The Gazette 1983

GAZETTE

N O V

E M B E R

1983

Kenny J. spelt out his approach in unambiguous terms:

"The principal matter which must govern the

approach to this case is the youth of the children

(6'/

and 4'/

). Young children have a much greater

emotional need of their mother than they have of

their father who, when they are young, seems to

them to be a somewhat remote figure. A mother has

an instinctive understanding of children's minds

and needs. She provides warmth, visible signs of

affection, love, a feeling of security, a last refuge in

times of trouble and patience in listening to their

petty complaints. The feeling that their mother is

always available at home is an important element in

the emotional life of a young child: from this comes

confidence and courage to face the trials which life

presents to a young child.

In every case in which young children are involved,

the factors I have mentioned create a strong

prima

facie

case for giving them into the custody of their

mother. The case may of course be rebutted if it is

shown that the mother is an unfit person to have

them in her custody. She may be promiscuous or

addicted to alcohol or may be indifferent to the

children (this last mentioned matter does occur in

rare cases)".

Griffin J. (dissenting) expressed himself less fully on

this question. He said that he "would accept without

question that, all things being equal, when parents are

estranged the custody of young children should be given

to their mother"

; but he pointed out immediately

afterwards that "each case must depend on its own

particular facts . . . ,"

He considered that:

"Ordinarily the interests of children of tender years

would be best served in the custody of their mother,

and unless there are features in this case which

permit a departure from the normal position, the

custody should be awarded to the mother."

Preference for the Mother

This substantial body of case law indicates that the

Supreme Court appears at present to be satisfied that,

where young children are concerned, the mother is the

appropriate custodian unless countervailing considera-

tions require otherwise. As we have seen, Judges have

differed somewhat in their articulation of the precise

weight to be given to this assumption. It has been cast in

terms of a

"prima facie"

rule, or "a strong

prima facie

rule" the onus of proof of disentitlement lying on the

person who makes that case. The preference for the

mother may arise in cases where "all things are otherwise

equal" or, more generously, if there is "no great

difference between the conduct of the parents". Proof of

disentitlement may be through any relevant evidence or

(in Kenny J.'s view, expressed in

MacD. -v-MacD.

only

by proof that the mother is "an unfit person" to have

custody by reason of promiscuity, addiction to alchohol

or indifference to the children.

It would also seem fair to say that the Judges evince a

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view of differences in parental functions between fathers

and mothers. Fathers — especially of young children —

tend to be regarded by the Court as remote figures in their

children's lives; in contrast, mothers provide warmth,

understanding and intimancy in responding to their

children's "petty complaints".

' The administration of

medicine and telling the facts of life to girls are, in the

Court's eyes, tasks for mothers rather than fathers.

Of course it can be argued that the Court is only

responding to actual realities in family life. This may be

so, but the extracts from the several judgments that have

been set out above appear to make it clear that the Judges

have a perception of "motherhood" as a discrete and

specific concept, identifiably different in its functions

from that of "fatherhood"; mothers

a wide variety of

tasks and

are

a certain type of person

because

they are

mothers; conversely fathers

do not do

several tasks and

are

not

a certain type of person by reason only of their father-

hood.

This view of parenting is likely to fall foul of the charge

of sexism, in implying that parents, by reason only of their

particular sex, have certain differences in their response to

their children

and have separate functions regading

their upbringing. It may well be only a matter of time

before the constitutionality of this approach is challenged

on the basis that it offends against the guarantee of equal

protection in Article 40.1, or against the constitutional

278