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child's welfare would be injuriously affected if
returned to
them. Assuming that the facts of
the case established that the parents had aban
doned or deserted the child within the meaning
of sect. 3 of the Custody of Children Act, 1891,
nevertheless, having regard to:
1,
'the fact that
the motive that actuated the parents in parting
with the child was not an unnatural one; 2, their
desire that it
should return to
them when its
maternal grandmother had learnt of its birth; and
3, the more favourable financial circumstances of
the parents, the abandonment or desertion did not
then indicate that the parents were unfit to have its
custody, and further that it was for the welfare
of the child that it should return to the custody
of the parents, the Supreme Court granted the
order of
habeas corpus.
Delivering judgment, James Murnaghan J. said:
If a parent abandons a child, the parent's right
to recover the custody of the child is subject
to his satisfying the Court that, having regard
to the child's welfare, he is a fit person to
have the custody ... I approach this case
on the basis that the parents did abandon
the child. We do not decide the case on the
feelings of the parents or on the feelings of
Mr. and Mrs. Markey, to whose care and
custody the child was entrusted. One might
perhaps have special regard to the feelings of
the mother, — but this is not a legal con
sideration to act upon, or on which to base
an order one way or another. I think the
Markeys in accepting the care of the child
acted throughout according to proper stand
ards of conduct, and the only error on their
part was the idea that the mere fact of the
abandonment by a parent absolutely deprived
the parent of his rights. The Court gives a
parent who has in fact abandoned his child
the opportunity of showing, notwithstanding
the abandonment, that he
is a fit person
from the point of view of the welfare of the
child to be entrusted with its custody.
That the problems to be solved by the Court
assume a complex and unpleasant character when
the conflict for custody of a child lies between
the parents, and when the difficult question of the
child's religion becomes an issue, is clear from
a number of leading Irish cases. The religious
issue loomed very large in
The State (Kavanagh)
v.
O 'Sullivan
(supra). There the applicant — John
Kavanagh — a labourer employed in Dublin, and
who was brought up a Catholic, married, in 1923,
a Protestant woman in a Protestant church. There
were three children born of the marriage.
The
mother became mentally deranged after the birth
of her children and was confined in a mental
home. The children were baptized and brought up
as Protestants, the father having agreed with his
wife that they should be brought up in that faith.
Having no one to look after them, Kavanagh
agreed to a suggestion made to him that they
should be sent to a Catholic Home. When he was
informed that the children could not be admitted
to the Home unless as Catholics, the father agreed
to their being baptized as such, after which they
were received at the Home. That was in March,
1928. Kavanagh stated that it was only because
he was heavily in debt and to save the children
from starvation
that he agreed
to have
them
baptized as Catholics. He did not see or hear
anything of them until September, 1930. In 1931
an application to the High Court for a writ of
habeas corpus
to obtain the custody of the two of
his children, who were boys, was refused. The
contention of the respondents was that Kavanagh
ought not to have custody of the two boys on the
ground of his drunken habits, his cruelty to his
wife, and because he had no proper home in which
the children could live, as he dwelt in a single
room in a tenement house which he shared with
other people, and,
in addition, because of the
abrogation of his right by abandonment of the
children. After judgment he signed an affidavit
stating that he had become a Protestant.
On
appeal to the Supreme Court it was held (Ken
nedy C.J. and Fitzgibbon J., with Murnaghan J.
dissenting) that the evidence as to Kavanagh's
drinking habits was not sufficient to deprive him
of -the custody of his children; that cruelty by
Kavanagh to his wife had not been established;
that, as Kavanagh had made arrangements since
the appeal was lodged to have his children placed
in a Protestant Institution where they would be
well cared for, the objection based on Kavan
agh's bringing them to his room in a tenement
house was thus obviated; that Kavanagh had not
abrogated his right by abandonment, and the case
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