719 / 736
mother. Budd and Fitzgerald J. J. agreed as regards the
respective custody of the boys, but would have granted
custody of the girl to the mother, after having inter
viewed her.
Per O'Dalaigh C. J.: — "In disposing of the custody
of children, a court must take parents as it finds them.
Where a marriage has broken down, temporarily or
permanently, it may be possible that the welfare of the
children requires that one or other parent should, by
reason of character or conduct, the excluded from con
sideration, as being a person unfit for custody. The
Court should, in my opinion, always be reluctant to
reach such a conclusion. If the homes of the separated
parents were close enough to a single suitable school, I
would favour maintaining the unity of the children, and
allowing them to reside for half the year with one
parent, and the other half with the other. But this is not
practiuable here.
Per Walsh I.: — "Under Section 1 of the Guardian
ship of Infants Act 1964, if one parent is given custody
of the infant to the exclusion, total or partial, of the
other parent, that does not deprive the parent who
loses the custody of the other rights which accrue to
him or her as guardian of the infant." A parent so
deyrived of custody can continue to exercise the rights
of a guardian, and must be consulted in all matters
affecting the religious, moral, intellectual, physical and
social welfare of the child. The Act does not perport to
encourage any alteration of the established practice of
the Courts that they must act very cautiously in exercis
ing their jurisdiction to interfere with parental rights, and
the Court will act in oposition to the parent or parents
onl where judicially satisfied that the welfare of the
child requires that the wishes of the parent or parents
should be over-ruled.
[B. v. B. Supreme Court. Unreported. 24 April 1970.]
The Supreme Court unanimously upheld Butler J. in
granting custody of the eldest daughter of 17, and the
youngest son of 6 to the mother, while the custody of
the eldest boy of 16 and next eldest boy of 11 was
granted to the father, as the parents were separated.
The youngest boy however, as the husband and wife
did not live far from one another, was to spend the
week-ends with his father and brothers.
[C. v. G. Supreme Court. Unreported. 8 May 1970.]
The welfare of 4 children, two girls and two boys,
aged from 6 to 10 years was at stake, whose full cus
tody Kenny J. eventually awarded to the mother, as she
had already obtained custody of them in 1966, and the
husband was allegedly unfeeling and unemotional. The
wife was living in her separate home, to which the
husband
contributed nothing, with
an
entertainer,
with whom
she
was
enamoured.
A
newspaper
report
in November
1970
stated
that
the
enter
tainer and the wife were to be married. It was also
stated that the husband had not a proper home to
bring the children to. The wife was given custody of
the children on condition that she would give a solemn
undertaking not to take the children out of the Republic,
not to sell or mortgage her house. The husband was
granted access to the children once a week. However
before the end of January 1971, the wife committed
contempt of court by fraudulently procuring passports
for the children, and absconding with them and the
entertainer, to Hawaii.
Per Kenny J.: — "Custody is not a reward for good
matrimonial behaviour, nor should the Court deprive
the parent of it as a way of showing disapproval of
conduct which most people in this community regard
as immoral. Neither the father nor the mother has a
right superior to the other to the custody of the children;
the emphasis now is on the rights of the children. I do
not accept the proposition that a parent who has been
guilty of matrimonial misconduct is necessarily unfit to
have custody, and that the "innocent party is in every
case the one who will best promote the interests of
the child. If our aim is to produce happy, balanced and
well integrated people, we should look at the condition
which will produce this result, and at the qualities which
th parents have, such as that the children should have
security. They must be given the chance to grow roots.
The element of unity of the children in this case favours
the mother."
[O'B. v. O'B. Kenny J. Unreported. 5 January 1971.]
Master
and Servant
Two school teachers in Co. Durham who were sus
pended because of their refusal to supervise school
meals were held to be entitled to recover their accrued
salary during the period of suspension.
[Gorse and Another v. Durham County Council and
Another. Q.B.D.
The Times, 6
March, 1971.]
Negligence
A person whose car was borrowed without his consent
and who told the borrower to bring it back was not
liable for damages resulting from an accident which
occurred while the borrower was returning it.
[Klein v. Celuori. Q.B.D
The Times,
18 February,
1971.]
The Post Office were held not to be liable for the
admitted negligence of a trainee employee when driving
his father's van with another trainee as passenger on
their way to their place of work. The driver was entitled
to claim milage and passenger allowance for the journey,
and the driver's liability for the passenger's injuries was
held to be covered by the father's comprehensive insur-
person "other than a passenger carried by reason of or
ance policy, which excluded liability for injury to any
in pursuance of a contract of employment."
[Nottingham v. Aldridge and Another? Prudential
Assurance Co. Ltd. (third party). Q.B.D.
The Times,
25 February, 1971.]
A groove down a highway caused by work done neg
ligently by county council workmen when removing a
double white line from the road surface was held to
have created a danger in the special circumstances of the
case so as to make the highway authority vicariously
liable to a young man who came off his motor cycle
when he went over a resulting rough patch and was
severely injured. The court in so deciding emphasized
that an uneveness in a road or pavement does not of
itself give a cause of action to everyone who falls be
cause of it.
[Bright v. Attorney General. Court of Appeal.
The
Times,
26 February, 1971.]
257