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GAZETTE
JULY
and lived with his parents but as his parents were elderly
the three children were too much for them, and, as a result,
the two eldest were placed in a school run by nuns of the
Poor Clare Order. They were visited at weekends by their
father and spent their holidays with him and their
grandparents.
Adulterous wife not suitable to have custody
of children
The wife commenced divorce proceedings in England
but the English Courts decided that the custody of the
children was a matter to be decided by the Irish Courts.
Kenny, J. in the High Court decided that the religious,
moral and intellectual welfare of the children would be
better promoted by leaving them with the father. They
would get a good secular and religious education in
Ireland. They had been in school in Dublin for two years
and it was not in their interests to be moved from school
to school. Also, he stated
"They will not have the corrupting example of their
mother living with a man, to whom she is not married;;
However, he continued, these were not the only
considerations.
"In my view the ages of the children, their sex, the
certainty that they would be happier if they were living at
home, rather than in a school and the necessity that they
should grow up together... makes it so desirable that
they should be with their mother that these elements
should be held to outweigh the arguments based upon the
moral, religious and intellectual aspects."
As a consequence he awarded custody of the children to
the mother.
Upon appeal, the Supreme Court reversed Kenny, J.'s
decision and granted custody of all three to the father. His
conclusions as to the religious moral and intellectual
welfare of the children were accepted. Walsh J. stated that
the fact that the father was compelled by circumstances to
keep two of the children in a boarding school for the
greater part of the year, and was therefore unable to let
them all grow up together in one household, whereas the
mother could do so, was not such a decisive factor as
should give the mother custody.
"As matters stand at the moment the children are leading
a stable existence . . . the present position of their mother
offers no such stability, and there is nothing to suggest
that in the immediate future any such stability will be
available"
Fitzgerald, C. J. stated
"The fact is that the home which she has to offer to her
children is one in which she continues an adulterous
situation with a man who has deserted his own wife and
his own two children. A more unhealthier abode for the
three children would be difficult to imagine"
The fact that by this time Mr. L. had divorced his wife
and that Mrs. W. had obtained a Decree nisi for divorce
in the English Courts against her husband was held not to
in any way change the situation. He stated that even if
Mrs. W. entered into marriage with L. "her status in
relation to her own children would not appear to me to be
thereby in any way advanced".
A factual difference worth pointing out at this stage
between
M. O'B
v
PM.O'B andJJ.W. v. BM.W.
was
that in the former case the parties adulterous relationship
did not commence until five years after the husband and
wife had separated, whilst in the latter it seems that the
106
adulterous liaison contributed to the collapse of the
marriage. In the light of the decision given in the
following case that is to be discussed this difference it
seems is of some importance.
In
M3.0.'S v P.O.O.'S
(1974) the moral welfare of the
children was again considered. Here the husband P. left
his wife B. and with her agreement kept their three young
children in his custody. They lived for a year and a half
with the husband's married sister and then for a half a
year with his mother and finally came to Dublin to live in
a large house with the husband and a woman with whom
he was by that stage living with and who had assumed his
name by deed poll. A year later the wife instituted
proceedings to obtain custody of the children, intending
to live with them in her parents house in Cobh.
Kenny, J. in the High Court held the intellectual,
physical and social welfare of the children would best be
served by the father obtaining custody, but that having
regard to his obligation to follow
JJ. W.
v.
BM.W.,
he
had no doubt whatever that he should award the custody
of the three children to the wife. He stated
"The moral welfare of the children would not be
promoted by the fact that their father is with a lady to
whom he is not married and by whom he has had one
child. As the children grow up they will be taught the
virtues of chastity and the importance of marriage and
they will be living in a household where each of them will
be aware that the lady with whom their father is living is
not his wife"
On appeal the Supreme Court, by a majority decision,
held that the father should obtain custody. It was stated
that there was no principle in
JJ.W.
v.
BM.W.
which
Kenny, J. was obliged to follow. The majority referred to
the dangers of again uprooting the children, and to the
fact that all aspects of their welfare, including their
religious welfare were being properly attended to. Griffin,
J. stated that "in my view the moral dangers to the
children do not outweigh the other advantages to them
in living with their father."
The majority emphasised the fact that the father's
relationship with the second Mrs. O'S. had all the
appearances of being a permanent union and that as such
the children would have to come to terms with it.
Henchy, J. stated "that beyond the mere fact that the
father and the step-mother are living together in an
unmarried state, there is nothing in the evidence to
suggest that the children do not live in a healthy moral
atmosphere"
Both Henchy, J. and Griffin, J. stated that regardless
of the parent in whose custody the O'S. children were
placed, the fact that their father was living in adultery was
a fact of life with which the children would have to come
to terms with.
Delivering a dissenting Judgment Walsh, J. stated that
"The Constitution recognizes the Family as the natural
primary and fundamental unit group of society: this is the
keystone of the social structure which the Constitution
undertakes to maintain. The household in which these
children now reside with their father is not a family in that
sense . . . these three children would in my view be far
more of a family unit if they lived with their mother
instead of residing with their father in the mixed menage
in which they now find themselves."
In
EJC.
v.
M.K.
(1974) a similar problem gave rise to a
further Supreme Court decision. In an appeal from a
decision of the High Court, by which the parties children,