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4. GUIDELINES - FAMILY LAW
CUSTODY OF CHILDREN
INTRODUCTION
Custody of Children can be categorised, as illustrated
by Senator Mary Robinson in her lecture to this Society
in 1972 (Lecture No. 68), into (a) Guardianship, (b)
Affiliation, (c) Legitimacy, (d) Illegitimacy, (e)
Legitimation and (0 Adoption. Of the foregoing,
Guardianship and Adoption are certainly the most topical
at present and are also perhaps the subjects which require
the most detailed investigation. For this reason, it is
proposed to deal in this article with Guardianship alone
and at a later date Adoption.
The Guardianship of Infants Act, 1964 (for
abbreviation G.I.A.—1964) is the main and guiding
authority in this entire subject of Guardianship. The
Act itself is a consolidating Act which both repealed and
re-enacted provisions contained in the earlier Acts. It also
improved greatly the position of the mother by giving her
rights identical to those of the father, following the
Supreme Court in
Tilson
v.
Tilson
- 11951] I.R. I.
WHO CAN BE A GUARDIAN?
L Father
and
Mother:- Section 6 (1) of the G.I.A.-1964
states that they are guardians of the infant jointly.
2« A Testamentary Guardian:- Section 7 of the
G.I.A.—1964 enables either parent to appoint by Deed
or Will a testamentary guardian to act jointly with the
surviving parent after the Appointor's death.
3- A Guardian appointed by the Court:- Section 8 of the
G.Í.A.—1964 states that any person can apply to the
Court to be made guardian of an infant where that
infant has no other guardian. The Court is also
empowered to appoint a guardian to act with a
surviving parent where the Deceased parent appoints
no testamentary guardian or if a guardian so
appointed refused to act.
GENERAL PRINCIPLES IN GUARDIANSHIP
CASES
In deciding any guardianship question the Court "shall
regard the welfare of the infant as the first and paramount
consideration" (Section 3 G.I.A.-1964).
The word "welfare" is itself defined in Section 2 of the
Act as comprising the religious, moral, intellectual,
Physical and social welfare of the infant. Understandably
much case law has devolved around this Section 2. At this
Point it is perhaps worth noting the comments of Henchy
L in Re J. An Infant [1966] IR 295 which would appear to
cast some doubt on the ruling to the Court in Section 3 of
the Act; "I wish, however, to make it clear that I
expressly reserve an ODinion as to whether it was
competent for the Legislature to provide that for the
Purpose of giving effect to their inalienable right or duty
to provide for its
education,
the Court should be bound to
decide the question of custody by regarding the welfare of
the infant as the first and paramount consideration."
(Quotation abbreviated.) Furthermore Kenny J. in O.B. v.
O.B. 1971 High Court (unreported) said "Subject to the
Constitution the welfare of the children is the first and
paramount consideration." (O'B. v. O'B. — 5 January
1971).
PROCEDURE
Section 11 of the Act is perhaps the most important
Section from a practical point of view since it is the
Section which relates to applications to the Court by
providing that any guardian may apply to it for its
direction on any question affecting the welfare of the
infant and the Court is thereby entitled to make such
order as it thinks proper.
PROCEEDINGS TO BE HELD IN CAMERA
The Rules of the Superior Court provide that
applications under the Act are made by way of Special
Summons supported by Affidavit. In contentious cases,
the Defendant will then file a Replying Affidavit and
because there are then so many allegations and counter
allegations contained in ihe respective Affidavits, the
Judge will invariably direct a plenary Hearing. It is very
rare for a Guardianship of Infants case to be decided
without some oral evidence. And the Court will always
examine settlements to ensure the Children's welfare is
not overlooked.
No stamp Duty is now payable on proceedings in
Guardianship cases. The relevant rules are O. 3 R. 10 and
O. 66 R. 4, 5, 11 and 12.
On an apeal to the Supreme Court from an order of the
High Court, the Supreme Court is empowered to hear
further evidence.
CUSTODY "AWARDS"
"An Award of custody is not a prize for good
matrimonial behaviour" (Kenny J. in W. v. W. unreported
May, 14th 1971). Although this principle runs through
the vast majority of decisions in guardianship cases, it
commonly emerges that where the marriage relationship
has broken down and the inevitable dispute relating to
custody of children commences, neither parent is disposed
to pay particular regard to what is best for the children
and consequently they (the children) tend to become
pawns in the parental battle.Because of this tendancy to
try and "drag" the other side down the parties become
embittered for (perhaps) ever after and naturally this
embitterness will become apparent to the children at an all
too early stage.
Since the welfare of the child is the overriding factor
under the G.I.A.—1964 every possible effort should be
made to spare the children from the unpleasantness of
these actions. And the present practice of the High Court
is not to allow a Guardianship of Infants case to be turned
into a matrimonial action, and the only evidence of
cruelty, adultery, etc. that will be permitted, is that
evidence that is relevant to the welfare, and hence
custody, of the children.
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