The Gazette 1967/71

attempted to be made under section 3 (b) of the Custody of Children Act, 1891, that Kavanagh was 'unmindful of his parental duties', and there fore not entitled to the custody of his children, failed, and, accordingly, the decision of the High Court must be reversed. The conditional order of habeas Corpus was accordingly made absolute. In the course of his judgment, Kennedy C.J., reviewing the parent's right to determine the religion of the children, said: The rules which determine the religion of an infant, when brought in question in the Courts, and the basis of those rules are well known and firmly established in this country. As against the rest of the world the parent, as between 'the lawful parents the father, has the right in law to determine in what religion the child shall be educated and brought up — speaking at any rate with reference to the Christian Churches with which only we are concerned here. The parent may forfeit the right by his personal conduct . . . The parent may abdicate his right by causing or permitt ing the child to be educated in a particular faith for a sufficient time to form its mind definitely in the mould of that faith. From the point of view of the child, however, these are but particular instances of the one great restriction on the exercise of the parent's right, namely, the paramount consideration of the welfare of the child. The high-water mark of statement of the father's right over his child's religion is to be found in the judgments in the English case of In re Agar-Ellis,s in which James L.J., delivering the judgment of the Court of Appeal, said: The right of the father to the custody and control of his children is one of the most sacred rights. No doubt the law may take away from him this right or may interfere with his exercise of it, just as it may take away his life or his property or interfere with his liberty, but it must be for some suffi cient cause known to the law. He may have forfeited such parental right by moral mis conduct or by the profession of immoral or irreligious opinions deemed to unfit him to have the charge of any child at all; or he

may have abdicated such right to have the charge of any child at all; or he may have abdicated such right by a course of conduct which would make a resumption of his authority capricious and cruel towards child ren. But in the absence of some conduct by the father entailing such forfeiture or amount ing to such abdication, the Court has never yet interfered with the father's legal right. Likewise in the Irish case of In re Browne,s it was held by the Master of the Rolls that, not withstanding an ante-nuptial oral agreement with the wife to the contrary, it was the right of the father to direct the religious faith in which the child should be brought up, and that the Court would not interfere with that right unless in the case of an abuse of parental authority. Such were the principles recognized and applied in all the Courts in Ireland and in England since the Judicature Acts of 1877 and 1873 respectively. The Guardianship of Infants Act, 1886 (infra), and the Custody of Children Act, 1891 (supra) (which expressly saved the parents' legal right to require the child to be brought up in any par ticular religion), were the only modifications of the father's domain up to the establishment of the Irish Free State. Referring to the 'development of thought' in England in these matters since the separation of the two countries, indicating a de preciation of the authority and dominion of the father, Kennedy C.J. in Kavanagh's Case (supra) said: Even if there be such a 'development of thought' in England, as there may well be in consequence of the extension of divorce and the resulting increase in the number of what are called elsewhere 'broken homes,' never theless in this country, where the social structure has not been subjected to these strains, and the family and the home remain the foundation upon which it stands, there has been no modification of the legal position of dominion of the parent or of the rights of the father over the care, custody, education and religion of his children or of the prin ciples upon which the Court may interfere with the exercise of such rights, as these had been laid down and defined by the authorities

9(1852) 2 Ir. Ch. R. p, 151,

8(1878) 10 Ch. D., p. 49.

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