129 / 196
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).
GUARDIANSHIP OF INFANTS
CUSTODY OF THREE CHILDREN
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
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