would be recognised as a child's natural guardian would vary from country to country and from time to time within any particular country.
"Each country is entitled to have its own legal rules, procedures and definitions on these matters, as a matter of sovereignty, and they do not have to adopt those used in the US."
I think we may have a misunderstanding. I agree with what you said. The point was that the USA, India, Thailand and Singapore--and, by extension, the UK--all have or had more or less the same kind of definition, that is, natural guardian = parent(s).
Vietnam does not. In addition, it used to be a French colony and English is not one of the country's official languages.
Thus, I'm not trying to, say, rewrite this particular law; what I said was that you need to be aware that the translation may not be accurate and that the meaning of natural guardian is not the same as in multiple other countries.
I think this is especially important should the asker wish to create a glossary entry. Moreover, if I were to translate this, I'm not sure I wouldn't try to find a term that's less confusing.
I've had a look at Art. 52 and 53 of the Vietnamese Civil Code and it's some kind of next-of-kin rule. Basically, a guardian is only appointed if your extended family can't take care of you.
Each country is entitled to have its own legal rules, procedures and definitions on these matters, as a matter of sovereignty, and they do not have to adopt those used in the US.
In any case, it seems that what is required here is to understand what is meant by the term "natural guardian", rather than defining the persons who would be recognised as natural guardians. After all, those persons are set out in the following list. It looks to me as though the term "natural guardian" means the person who would automatically be assumed to have the guardianship of the child without the need for that to be specifically attributed by a court.
In Vietnam, it seems, someone other than the parents could become a natural guardian, which means the country is an "outlier" (even in Singapore, the definition is the same as in the US, AFAIK).
As you can see, blood relatives (in general) are not natural guardians (Quote 2 heading: "Guardians of minors"). As far as I can tell, it's the same in Thailand.
In short, I don't know what's going on here, but please note that the entire paragraph says "guardian," not natural guardian. They may want to redefine what they consider to be a natural guardian, but that's a bit odd.
Quote 1: "The parents jointly are the natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians. If the marriage is dissolved and neither parent is given parental responsibility for the child, neither may act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise."
Quote 2: "Upon petition of a parent, brother, sister, next of kin, or other person interested in the welfare of a minor, a guardian for a minor may be appointed by the court without the necessity of adjudication pursuant to s. 744.331."
Posting this question as EN>EN does make sense because it is essential, before translating it, to know what is meant by "natural guardian". However, if the original document was in Vietnamese, then it would seem important to know whether the English version was correctly translated from Vietnamese.
The Asker has failed to list all the points qualifying a person as a "natural guardian", so it is not possible to know whether this is restricted to being a blood relative. However, "natural" might mean logical/normal in the sense of not needing to be specifically appointed but being the natural choice by virtue of who they are. In that case what is to be understood as "natural" is defined by the points that follow, of which the Asker has only provided the first.
You can't make those assumptions. Up to Asker to decide if they want to have this question removed. I don't see any point in doing so as I'm sure the answer given by David will be useful if translating to CES
Based on Jakubikova's KudoZ history, it looks like this whole question was an error, accidentally posted as eng>eng instead of eng>ces. The same question has now been posted in eng>ces. So potentially this entry can be deleted by the moderators?
The "question" unless otherwise stated below, is the heading itself, so in this case "natural guardian". Explanation/definition needed. David has already given an explanation (which Tina added to) and should put an answer for the record. It doesn't need to get any more complicated than that if the asker can't be bothered to explain their difficulty. And it's an En>En question so I believe natives know immediately what this means without having to do any further research, hence Non-Pro.
Tina Vonhof (X)
Canada
15:42 Sep 1, 2019
Agree with David. The word 'natural' in this case means someone who is biologically related, born from the same parents.
Would somebody please explain to me what the question is.
David Moore (X)
Poster,
11:09 Sep 1, 2019
the answer is in the definition of a "natural guardian". In this case, it's very clearly first and foremost a close relative, in (1) a sibling, in 2, it will probably be another close relative, but the order of priority may depend on the country concerned.
OTOH "0 answers / 280 questions" - may be it's time you start developing your own research skills
plenty of clues in the surrounding text of this law.
@ philgoddard the answer is NOT in the question, the quoted translation from Vietnamese doesn't shed any light on the way of thinking in Vietnam, nor it gives any reliable indication as to in which way these "guardians" are supposed to be the "natural" ones OTOH the full text of this law gives some more reliable clues ... question of looking at a whole section, not at only one sentence or one paragraph.
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.