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Cases where the welfare of a child is the subject matter of the dispute

Section28(3)

In the above section of the Circular we examined in detail the merits criteria in the Act. When the welfare of a child is the subject matter of a dispute, neither the likelihood of success test (section 28(2)(c)) nor the cost-benefit analysis test (section 28(2)(e)) apply. The Board has previously called the merits test in these cases the “reduced” merits test

The test has been generally applied widely, not just to childcare cases, but to all cases where the welfare of a child might be at stake (e.g applications for guardianship, custody, access, maintenance in respect of children, and judicial separations/divorces where ancillary orders in respect of the children will be sought).

It is important to note that the “reduced” merits test does not apply to all family law cases – for example, if a couple have no children it would not apply.

The same “reduced” merits test applies to applications in relation to a sex offenders order – these are relatively rare.