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depended upon its own particular circumstances.

2.5The welfare of the child is not defined.  In practice, the court would look at the physical, social, intellectual, moral and religious welfare of the child.69  Lord MacDermott, in J v C,70 approached the term “first and paramount  consideration” thus:

“reading these words in their ordinary significance ... it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question.  I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare ... that is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed.”

Judicial discretion

2.6The court has a wide discretion in determining the welfare of the child and can be assisted in exercising that discretion by the report from the Director of Social Welfare and the wishes of the child.  Each case depends on its own facts and judicial precedent plays a minor role in decision making.  While judges do not have to receive training in child psychology or the psychological process of divorce, they will receive assistance in these matters from the reports of the Director of Social Welfare or a child psychologist or other expert used by the parties.

Factors in welfare

2.7The court will consider a range of factors in determining what is best for the child.  These include: the age of the child; the parents’ capacity to care for the child; the need to maintain siblings together if possible; the desirability of maintaining continuity of care for children, particularly younger children; the conduct of the parents towards each other and the children; the relationship between any person who is emotionally involved with one parent and the child; and the wishes and rights of the child.

2.8Section 3(1) of the Guardianship of Minors Ordinance delineates the parameters of the proceedings that are governed by these principles.  These are for “custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property.”

2.9This subsection does not refer to disputes between guardians, the appointment or replacement of guardians, or access disputes.  On a purposive interpretation it could be argued that the welfare principles should also govern these

69 Section 2 of the Irish Guardianship of Infants Act 1964 includes these constituents in its definition of welfare.

70 [1970] AC 710, 711.

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