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Report No. 83

1.11. Role of Judge.-

These aspects impose a particularly heavy burden on the Judge. Any Judge with experience of dealing, at first instance, with cases concerned with the care and custody of children must be well aware of the necessity to treat the matter with the utmost discretion and tact. Where there is a serious dispute between the parties involved, it may on occasions be inevitable that an assessment has to be made of the character of one or more of them from the point of view of suitability to have care of, or access to, a child.

But such an assessment can rarely be made satisfactorily by anyone who has not heard all relevant evidence and, in particular, has not had the opportunity of observing the parties in the witness box. The assessment should always be expressed in moderate language, lest the dispute should be exacerbated and there should be impairment of the prospects of securing that all concerned contribute as much as may be within their power towards promoting the welfare of the child.1

A Judge usually can decide with self-confidence the legal and factual issues in litigation over who should have the custody of a child. Where he needs help, however, is in evaluating which of the available alternatives will best satisfy the psychological needs of the child. Attempt to provide guidelines, based on psychoanalytic theory, to govern the Judges decision in all types of child placement cases would be futile. The attempt would be seductive, but impossible; because the amalgams of factors to be appraised in custody contests are too complex.

1. B. v. W., (August 17, 1979, Part 31), 1 WLR 1053.

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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