702 / 736
The Supreme Court accordingly, directed that
the children would be returned to the mother to
be educated by her, if not by both parents, in the
manner on which they had been taught pursuant
to the ante-nuptial agreement.
In the course of his judgment, James Mur-
naghan J. (with whom Maguire C.J., O'Byrne
and Lavery JJ. agreed) stated at p.34: "In my
opinion the true principle of our Constitution is
this. — The parents — father and mother — have
a joint power and duty in respect of the religious
education of their children. If they together make
a decision and put it into practice it is not in the
power of the father — nor is it in the power of
the mother — to revoke such decision against the
will of the other party. Such an exercise of their
power may be made after marriage when the
occasion arises; but an agreement made before
marriage dealing with matters which will arise
during the marriage, and put into force after the
marriage, is equally effective and of as binding
force in law. It is a mere commonplace to say that
the former rule of English law whereby a husband
could break a promise without which in many
cases his wife would not have married him,
enabled fathers to take a line of conduct which,
if legal, was accounted by many persons as not
honourable. This rule has not place, however,
where the power>
which is a joint power cannot
be revoked by the action of one of the parties".
The Supreme Court distinguished their decision
from the earlier case of
In re Frost, Infants
(1947)
I.R.3.
The case of
In re May, Minors
(1959) I.R.74
involved a case where both parties to the marriage
were Catholics and were married in a Catholic
Church in 1944. There were five children to the
marriage the youngest being born in 1956. Until
1954 the parents educated and brought up their
children in the Catholic faith. In July 1955 the
husband became a member of the group known
as Jehovah's Witnesses. Since becoming a member
of this group he had wished his children to cease
their former religious education and, instead, to
be
instructed according
to
the principles of
Jehovah's Witnesses. The five children of the
marriage were made Wards of Court upon the
application of their mother and an application was
brought to the Court to determine the nature of
the
religious and other education which
the
children were to receive.
It was held by Davitt P. that where a husband
and wife agree upon the religion in which their
children are to be brought up and educated, and
such agreement is acted upon and put into force,
it cannot be abrogated by either husband or wife
alone.
In the course of his judgment Mr. Justice Davitt
stated at p.76: "In the Tilson case (supra) there
was a formal and solemn pre-nuptial undertaking
by the husband that the children should be edu
cated as Catholics. Here there is no such formal
agreement and indeed no express agreement at all.
In my opinion such an agreement must, however,
in the circumstances, be implied, particularly as
up to now the father has consented to the children
being educated as Catholics.
The case of
In re. J., an infant
(1966) I.R.295
involved a dispute on the one hand, between the
parents of a child who had been born out of wed
lock, but who had later been legitimated by the
subsequent marriage of the parents, and, on the
other hand, a husband and wife who were the
adopters of the child under the Adoption Act,
1952. It was held by a Divisional High Court
that custody of the infant should be given to the
parents. Murnaghan J. held that, taking all the
facts into consideration and applying the provis
ions of section 3 of the Guardianship of Infants
Act, 1964, custody of the infant should be awarded
to the parents. It was further held by Teevan
and Henchy J.J. that the parents had an absolute
right to the custody of the infant and that the
enforcement r>f that right did not involve a con
flict with the provisions of section 3 of that Act
of 1964. As, according to Article 42 of the Con
stitution the State acknowledges that the primary
and natural educator of the child is the family,
this right could only be supplanted if the parents
for physical or moral reasons fail in their duty
towards their children. This is not relevant, in a
case where these parents are able and willing to
educate this child, who is now only 17 months of
age.
The Guardianship of Infants Act, 1964 (No. 7
of 1964) repealed, inter-alia, the Guardianship of
Infants Act
'186 and the Custody of Children
Act, 1891 a,,u restated in Section 3
the long
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