The Gazette 1976

GAZETTE

March 1976

as a maintenance application, or may request the Master to transmit to the British authorities power to take evidence. Alternately the Court can make a main- tenance order which will be transmitted to Britain for enforcement. It will be appreciated that there will be unavoidable difficulties under these proceedings. The Hon. Mr. Justice Liam Hamilton delivered a lecture on "Recent Decisions relating to the Guardian- ship of Infants Act 1964" on Sunday morning. He first of all quoted the text of Article 41 (relating to the Family) and Article 42 (relating to Education) of the Constitution. He recalled that the Guardianship of Infants Act, 1886, and the Custody of Children Act, 1891, had been repealed by the 1964 Act. Following the judgment of James Murnaghan J. delivering the majority judgment of the Supreme Court in Re Tilson (1951) Í.R. 1 at p. 34—in which he stated that the parents, father and mother, have a joint power and duty in respect of the religious education of the chil- dren. S. 6 (1) of the 1964 Act provides that "the father and mother of an infant shall be guardians of the infant jointly", thus shedding the old concept of pater- nal power. If a deceased parent does not by deed or will appoint a testamentary guardian of the infant(s) the surviving parent will be the sole guardian of the infant(s) unless a Court otherwise directs. If no guar- dian has been appointed, or if a guardian refuses to act, the Court may appoint one (S. 8). Unless the terms of his appointment provide otherwise, every guardian appointed shall be guardian of the estate as well as of the person (S. 10). Upon application to the Court, every guardian may apply for directions regarding custody or right of access (S. 11). These applications are rare. Part 3 of the Act deals with the enforcement of custody, which is enforced exclusively by the High Court. If a parent applies for production of its infant, if any costs have been incurred by a Health Authority or by another person in providing maintenance for such infant, the parent will be directed to pay such costs. If an infant has been abandoned or deserted, the Court will not grant custody of the infant to the parent, unless it is satisfied that such parent will be a fit and proper person. The Court, if it is of opinion that a relative will not follow the religion or ethics of the parent may make an Order that such child will be delivered to a person who has the legal right to ensure that the proper religion will be taught. The principles applicable may be stated t hu s: 1. Under S. 6 (1), irrespective of who is awarded cus- tody of the infant, the father and mother shall German Academic Exchange Service T h e British Institute of International and Comparative Law in conjunction with the London Branch of the German Academic Exchange Service have arranged the following International Summer Courses in Law for 1976, to be held at the London School of Economics and Political Science. International Summer Course in Modern English Law 5 July to 30 July 1976 Director of Studies : Professor Clive M. Schmitthoff, (London) Summer Course in Modern German Law 28 June to 9 July 1976 Director of Studies : Professor Hein Kotz, University of Konstanz

remain guardians of the infant. As Article 42 of the Constitution states that "The State guarantees to respect the inalienable right and duty of parents to provide for the religious and moral, intellectual, physical and social education of their children", Section 3 of the Act defines as the paramount consid- eration and welfare specifically the religious and moral, intellectual, physical and social welfare of the child. 2. Furthermore, the parent deprived of custody can continue to exercise the rights of a guardian, and must be consulted in all matters affecting the welfare of his children. Dicta of Walsh J. in Butler v. Butler (Supreme Court, 24 April 1970, unreported) are quoted in support of this proposition. 3. Any Order as to the custody or welfare of an Infant under S. 11 is only interlocutory in character because circumstances may change from time to time. 4. In normal circumstances, where a husband and wife have parted, but are equally suitable to have custody of children, the children of tender years will norm- ally be left in the custody of the mother. As time passes, the father is called upon increasingly with the day to day problems of his son or daughter. 5. It is only if the mother is found greatly wanting in her duty to her children, that the removal of very young children from her custody would be warranted. 6. Insofar as the behaviour of the parents which con- tributed to the breakdown of the marriage is relevant to decide in whose custody the welfare of the child would be best served, this would be relevant evidence. 7. In considering the welfare of the infant, all the ingredients specified in S. 3, namely the religious, moral, intellectual, physical and social welfare of the child must be considered globally. Dicta of Walsh J. in O 'Shea v. O 'Shea (Supreme Court, 5 April 1974, unreported) quoted in support. 8. The Order of the Court in respect of the custody of the children is interlocutory only in character. Conse- quently it is the duty of the parents to be concerned about the welfare and education of their children. 9. On an appeal from a decision of the High Court, the Supreme Court has power to hear further evidence. The Court must not, however, be used as a forum in which to air the grievances of one parent against the other. Mr. Justice Hamilton answered oral questions for more than one hour after his lecture. International Summer Course in European Community 5 July to 16 July 1976 Director of Studies : Professor Kenneth R. Simmonds, Queen Mary College, University of London, and Director of the British Institute of Internatinoal and Comparative Law Summer Course in Advanced Modern German Law 5 July to 9 July 1976 Director of Studies : Professor Hein Kotz, University of Konstanz The language of all courses will be English. As the number of places on all summer courses is restricted, early application is recommended. Further information and application forms can be obtained from the Course Secretariat at the London Branch of the German Academic Exchange Service, 11-15 Arling- ton Street, London SW

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