What Factors Will the Court Consider?
It is the duty of the Court to assess all relevant circumstances and arrive at a decision which serves the child’s best interest. The court considers the following factors.
- A preference for the Status Quo
The decided cases have established that a child will not be removed from their home in the absence of factors improving the child’s welfare. This rule has been observed in the case of Clarke v Carey (1971) 12 JLR 637 (J’ca). In this case, the mother was not employed, had no income, and lived at the home of her parents, which was overcrowded. On the other hand, the children were very happy and comfortable at the father’s home. They attended school and were making good progress, each had their own room, and the father’s wife was very attached to them. The court held that it was not in the interest of the children to remove them from the home of the father into the custody of the mother.
Notably, the child will not be removed from the home due to the lack of adequate financial resources. The child’s moral welfare is just as important, and a court can issue a maintenance order at any time to fill the financial deficit in the child’s habitual residence.
- The Wishes of the Child
The court may sometimes consider the child’s wishes if it is evident that the child is mature enough to understand the situation. This consideration was applied in the case of Montano v Montano (unreported) HC, T&T (No. M723 of 1986), where a boy of ten and a half years was interviewed by the court. Furthermore, in M v M [1987] 1 WLR 404, CA, a 12-year-old child expressed her wishes to remain with her father following his divorce. On appeal, the father was granted custody of the child, and it was observed that the previous judge failed to consider the child’s adamant position.
- Keeping the Siblings Together
The court favours keeping siblings together. The court would have regard to whether a proposed arrangement would disrupt an existing relationship and mutual association of the children.
This factor was applied in C v C [1988] 2 FLR 291, whereupon divorce, the custody of one child was granted to the mother and custody of the other was granted to the father. On appeal, custody of both children was awarded to the mother, as it was observed that young brothers and sisters should, where possible, be brought up together for the sake of the emotional support that they can give one another.
Other factors the court may consider include:
- The Personalities and Characters of the Parties
- The Age and Sex of the Child
- Long-Term Prospects for the Child
- Physical, Emotional and Educational Needs of the Child
- Relevant Characteristics of the parents
- Risk of Harm
- Parental Capabilities and Moral Welfare
- Special Relationship Between one Parent and Child
- Religious Affinity between one parent and child
