The Gazette 1974

UNREPORTED IRISH CASES

Custody of three children awarded to father living with

another woman.

The facts of the case were stated in the

Gazette,

November 1973, at page 234. It will be recalled that the

husband and wife married in July 1966 and they had

three children, two daughters and a son, between 1967

and 1969. The marriage eventually broke up in April

1970, when the husband first took the children to his

sister in Cobh until September 1971. In July 1970 the

parties signed a consent by which the husband was

granted custody of the children, and the wife had access

to them every Sunday and on other specified dates.

From September 1971 to April 1972, as the father

was working in Dublin, the children lived with his par-

ents. In April 1972 the husband went to live with

another woman, who had been divorced in England,

and who had had another child from the husband born

in November 1971, in Dundrum, Co. Dublin.

The wife, a teacher who was living with her own

parents in Cobh, applied to Kenny J. for custody of the

three children, on the ground that the moral welfare of

the children would be destroyed if they were to live

with their father. Kenny J. acceded to this argument,

and granted custody on 10 July 1973. On 30 July 1973

Kenny J.'s order was stayed pending the determination

of the appeal. From the evidence, it appeared that,

despite the consent, the mother tended to neglect the

children, and did not visit them as required.

Section 3 of the Guardianship of Infants Act 1964

provides that, where in any proceedings, the custody,

guardianship or upbringing of an infant is in question,

the Court, in deciding that question, shall regard the

welfare of the infant as the first and paramount consid-

eration. Welfare in relation to the infant comprises the

religious and moral, intellectual, physical and social

welfare of the infant.

The three children have settled contentedly into the

domestic environment of the father, and are being affec-

tionately and efficiently looked after by the father and

stepmother. As regards the

intellectual welfare

of the

children, Kenny J. favoured the present arrangement on

the ground that their formal education is pursued in

suitable schools, and the home atmosphere is conducive

to study and intellectual development, and the majority

of the Court agreed. The majority also agreed with

Kenny J. that the

physical welfare

of the children re-

quired that they should reside with their father, as they

are in a comfortable suburban home, and their health

is being assiduously looked after.

As regards the

social welfare

of the children, the

majority agreed with Kenny J. that they lead an active,

normal well-integrated existence with their father, and

that a change to a fourth home in a large old house in

the country would not be conducive to their welfare. As

to the children's

religious welfare,

the majority of the

Court held that as the children attend Catholic schools,

attend Mass regularly, and they say family prayers to-

gether the situation is therefore satisfactory. As to the

children's

moral welfare,

Kenny J. considered that the

bad example of the father and stepmother living together

in their present relationship was adverse to it. Further-

more, Kenny J. held that he was bound by the Supreme

Court decision in

Walsh v. Walsh,

unreported, 10 D

1971. But the facts in that case were different. Ther

the mother had taken the two younger of three children

and gone with them to live adulterously in Engla

with a man who had left his wife and children. However

the father, with the help of the mother's parents, quick')

received the two children and took them to live w|

him in Dublin. All Courts agreed that the

a l t e r n a te

home in England that was being offered by the

mother

would not be to the religious and moral welfare of th

children.

Walsh v. Walsh

is a decision on its own

facts. Kenny J. had held that the bad example that the

children will get in the household of the father and step'

mother as they grow up, and are taught the important

of marriage and chastity will operate against the ch»'

dren's moral welfare. The majority of the Supreme Court

held that the bad example will remain a tragic fact o

life which the children will have to come to terms with-'

To state this is merely to recognise the inevitable. *

father and stepmother treat the children with care f°

their physical and moral needs, and the children

sponded with feelings of affection and confidence, and

have become used to a domestic regime which has

degree of order, discipline and stability. The appeal w»

accordingly allowed by the majority of the Suprem

Court (Henchy and Griffin J.J.).

Walsh J. (dissenting) would have held that *h

social, physical and intellectual welfare of the childr

should be considered globally, and not separately; ^

totality of the picture .presented must be considered»

and "welfare" must be taken in its widest sense. In ^

Nicolaou case

(1966) I.R. 567, it was held that, in th«

provisions of the Constitution relating to the famity'

the family is one founded on marriage, and the hous^'

hold in which these children now reside is not a fam

in that sense. Walsh J. did not think that

social welf*

meant happiness in the sense that the children we

going to enjoy more pleasure, or have greater

materi*

benefits, or more interesting or stimulating company"'

but rather what is best calculated to make them bed

members of the society in which they lived. The p

resel1

atmosphere in which the children lived is a manif

repudiation of the social and religious values with whi

they should be inculcated. The relationship of a motn

to her very young children is one that cannot be usurp*)

by any other woman. In his view, the welfare of

tl1

children requires that they should be returned to th

mother to form a natural family unit. It was to be

t C

that the Guardianship of Infants Act 1964 had adopty

the definition of "welfare" which was to be f o u n d f

Article 41 of the Constitution relating to the fa.rruD'

Accordingly the custody of the children was award

to the father.

[Supreme Court (Walsh, Henchy and Griffin, J-J"'!

Walsh J. dissenting; separate judgments by each Judg

unreported; 5 April 1974.] . / f ,

^ ^

A prisoner on bail cannot be re-arrested to complete

sentence if the warrant has expired.

The prisoner, having been released on bail by ^

Supreme Court, served 18 months of a sentence oi

172