698 / 736
as part of the law of this country at the time
of the establishment of the Saorstat.
The Northern Ireland case of
In re Brady,
Minors, 1 "
illustrated a conflict between husband
and wife, in which the religious question was an
important factor in considering -the welfare of the
children. The parties were Catholics and were
married in the Pro-Cathedral, Dublin. There were
two children of the marriage, and these were
brought up as Catholics. In 1940 the peace of the
home was disturbed when a Protestant domestic
servant came
to
reside
there.
The applicant
(husband) alleged that this servant had influenced
the wife to change her religion, and it was admitted
that the respondent had become connected with
a Protestant organization known as the Dublin
Medical Mission, in 1942. In that year also differ
ences came to a head, and, finally, the respondent
left the marital home and went to Northern Ire
land, taking her two children with her. The two
children attended the Shankill Mission Sunday
School in Belfast from June, 1942, until the date
of the hearing of the case in May, 1943. They
both expressed a desire
to
remain with their
mother in Northern Ireland while the elder boy,
then aged about twelve years, expressed a prefer
ence for the Presbyterian faith. The wife expressed
her sympathy with that faith, and stated that she
desired to retain custody of the children, and to
remain in Belfast. The means of the parties were
approximately equal.
Delivering
judgment, Andrews L.C.J., after
stressing that the main question for the Court
was to consider was the welfare of the children,
taking every consideration into account of which
religion was only one — though an important —
factor, stated:
There can never be any discrimination by the
Court in favour of any particular form of
religion; the Catholic and Presbyterian forms
of worship are equal in merit in the eyes of
the law. It is obviously a matter of great im
portance to the two boys in this case in which
religion they are brought up. The authorities
show that the rights of the parents are equal
since the Guardianship of Infants Act, 1886,
and the common law practice of regarding
the father as possessing a prior claim no
longer operates .
.
. The children have been
brought up in the Catholic religion until re
cently and the Court is quite satisfied that
they have been taught the doctrines of that
faith in their school in Dublin. The boys are
apparently quite happy and contented in this
faith, the elder having been confirmed and
the younger having had his first Communion.
We have not found any settled religious con
viction in the minds of either boy to upset
this early instruction.
Having stated that it was natural and desirable
that the religious beliefs in which the children were
brought up should not be disturbed, and that it
was in their best interests that they should return
to the custody of their father, custody was, accord
ingly, granted to
the applicant, the mother to
have access to the children at all reasonable times.
In interpreting the welfare of the child in
Tam-
burrini's Case,* 1
the Court stressed the real danger
in the circumstances, to the child's moral and
religious well being. The facts of the case show
that Elizabeth Tamburrini, one of the applicants,
was the daughter of a farm labourer in Ardee, Co.
Louth. In 1933, at the age of 19, she went to
Glasgow and took up employment there with a
married man to whom, in 1936, she bore an ille
gitimate son.
Six weeks later she returned to
Ireland with the child and handed him to her
parents who agreed to take care of him.
The
mother then returned to Glasgow and entered the
service of an Italian, Antonio Tamburrini, who
was married and had two children. In 1939, how
ever, he divorced his wife on
the ground of
adultery but had allowed her to retain custody
of the two children. In 1940 he married the appli
cant in a registry office in Glasgow, The infant,
meanwhile, was well cared for by
the grand
parents, and his mother, in so far as her circum
stances permitted, contributed regularly towards
his maintenance. In 1942 both Antonio Tambur
rini and the infant's mother formally adopted the
infant according to the provisions of the law of
Scotland. Having been refused custody of the
child in 1943, they applied to the High Court for
an order of
habeas corpus.
They both undertook
io(1944) 78 IT.. L. T. R.. p. 68.
n(1944) I. R., p. 508.
236