703 / 736
established rule of law that the first and para
mount consideration of the Court was the welfare
of the infant. Section 6 of the Act declares that
the father and mother of an infant shall be guar
dians of the infant jointly — By Section 11, the
guardian of the infant may apply to the Court for
its directions on any question affecting the welfare
of the infant, and the Court may make such order
as it thinks proper. In practice, in view of the costs
involved, it has often been found convenient to
avail of the 1964 Act in order
to determine
which of the parties involved, if living separately
should have custody of the children. It will thus
be seen that broadly the welfare of the children has
usually been the paramount consideration, when
ever a dispute as to their custody was brought
before the Irish Courts.
GERARD A. LEE.
For recent cases, see
title
"Guardianship of
Infants"
in current Law Digest in this issue at page
FREEDOM OF MOVEMENT OF
PERSONS
Dr. Paul O'Higgins, Fellow of Christs College,
Cambridge, delivered
two
public
lectures
in
Trinity College, Dublin,
on
the
subject
of
"Freedom of Movement of Persons in States"
on 23rd and 25th February, 1971. Dr. Cole, who
presided,
foreshadowed
that
the
lecturer's
approach would be authoritative and scholarly,
and so it proved. The lecturer stated that, in the
19th century, the special feature of the poor law
was to control the spread of ideas; even in the
British Empire, common citizenship did not give
free access throughout the Empire. For instance,
the so-called "Safeguarding of Employment Act
1947"
in Northern Ireland gravely contravened
provisions of the United Nations Declaration of
Human Rights and
of
the United Nations
Covenant on Civil and Political Rights 1966. In
Britain, the State has a right to interfere, as long
as no legal
infringements have been interfered
with.
The problem of "Freedom of Movement of
Persons" should be considered under six heads: —
(1)
Freedom of persons to leave their own State
in order to take up employment elsewhere.
This freedom is not absolute, as the writ -
"Ne
exeat regno"
still exists in England, which forbids
a subject from leaving. In New Zealand in 1970,
an unsuccessful attempt was made to prevent the
New Zealand Rugby Team — the All Blacks —
from leaving to play in South Africa. In
Felton
v Callis
(1968) 3 W.L.R. 952, Megarry J. held
that the writ "Ne Exeat regno" was extant, but
the action in fact was the equitable equivalent of
one in which the defendant would formerly have
been liable to arrest at law, as there was probable
cause for believing that he was about to leave
the country, but this absence would not in fact
materially prejudice the plaintiffs in the prosecu
tion of their action. It was also believed in 1969
that an immigration officer who prevented a jour
nalist from leaving London Airport, had acted ille
gally. The freedom of movement of individuals
may be dependent upon the possession of a valid
passport and this may conflict with the provision
of the European Convention of Human Rights
which declares that "Everyone is free to leave
every country, including his own". The United
States Supreme Court has upheld the right of
American citizens to the possession of a passport
and has declared that the State Department cannot
with-hold one.
(2)
Freedom to remain away from one's own
State.
In England, there is in theory a prerogative power
to summon the return of a subject, and, if he fails
to do so, to confiscate his property; however, this
procedure
is very formal, and the Great Seal
should be affixed to each such summons. As the
Great Seal was abolished by statute in 1884,
there is no longer any procedure to enforce this.
In fact the English Supreme Court Rulles of 1965
abolished the former provisions relating to "Ne
exeat regno". There is, however, an informal
understanding between States, which may secure
the return of the nationals of one State from
abroad by getting the foreign Government to im
pound passports. The Council of Europe Con
vention on Extradition consists basically of rules
for the protection of States rather than of in
dividuals. Furthermore, the States tend
to co
operate by using procedures outside the recog-
241