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He could have helped.....

Glossary entry

English term or phrase:

natural guardian

English answer:

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

Added to glossary by B D Finch
Aug 31, 2019 18:09
4 yrs ago
17 viewers *
English term

natural guardian

English Law/Patents Law (general)
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
...
Responses
4 +3 The person who would automatically be assumed to be the child's guardian
4 blood relative legally fit for guardianship
5 -3 natural parent/ guardian/ lawful custodian/ or an individual acting as a parent of a pupil in
3 -1 blood relative old enough to assume guardianship
References
Section 4. GUARDIANSHIP
Change log

Sep 1, 2019 16:28: Rachel Fell changed "Level" from "PRO" to "Non-PRO"

Sep 2, 2019 22:46: Daryo changed "Level" from "Non-PRO" to "PRO"

Sep 15, 2019 17:15: B D Finch Created KOG entry

Votes to reclassify question as PRO/non-PRO:

PRO (4): B D Finch, David Moore (X), Björn Vrooman, Daryo

Non-PRO (3): Yvonne Gallagher, Jennifer White, Rachel Fell

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Discussion

B D Finch Sep 3, 2019:
@Yvonne 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.
B D Finch Sep 3, 2019:
@Yvonne 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.
B D Finch Sep 2, 2019:
@Björn 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.
Björn Vrooman Sep 2, 2019:
"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.

Best
B D Finch Sep 2, 2019:
@Björn 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.
Björn Vrooman Sep 2, 2019:
PS 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).

Heck, it was even part of the UK's Children Act:
"The rule of law that a father is the natural guardian of his legitimate child is abolished."
https://www.legislation.gov.uk/ukpga/1989/41/section/2?view=...

Also, I don't see how this is non-PRO.

Best
Björn Vrooman Sep 2, 2019:
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.

Best
Björn Vrooman Sep 2, 2019:
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."

https://www.flsenate.gov/Laws/Statutes/2012/Chapter744/All
Björn Vrooman Sep 2, 2019:
Note of caution The term "natural guardian" is used in the US, as well as in India and Thailand.

US example:
https://statutes.capitol.texas.gov/Docs/ES/htm/ES.1104.htm

India:
https://timesofindia.indiatimes.com/home/sunday-times/all-th...

For Thailand, please see "Essential 25000 English-Thai Law Dictionary" by Nam H Nguyen

According to all(!) of those sources, David's explanation is not correct.

Natural guardian only refers to parents (who "exercise parental powers").

To illustrate the difference, I'll be posting two examples from a Florida statute.

[...]
B D Finch Sep 2, 2019:
@Ulla 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.
Ulla Kask Sep 1, 2019:
@Yvonne Good point!
Yvonne Gallagher Sep 1, 2019:
@Ulla 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
Ulla Kask Sep 1, 2019:
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?
Yvonne Gallagher Sep 1, 2019:
@ Mark 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) Sep 1, 2019:
Agree with David. The word 'natural' in this case means someone who is biologically related, born from the same parents.
Mark Robertson Sep 1, 2019:
@All Would somebody please explain to me what the question is.
David Moore (X) Sep 1, 2019:
Poster, 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.
Daryo Aug 31, 2019:
What exactly is the question? assuming that the translation from Vietnamese is accurate enough not to need the original ...

https://sachsongngu.top/xem-online/luat-song-ngu/bo-luat-dan...

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.
philgoddard Aug 31, 2019:
The answer is in the question!
Mark Robertson Aug 31, 2019:
@Asker The text is the Vietnamese Civil Code?
jccantrell Aug 31, 2019:
And... your question is?

Responses

+3
1 day 18 hrs
Selected

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

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_...
Peer comment(s):
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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4 KudoZ points awarded for this answer. Comment: "Selected automatically based on peer agreement."
-3
3 hrs

natural parent/ guardian/ lawful custodian/ or an individual acting as a parent of a pupil in

"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.
Reference:

https://www.linguee.com/english-spanish/search?source=auto&query=natural+guardian

Peer comment(s):
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
Something went wrong...
-1
1 day 3 hrs

blood relative old enough to assume guardianship

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.
Peer comment(s):
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
Something went wrong...
1 day 17 hrs

blood relative legally fit for guardianship

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.
Peer comment(s):
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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Reference comments

2 days 6 hrs
Reference:

Section 4. GUARDIANSHIP

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
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