Report No. 83
1.8. Various competing considerations.-
It would be pertinent to observe that a number of competing considerations1 has been mentioned by the Legislature or the judiciary in determining questions of guardianship or custody or both. In the first place, there is the criterion of personal law and the "right" of the father or (in some cases) of the mother thereunder. In the second place, there is the question of the fitness (or unfitness) of the person who is proposed to be appointed a guardian or to whom custody of the child is proposed to be given.
In the third place, there is the question of consulting the wishes of the minor. Last, but not the least, is the consideration of the welfare of the child-or, to put it in a different phraseology-"the best interests of the child". One or the other of these criteria has in the course of history, come into prominence and the other has shaded into comparative insignificance.
Thus, the law relating to custody is still evolving. As Lord Upjohn observed,2 the rules here "have developed, are developing and must, and no doubt will, continue to develop by reflecting and adopting the changing views, as the years go by, of reasonable men and women, the parents of children, on the proper treatment and methods of bringing up children".
This is not to say that the concept of "welfare of the child" is totally new. It is sometimes stated that in the historically famous dispute decided by King Solomon, the matter was decided by way of rough and ready justice, or in a crude manner. This, however,,is not strictly accurate. The approach of the King was based on a shrewd psychological judgment, which itself (rightly) assumed that the love of the mother would transcend any desire to assert "her right". A question of fact (maternity), otherwise difficult to decide, was decided on the basis of instinct.
1. See further para. 6.37, infra (section 17).
2. J. v C., 1970 AC 668 (722H-723A).