The Gazette 1977

JULY

GAZETTE

Custody, Adultery and the Welfare Principle Paper delivered by Alan J. Shatter, at the Summer Meeting of the Incorporated Law Society of Ireland, May, 1977 in Wexford.

opinions and approaches in the application of the welfare principle. Custody not reward for good matrimonial behaviour In January 1971 Kenny, j. in the High Court delivered Judgment in the case of M.O.'B. vJ*M.O'B., the facts of which are as follows. The father sought the custody of his four children, two girls aged 9j and 7 years and two boys aged 8 and 5 years. The parties had married in April of 1960, but by September of 1965 their marriage had totally broken down. In March of 1966 the High Court granted custody of the four children to the wife. In 1970 the wife struck up a relationship with another man (a Mr. G.) and at the date of these proceedings Mr. G. was living with the wife. Kenny, J. described the husband as "unfeeling, insensitive, unemotional and very self centred", and further stated that "he wants to get custody of the children now primarily because he does not want his wife to have them and because he knows that she is passionately attached to them". Further there was evidence that all four children were fond of G. Emphasising that "custody is not a reward for good matrimonial behaviour" Kenny J., continued, "Nor should the Court deprive a parent of it, as a way of showing its disapproval of conduct, which most people in a community regard as being immoral" Although stating that the children's "Religious and moral welfare is not promoted by Mrs. O'B's living with G. as his wife, although not married to him", he continued "I do not accept the proposition that a parent who has been guilty of matrimonial misconduct is necessarily unfit to have custody or that the "Innocent" party is in every case the one who will best promote the welfare of the child". With regard to the age of the children, the fact that they had remained in the mother's custody for five years and in view of their need of stability and affection he felt the children should remain with the mother. In a final reference to her relationship with G. Kenny, J. stated that "From the standpoint of the moral welfare of the children it was deplorable, but in considering its effects . . . it is relevant to point out that Mr. and Mrs. O'B. had not lived together since September 1965, and that the association with G. began in March of 1970". A few months later the Supreme Court delivered Judgment in the case of JJ.W. v. BJM. W., in which a similar problem arose. In this case the husband and the wife had been living in England and in 1969 the wife left her husband and went to live with a Mr. L. There were three children of the marriage, all girls, aged 9, 7 and 3 years. When the wife left home she took the two youngest girls with her, but the husband regained custody of the children. The husband returned to Dublin 105

The law as to Guardianship and Custody of Children is governed by the Guardianship of Infants Act, 1964. The Act gives statutory expression to the equitable rule that all matters concerning guardianship and custody of children should be decided on the basis of the welfare of the child, and to the constitutional principle that parents have equal rights to and are the joint guardians of their children. Section 3. of the 1964 Act provides that : "Where in any proceedings before any Court 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 consideration". Welfare in relation to an infant is said to comprise its religious and moral, intellectual, physical and social welfare. Giving judgment in the Supreme Court in MJi.O'S v. P.O.O.'S (1974) Walsh, J. stated that: "All the ingredients which the Act stipulates . . . namely the religious, moral, intellectual, physical and social welfare of the child are to be considered globally". The matter is not "to be decided by the simple method of totting up the marks which may be awarded under each of the five headings. It is the totality of the picture presented which must be considered". In viewing this picture the Courts since the coming into force of the 1964 Act have constantly reiterated that "An award of custody is not a prize for good matrimonial behaviour". Evidence tending to prove that the behaviour of one or other parent contributed to or caused the breakdown of the parents marriage "is relevant only to the character of the respective parents with a view to deciding whether the welfare of a particular child would be best served by being left in the custody of one parent rather than the other" (Fitzgerald J. In B. v. B. [1975] I.R. 54, (S.C.- 1970). Thus the fact that one parent must bear the bigger share of the blame for the collapse of his or her marriage does not mean that he has by his conduct forfeited the right to be awarded the custody of his children. However, Kenny, J. has pointed out that where a marriage has broken down "It may be possible to show that the welfare of the children requires that one or other parent should by reason of character of conduct be excluded from consideration as being a person unfit to have custody" (Kenny J. In B. v. B. July 1972 unreported H.C.) In determining a parent's fitness the danger of the moral corruption of the child in respect of whom the award of custody is sought has been given considerable weight by the Courts and it seems that a parent engaging in an adulterous liaison will have considerable difficulty in securing an Order of custody. It is in this area that members of the judiciary, both in the High Court and the Supreme Court have produced a variety of conflicting