The Gazette 1967/71

issue loomed very large in The State (Kavanagh) v. O 'Sullivan (supra). There the applicant — John Kavanagh — a labourer employed in Dublin, and who was brought up a Catholic, married, in 1923, a Protestant woman in a Protestant church. There were three children born of the marriage. The mother became mentally deranged after the birth of her children and was confined in a mental home. The children were baptized and brought up as Protestants, the father having agreed with his wife that they should be brought up in that faith. Having no one to look after them, Kavanagh agreed to a suggestion made to him that they should be sent to a Catholic Home. When he was informed that the children could not be admitted to the Home unless as Catholics, the father agreed to their being baptized as such, after which they were received at the Home. That was in March, 1928. Kavanagh stated that it was only because he was heavily in debt and to save the children from starvation that he agreed to have them baptized as Catholics. He did not see or hear anything of them until September, 1930. In 1931 an application to the High Court for a writ of habeas corpus to obtain the custody of the two of his children, who were boys, was refused. The contention of the respondents was that Kavanagh ought not to have custody of the two boys on the ground of his drunken habits, his cruelty to his wife, and because he had no proper home in which the children could live, as he dwelt in a single room in a tenement house which he shared with other people, and, in addition, because of the abrogation of his right by abandonment of the children. After judgment he signed an affidavit stating that he had become a Protestant. On appeal to the Supreme Court it was held (Ken nedy C.J. and Fitzgibbon J., with Murnaghan J. dissenting) that the evidence as to Kavanagh's drinking habits was not sufficient to deprive him of -the custody of his children; that cruelty by Kavanagh to his wife had not been established; that, as Kavanagh had made arrangements since the appeal was lodged to have his children placed in a Protestant Institution where they would be well cared for, the objection based on Kavan agh's bringing them to his room in a tenement house was thus obviated; that Kavanagh had not abrogated his right by abandonment, and the case 234

child's welfare would be injuriously affected if returned to them. Assuming that the facts of the case established that the parents had aban doned or deserted the child within the meaning of sect. 3 of the Custody of Children Act, 1891, nevertheless, having regard to: 1, 'the fact that the motive that actuated the parents in parting with the child was not an unnatural one; 2, their desire that it should return to them when its maternal grandmother had learnt of its birth; and 3, the more favourable financial circumstances of the parents, the abandonment or desertion did not then indicate that the parents were unfit to have its custody, and further that it was for the welfare of the child that it should return to the custody of the parents, the Supreme Court granted the order of habeas corpus. Delivering judgment, James Murnaghan J. said: If a parent abandons a child, the parent's right to recover the custody of the child is subject to his satisfying the Court that, having regard to the child's welfare, he is a fit person to have the custody ... I approach this case on the basis that the parents did abandon the child. We do not decide the case on the feelings of the parents or on the feelings of Mr. and Mrs. Markey, to whose care and custody the child was entrusted. One might perhaps have special regard to the feelings of the mother, — but this is not a legal con sideration to act upon, or on which to base an order one way or another. I think the Markeys in accepting the care of the child acted throughout according to proper stand ards of conduct, and the only error on their part was the idea that the mere fact of the abandonment by a parent absolutely deprived the parent of his rights. The Court gives a parent who has in fact abandoned his child the opportunity of showing, notwithstanding the abandonment, that he is a fit person from the point of view of the welfare of the child to be entrusted with its custody. That the problems to be solved by the Court assume a complex and unpleasant character when the conflict for custody of a child lies between the parents, and when the difficult question of the child's religion becomes an issue, is clear from a number of leading Irish cases. The religious