The Gazette 1967/71

THE RIGHT TO THE CUSTODY OF CHILDREN BY GERALD A. LEE, M.A., LL.B.

judicially satisfied that the welfare of the child requires that the parental right be suspended or superseded. This was accordingly, an accepted statement of the main principles to be applied in the determin ation of cases of this nature, apart from the special question as to religion, and apart from any appli cation to the case of the Custody of Children Act, 1891, which deprived the parent of his Common Law right in certain circumstances. It was pro vided by section 3 of this Act that where a parent had (a) abandoned or deserted his child, or (b) allowed his child to be brought up by another person at that person's expense, or by the guardians of a poor law union, for such a length of time or under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties, the Court should not make any order for the delivery of the child to the parent unless the parent has satisfied the Court that, having regard to the welfare of the child, he is a fit person to have the custody of the child. (See infra). Referring to the natural right of the parent to the custody of his child, Fitzgibbon LJ. said in O'Hara's Case (supra) at p. 240: It appears to me that misconduct, or unmind- fulness of parental duty, or inability to pro vide for the welfare of the child, must be placed. Where a parent is of blameless life, shown before the natural right can be dis- garded and is able and willing to provide for the child's material and moral necessaries in the rank and position to which the child by birth belongs — i.e. the rank and position of the parent — the Court is, in my opinion, judicially bound to act on what is equally a law of nature and of society, and to hold (in the words of Lord Esher) that 'the best place for a child is with its parent.' A case which illustrates the kind of conduct on the part of a parent which might be held to prevail against his Common Law right to the care 232

The legal principles governing a parent's right to the custody of his child have been settled and enunciated in a series of cases running on parallel lines in Ireland and in England down to the establishment of the Irish Free State. These principles were stated for this country by the former Court of Appeal in the well-known case of In re O'Hara? which has frequently been cited with approval in both countries. That case has a special value as an authority in that it was free from the vital question of religion, usually of such importance in the controversy between the parties in these matters. In O'Hara's Case a widowed mother, poor and in domestic service, having acquired a modest home by remarriage, sought to recover custody of her little daughter whom she had surrendered a couple of years previously to a well-to-do couple to be adopted by them under a written agreement. Delivering judgment, Fitzgibbon LJ. outlined the following settled principles of law: 1. At Common Law, the parent has an absolute right to the custody of a child of tender years, unless he or she has forfeited it by certain sorts of mis conduct; 2. Chancery, when a separate tribunal, possessed a jurisdiction different from that of the Queen's Bench, and essentially parental, in the exercise of which the main consideration was the welfare of the child, and the Court did what, on consideration of all the circumstances, it was judicially satisfied that a wise parent, acting for the true interests of the child, would or ought to do even though the natural parent desired and had the Common Law right to do otherwise, and had not been guilty of misconduct; 3. The Judicature Act has made it the duty of every Division of the High Court to exercise the Chancery jurisdiction; 4. In exercising the juris diction to control or to ignore the parental right, the Court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when

i(1900) 2 I. R., p. 232.