Report No. 133

Third Recommendation

(Spelling out some important considerations in the application of the welfare principle).

5.3. The welfare principle projected in section 13 of the HMG Act and section 17 of the Guardians and Wards Act needs to be amplified and spelt out so as to make it explicit that-

(1) where the 'father' has remarried, the custody of the minor, irrespective of the minor's age, shall ordinarily be with the mother. The minor should not be obliged to live with his or her step-mother unless there are exceptional circumstances which shall be recorded in writing.

(See para. 4.5.1.)

(2)(a) Where the 'mother' has remarried, a female child should not be made to live with her step-father in order to guard against possible sexual harassment. The Court may consider whether the paternal or maternal grand-parents should be entrusted with the custody of the female child.

(See para 4.5.2.1.)

(b) Where the 'mother' has remarried but the 'father' has not, ordinarily the minor, even if a male child, should not be made to live with the 'step father'.

(See para. 4.5.2.2.)

(c) Where both 'father' and 'mother' have remarried, the court may determine whether, to entrust the guardianship and/or custody to the father, the mother or the grand-parents, depending on what the court considers to be conducive to the maximum welfare of the minor in the light of the facts of each case.

(See para. 4.5.2.3)

(3) A 'mother' shall not be denied the custody of the minor merely on the ground that the father is in more effluent circumstances or that the mother's economic circumstances are not as good as those of the father.

(See para. 4.5.3.)

(4) In applying the welfare principle, the court shall have due regard to the fact that the minor needs emotional support and warmth of the 'mother' who is ordinarily better equipped than the 'father' to impart such emotional support and warmth which are essential for building up a balanced personality.

(See para. 4.5.4.)