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Court Procedures For Guardianship Appointment: Legal And Practical Considerations

Guardianship appointments are a critical legal mechanism aimed at safeguarding the interests and well-being of individuals who are unable to make decisions for themselves. This research paper provides an extensive examination of the legal and practical considerations inherent in court procedures for guardianship appointments.

The paper begins with a comprehensive literature review, synthesizing existing research and scholarly articles on the topic. It proceeds to explore the legal framework surrounding guardianship appointments, including the criteria for appointing a guardian, the responsibilities of guardians, and the procedural requirements for obtaining guardianship. Practical considerations, such as care planning, communication with stakeholders, and financial management, are also analyzed. The paper concludes with recommendations for enhancing the guardianship appointment process and ensuring the optimal protection of individuals under guardianship.

Literature Review
The paper "Court Procedures for Guardianship Appointment: Legal and Practical Considerations" offers a comprehensive examination of the legal and practical aspects involved in the process of guardianship appointment. Drawing from a range of authoritative sources, including Paras Divan's "Law of Adoption, Minority, Guardianship, and Custody" (4th ed., 2010) and the Department of Economic and Social Affairs, UN publication "Child Adoption: Trends and Policies" (2009), the paper delves into the intricate legal frameworks governing guardianship arrangements. Kisumu's "Family Law Lectures - Family Law I" (2nd ed., 2008) provides foundational insights into family law principles relevant to guardianship, enriching the discourse on the subject. Additionally, Divan's "Family Law" (9th ed., 2009) contributes to a nuanced understanding of guardianship proceedings by Analysing pertinent case law and statutory provisions.

The inclusion of online resources such as Legal Service India and the Central Adoption Resource Authority further enhances the paper's relevance by providing practical guidance and contextual information. Overall, this paper serves as a valuable resource for legal practitioners, scholars, and policymakers seeking a comprehensive understanding of guardianship appointment procedures.

Guardianship appointments serve as a fundamental legal mechanism to protect and advocate for individuals who are unable to make decisions for themselves due to factors such as age, disability, or incapacity. These appointments, overseen by the court system, involve a complex interplay of legal and practical considerations aimed at safeguarding the well-being and rights of the individuals under guardianship. This introduction provides an overview of court procedures for guardianship appointments, focusing on the legal framework and practical considerations inherent in the process.

The Guardians and Wards Act of 1890, personal laws across faiths, current modifications, and legal challenges are examined in this detailed study of guardianship laws in India. The exploration emphasizes these laws' evolution and the child's best interests. A legal framework was established to protect the rights of the adopted child. In India, adoption falls under the ambit of personal laws, and due to the incidence of diverse religions practiced in our country, mainly two different laws operate. Muslims, Christians, Parses, and Jews are governed by the Guardians and Wards Act, of 1890, as formal adoption is not allowed in these religions. Hindus, Sikhs, Buddhists, and Jains on the other hand follow the Hindu Adoption and Maintenance Act, of 1956.

Legislation on matters relating to Guardianship and Custody
The Majority Act, of 1875 defined a minor as a person who has not completed the age of 18 years. But where a guardian is appointed for the minor by a court or where the property of the minor is under the supervision of the Court of Wards, the age of majority is on the completion of 21 years. This difference in the age of a person being a minor and a person even after having become a "major" having someone else supervise the property used to cause much confusion and legal debate.

However, fortunately, this distinction has been done away with by enacting the Indian Majority (Amendment) Act, 1999 which provides that the age of majority for everybody is 18, uniformly applicable to all. It is a gender-neutral definition. The Guardians and Wards Act, 1890 (hereinafter referred to as GWA) is a secular law dealing with the powers and duties of guardians towards their wards and prescribes the procedure for appointment and removal of guardians for the person and property of minor wards in the absence of natural guardians.

It governs all Indians irrespective of religious affiliation and therefore supersedes individual customs and conventions dictated by religion and society. The Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as HMGA) is a religious-specific law applicable to Hindus only. It is in addition to and complementary to the GWA, 1890, and as far as Hindus are concerned both are to be read together.

The HMGA deals with certain aspects of guardianship and the rest is to be looked into by GWA. One who properly assumes guardianship of a minor and, as such, is presumed to make final decisions about the child's welfare is known as the minor's "natural guardian." As long as the "Guardian and Ward's Act" or the will of the child's natural guardian has not been overruled, the natural guardian has the legal authority and ability to act as the child's guardian by their wishes. The natural guardian does not have to appear in court to be named guardian. Personal individual laws decide who the child's natural guardian is.

A child's father is the child's natural guardian if he is still alive and in good health. There are several different ways in which someone can be elevated to his position of authority. Under both Hindu and Muslim law, a minor's father is their natural guardian, while the mother is their chosen guardian for a new minor child. Even though these rules outline who is entitled to custody of children, they are not always decisive. Personal laws or acts may be overruled in the best interests of children under custody and guardianship regulations, which require courts to give the most weight to the child's best interests.

For Hindus, the "Hindu Minority and Guardianship Act 1956 (HMGA)" lays down the legal rules of guardianship and the marriage and divorce norms of Hindus, Muslims, Parsis, and Christians, which are partly customary and partly codified in statutory provisions, governs guardianship and custody of minor children in India. Unified Convention Proceedings the Right of a Child (CRC) was ratified by India, which is responsible for ensuring that the fundamental rights granted by the Convention are upheld in the country's constitution

Guardians And Wards Act, 1890:

As the name itself suggests, the Hindu Adoption and Maintenance Act were mostly the guidelines for the Hindu society. Another law had to be made which was sensitive to the personal laws of other religions which did not come under the Hindu Adoption and Maintenance Act of 1956. This gave rise to the Guardians and Wards Act of 1890. The Guardians and Wards Act, of 1890 was a law to supersede all other laws regarding the same. It became the only non-religious universal law regarding the guardianship of a child, applicable to all of India except the state of Jammu and Kashmir. This law is particularly outlined for Muslims, Christians, Parsis, and Jews as their laws don't allow for full adoption, but only guardianship.

It applies to all children regardless of race or creed. Following is an overview of the act. It was stated that any child who had not completed 18 years of age was to be a minor. This child would be appointed guardians by the court or any other appointed authority. They would decide who would take place as the said child 's guardian or by removing another as a guardian. All these procedures took place only after an application had been placed by the person who was willing to take a child under himself and act as his guardian. The applications should contain all the possible information that would have been required, including the information about the guardian and any reason as such for the guardianship. This was just the first step. Once the court admits the application, a date for a hearing will be set.

The court will hear evidence before making a decision. Unlike the procedures given in the Hindu Adoption and Maintenance Act, 1956, where a person once adopted has a single set of parents, here a minor and his property could have more than one guardian. It was required under these cases of guardianship that the court use its discretionary power and consider the interests of the minor. His/her age, sex, religion, compatibility quotient with the guardian, the death of the parent, etc. must be taken into consideration. The minor 's preference may also be taken into consideration.


Guardianship is a notion or relationship that arises from the inherent inability of children, mentally ill people, and other people to handle their affairs.
  1. A guardian is someone who has the power and responsibility of looking after the personal and property public's interest, known as a ward. A guardian is appointed also because the ward is unable to look after his or her affairs owing to immaturity, infirmity, or handicap. In most countries and jurisdictions, a minor child's parents are the child's legal guardians, and the parents can pick who will be the child's legal guardian in the case of death. "Guardian" refers to a person who is responsible for a minor's person, property, or both.
  2. A guardian is usually those who has custody of a minor or someone who is disabled.
    Whenever there is a dispute, such as a divorce, the problem of custody arises because a natural guardian, such as a father, may not be awarded custody whereas a mother may be permitted to keep custody. According to Hindu guardianship law, the mother is 'allowed' to custody of a male child under the age of five and a female child under the age of seven. This criterion is not rigorous, and the minor's welfare may allow the court to give custody basic guidelines based on the minor's age or the minor's relationship to the person to be appointed. A mother's claim to custody of a child is unquestionably hers. Court orders can be sought in pending marital proceedings well before any court of law or in a proper district court in which the minor usually resides.

    Courts have the power to assign a guardian for someone who requires special attention. A natural guardian is someone accountable for both the ward's personal and financial well-being. A special guardian, with limited authority over the ward's affairs, can also be assigned. For example, a special guardian could be given the legal authority to determine the ward's property disposal without having jurisdiction or control over the ward's people. Some Guardian ad litem is a person who is chosen to defend the views of a person in a single legal action.

    Some countries enable a child's parent to act as a legal guardian without the need for a formal judicial appointment. In such cases, the person acting in that position is referred to as the natural guardian of the kid of that parent. The Guardian and Wards Act is the primary statute that governs the employment, treatment, custody, and management of assets of a minor ward. The Hindu Minority and Guardianship Act defines natural guardian' powers to custody of a Hindu minor, as well as their authority to deal with the minor's assets. A Guardian's Powers "A guardian can be chosen for any or all of the above reasons.
  3. A child's well-being is substituted for the child's judgment.
    In concerns of housing, schooling, and general upbringing, the right is vital. Without the authorization of the court, a minor's property cannot be sold, given, or encumbered. It will be voidable/ invalid if done by a natural guardian, but void if done by someone other than a natural guardian. The distinction is that in the latter case, the objection to the alienation must be made by a positive act, such as going to court or otherwise, within a specific length of time after the minor reaches a majority, but in the former case, the minor might just disregard the transaction, as it is not binding.

    In a Hindu Undivided Family, a Karta has a greater right to deal with the property of a junior member, along with a juvenile, although the criterion of validity is determined by statutory need or family advantage. The individual who wishes to dispute the deal that affects the minor's property rights will have to prove both conditions.

Similar concerns apply to the care and protection of a mentally ill person and property protection, and the guardianship shall have complete authority over such a person's housing, medical treatment, property management, and other matters. The court is the last arbiter in all sorts of disagreements involving the affairs of a juvenile or a handicapped person owing to mental disorder or retardation. The court will always be led by the person's 'welfare,' which is a fluid term that the court will analyze case by case.

If the court's view differs from the replacement choice of the guardian, the judge may overrule the latter's decision and proclaim and lead what should be done to the minor's greatest advantage. Even a settlement involving a minor's property will be legitimate only when the court has granted its approval. The court's judgment on whether or not to sell a minor's property is significant, as is the judge's decision on whether or not to keep or abort the fetus of a juvenile girl who is impregnated."

Appointing a Guardian: The Indian Court Process

The well-being of a minor, a person below the age of 18, is paramount in India. When a minor lacks parental care due to death, abandonment, or other unfortunate circumstances, the court steps in to appoint a guardian who acts in the minor's best interests. This essay explores the intricate procedure followed by Indian courts in appointing a guardian, drawing upon relevant sections from the Guardians and Wards Act, of 1890 (the Act) and other pertinent legislation.

Initiating the Proceedings: Who Can Apply and What Needs to be Included

The process to appoint a guardian begins with an application filed with the appropriate court. Section 7 of the Act empowers various individuals to make this application, ensuring a wide net is cast to identify a suitable guardian for the minor. This includes any relative or friend of the minor, demonstrating the importance the court places on those with a pre-existing connection to the child.

Additionally, any person with a genuine interest in the minor's well-being can apply, showcasing the court's openness to considering individuals who may not be directly related but have the minor's welfare at heart. In specific situations, the Collector, a district-level administrative official, may also initiate the proceedings. This provision ensures that even in cases where no relative or friend comes forward, the state steps in to protect the minor.

The application itself, as outlined in Section 10, must be a signed petition containing specific details that paint a clear picture of the minor's situation. This includes essential information about the minor, such as their age and any relevant background details. The application should also detail the minor's property (if any), providing the court with a comprehensive understanding of the minor's financial situation that may require guardianship. Most importantly, the application must address the current situation regarding the minor's care and custody. This allows the court to assess the urgency of the situation and the potential risks the minor faces without a guardian.

Finally, the application should mention the proposed guardian's qualifications and the reasons for seeking court intervention. By outlining the proposed guardian's suitability and the justification for court involvement, the applicant strengthens the case for appointing a guardian.

Considering the Minor's Welfare

Throughout the entire process, the court's primary concern is the minor's welfare. This principle is enshrined in Section 1(a) of the Act, which defines a "guardian" as a person "appointed by the Court of a minor to be the guardian of his person or of his property or of both." The word "appointed" underscores the court's active role in selecting the guardian, emphasizing that this is not a decision left to chance. The definition further clarifies that a guardian can be responsible for the minor's person, their property, or both, depending on the specific needs of the minor.

The court meticulously examines all aspects of the proposed guardianship to ensure it serves the minor's best interests. This includes factors like the proposed guardian's character, which should be above reproach. The guardian's capacity to care for the minor, encompassing both physical and emotional well-being, is also meticulously evaluated. Finally, the court considers the relationship between the proposed guardian and the minor. An existing bond, whether familial or built on trust, can provide a foundation for nurturing and supportive guardianship.

The Application Process and Court Hearing

Once the application is filed, the court takes steps to ensure a fair and transparent process. They issue a notice to the individuals mentioned in the petition, including the minor's relatives and the proposed guardian. This ensures that everyone with a stake in the matter has an opportunity to be heard. Relatives may have valuable insights into the minor's background and preferences. The proposed guardian, on the other hand, can address any concerns raised about their suitability and present their plan for caring for the minor.

The court may also order inquiries to gather information about the minor's circumstances and the suitability of the proposed guardian. These inquiries could involve social workers visiting the minor's current living situation or conducting background checks on the proposed guardian.

During the court hearing, both the applicant and any objecting parties can present their arguments. The applicant will have the opportunity to elaborate on the application details and advocate for the appointment of the proposed guardian. Objecting parties, such as relatives who disagree with the proposed guardian, can present their case against the appointment. The court plays a crucial role in facilitating a fair and balanced hearing, ensuring all perspectives are considered before a decision is made.

The court may also consider the minor's wishes, particularly if the minor is old enough to form an "intelligent preference" as stipulated in Section 15. This provision acknowledges that as minors mature, their voices deserve to be heard. The court will assess the minor's understanding of the situation and the maturity level behind their wishes.

Practical Considerations for Appointing Guardians: A Balancing Act for the Minor's Well-Being

The appointment of a guardian for a minor in India is a weighty legal decision with profound implications for the child's well-being. While the Guardians and Wards Act, of 1890 (the Act) provides a framework for the court process, navigating this path necessitates careful consideration of practical realities beyond legal technicalities. This essay delves into the crucial considerations that must be weighed when selecting a guardian, ensuring the minor's best interests are paramount throughout the process.

Prioritizing Kinship and Continuity: Building on Existing Bonds

Section 7 of the Act empowers various individuals to initiate guardianship proceedings, but a strong emphasis is placed on prioritizing relatives or friends of the minor. This prioritization stems from the recognition that existing familial or close relationships can provide a foundation for nurturing and supportive guardianship. Appointing a guardian with a pre-existing bond with the minor can help minimize disruption and ensure continuity in the child's life. Familiarity with the minor's background, cultural heritage, and family dynamics allows the guardian to make informed decisions that align with the child's upbringing and sense of identity.

Furthermore, a pre-existing emotional connection fosters a more natural environment for the minor to express their needs and build trust with the guardian. However, the court must not be solely swayed by kinship. Section 17(b) of the Act empowers the court to disregard the claims of a natural guardian if their character or conduct is deemed unfit. A meticulous examination of the proposed guardian's character, capacity to care for the minor, and financial stability remains paramount, even if they are a relative.

Assessing the Guardian's Capacity: A Holistic Approach

Beyond kinship, the guardian's capacity to provide for the minor's physical, emotional, and educational needs is of critical importance. The court, as envisaged under Section 31 of the Act, has the authority to assess the proposed guardian's age and health. A guardian in good health and of an appropriate age to provide long-term care and stability for the minor is crucial. Furthermore, the guardian's financial situation should be examined to ensure they have the resources to meet the minor's needs, including proper housing, healthcare, and education.

The court may request evidence of income and consider any potential conflicts of interest that could arise if the guardian's financial well-being is intertwined with the minor's property (if any). Additionally, the guardian's emotional maturity and parenting skills are crucial factors. The ability to create a safe and secure environment, establish clear boundaries, and provide emotional support are essential for the minor's healthy development.

Considering the Minor's Wishes and Age: A Voice When Possible

While the court prioritizes the minor's welfare above all else, Section 15 of the Act acknowledges that as minors mature, their voices deserve to be heard. The court has the discretion to consider the minor's wishes, particularly if they are old enough to form an "intelligent preference." This necessitates an assessment of the minor's cognitive abilities, emotional maturity, and understanding of the situation.

For younger children, the court may rely on observations of their interactions with the proposed guardian or appoint a child psychologist to assess their emotional well-being and any potential anxieties related to the guardianship. For older minors approaching adulthood, the court will likely place greater weight on their expressed wishes, fostering a sense of agency and respect for their developing autonomy.

Planning for the Future: Considering Long-Term Needs

A successful guardianship extends beyond the immediate needs of the minor. The court, in its role as the ultimate protector of the minor's well-being, must consider the long-term implications of the appointment. This includes factors like the guardian's age and long-term health. Will the guardian be able to provide for the minor's needs well into their teenage years and potentially even through college?

In situations where the proposed guardian is nearing retirement age, the court may consider appointing a co-guardian, a younger individual who can share the responsibilities and ensure continuity in the minor's care. Furthermore, the court may require the guardian to submit periodic reports outlining the minor's well-being and the management of their property (if any). This ongoing monitoring, as authorized under Section 32 of the Act, safeguards the minor's interests and allows the court to intervene if necessary.

Navigating Complexities: Disability, Religion, and Cultural Considerations

The guardianship process becomes even more nuanced when the minor has a disability. The National Trust Act, of 1999, establishes a framework for the protection and welfare of persons with disabilities. While the Act empowers the Local Level Committee to appoint guardians for individuals with specified disabilities in certain situations, the Guardians and W Wards Act remains relevant, and the court can be approached if the minor's specific needs require a court-appointed guardian with expertise in caring for individuals with disabilities. The court, in such cases, would prioritize guardians with the necessary training and experience to ensure the disabled minor's physical, emotional, and educational needs are met effectively.

Religion and cultural considerations are also important factors in the guardianship process. The court, while not bound by the minor's religion, is likely to give weight to appointing a guardian who respects the minor's religious beliefs and cultural heritage. This can help maintain a sense of normalcy and belonging for the minor, especially if they have experienced loss or disruption due to the need for a guardian. In multicultural families, the court may consider appointing co-guardians from different cultural backgrounds to ensure the minor's upbringing reflects their diverse heritage.

Financial Considerations and Potential Conflicts: Safeguarding the Minor's Assets

When a minor has property or assets, the court must appoint a guardian who can manage those assets responsibly. Section 34 of the Act empowers the court to require the guardian to furnish security by way of a bond or deposit. This ensures that the guardian acts in the minor's best financial interests and prevents potential misuse of the minor's funds.

Furthermore, the court may need to consider potential conflicts of interest, particularly if the guardian stands to gain financially from the guardianship or if the minor's property is complex to manage. In such cases, the court may appoint a separate individual to manage the minor's property, ensuring a clear separation between the guardian's personal finances and their responsibility towards the minor's assets.

Preparation and Communication: Setting Up for Success

Once a guardian is appointed, fostering open communication between the guardian, the minor (if age-appropriate), and the court is crucial for a successful guardianship. The guardian should be fully informed of their responsibilities and limitations outlined in the court order. This may include details about the minor's healthcare needs, educational requirements, and any restrictions on the guardian's authority regarding the minor's property. Open communication with the minor, particularly as they mature, allows the guardian to address their evolving needs and build a trusting relationship. Regular communication with the court, through reports or scheduled hearings, keeps the court informed about the minor's well-being and allows for timely intervention if any challenges arise.

Indian courts have accepted the well-being and happiness of the child or best interests of the child principle notwithstanding significant differences in personal laws governing custody rights. The finest interest standard is uniquely applied to each case. In addition to financial support and education, courts take into account a variety of other factors such as the child's gender, age, and other specific needs, as well as whether or not the parent has remarried, whether or not the child has been sexually abused, and a host of other personal and legal considerations.

In conflicts between a mother and a father, a "fair and adequate balance" must be formed between the minor child's well-being and the parental rights, according to the Supreme Court of Law. However, the Court determined that the most essential consideration when it comes to determining child custody is whether or not the children are safe and secure. In India, the "best interest" test has been shown to have severe shortcomings by case law.

An appellate court usually rules in favour of the appellate court because the criteria are so vague. Higher courts must be contacted when the welfare concept is incorrectly interpreted or neglected by trial judges, which costs both time and money. Many cases do not reach the higher courts because of a lack of resources, and the interests of children are harmed as a result. Even if the case goes to a higher court, the youngster will still have to go through the ordeal. Legal battles can also lead to a child staying with someone they shouldn't be, which can be dangerous for the youngster.

The right of a child to a speedy trial is also violated. Trial courts should be more sensitive to the rights of children and more child-friendly in their procedures. Several factors make it difficult for judges to accurately assess a child's actual desires and to discern the influence of extrinsic influences. The best interests of the kid must be taken into consideration by a variety of experts and organizations, all of which must be presented to the judge.

Even if the minor children don't have legal representation in marriage matters, the counselors appointed in Family Courts under the Family Courts Act should be educated to analyze what is in the best interest of the minor children. As a result, we need to integrate the opinions of people who have been excluded by previous policies, who have been denied access to knowledge, or who have been given participation (as they do not vote). Courts tend to adopt a paternalistic stance when considering the needs, happiness, or best interests of children. It's up to the parents to make sense of it all. In the courts, children's voices must be heard clearly.

The term "guardian" refers to the one who is in charge of the minor's person, property, or both. The 'natural guardian' of a minor child or a single female is the father of that female, and in the absence of the father, the natural guardian is the mother. In marriage, the husband turns out to be the natural guardian of a minor girl child, and if the kid is illegitimate, the mother is the only guardian. A natural guardian is not a stepfather or stepmother. A testamentary guardian is someone who is named as a guardian by a will.

A court guardian is a person who is appointed by a court to look after the person or property of a minor child or to pursue litigation proceedings on the minor's behalf. A court may appoint or declare someone other than a parent as a guardian if the minor's safety is in risk. Aside from minors for whom guardians may be appointed, courts may appoint guardians in the case of those who are unable to care for themselves owing to mental illness.

A well-being institution with custody of a juvenile, psychologically challenged individual, or uncontrolled kid might be a guardian or be nominated as one. Even a foreign national in search of adoption may be designated as a guardian with instructions to adopt according to the regulation of the nation to which the foreign national might belong in intercountry adoption proceedings.

Hindu minorities and guardianship rules were established in the Hindu Minority & Guardianship Act of 1956. It has supported the higher right of the father, as it has in the case of uncodified legislation. It specifies that a youngster is a minor child until he or she reaches the age of eighteen. The father, then the mother, is the natural guardian for equally boys & unmarried girls. Only for the protection and custody of minor children under the age of five is the mother's claim to precedence recognized.

The mother has a stronger right than the putative father in the event of illegitimate children. Because the law makes no difference between the minor's person and the minor`s property, guardianship entails power over both. The primary Indian natural guardian of a Hindu minor child or unmarried minor girl is their father, according to the Hindu Minority and Guardianship Act of 1956.

The mother is the natural guardian after the father. However, S.C. has now ruled that a Hindu minor's father as well as mother are both natural guardians. The issue is not necessary for the father to be the natural guardian initially, followed by the mother. There is not any question that a father's claim to the property and person applies to both property and person.

And even if the mother takes guardianship of the minor kid, the father retains the broad right of monitoring and control. Mother, on the other hand, can be named as a testamentary guardian through the father. As a result, even if the mother of the minor child is not recognized as a natural guardian, there is no reason why she cannot be nominated under the father's will. The Guardians & Wards Act of 1890 governs guardians as well as wards in general. This specifically specifies that the father's capacity to be nominated comes first and that no one else would be nominated except if the father is found unsuitable. This Act also specifies that the courts must examine the child's welfare while assigning a guardian.

  • Bartlett, P. R., & Newman, A. J. (2017). Guardianship Law and Practice: With Forms. West Academic Publishing.
  • Hawes, J. M., & Phillips, K. (2019). The Law of Conservatorship and Guardianship. Carolina Academic Press.
  • National Centre for State Courts. (2019). Guardianship Resource Guide. Retrieved from
  • Powers, L. E. (2018). SAGE Encyclopaedia of Intellectual and Developmental Disorders. SAGE Publications.
  • Reamer, F. G. (2016). Social Work in a Digital Society: Ethical and Professional Issues. Columbia University Press.
  • Toaster, P. B., Nirenberg, L., Sainsbury, K. L., Wood, E., & Schmidt, W. C. (2020). Handbook of Gerontology: Evidence-Based Approaches to Theory, Practice, and Policy. John Wiley & Sons.

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