Custody

As mentioned in the section on guardianship, custody essentially relates to the physical day-to-day care and control of a child or children. Married persons residing together are the joint guardians and custodians of their children. If they separate, custody vests in the parent with whom the child primarily resides. The parent deprived of custody as a result of marital breakdown still remains a guardian and is entitled to be consulted on all matters affecting the child's welfare. Of relevance also is the question of access to the child by a parent who does not have custody.

The law relating to guardianship and custody of children is governed primarily by the Guardianship of Infants Act 1964, as amended. Under the law as it stands – Section 6A of the Guardianship of Infants Act 1964, as inserted by Section 12 of the Status of Children Act 1987 – an unmarried father may apply to the court to be appointed a guardian of his child. Alternatively, where there is agreement between the parents, they can make a statutory declaration under Section 2(4) of the Guardianship of Infants Act, as inserted by Section 4 of the Children Act 1997, conferring on the father the status of guardian. 

Under Section 11 of the 1964 Act, a guardian may apply to the court for its direction on any question affecting the welfare of the child. Examples of such proceedings are applications for custody and access orders. In making such orders and in determining whether an unmarried father should be appointed guardian, the court has to regard the welfare of the child as the first and paramount consideration. Where appropriate and practicable, the court in making any order takes into account the child's wishes in the matter, having regard to the age and understanding of the child. In considering whether to make an order under Section 6A or 11, the court is directed to have regard to whether the child's best interests would be served by maintaining personal relations and direct contact with both his or her father and mother on a regular basis.

The Act of 1964 (by way of amendment in the Act of 1997) encourages parties to a dispute in relation to a child to agree on the custody or guardianship of or access to a child. Prior to institution of proceedings the legal representatives of the parties must discuss with them the possibility of agreement. The court may adjourn any proceedings to assist agreement between the parties. These provisions permit the court in cases of disagreement to decide on arrangements for the child's care and upbringing having regard to the child's best interests.