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attempted to be made under section 3
(b)
of the
Custody of Children Act, 1891, that Kavanagh
was 'unmindful of his parental duties', and there
fore not entitled to the custody of his children,
failed, and, accordingly, the decision of the High
Court must be reversed. The conditional order of
habeas Corpus
was accordingly made absolute.
In the course of his judgment, Kennedy C.J.,
reviewing
the parent's right
to determine
the
religion of the children, said:
The rules which determine the religion of an
infant, when brought
in question
in
the
Courts, and the basis of those rules are well
known and firmly established in this country.
As against the rest of the world the parent,
as between 'the lawful parents the father, has
the right in law to determine in what religion
the child shall be educated and brought up —
speaking at any rate with reference to the
Christian Churches with which only we are
concerned here. The parent may forfeit the
right by his personal conduct .
.
. The parent
may abdicate his right by causing or permitt
ing the child to be educated in a particular
faith for a sufficient time to form its mind
definitely in the mould of that faith. From
the point of view of the child, however, these
are but particular instances of the one great
restriction on the exercise of the parent's
right, namely, the paramount consideration
of the welfare of the child.
The high-water mark of statement of
the
father's right over his child's religion is to be
found in the judgments in the English case of
In
re Agar-Ellis,s
in which James L.J., delivering the
judgment of the Court of Appeal, said:
The right of the father to the custody and
control of his children is one of the most
sacred rights. No doubt the law may take
away from him this right or may interfere
with his exercise of it, just as it may take
away his life or his property or interfere
with his liberty, but it must be for some suffi
cient cause known to the law. He may have
forfeited such parental right by moral mis
conduct or by the profession of immoral or
irreligious opinions deemed to unfit him to
have the charge of any child at all; or he
may have abdicated such right to have the
charge of any child at all; or he may have
abdicated such right by a course of conduct
which would make a resumption of his
authority capricious and cruel towards child
ren. But in the absence of some conduct by
the father entailing such forfeiture or amount
ing to such abdication, the Court has never
yet interfered with the father's legal right.
Likewise in the Irish case of
In re Browne,s
it was held by the Master of the Rolls that, not
withstanding an ante-nuptial oral agreement with
the wife to the contrary, it was the right of the
father to direct the religious faith in which the
child should be brought up, and that the Court
would not interfere with that right unless in the
case of an abuse of parental authority.
Such were the principles recognized and applied
in all the Courts in Ireland and in England since
the Judicature Acts of 1877 and 1873 respectively.
The Guardianship of Infants Act, 1886 (infra),
and the Custody of Children Act, 1891 (supra)
(which expressly saved the parents' legal right to
require the child to be brought up in any par
ticular religion), were the only modifications of
the father's domain up to the establishment of the
Irish Free State. Referring to the 'development of
thought' in England in these matters since the
separation of the two countries, indicating a de
preciation of the authority and dominion of the
father, Kennedy C.J. in
Kavanagh's Case
(supra)
said:
Even
if there be such a
'development of
thought' in England, as there may well be in
consequence of the extension of divorce and
the resulting increase in the number of what
are called elsewhere 'broken homes,' never
theless
in
this country, where
the social
structure has not been subjected to these
strains, and the family and the home remain
the foundation upon which it stands, there
has been no modification of the legal position
of dominion of the parent or of the rights of
the father over the care, custody, education
and religion of his children or of the prin
ciples upon which the Court may interfere
with the exercise of such rights, as these had
been laid down and defined by the authorities
8(1878) 10 Ch. D., p. 49.
9(1852) 2 Ir. Ch. R. p, 151,
235