If all factors were equal between parties, the court would lean in favour of the mother being given custody of young infants because the infant, by reason of his very tender, young age, would be most dependent on his mother for his physical and psychological needs. It would not be in the best interest of the child’s welfare to deprive him of his mother’s love and care.
Date of Decision: 04 November 1997
04 November 1997
Outcome: Appeal allowed.
1 The appellant [Mother] appealed against the trial judge decision to dismiss her applications for a variation of an interim child custody order and for an order granting her the sole custody, care and control of the child. The main issue on appeal was whether there was a change of circumstances such that it merited a variation of the custody order.
2 The guiding principle in proceedings before any court with regards to the custody or upbringing of an infant is that the court must regard the welfare of the infant as the first and paramount consideration: at .
3 One very important factor that the Court of Appeal took into consideration was that the infant was extremely young. On the assumption that both parents are equally capable of providing care, comfort and attention to the infant, the courts have always leaned in favour of the mother being given custody of young infants. This is because an infant of tender age is by nature more physically and spiritually dependent on its own mother than anyone else. In the best interests of the child’s welfare, the court should not deprive him one his mother’s love and care. However, that is not to say that the court is reviving the old presumption of “maternal custody” of all young infants: at .
This summary is provided to assist the public to have a better understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.