The Gazette 1977

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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. 13

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