The Gazette 1971

they have a combined joint income of £2,158 The second wife should have an income of £5,000 out of the interest on the proceeds of Lodge Park. The duty of the parents under the Succession Act is to make proper provision in accordance with the Testator's means. In this case, the Testator failed to make proper provision for Brian, for Pamela Ann (Mrs. Popplewell), and for Laura (Mrs. Nouri). Kenny J. consequently awards one-sixth of the shares in Brooks Thomas and in the MacNaughton Trust Company to Brian; Pamela Ann and Laura will each be given a legacy of £34,000. The legacies to the daughters will reduce the residue to £44,000 which will probably give the second wife an income of £3,900 per annum and a house. The moral duty of the Testator judged by objective considerations will thus have been manifest. (In re Norman Scott McNaughton deed.; Brian Mc- Naughton v John Murray. Kenny J., unreported, 27th May 1971). Carol Ann (now 1 years of age), Sharon (now 7), and lodagh (now 3)—Husband and wife were married in Dublin in March, 1967 when wife was pregnant. They lived in Kilmore, Dublin and eventually went to Liverpool. They there became friendly with neighbours, Mr. and Mrs. L. who had two children of 8 years and of 7 years of age. There were disagreements and finally the wife left in March. 1969, and took Sharon and Clodagh with her, to live with Mr. L. The wife's father strongly disapproved of this association, and by the use of threats of violence on Mr. L. and an aggravated assault on Mr. L's daughter got Sharon and Clodagh back. The three children were brought to Dublin, where they stayed with the husband's parents. Since March 1970, the husband secured employment in Dublin, and is now living with his parents and is earning £30 per week. As the husband's parents were elderly the two elder children, Carol and Sharon were brought to the Poor Clare's Home in Harold's Cross. The wife is now living with Mr. L. in a spacious flat in Ellesmere Park. Mr. L. carries on business as a dealer in second hand cars. Mr. L. has been divorced by his former wife, and pays her £12 per week towards the maintenance of his two children; the former wife now lives with her parents. In April 1971, the wife came to Dublin by arrange- ment with her father, and Carol and Sharon were re- moved by the wife's parents, who took them to Dublin Airport, from whence they were removed to England by their mother. The wife tried to bring divorce pro- ceedings against the husband in England. The English Court took the view that the custody of the children was a matter to be decided by the Courts in Ireland and directed her to give the children to the husband. The wife alleges she had to leave the husband owing to his unreasonable demands. An award of custody is difficult beacuse in most cases it decides that issue during the children's minority. But the paramount con- sideration remains the general welfare of the children. The aim of all is to have happy, stable, Christian citizens, which is fostered in children by a sense of security. Taken on the whole, the home which the wife can provide would be more suitable and sympathetic than that of the husband's parents, on account of their age, and because they are all girls. As against GUARDIANSHIP OF INFANTS CUSTODY OF THREE CHILDREN

that, the wife is giving a bad example by living with a man to whom she is not married; the two eldest chil- dren are in an excellent school in Ireland since 1969. From 1969 to 1971, the wife allowed the husband to have custody of the children without interference. If the husband puts his children in a house in Dublin he would have to get a good housekeeper, which is almost impossible. Although the religious, moral and intellectual wel- fare of the children would be better promoted by leav- ing them with the father, yet the ages of their children, their sex, and the fact that they would be happier living at home than in a boarding school, are all in favour of the mother, who is awarded custody. The husband will have custody for one month every year during holidays. The children cannot leave Britain or Ireland without the permission of the Court. {W. v W., Kenny J., unreported, 14th May 1971) ORDER SEEKS EXPLANATION OF MAN'S DETENTION The Supreme Court yeaterday made an order directing the governor of Portlaoise Prison to produce Patrick Joseph Langan (27), of no fixed address, who is serv- ing a sentence of three years' penal servitude for break- ing and entering and larceny, before the President of the High Court on June 10th and to certify the grounds of his detention. The Supreme Court was hearing an appeal brought by Mr. Langan against the refusal of the High Court of an order of habeas corpus. The Chief Justice in his judgment said that Mr. Langan was granted legal aid for his defence but due to a misconception on the part of his solicitor assigned for his defence of what his duty was, his solicitor was allowed by the judge to withdraw from the case and Mr. Langan was required to go to trial without legal aid. The solicitor was wrong in thinking that "where a solicitor was satisfied that his client was guilty he should not then call his client . . . " The solicitor in formulating his objection added the words "to take an oath and commit perjury." Of course a solicitor or counsel might not allow himself to be an accessory to the commission of perjury where a client confessed his guilt to him and nevertheless demanded to be called as a witness to give a sworn tertimony denying his guilt. In his opinion the solicitor was mistaken in the view he took of the extent of his duty and the effect of the judge's order in discharging him was to leave the accused man without legal aid which Mr. Justice Pringle had by order of December 17th, 1967, adjudg- ed it was "essential in the interest of justice" that he should have. Article 38 The Chief Justice said that the question which arose for consideration in this case was whether there had been such default of fundamental justice as to amount to failure to try Mr. Langan "in due course of law" within the contemplation of Article 38 of the Constitu- tion, rendering the trial a nullity and in conse- quence calling for Mr. Langan's release as a person whom the court was not satisfied was being detained in accordance with the law. The Chief Justice said that in his opinion an affirma- tive answer should be given to that question. He would 131