Analysis of s.88(2) (Law Reform (Marriage and Divorce) Act 1976) and The Welfare Principle

Analysis of Section 88 ( 2 ) and The Welfare Principle

Section 88 ( 2 ) [ 1 ] of the Law Reform ( Marriage and Divorce ) Act 1976 provinces that ‘In make up one’s minding whose detention a kid should be placed the paramount consideration shall be the public assistance of the kid and capable to this the tribunal shall hold respect — –

1. to the wants of the parents of the kid ; and
2. to the wants of the kid, where he or she is of an age to show and independent opinion.’

Section 88 ( 2 ) gives the legal power to the tribunal on the affair puting the detention harmonizing to the state of affairs. Under Section 88 ( 2 ) ( a ) of the Law Reform ( Marriage and Divorce ) Act 1976 said that detention of a kid can be decided with the respects to the wants of the parents of the kid which is besides being emphasize in Section 11 of the Guardianships of Infant Act 1961. However in pattern, the application of Section 88 ( 2 ) ( a ) is merely relevant when other parties are involved in the detention of the kid as normally the tutelary conflict merely happens between parents and no 1 else. This can be seen in the instance ofChuah Thye Peng & A ; Anor v Kuan Huah Oong[ 2 ] where a kid at the elderly of seven was left orphaned and the health professional was the maternal grandma after the decease of their parents in a plane clang. The paternal grandparents applied for detention of their grandchild. It was so disclosed that the public assistance of the baby can be served together by both parties. However the tribunal granted the detention of the kid to the paternal grandparents due to religion grounds. The asleep parents’ wants was for the baby to be brought up with proper counsel in the Buddhism which the paternal grandparents are really Buddhist. If the detention was given to the maternal grandma, the wants of the parents will non be fulfilled as the maternal grandma was a Methodist ( Christian ) .

Section 88 ( 2 ) ( B ) of the Law Reform ( Marriage and Divorce ) Act 1976 indicates that the detention of the kid can be decided with the respects to the wants of the kid in status that the kid is of age that is able to show an independent sentiment. A child sentiment is taken into consideration as it is stated in the UN Convention on the Rights of the Child [ 3 ] which can be seen in Article 12. However it is up to the Judgess to make up one’s mind based on whether the sentiment given by the kid is dependable plenty to set a weight on the instance. The sentiment of Judgess varies consequently to the state of affairss. In the instance ofManickam V Intherahnee[ 4 ] , an entreaty was made to the Federal Court as the old tribunal didn’t inquiry the sentiment given by a 8 year-old kid. However, the Federal Court held that the kid at the age of 8 old ages was non capable to show any independent sentiment on his penchants due to grounds of that he was in the detention of one parent and his household which favoritism might be an influence towards his opinion. The sentiment of the kid will merely be considered if it is harmonic with child’s involvement. The justice in the instance ofChang Ah May V. Francis Teh Thian Sar[ 5 ] said that “‘Now it has been judicially accepted that if a kid is old plenty to show its ain wants, the tribunal will see them, non so that it can give consequence to those wants but to be better to judge what is best for the child’s public assistance. It must besides be remembered that if the child’s ain wants are so contrary to its long-run involvements, the tribunal may experience justified in ignoring them wholly [ 6 ] .”

The Welfare Principle

The Law Reform ( Marriage and Divorce ) Act 1976 and besides the Guardianship of Infant Act 1961 normally becomes the dominant jurisprudence in make up one’s minding the proceedings refering a child’s upbringing or the disposal of a child’s belongings. The Child Act 2001 dictates the court’s overruling consideration shall lie in the public assistance of the kid. The tribunal has to do determinations and picks in the favor of the public assistance of the kid before any other affairs to be decided. This average public assistance of the kid conveying good to assist to prosecute to the right manner for the kid. There are many illustration of kid that would be necessitating for public assistance rule such as those has been neglect, abandon or exposure of kids as stated under Chapter 3 in Child Act 2001. The victim ( s ) should be given more priority in order to do them experience safer around each other. In proceedings affecting household jurisprudence, a kid is defined as an person under the age of 18 and hence.

In a unequivocal English instances such asJ. & A ; Anor. V C. & A ; Ors,the ‘overriding consideration of a kids public assistance defined as

… a procedure whereby, when all the relevant facts, relationship, claims and wants of parents, hazards, picks and other fortunes are taken into history and weighted, the class to be followed will be that which is most in the involvements of the child’s public assistance [ 7 ] .’

In a distinct Malayan instance ofMahabir Prasad V Mahabir Prasad,the justice drafted the factors that must be regarded in order to make up one’s mind on the inquiry of the public assistance of the kid as the paramount consideration. Ajaib Singh J ( as he so was ) said:

It is good established that in an application for detention of a kid the tribunal will in exerting its discretion regard the public assistance of the kid concerned as the first and overriding consideration. It is every bit established that this does non intend that the tribunal will non take other relevant factors into consideration. Indeed in order to make up one’s mind on the inquiry of the public assistance of an baby as of paramount importance it is necessary to take into history such affairs as the behavior of the parties, their fiscal and societal position, the sex and age of the kid, his wants every bit far as they can be ascertained depending on the age of the kid, the confidential studies which a societal public assistance officer may set up and whether in the long tally it would be in the greater involvement, public assistance and felicity of the kid to be with one parent instead than with the other. But ever it is the public assistance of the kid which is of paramount importance’ [ 8 ] .

However the significance of public assistance is non decently defined in the Child Act 2001, therefore a proper counsel is provided to demo the relevant considerations which are to take to put by the justice. In the circumstance as mentioned, a tribunal should see in peculiar to:

1. the ascertainable wants and feelings of the kid involved ( sing the facet of his age and apprehension )
2. his emotional, physical and educational necessity
3. the possible effect on him of any alterations in his conditions
4. any harm which he has suffered or he is at the possibility of enduring
5. his age, sex, household history or any features of his which might involvement the tribunal to see it relevant to the proceedings
6. the ability of each of his parents or any other party in relation to whom the tribunal conceives the inquiry to be relevant, is of run intoing his demands ;
7. the scope of powers which are conferred to the tribunal under the Act refering the proceedings.

This guideline’s chief purpose are to accomplish uniformity in the method of covering with the proceedings of the tribunal.