The Gazette 1967/71

to maintain, educate and bring up the child in a

proper manner and that it would receive proper

religious

instruction

accordance with

the

Articles of the Catholic Faith. It was held by the

High Court that the application should be refused

on the ground that, while there was little to choose

between

the material benefits available

to the

infant in the respective homes of the contending

parties, his moral and religious welfare would be

jeopardized if he were sent to live with persons

whose way of life was contrary to the teachings

of the Church. In the course of his judgment,

Maguire P. said:

It would, in our opinion, be a radical and

disturbing change for the boy, at the most

formative period of his life, to be removed

from the moral atmosphere in which he has

been reared, to a home in which the conduct

of his mother is regarded by her own clergy

with disapproval. There seems to our mind

to be very little doubt that the child would

be more than human if his morals were to

remain unaffected by the position which exists

in the home to which it is sought to send

him, while the chances of his retaining re

spect for the precepts of religion, in which

all parties desire him to be brought up, must

be exceedingly remote.

The rather similar case of

In re Mitchell12

which, however,

the conflict was between the

husband and wife, illustrates the Court's finding

that the age and sex of a child were not then, by

themselves, sufficient grounds for depriving the

father of the right of custody. The facts show that

both husband and wife, who were citizens of the

Irish Free State and Protestants, were resident in

Glasgow where the husband was in permanent

employment. The wife returned to her mother's

house in Dublin shortly after the marriage and

refused to return to Glasgow, as she alleged mis

conduct on the part of the husband. A daughter

was born to her in Dublin. On several occasions

the husband, denying the allegations, asked his

wife to return to him, and on her refusal, an appli

cation was made by him to the Court asking for

•the custody of the infant. It was held by the High

Court, (Sullivan P., O'Byrne and Martin Maguire

12(1937) I. R.. p. 767.

J. J.), and an appeal to the Supreme Court (Fitz-

gibbon, Meredith and Geoghegan J. J.) that it

was for the welfare of the child that the custody

of the child should be given to the father. Fitz-

gibbon J., remarked that if the child were left in

her mother's custody in the house of her grand

parents it would be totally deprived, possibly for

all time, of the society of her father, who was

unable by reason of his permanent employment

to live in Ireland, but that, on the other hand, 'so

far as the evidence goes, there appears to be

nothing except her own deliberate choice to pre

vent the mother from going to Glasgow for the

purpose of visiting the child or resuming that

consortium

with her husband which she abandoned

of her own volition.'

That the High Court in Dublin had not agreed

with

the statement of Andrews L.C.J.

in the

Northern Ireland case of

Brady, Minors

(supra)

;to the effect that the right of the parents to the

custody of the children were equal since

the

Guardianship of Children Act, 1886, was clear

from the case of

In re N.P., an Infant.™

There the

husband was the applicant in

habeas corpus

pro

ceedings to take the youngest child out of the

custody of the mother, and place him in a home.

Giving an outline of the law applicable to the case,

Maguire P. stated:

At one time the father's right to have the

custody of his child was paramount at Com

mon Law. This right, however, has been

steadily whittled down both by legislation and

the trend of judicial opinion, and altogether

in my opinion we have not yet reached the

stage when it can be said that the respective

right of the parents of a child are equal. The

Guardianship of Infants Act, 1886, is, as Lord

Lindley expressed it in

In re A. and B.,

Infants,1*

essentially a mother's Act,' and the

Court in coming to its decision must have

regard to her wishes. But the primary ques

tion is the welfare of the infant. The father

is the head of the household and is liable

13(1944) 78 Ir. L. T. R., p 32;