The Gazette 1976

GAZETTE

March 1976

as a maintenance application, or may request the

Master to transmit to the British authorities power to

take evidence. Alternately the Court can make a main-

tenance order which will be transmitted to Britain for

enforcement. It will be appreciated that there will be

unavoidable difficulties under these proceedings.

The Hon. Mr. Justice Liam Hamilton

delivered a

lecture on

"Recent Decisions relating to the Guardian-

ship of Infants Act 1964"

on Sunday morning. He first

of all quoted the text of Article 41 (relating to the

Family) and Article 42 (relating to Education) of the

Constitution. He recalled that the Guardianship of

Infants Act, 1886, and the Custody of Children Act,

1891, had been repealed by the 1964 Act. Following

the judgment of James Murnaghan J. delivering the

majority judgment of the Supreme Court in

Re Tilson

(1951) Í.R. 1 at p. 34—in which he stated that the

parents, father and mother, have a joint power and

duty in respect of the religious education of the chil-

dren. S. 6 (1) of the 1964 Act provides that "the father

and mother of an infant shall be guardians of the

infant jointly", thus shedding the old concept of pater-

nal power. If a deceased parent does not by deed or

will appoint a testamentary guardian of the infant(s)

the surviving parent will be the sole guardian of the

infant(s) unless a Court otherwise directs. If no guar-

dian has been appointed, or if a guardian refuses to

act, the Court may appoint one (S. 8). Unless the terms

of his appointment provide otherwise, every guardian

appointed shall be guardian of the estate as well as of

the person (S. 10). Upon application to the Court, every

guardian may apply for directions regarding custody or

right of access (S. 11). These applications are rare.

Part 3 of the Act deals with the enforcement of custody,

which is enforced exclusively by the High Court. If

a parent applies for production of its infant, if any

costs have been incurred by a Health Authority or by

another person in providing maintenance for such

infant, the parent will be directed to pay such costs.

If an infant has been abandoned or deserted, the Court

will not grant custody of the infant to the parent,

unless it is satisfied that such parent will be a fit and

proper person. The Court, if it is of opinion that a

relative will not follow the religion or ethics of the

parent may make an Order that such child will be

delivered to a person who has the legal right to ensure

that the proper religion will be taught. The principles

applicable may be stated t hu s:

1. Under S. 6 (1), irrespective of who is awarded cus-

tody of the infant, the father and mother shall

remain guardians of the infant. As Article 42 of the

Constitution states that "The State guarantees to

respect the inalienable right and duty of parents to

provide for the religious and moral, intellectual,

physical and social education of their children",

Section 3 of the Act defines as the paramount consid-

eration and welfare specifically the religious and

moral, intellectual, physical and social welfare of the

child.

2. Furthermore, the parent deprived of custody can

continue to exercise the rights of a guardian, and

must be consulted in all matters affecting the welfare

of his children. Dicta of Walsh J. in

Butler

(Supreme Court, 24 April 1970, unreported) are

quoted in support of this proposition.

3. Any Order as to the custody or welfare of an Infant

under S. 11 is only interlocutory in character because

circumstances may change from time to time.

4. In normal circumstances, where a husband and wife

have parted, but are equally suitable to have custody

of children, the children of tender years will norm-

ally be left in the custody of the mother. As time

passes, the father is called upon increasingly with the

day to day problems of his son or daughter.

5. It is only if the mother is found greatly wanting in

her duty to her children, that the removal of very

young children from her custody would be warranted.

6. Insofar as the behaviour of the parents which con-

tributed to the breakdown of the marriage is relevant

to decide in whose custody the welfare of the child

would be best served, this would be relevant

evidence.

7. In considering the welfare of the infant, all the

ingredients specified in S. 3, namely the religious,

moral, intellectual, physical and social welfare of the

child must be considered globally. Dicta of Walsh J.

'Shea v.

'Shea (Supreme Court, 5 April 1974,

unreported) quoted in support.

8. The Order of the Court in respect of the custody of

the children is interlocutory only in character. Conse-

quently it is the duty of the parents to be concerned

about the welfare and education of their children.

9. On an appeal from a decision of the High Court, the

Supreme Court has power to hear further evidence.

The Court must not, however, be used as a forum in

which to air the grievances of one parent against the

other.

Mr. Justice Hamilton answered oral questions for

more than one hour after his lecture.

German Academic Exchange Service

T h e British Institute of International and Comparative

Law in conjunction with the London Branch of the

German Academic Exchange Service have arranged

the following International Summer Courses in Law for

1976, to be held at the London School of Economics and

Political Science.

International Summer Course in Modern English Law

5 July to 30 July 1976

Director of Studies : Professor Clive M. Schmitthoff,

(London)

Summer Course in Modern German Law

28 June to 9 July 1976

Director of Studies : Professor Hein Kotz, University

of Konstanz

International Summer Course in European Community

5 July to 16 July 1976

Director of Studies : Professor Kenneth R. Simmonds,

Queen Mary College, University of London, and

Director of the British Institute of Internatinoal

and Comparative Law

Summer Course in Advanced Modern German Law

5 July to 9 July 1976

Director of Studies : Professor Hein Kotz, University of

Konstanz

The language of all courses will be English.

As the number of places on all summer courses is

restricted, early application is recommended. Further

information and application forms can be obtained

from the Course Secretariat at the London Branch of

the German Academic Exchange Service, 11-15 Arling-

ton Street, London SW