139 / 264
GAZETTE
JULY
home because of the behaviour of her husband.
Put simply, Parke, J. decided that the infants' welfare
would be placed in greater danger if he went to reside with
his mother and G. in an adulterous situation than if he
remained in the custody of a father who was an unstable
person, a drunkard and a wife beater. I personally believe
the reasoning behind this decision is open to serious
question. I find it even more curious in the light
of
Parke
J.'s statement that he believed Mr. G. had "the qualities
which would make him a good father".
By way of comparison a recent English decision by the
Court ofAppeal is ofparticularinterest. InReR/M/nors) an
order was made granting an adulterous mother the care
and control of her two children (a boy aged 5 | and a girl
of 2|). The marriage between the parents had
irretrievably broken down. The mother had an adulterous
relationship with M and wished to leave the matrimonial
home without the children. The Court of Appeal,
per Stamp, L. J., affirming the decision of the Family
Division of the High Court (Reeves J.), stated
that "the dictates of nature that the mother is the natural
guardian, protector and comforter of very young children
and in particular of a very young girl had not been
displaced" by the mother's conduct. The welfare of the
children was the first and paramount consideration and
the mother was described as "an excellent mother".
Even if the children were placed in the father's care,
Stamp L. J. stated they would not be protected from
"moral and spiritual harm", as they could not fail to be
aware of the circumstances in which their mother was
residing. This latter approach is very similar to that
adopted by Henchy J. and Griffin J. in
M.B. O'S
v.
P.O.O'S.
An important difference between the decision and the
Irish decision discussed earlier is that the English court
was prepared to grant custody to a parent about to leave
her children and live in an adulterous relationship.
Another recent English decision of interest in this context
is that of
S(DX)
v.
S(DJ.)
(1977). In the case Ormrod
L.J. emphasised the danger of condemning one parent for
adulterous behaviour without taking into account the
matrimonial misbehaviour of the other parent. The Court
has stressed that the best interests of the child is the
predominant consideration in custody matters. If the
interests of the child require that he or she be awarded to
one parent, the interests and wishes of the other parent
must yield to the child's interests, whether or not that
parent's matrimonial conduct has been unimpeachable.
In a Society whose Courts possess no jurisdiction to
dissolve the matrimonial bond, upon the breakdown of a
marital relationship, the number of custody cases coming
before the Courts, in which one or both parties to a
broken marriage is engaging in an adulterous relationship
is likely to increase. The Judiciary in applying the welfare
principle to such custody disputes is faced with a moral
dilemma. It is a dilemma that will be aggravated if the
Nullity Bill proposed in the previous Attorney General's
White Paper on the law of nullity becomes law. The
danger is that in seeking a means to resolve that dilemma,
despite judicial statement to the contrary, an award of
custody will become a prize for good, or at least moral
matrimonial behaviour and the importance of the parties
conduct as parents and their relationship as parents with
their children will be forgotten.
BIBLIOGRAPHY
Family Law in the Republic of Ireland by A. J. Shatter,
Chapter 13.
M.O'B.
v.
PM.O'B, Jan, 1971, unreported High Court,
1965, No. 207 Sp. -
Gazette, April 1971, p. 256.
JJ.W.
v.
BM.W.
1971 (110 I.L.T.R. 45) High Court,
Supreme Court.
M.B.O'S v. P.O.O'S
1973 (110 I.L.T.R. 57) High
Court, Supreme Court. - Gazette, 1974, p. 172.
EX.
v.
MX.
May 1974 unreported High Court, Record
Number 1973/17Sp. July 1974 unreported Supreme
Court, Record No. 1974/86. - Gazette, December
1974, p. 265.
W. v. W.
December 1974 unreported Supreme Court
Record No. 1974/148. June, 1974 unreported High
Court Record No. 1971/203Sp. (There was no written
judgment delivered by the Supreme Court when
confirming the later High Court Order).—Gazette,
March 1975, p. 43.
Cullen v. Cullen
May, 1970 unreported Supreme Court
1969/59.
B.V.B.
(1975) I.R. 54 Supreme Court-Gazette, April
1971, p. 256.
B. v. B.
July, 1972 unreported High Court, Record No.
1968/146 Sp.
H.
v.
H.
Feb. 1976 unreported High Court, Record No.
1975/450 Sp. - Gazette, Jan./Feb., 1976, p. 6.
K.
(Minors) (Wardship) [1977] 1 All E.R. 647 (C.A.>.
S (B.D.)
v.
S (DJ)
[1977] 1 All E.R. 656 (C.A.)
In some of the above cases there are written
judgments, other than those I referred to. I have
merely listed above those which I have dealt with in
this paper.
Editor's Note
The Editor wishes to dissociate himself from the
conclusions reached by the author, namely, that the
number of custody cases before the Courts, in which one
or both parties to a broken marriage is engaging in an
adulterous relationship is likely to increase. While the
proposed Nullity Bill is not perfect, everyone has been
given an opportunity to make submissions.
In
H.
v.
H.
(1976) it is necessary to emphasise that Mr.
G. was a divorced rich alien who belonged to a minority
religion. It follows that, if custody of the child had been
awarded to the mother, who was a hairdresser with her
own establishment, the child would inevitably have been
108
brought up in a different religion from the one in which he
was born.
Parke J., in approving of Re
Tilson
(1951) I.R. 1, and
Re May
92 I.L.T.R. and Art. 42(1) of the Constitution,
held that the mother had no right to change the religion of
the child against the wishes of the father. Socially, the
child might become "odd man out" if he adopted the
tenets of another religion. Morally, the Courts will not
generally grant custody to a parent who has abandoned
the matrimonial home. Under Irish law, no lawful union
can take place between the mother and Mr. G. during the
father's lifetime. The father lives with his parents, and the