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GAZETTE
N O V
E M B E R
1983
children strongly favour her case because mothers
are very much closer in sympathy and affection to
young children than fathers are. His
{sic.)
role
becomes much more important when the children
are over 12. As all the children are girls this also
supports the mother's case because fathers find it
difficult to understand the minds and the physical
and psychological needs of young girls. This
intimate, intuitive relationship between mothers
and young girls has assumed a particular
importance today when there is a television in
almost every household on which matters in
relation to sex (which would have been unmention-
able twenty-five years ago) are discussed openly and
without restraint of any kind. Although some of us
may deplore it and indeed, find much of it in
appalling taste, we have to educate children who
live with it and who are profoundly shaped by it.
Therefore children must be given sex education and
this should be done primarily by a parent. Fathers
and grand-parents cannot give this instruction."
10
Kenny J. awarded custody of the children to the
mother. The several other considerations involved in
deciding whether to make this order are not of present
relevance. The Supreme Court reversed Kenny J. — again
for reasons that need not now be considered. It is worth
noting, however, that FitzGerald J. "readily a c c e p t e d]
that children of tender age, and particularly girls, would,
other things being equal, be better in the custody of their
mother . . . .""
In
E. K.
-v-
M.
A'.
12
, in 1974, Kenny J. stated of a girl aged
3'/
:
years that:
"it is notorious that children of that age are much
closer to and more dependent on their mothers than
on their father.""
In Kenny J.'s view, "the same considerations of
emotional attachment and dependence"
14
applied to a
boy 5'/
:
years old. He observed that:
"fathers are ill qualified to look after children who
are 5 and 3".
15
Kenny J. awarded custody of the children to the
mother — again after taking into account other
considerations not relevant to the present article.
The Supreme Court reversed. Walsh J. noted that the
children were:
"at an age when their relationship with their mother
is a very close one and if all other things were equal
there could be no question that in a choice between
a father and mother children of this age should be
given into the custody of their mother. However,
other things are not equal but even when they are
not equal a removal of the children from the
custody of their mother at such an age would be
justified only when it has been found that the
mother has been so greatly wanting in her duty to
the children that the removal wou ld be
warranted."
16
Later in his judgment, Walsh J. observed:
"The very fact that it is widely accepted, as I myself
accept, that the best place for young children of this
age is with their mother is based upon the under-
standing and assumption that the mother is
constantly to hand to care for the children if they
should wake at night or require the many small
attentions which children of this very tender age
require."
17
He noted that:
"It is also mentioned that because the little girl
suffers from a skin ailment which requires constant
application of ointment that somebody should
always be on hand to do this and that the mother
does it effectively at the moment. So far as the
medication or the application of medication is
concerned it appears to me that the husband is
sufficiently well-to-do to provide if necessary a
properly trained children's nurse to look after his
children."
18
Budd J. said that he thought it:
"true to say that if there is no great difference
between the conduct of the parents the custody of
very young children is usually given to the
mother . . . ."
Budd J.'s slightly more restrictive statement later in his
judgment should be noted:
". . . . I accept the position that other things being
equal
the custody and control of very young
children at any rate is normally given to the
mother." (Emphasis added.)
In the more recent decision of
Mac D.
-v-
Mac D.
", in
1979 the Supreme Court returned to the theme. Henchy J.
expressed the following criterion:
"In the case of very young children, having regard
to ties of nature, the person
prima facie
entitled to
their custody, where the parents are estranged, is the
mother, for by reason of her motherhood she will
usually be the person primarily and uniquely
capable of ministering to their welfare. If the case is
being made that by reason of her character, her
conduct, or any other circumstances, she should be
held to be disentitled to the custody, the onus of
proof of that disentitlement should lie on the person
making that case."
20
Also worthy of note are Henchy J.'s observations that
the children in the case had:
"a daily need of their parents, especially their
mother . . . ."
21
; that "custody with the mother is
more likely to promote the physical and social
welfare of the children . . . ."
22
and that "so long as
she is ready as a loving and caring mother to do her
best to see to the [moral and religious] welfare [of
the children], the obvious need of these young
children for her as a mother should weigh heavily in
the balance in favour of her claim to be given
custody."
21
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