The Gazette 1973

recent decree there may henceforth be disagreement re- garding the religious upbringing and education of children. By Section 18, in the case of a judicial separation, the Court may declare the parent by reason of whose misconduct the decree was made, to be a person unfit to have the custody of the children. If a judicial separation is contemplated and there are sub- sequent proceedings relating to the guardianship of the children, it is usual to have the two proceedings tried by the same Judge. But guardianship proceed- ings are not concerned with matrimonial wrongdoing, and the Court would award the custody of very young children to a guilty mother. Terms relating to the custody of children in separation agreements may sub- sequently be changed by the Court. Guardianship procedure: The applications for guardianship proceedings must be made by Special Summons supported by affidavit. This affidavit is often of inordinate length setting out chapter and verse for the unhappy history of the mar- riage. The defendant then files a replying affidavit of great length dealing with various allegations, and often adding counter-allegations. The judge then directs a plenary hearing. But it is important to refer to all major incidents if the party does not wish to be subsequently criticised by the judge. This would be unnecessary if guardianship actions were commenced by Plenary Summons, followed by statement of claim, Defence and Reply. There is also an unfortunate tendency on both sides to call psychiatrists as to the effect of the broken marriage upon the children. Normally the psychiatrist only meets the parent who instructs him, and has no knowledge of the other, and thus his opinion cannot be complete, and can lead to conflicting psychiatric evidence. It is unwise to submit children to psychiatric examination unless they are mentally disturbed. Most judges consider that, unless they are mature, it is un- wise to interview the children, as it may cause the children to take sides in disputes between their parents, and that the parent having custody of the children at the time of the trial will brainwash them. A sensitive child may be subjected to a traumatic experience if interviewed—and compelled to take sides in the dispute, although he may love both parents, and this could be harmful psychologically. Criminal conversation: This is an action in tort, by a husband against a third party who has committed adultery with the wife of the plaintiff. In the Southern case, although there was substantial evidence that the plaintiff's marriage had been unhappy long before the advent of the de- fendant, and the morality of the plaintiff was seriously attacked, the jury nevertheless assessed damages at £12,000. In the other Donegal case, the plaintiff was an innocent looking man, whose wife had been enticed away from him by the blandishments of a powerful and influential local figure. The plaintiff's case ran well, and, at the end of it, the action was settled for £3,000 odd. There is an appeal pending in the first case in the Suprertie Court. Senator Professor Mary Robin:on lectured on Saturday afternoon, 4th November, on two distinct subjects— The Status of Children under the Adoption Acts of 1952 and of 1964—and—The Recognition and En- forcement of Foreign Divorce Decrees. Professor 16

adultery. Acts of adultery must be substantial, per- sistent and extending over a significant period, and can be mental as well as physical, such as constantly humiliating the innocent spouse in public. A wife who obtains a decree of separation may then apply to a Judge for permanent alimony and can apply to in- crease the amount from time to time. In a separation suit, the husband is often obliged to pay the costs of both sides. It is therefore common that such a suit is compromised by providing for a negotiated Deed of Separation. But even in this case, in view of the con- stant fall in the value of money, it would be unwise to provide for definite payments of alimony, but rather for periodical reviews, which, in the event of disagree- ment, could be determined by an independent expert, or alternately determine it according to the cost of living index figure. The legal right share to which each spouse is entitled to under the Succession Act 1965 should also be considered. The old dum-casta clause is now becoming less acceptable. Normally, if the parties become reconciled and co-habit again the separation deed will cease to have effect. An action for restitution of conjugal rights is rare nowadays— see Daly v Daly —unreported 1969. Gaurdianship of infants: At Common Law, the father of a legitimate child had the paramount right to its control and custody. The Guardianship of Infants Act 1886, and the Custody of Children Act 1891, established that, in guardianship proceedings, the first and permanent consideration wa the infant's welfare. Subject to this, the father had a natural right to the custody of his legitimate child. But, by the 1886 Act, the mother as well as the father could apply for the child's custody. If the claims of parents for custody are conflicting, the Courts should have regard to the wishes of each party, and to the conduct of the parents. Article 41 as to the rights of the family in the Constitution is then quoted, as is also Article 42 relating to education. Following the Supreme Court decision in Tilson v Tilson —(1951) I.R., the Guardianship of Infants Act 1964 was passed, which re-enacted that the welfare of the infant is the first and paramount consideration. Unfortunately matri- monial disputes are often an intense, emotional and subjective form of human conflict, and it is often difficult for the Court to determine what is best for the children; sometimes for instance, it may be better for the more guilty party to obtain custody—but the Court does its best to do justice to both parties. In Butler v Butler (1970) The Supreme Court held that Orders under the 1964 Act were interlocutory in nature and reviewable at any time; in fact Kenny J. subse- quently in 1972, reviewed the Supreme Court order as to custody made in that case. Guardianship pro- ceedings consequently tend to encourage warning parents to revise the litigation. The 1964 Act also provided that the father and mother of an infant shall be guardians of the infant jointly, and must be consulted jointly on all important matters concerning upbringing, welfare and education. Either parent may appoint a testamentary guardian to stand in his or her shoes after his death, who can act together with the sur- viving parent if agreement is reached, otherwise an application is made to the Court. Section 11 relates to Court applications. Any parent or guardian may apply to the Court for directions regarding the welfare of the infant, which the Court may grant subject to pay- ment of maintenance. In the light of Pope Paul's