The Gazette 1967/71

and custody of his child is in re Goldsworth,2 which has been cited, with approval, in the Irish cases of The State (Kavanagh) v. O'Sullivan3 and The State (Williams) v. Markey.* In Golds-worth's Case (supra) a father sought to recover the custody of his child from his wife and father-in-law, in whose house she had gone to reside because, as it was alleged, of her husband's conduct towards her. No question of religion arose. One of the matters alleged against the applicant was gross and habitual intemperance. Lord Coleridge C.J., after stating that it had not been suggested that the present custody of the child was inconvenient or improper in itself, and after considering the evidence of bad character adduced against the father, formulated the rule in these words: 'Has then the father satisfied the Court that it can, without imperrilling the safety or welfare of the child in some very serious and important respect, order the child to be restored to the father's cus tody?' The Court refused the application on accept ing the evidence which proved that the father was guilty of such habitual intemperance and im proper language as would be prejudicial to the moral welfare and safety of the child. In The Queen v. Gyngull* as well as in O'Hara's Case (supra), the position is definitely laid down that the Court is not bound to accede to the appli cation of the parent if he has disentitled himself (or herself) to the custody by misconduct; the major and paramount consideration is the welfare of the child." Delivering judgment in Kavanagh's Case (supra) Kennedy C.J. approved of the definitions of wel fare as given in the English cases of In re McGratlf and The Queen v. Gyngall (supra). In the former case Lindley L.J. stated: The welfare of the child is not to be meas ured by money only, nor by physical comfort only. The word 'welfare' must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its 2(1876) 2. Q. B. D. p. 75. 3(1933) I. R., p. 618. •K1940) I. R., p. 421. 51893) 2. Q. B., p. 232. li See judgment of Murnaghan J. in The State (Kavanagh) v. O'Sullivan (supra) . 7(1893) 1 Ch., p. 143.

physical well-being. Nor can ties of affection be disregarded. In R. v. Gyngall, Kay L.J., referring to the jurisdiction delegated to the Court of Chancery, said: The main consideration to be acted upon in its exercise is the benefit or welfare of the child. Again, the term 'welfare' in this con nexion must be read in its largest possible sense, that is to say, as meaning that every circumstance must be taken into consider ation, and the Court must do what, under the circumstances, a wise parent acting for the true interests of the child would or ought to do. The question of the child's welfare as well as the position existing under the Custody of Child ren Act, 1891, came under consideration in The State (Williams) v. Markey (supra). There the parents were married on the 25th July, 1938, and a son was born to them on the 3rd January, 1939. Fearing that the wife's mother would learn of the birth of a child within six months after their marriage, they had, some days before the birth, arranged that the child should be adopted by Markey and his wife, and on the day following the birth the child was taken away by them. The following day an agreement was signed by the parents and Markey whereby the parents agreed to surrender the child and all rights to the child, legal or otherwise, to Markey. During the six month's following the birth the father did not call to see the child. The mother called on three occasions. In the month of May, 1939, the wife's mother learned of the birth. In July, 1939, a formal application was made on the father's be half for the child's return, which application was refused. On a motion for an order of habeas corpus, it was held by Black J. in the High Court that both the father and the mother had abdicated their rights by their unnatural conduct, indicating thai they were ill-fitted for their parental obliga tions, and that the child's welfare was likely to be best served by leaving it where it was. The parents appealed against his refusal of the order, and it was held by the Supreme Court (Sullivan C.J., Murnaghan, Meredith, Geoghegan, and Johnston J.J.) that the conduct of the parents was not such as to justify the interference that the 233