701 / 736
a mother to her child born out of wedlock,
even though her legal right be less coercive.
The learned Judge commented on the absence
then from our Statute Roll of an Adoption Act on
the lines of the English Adoption of Children Act,
1926, saying that it was regrettable, and was an
urgent matter for reform.
Here we have to determine (he continued)
whether or not in Equity we should give
any effect at all to the transfer of the child;
a mother cannot disregard her liability to
maintain a child born out of wedlock, nor
the responsibility for its upbringing; in the
eyes of the law, her rights over the child are
given
to
her,
as Stirling L.J.,
said
in
Humphrys
v.
Polak,18
not for her own gratifi
cation or benefit, but in order to enable her
to discharge her duties to the infant and for
its benefit.
On the circumstances of the case it was, how
ever, held by the Court (Gavan Duffy P., Haugh,
and Davitt J.J.) that, notwithstanding the natural
right of the mother to the custody of her child, it
would not be for the child's welfare to be taken
from the care of the respondent and given to the
prosecutrix. Accordingly, the cause shown against
making the conditional order of
haseas corpus
absolute should be allowed, and the conditional
order discharged. [See also
In re J., an Infant
(infra) ].
The leading case of
In re. Tilson Infants
(1951)
I.R.I, which was a decision of the Supreme Court,
dealt with the legal effect of an ante-nuptial agree
ment made by the parties to a marriage relating to
the religion of the children. The marriage took
place in 1941 in a Catholic Church the husband
being a Protestant and the wife a Catholic. They
signed an undertaking that any
issue of • the
marriage would be brought up as Catholics. Four
children were born of the marriage and all were
baptized as Catholics. Differences having arisen
between
the parents,
the three eldest children
were removed by their father to a Protestant in
stitution. In the subsequent proceedings, it was
held by Gavan Duffy P.
that the prospective
should be returned to the mother to live in her
general welfare of the children required that they
is(1901) 2 K. B. 385, p. 389.
home. The President stated inter alia: —
"I confess that having delved into the case law,
I discern there is no clear principle to justify the
doctrine that a father is free to repudiate his ante
nuptial agreement; I have the temerity to prefer
a principle of public policy that would impera
tively require a man to keep faith with the mother
whom he has induced to wed him by his cate
gorical engagement to respect her convictions in
the supernatural domain of her children's creed.
We are a people of deep religious conviction.
Accordingly our fundamental
law deliberately
establishes a Christian constitution; the indifferen-
tism of our decadent era is utterly rejected by us.
The Irish code marks a new departure from time-
honoured precedents which are not ours and gives
us a policy conceived in a spirit unfamiliar to
British jurisprudence, and alien to the English
way of life.
Under the Victorian judge-made law, a man
could induce a lady to marry him by gross de
ception upon one of the most sacred matters of
her life and then, after the wedding, repudiate his
engagement at any time. In my opinion that is
not the law of Ireland, and there is no injustice
or impropriety in holding the man to his pledge."
On appeal the Supreme Court affirmed the
strong lead given by the President's decision as
follows: —
(1) Under the Constitution both parents have
a joint power and duty in respect of the religious
education of their children and if they together
make a decision, and put it into practice, it is not
in
the power of either parent to revoke such
decision against the will of the other.
(2) An an^-nuptial agreement made by
the
parties to a marriage, dealing with the matters
which will arise during the marriage and put into
force after the marriage, is effective and of binding
force in law.
(3) The former rule that the father has a right
to break an ante-nuptial agreement as to the re
ligion in which the children of the marraige will be
brought up has not place where the power of
control over the religious education of the child
ren of the marriage has been exercised; such a
power is a joint power and is not revocable by
one of the parents alone.
239