Until 2012, the Constitutional provisions for the protection of the marital family were thought to be a factor which would weigh slightly, at least, against the first and paramount interest of the child. The welfare of the child has been the first and paramount consideration under legislation dating back over 50 years.
The 2012 amendment of the Constitution, the so-called Children’s Rights Referendum, provides as follows:
Repeal of Article 42.5
In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
Insertion of Article 42A
The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights in exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require
Provision shall be made by law for the voluntary placement for adoption and the adoption of any child
Provision shall be made by law that in the resolution of all proceedings:
- brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
- concerning the adoption, guardianship or custody of, or access to, any child,
the best interests of the child shall be the paramount consideration.
Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.
Accordingly, insofar as the rights of the marital family might predominate or influence a decision in such a way that the child’s welfare was not the first and paramount consideration, the law has now been changed.
The Guardianship of Infants Act and all associated legislation, together with the divorce and judicial separation legislation, has specifically emphasised the child’s welfare and best interests as being paramount.
In all cases concerning guardianship, custody, welfare and access, the best interests of the child are to be the first and paramount consideration. Best interests are generally defined in terms of the child’s welfare.
The legislation specifically requires a court to have regard to the child’s religious, moral, intellectual, physical and social welfare. The welfare of the child is the first and paramount consideration. It is not the exclusive consideration, but it is the most important consideration.
“Paramount” indicates the welfare of the child is to be the most important consideration insofar as possible, having regard to the law or the provisions of the Constitution applicable in a given case.
All the considerations and elements of welfare are to be considered globally. The matter is not simply a totalling up of marks under the various five headings. The totality of the position must be seen and welfare is to be taken in its wider sense.
Moral & Religious
The court is to have regard to the religious upbringing of the child and seek not to disturb the religious and moral education of the child. In some cases, this has been a factor in refusing custody to a parent in a relationship with a person of a different religion.
The courts have accepted undertakings from a parent of one religious persuasion to continue to bring up a child in the religion in which he was being formed.
Moral welfare refers to spiritual and moral education. Traditionally, it has been considered in terms of lifestyle. In a number of cases, custody was refused to parents living in so-called adulterous relationships.
This was particularly likely to occur before the introduction of divorce. Some cases in the early 70s emphasised how an adulterous relationship might be contrary to the moral tenets in which the child has been reared.
The more modern approach has been to place considerably less emphasis on the so-called moral aspects of second relationships. The courts have been keen to emphasise that the award of custody is not in any way a reward for parental conduct.
Intellectual, Physical & Social
Intellectual welfare refers to education in general, in both the formal and informal sense. The court must be satisfied that the child will have adequate opportunities for education and formation to promote the child’s development.
Relationship refers to the totality of relationships and maturing. It encompasses psychological well-being. Evidence of a psychologist may be introduced in terms of a child’s physical and intellectual welfare.
Physical welfare refers to physical well-being and health. Social welfare refers to socialisation and education. It refers to their capacity to become part of society.
Traditional Mother Preference
Traditionally, the courts have assumed that these needs were best met by the mother in the case of children of so-called tender years – generally seven and under. This tendency has been reversed in more recent times, with greater equality between the parties.
The tender years doctrine was widely supported by the courts in the 1970s and 80s. It was presumed that a child of tender years should be in the custody of his or her mother unless the mother had failed in her duty as such.
Presumptively, where the parties are estranged, the mother, by reason of motherhood, was assumed primarily and uniquely capable of ministering to the welfare of the children. The last 20 years have seen a growing acceptance that men can play an equal role in parenting.
This reflects societal changes, with both male and female spouses commonly participating in the workplace and caring for children. The doctrine appears to still have some currency but shared parenting is emphasised.
Capacity of Parents
The capacity and ability of the parent is a relevant consideration. It is not necessarily the case that the more able parent will be granted custody. To do otherwise would be to unfairly discriminate against parents who suffer from disabilities or other incapacities, physical, psychological or emotional. If, however, a parent is clearly unable to carry out a parental role, this will be a significant factor against custody being granted to that parent.
Stability is a significant consideration. Divorce is likely to cause considerable upheaval to children. The courts have a preference not to split up siblings, if possible. There is a preference to maintain them in the family home, where possible.