700 / 736
to contribute to the cost of maintenance of
his wife and family. If the circumstances
show that he has not disentitled himself, I
rather lean in favour of conceding to him
a greater claim than to the mother. This,
however, is subject to an important exception,
namely, that where the child is of very tender
years her claim
is substantially
increased.
There is a certain class of care that only a
mother can give, and even if, from merely
a worldly point of view, it would be better
to leave the child with its father, still in the
case of a young child the Court may properly
take the view that it is preferable for the child
to be with the mother.
In the circumstances of the case the Court recog
nised the right of the mother to the custody of the
child.
On the application, however, for an order of
habeas corpus
for the custody of a boy over
fourteen years of age or a girl over sixteen years,
the Court must have regard to the wishes of the
infant. Thus in the case of
The State (Meagari)
v.
Meagan, 1 "
where the father applied for the cus
tody of his six children who were in the custody
of their mother, and the eldest boy who was over
fourteen years of age and a daughter who was over
sixteen years wished to remain with their mother,
the application in their case was refused, notwith
standing that the Court was of opinion that it was
clearly in the interests of both these infants that
they should be in the custody of their father, the
Court, however, granting the application in the
case of the four younger infants. In coming to his
decision, Maguire P. followed the judgment in
In
re Connor. w
The next reported case on this subject was also
one of the most interesting. This is the case of
In re M., an Infant.* 7
Some days after its birth in
1943, the prosecutrix gave her illegitimate child
into the custody of the respondent, together with
the sum of £60. The respondent, a married woman
with no children, did not meet the prosecutrix, but
received the child from the nurse in whose home
the child was born. Before its birth the prosecutrix
had arranged through the doctor that the respon-
15(1942) I. R., p. 180.
m(1863) 16 Ir. C L. R. p. 112.
17(1946) I. R., p.'334.
dent should 'adopt' the infant. The respondent had
it baptized and its birth registered, and on both
occasions described the child as being that of
herself and her husband. In August, 1944, the
prosecutrix first met the respondent, and asked for
the child's return which was refused. Nine months
later she made a similar request which was again
refused. The respondent lived with her husband in
a three-room flat and the household had a weekly
income of £6. The prosecutrix, who had no per
manent home but resided at her places of em
ployment, which she frequently changed, was, at
the time of the hearing, employed as the man
ageress of a cafe at the weekly wage of £1, to
gether witht certain gratuities. She proposed to
bring her child to reside with her there. It was
alleged by the respondent that the prosecutrix
could not adequately provide for the child and that
the prosecutrix, if she obtained custody of the
infant, was going to live with the father, a married
man, or would use the child as a means of obtain
ing material benefits, for herself, from the father.
Delivering judgement, Gavan Duffy P., said that
Irish decisions were scanty on the rights of an
unmarried mother. On the generally accepted
view at Common Law, in England, an illegitimate
child derived no rights from either parent, and
neither was liable to support it. His Lordship then
dealt at considerable length with the history of
this subject from the Elizabethan era, and, con
tinuing, said:
Under Irish Law, while I do not think that
the constitutional guarantee for the family
avails the mother of an illegitimate child, I
regard the innocent little girl as having the
same natural and imprescriptible rights as a
child born in wedlock, to religious and moral,
intellectual, physical and social education, and
her care and upbringing during her coming,
formative years must be the decisive con
sideration in our judgment. It is as true in
Irish Law as it is in English Law that the
claim of a father to his child normally pre
vails, unless the Court is judicially satisfied
that the child's welfare requires the parental
right to be superseded. And, by analogy, I
think the Court should go a long way towards
recognizing the force of the natural claim of
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