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and custody of his child is
in re Goldsworth,2
which has been cited, with approval, in the Irish
cases of
The State (Kavanagh)
v.
O'Sullivan3
and
The State (Williams)
v.
Markey.*
In
Golds-worth's
Case
(supra) a father sought to recover the custody
of his child from his wife and father-in-law, in
whose house she had gone to reside because, as
it was alleged, of her husband's conduct towards
her. No question of religion arose. One of the
matters alleged against the applicant was gross
and habitual intemperance. Lord Coleridge C.J.,
after stating that it had not been suggested that
the present custody of the child was inconvenient
or improper in itself, and after considering the
evidence of bad character adduced against the
father, formulated the rule in these words: 'Has
then the father satisfied the Court that it can,
without imperrilling the safety or welfare of the
child in some very serious and important respect,
order the child to be restored to the father's cus
tody?' The Court refused the application on accept
ing the evidence which proved that the father was
guilty of such habitual intemperance and im
proper language as would be prejudicial to the
moral welfare and safety of the child. In
The
Queen v. Gyngull*
as well as in
O'Hara's Case
(supra), the position is definitely laid down that
the Court is not bound to accede to the appli
cation of the parent if he has disentitled himself
(or herself) to the custody by misconduct; the
major and paramount consideration is the welfare
of the child."
Delivering judgment in
Kavanagh's Case
(supra)
Kennedy C.J. approved of the definitions of wel
fare as given in the English cases of
In re
McGratlf
and
The Queen v. Gyngall
(supra). In
the former case Lindley L.J. stated:
The welfare of the child is not to be meas
ured by money only, nor by physical comfort
only. The word 'welfare' must be taken in its
widest sense. The moral and religious welfare
of the child must be considered as well as its
2(1876) 2. Q. B. D. p. 75.
3(1933) I. R., p. 618.
•K1940) I. R., p. 421.
51893) 2. Q. B., p. 232.
li See judgment of Murnaghan J. in
The State
(Kavanagh) v. O'Sullivan
(supra) .
7(1893) 1 Ch., p. 143.
physical well-being. Nor can ties of affection
be disregarded.
In R. v. Gyngall, Kay L.J., referring to the
jurisdiction delegated to the Court of Chancery,
said:
The main consideration to be acted upon in
its exercise is the benefit or welfare of the
child. Again, the term 'welfare' in this con
nexion must be read in its largest possible
sense, that is to say, as meaning that every
circumstance must be taken into consider
ation, and the Court must do what, under
the circumstances, a wise parent acting for
the true interests of the child would or ought
to do.
The question of the child's welfare as well as
the position existing under the Custody of Child
ren Act, 1891, came under consideration in
The
State (Williams)
v.
Markey
(supra). There the
parents were married on the 25th July, 1938, and
a son was born to them on the 3rd January, 1939.
Fearing that the wife's mother would learn of
the birth of a child within six months after their
marriage, they had, some days before the birth,
arranged that the child should be adopted by
Markey and his wife, and on the day following
the birth the child was taken away by them. The
following day an agreement was signed by the
parents and Markey whereby the parents agreed
to surrender the child and all rights to the child,
legal or otherwise, to Markey. During the six
month's following the birth the father did not call
to see the child. The mother called on three
occasions. In the month of May, 1939, the wife's
mother learned of the birth. In July, 1939, a
formal application was made on the father's be
half for the child's return, which application was
refused. On a motion for an order of
habeas
corpus,
it was held by Black J. in the High Court
that both the father and the mother had abdicated
their rights by their unnatural conduct, indicating
thai they were ill-fitted for their parental obliga
tions, and that the child's welfare was likely to
be best served by leaving it where it was. The
parents appealed against his refusal of the order,
and it was held by the Supreme Court (Sullivan
C.J., Murnaghan, Meredith, Geoghegan, and
Johnston J.J.) that the conduct of the parents was
not such as to justify the interference that the
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