245 / 264
GAZE1TE
DECEMBER 1977
first defendant and her husband since
December, 1973. The next child, T.
(a boy) had been living with the third
defendant and her husband (and
three daughters), and the youngest
child, A. (another girl) had been
living with the second defendant and
her husband since the mother's
death in October, 1975. The children
of the plaintiff saw one another once
a week, usually on Sundays. Each of
the children was attending a Catholic
school. The plaintiff married the
other woman in the case, in
December, 1976, and then claimed
custody of all his children. The High
Court Judge (Murnaghan J.), in
considering the facts, had stated that
the paramount consideration must be
the welfare of these children. He had
not been satisfied that the plaintiff
was competent to look after the
religious and moral welfare of the
children as Catholics. The High
Court also found that the plaintiff's
second wife, from the manner in
which she treated her own children,
did not appear to be a suitable person
to look after the children. The High
Court had accordingly rejected the
plaintiff's application and ordered
that the children were to remain with
their respective aunts, and further
ordered that, as the mother was dead,
the three aunts of the children should,
respectively with the father, be joint
guardians of the children in this case.
The plaintiff appealed to the
Supreme Court.
Held
(per O'Higgins C.J.) that in
this case there were complicating
factors of such a nature as to
drastically alter the father's right as
parent. First, the infants had been
living away from the father in Ireland
for years. The girls, M. and G. had
been living with one aunt for three
and a half years since December,
1973, and would grow up in
domestic comfort and security. The
boy T. had been living comfortably
with another aunt since the mother's
death in October, 1975; as he
suffered from asthma, he was
receiving special care. The girl, A.,
had been living with a third aunt
since October, 1975, and she was
happy and contented. It was clear
that from September, 1973, the
father had virtually abandoned his
children to whatever fate would have
in store for them.
Per Kenny J. (in a separate
assenting judgment) "It would be
monstrous to hand them over to their
father: they have roots, a settled way
of life and a feeling of security where
they now are and unless I was
22
compelled by the law to give them to
their father, I would not do so. I have
no doubt that giving them to their
father would cause permanent
psychological damage to them.
"Counsel for the plaintiff relied
strongly on the decision of the Irish
Court of Appeal in
Re O'Hara
[1900] 2 I. R. 233 in support of his
contention that there is a prima facie
parental right to custody. I deny that
there is any natural or prima facie
right of a parent to custody of his
children: there is a rule of prudence
that in most cases the best place for a
child is with its parent
(Reg. v
Gyngall
1893 2 Q. B. 243). It seems
to me that
Re O'Hara
[1900] 21. R.
233 supports our decision in this
case.
. . . ."The Constitution has not in
my opinion altered this. Article 41
deals with the Family: the children
are part of that unit and the authority
of the Family referred to Art. 41
section 2 is that of the parents and
children considered as a unit. It does
not alter the principles stated by Lord
Justice Holmes in disputes relating to
custody. Counsel for the plaintiff
when asked whether he wished to
argue that s.3 of the Guardianship of
Infants Act, 1964, was repugnant to
the Constitution, said that he did
not".
Parke J. concurred, affirming the
High Court Judgment of Murnaghan
J. Appeal dismissed.
J. v. D. and others — Supreme
Court (O'Higgins C. J., Parke and
Kenny JJ.) — unreported — 22
June, 1977.
LANDLORD AND
TENANT
Landlord and Tenant Act 1931 —
Definition of Tenement — Premises
not "In" Village
The Applicants held the premises
(described in the Lease as "lands with
the out-offices erected thereon")
under a Lease dated 18 October,
1966, for a period of 10 years from
the 13 August, 1966. The land
comprised 2.29 acres, on part of
which were the remains of old gravel
pits. The Applicants had changed the
out-offices into a canteen, built a
toilet, four bays to store aggregate,
two aggregate bins, a batching office
and a concrete plant on the lands.
The premises were close to the village
of Palmerstown in County Dublin.
There is a group of houses and other
out-buildings properly called "The
Village" of Palmerstown. At its
centre and running at right angles to
the main road there is a short cul-de-
sac known as Waterstown Avenue.
At the end of it are entrance gates
leading to a Driveway, which passes
through agricultural land to a house
called Waterstown House. The
premises comprised in the Lease are
just off the driveway and from their
nearest point to the nearest house on
Waterstown Avenue is a distance of
175 yards.
Having considered
Hardman
v
Jones
[1964] 1 I.R. 1,
Edmonson
v
Earl of Pembroke
[1910] 2 I.R. 76
and
Waterpark v Fennell,
(51.C.L.R.
120, 7H.1. 650),
held
(Costello J.)
that the mere fact that the entrance
was "in" the village did not result in
the premises being so situated, and
that the premises did not constitute a
tenement within the meaning of
Section 2(a) (i) of the Landlord and
Tenant Act, 1931, not being situate
in an Urban Area.
The Court did not have to rule on
a further submission that the
premises did not constitute a
"tenement" within the meaning of the
1931 Act because the land demised
by the Lease was covered only in part
by buildings, and that the part not so
covered was not subsidiary and
ancilliary to the buildings.
Readymlx Limited (formerly
Readymlx (Eire) Limited) Applicants
— Ltffey Sandpit Company Limited,
Respondents — High Court
— Costello J. — unreported — 8
June, 1977.
Landlord and Tenant: Right to new
Lease — Rent to be fixed by Court
— No power to insert rent reviews
— Power to fix rent so as to allow for
ftiture Inflation.
The High Court in a Circuit Court
Appeal in Cork found as a fact that
at the present time a Landlord would
not willingly make a Lease of a
business premises in Cork for a term
of 21 years without inserting in the
Lease a Clause for periodic review of
the rent throughout the continuance
of the term. The High Court Judge
(Murnaghan J.) asked the Supreme
Court to determine two questions:
(1) Whether in view of his
aforesaid finding of fact and of his
decision that he was not empowered