The Fundamental Question when Applying the Welfare Principle: "Who will be the Better Parent or Guardian"?

• Main Author: CHEN, Siyuan
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2011
• Subjects: Family Law; Family, Life Course, and Society
• Online Access: https://ink.library.smu.edu.sg/sol_research/1040; https://ink.library.smu.edu.sg/context/sol_research/article/2992/viewcontent/welfarechildarticlev9.pdf
• Institution: Singapore Management University

The welfare principle – that is, when making a custody-related decision, the best interests of the child form the first and paramount consideration – is probably one of the cardinal principles of family law in many common law jurisdictions. While the welfare principle is generally considered a wide concept with no exhaustive definition or list of factors, it is submitted that there is an important question – sometimes neglected or misunderstood – that should actually feature most prominently when applying the welfare principle, particularly when joint or no order custody orders seem impossible. The question is simply that of “who will be the better parent or guardian?” The reason for this is that the most important aspects of the welfare of the child (e.g., education, material comfort, moral guidance, stable and secure environment, and spiritual well-being) are provided by none other than the parent or guardian who is eventually awarded custody. The question of “who will be the better parent or guardian” is invariably connected to “what is in the best interests of the child”, for the former simply serves to logically guide and shape the inquiry of the latter, and counters arbitrary weightage accorded to arbitrary factors. Moreover, it is submitted that this line of inquiry also rightly factors the rights and interests of the parent or guardian into the equation. While a few cases will be examined to illustrate the thesis, this piece is also intended to be a comprehensive restatement of the welfare principle in Singapore.