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GAZETTE
N O V
E M B E R
1983
The Sex of a Parent as a Factor
in Custody Disputes
by
William Binchy, B.A., B.C.L., LL.M.,
Barrister-at-Law, Research Counsellor,
The Law Reform Commission.
L
ITTLE has been written in this country on the
approach of the courts to the sex of the parent as a
factor in determining the custody of children. Yet the
courts have shown considerable interest in this theme. In
this article we will examine briefly what the various Judges
have said on this question and consider possible future
developments in the law.
The
Guardianship of Infants Act 1964
1
has nothing
directly to say on this question. Of course, section 6( 1) of
the Act provides that "the father and mother of an infant
shall be guardians of the infant jointly", thereby giving
statutory expression
2
to the principle of equality
recognised in the
Tilson
3
case fourteen years previously as
being required by the Constitution. The Act did not go
further in attempting to specify the circumstances in
which custody of a child would be awarded to the father
or the mother. Section 3 merely provides in the most
general terms that, in determining the question of
custody, the court is to "regard the welfare of the infant
as the first and paramount consideration". "Welfare" in
this context comprises the religious, moral, intellectual,
physical and social welfare of the child
4
.
In determining the welfare of children, the courts have
frequently addressed the competing claims of spouses in
terms of the sex of either claimant. In the Supreme Court
decision of
B.
-v-B.
J
in 1970, Budd J. said of a six-year-old
boy:
"He is of an age when he requires the care that a
mother can give to his physical needs, and he needs
her maternal affection."
Budd J. agreed with the view of the trial judge, Kenny
J., that:
"Young children are nearer to their mother than
their father, and that they need a mother's care and
affection. In my mind, the daughter [aged 8] is still
of such an age that she needs maternal care; more
particularly so because she is a girl. I regard the
importance of a young girl being with her mother as
far outweighing such advantages as there are in her
remaining in a particular house such as the family
home
"
6
In considering the welfare of the girl's brother, who was
just under ten years old, Budd !l. felt that:
"it is a matter that should carry weight that he is
now coming to the age where a boy tends to turn to
his father for help and guidance in matters which
perplex and worry a young lad."
7
FitzGerald J. expressed his understanding of the law on
this question as follows:
"In normal circumstances where a husband and
wife have parted but are equally suitable to have
custody of a child or children, it seems to be
generally accepted that children of tender years
should be left in the custody of the mother while
they are of an age where they naturally turn to their
mother for the care and attention which she
naturally provides for them, and which the father
cannot so readily supply. It also appears to have
been generally accepted that as time passes the
child's demands upon its mother lessen somewhat
with its development, and that the father is called
upon to concern himself increasingly with the day-
to-day problems of his son or daughter and has a
capacity to cope with these problems. There is no
hard and fast rule as to the age at which a court
should consider the child sufficiently advanced to
require the custody to be transferred from the
mother to the father. There is a further matter
which, in my opinion, is highly relevant and that is
the sex of the child. While not wishing to lay down
any hard and fast rule, I would think that in the case
of a boy it is for his benefit, assuming that he is of
normal health and mental development, that he
should remain in the custody of his mother until he
has reached the age of about eight years. In the case
of a girl, I consider that it is not proper or for her
welfare that she should be deprived of day-to-day
contact with her mother at anything less than twelve
years of age."
8
In
J.J. W.
-v-
B.M.W
;
9
,
the following year, the trial
judge, Kenny J. began his legal analysis by noting that
[njeither the father nor the mother has any superior or
special right of custody". But shortly afterwards he
expressed a view of suitability based on the sex of the
parent that may appear difficult to reconcile with this
neutral introduction. The children in the case were all
girls, aged 9, 7 and 3, respectively. Kenny J. stated:
"What factors favour the wife? The ages of the
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