The Gazette 1977

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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Act itself is a consolidating Act which both repealed and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

- 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.