The Gazette 1976

227 / 274

GAZETTE JUNE/JULY 1976
to sustain a contempt charge, there
must be wilful or inexcusable de-
fault. The following ingredients are
accordingly necessary to sustain the
charge : (1) the overt act of failing
to obey a Court order; and (2) Mens
rea, a guilty intent which precludes
a lawful or innocent reason for the
action. If guilty, a defendant can be
sentenced to an indefinite term of
imprisonment. Accordingly, the fail-
ure to obey a Court order is a crime,
which cannot be deemed a minor
offence. It follows that the issue
whether or not a person is guilty of
such contempt comes within Art. 38
(5) of the Constitution and must be
determined by a jury. The case is
referred back, in order that Counsel
may have an opportunity of consid-
ering the matter.
McEnroe v. Leonard — unreported —
Parke J. — 9 December 1975.
Due to mother's adultery, custody
of three-year-old son awarded to
father.
The plaintiff wife and defendant
husband were married in a Catholic
church in Dublin in June 1971 and
an only child, a son, was born in
October 1973. The plaintiff is the
owner and manager of a hairdres-
sing salon, and has been at all times
better off than her husband, who is
a barman in his father's licensed
premises, and who is earning £50
per week. The plaintiff provided
and furnished the matrimonial
home, paid the greater part of the
outgoings and provided a motor car.
The degree to which either plaintiff
or defendant now practises their
religion is doubtful, but in accor-
dance with Re May (1958) 92
I.L.T.R., it was impliedly agreed
that any children should be brought
up as Catholics.
Even before the marriage, the
defendant drank to excess, and the
plaintiff was aware of it; this con-
tinued after the marriage, with the
result that the plaintiff was fre-
quently violently assaulted and
beaten, even after pregnancy. Evid-
ence was given that strangely,
though they had many rows, they
were on very good terms between
quarrels.
In 1974 the plaintiff went alone
on a holiday to Tenneriffe, and she
met a rich English Jewish business-
man, Mr. G., and became enam-
oured of him. Mr. G. was married
with one son, but Mrs. G. had
obtained a decree nisi at this time
on the ground of her husband's
desertion. This acquaintance with
plaintiff progressed rapidly, and
they often arranged to meet for
weekends in England without defen-
dant's knowledge. One of these
meetings in the summer of 1975 was
in an Irish seaside resort, which the
defendant discovered. Being ad-
dicted to drink and violence towards
his wife, he threatened to shoot both
her and Mr. G. In October 1975
proceedings were instituted by the
plaintiff claiming interim custody of
the child, and injunctions against
the defendant. On 9 October 1975
Kenny J. made an order giving sole
custody of the child to the plaintiff
until further order.
The case now made by the plain-
tiff is that, by reason of his drunken
conduct and the inadequacy of his
financial resources, the defendant
lias forfeited the right to the custody
of his child, or to the control of his
education. She asks for the custody
of the son, so that she can take him
to the home which she and Mr. G.
intend to set up in England; she is
even anxious to adopt the Jewish
faith, and intends to bring up her
son as a Jew. In this situation, the
right of the child to have access to
his father, as laid down in M. v. M.
— (1972) 2 All ER — received no
consideration whatsoever. This is a
very novel claim in the Irish Courts
which operate under a Constitution
laying such special emphasis on the
institution of the family. The para-
mount consideration is the welfare
of the child. Normally a child of
tender years should be entrusted to
the custody of his mother, unless she
has so gravely failed in her moral
duty as to forfeit this right. If the
prime issue is one of custody, it is
impossible to resolve it without tak-
ing into account the whole picture
presented by the parties — see unre-
ported Supreme Court judgments of
O'Shea v. O'Shea (5 April 1974) and
Keogh v. Keogh (31 July 1974).
As regards religious welfare, Da-
vitt P. in Re May (1958) stated that
an agreement was to be inferred on
the marriage of two persons both
practising the same religion that any
children of the marriage would be
brought up in that religion. Accord-
ingly, the plaintiff has no right
whatsoever to change the religion of
the child against the wishes of the
defendant.
In custody cases, the Court is not
to prefer one religion against
another. But the social welfare of
the child should ensure making him
a better member of the society in
which he will live. If he were
brought up in the Jewish faith, he
would not be a member of the Jew-
ish race, and would thus be an alien.
While a Court is not a Court of
morals, in general it will not grant
custody to a parent who has aban-
doned the matrimonial home and
lives in an adulterous establishment.
Under Irish law, no lawful union
can take place between the plaintiff
and Mr. G. during defendant's life-
time. Adultery is even prohibited
under Jewish law. The intellectual
and physical welfare of the child
would be as good, if not better, if
he went to England.
The defendant's parents live in a
large house over the father's licensed
premises, and they are willing to
offer accommodation to him and his
son. The son will be looked after by
his grandmother, who, though less
educated, would be a better example
than his mother, who, by her con-
duct, has deprived herself of the
custody of her son. Accordingly the
custody of the child will be awarded
to the defendant, and Kenny J.'s
order will be varied. The mother
can apply subsequently to have
access to the child.
H. v. H. — Parke J. — unreported —
4th February 1976.
A Compulsory Purchase Order made
by a local authority must relate
strictly to lands acquired by that
authority and by no other authority.
Appeal from Kenny J.'s decision,
which quashed this Compulsory
Purchase Order, that the lands now
being acquired compulsorily were
partly for the needs of Dublin Cor-
poration, and partly for the needs of
Dublin County Council for housing
purposes. If the Corporation had
wished to acquire lands in Dublin
County Council for Corporation
housing purposes, the Order would
have been valid. The documentary
and oral evidence fully support the
inference which Kenny J. drew that
the lands were required partly for
Corporation housing purposes, and
partly for County Council purposes.
There was no evidence to support a
finding that a possible alternative
purpose of the acquisition was to
satisfy only the housing needs of
Dublin Corporation. The legal
representative of Dublin Corporation
attempted to argue before the
Inspector that it was inherent in the
purpose of acquisition that Dublin
Corporation would be enabled, if
they so decided, to hand over part
of the lands to Dublin County
Council for housing purposes. The
objectors at the inquiry contended
that the Minister would have no
power, in view of the evidence, to
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