The Welfare Principle; A useful though controversial test for Guardianship, Custody, And Access?

• Author: Illan Wall
• Pages: 161-175

Family Law Essay

The Welfare Principle; A useful though controversial test

for Guardianship, Custody, And Access?

Illan Wall

1.1 Introduction

“The welfare of the children is of the first and paramount

importance.”1

The Welfare Principle is the guiding factor in how the Irish courts

deal with custody, access and guardianship cases. I intend to

examine the test with a view to review the inequities in one of the

oldest pieces of family legislation still intact on the statute books. I

will review the five welfares, examining in particular the issues of

physical abuse, access to an abusive parent, and “Parental Alienation

Syndrome.”

2.1 Physical Welfare

In the test for physical welfare the following must be considered:

health, bodily comfort, nourishment and hygiene – all self-

explanatory concepts, however, the specific issue of physical abuse

has proved to be contentious. A parent that abuses his child will not

get custody, but how does the court decide where there has been

violence, and what of access for a violent parent?

In J O’C v M O’C,2 Kenny J described the use of physical

punishment as a means of controlling the behaviour of ones child as

1 Guardianship of Infants Act 1964, s.3

2 (HC) unrep, August 1975

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