The Gazette 1967/71

the father as possessing a prior claim no longer operates . . . The children have been brought up in the Catholic religion until re cently and the Court is quite satisfied that they have been taught the doctrines of that faith in their school in Dublin. The boys are apparently quite happy and contented in this faith, the elder having been confirmed and the younger having had his first Communion. We have not found any settled religious con viction in the minds of either boy to upset this early instruction. Having stated that it was natural and desirable that the religious beliefs in which the children were brought up should not be disturbed, and that it was in their best interests that they should return to the custody of their father, custody was, accord ingly, granted to the applicant, the mother to have access to the children at all reasonable times. In interpreting the welfare of the child in Tam- burrini's Case,* 1 the Court stressed the real danger in the circumstances, to the child's moral and religious well being. The facts of the case show that Elizabeth Tamburrini, one of the applicants, was the daughter of a farm labourer in Ardee, Co. Louth. In 1933, at the age of 19, she went to Glasgow and took up employment there with a married man to whom, in 1936, she bore an ille gitimate son. Six weeks later she returned to Ireland with the child and handed him to her parents who agreed to take care of him. The mother then returned to Glasgow and entered the service of an Italian, Antonio Tamburrini, who was married and had two children. In 1939, how ever, he divorced his wife on the ground of adultery but had allowed her to retain custody of the two children. In 1940 he married the appli cant in a registry office in Glasgow, The infant, meanwhile, was well cared for by the grand parents, and his mother, in so far as her circum stances permitted, contributed regularly towards his maintenance. In 1942 both Antonio Tambur rini and the infant's mother formally adopted the infant according to the provisions of the law of Scotland. Having been refused custody of the child in 1943, they applied to the High Court for an order of habeas corpus. They both undertook

as part of the law of this country at the time of the establishment of the Saorstat. The Northern Ireland case of In re Brady, Minors, 1 " illustrated a conflict between husband and wife, in which the religious question was an important factor in considering -the welfare of the children. The parties were Catholics and were married in the Pro-Cathedral, Dublin. There were two children of the marriage, and these were brought up as Catholics. In 1940 the peace of the home was disturbed when a Protestant domestic servant came to reside there. The applicant (husband) alleged that this servant had influenced the wife to change her religion, and it was admitted that the respondent had become connected with a Protestant organization known as the Dublin Medical Mission, in 1942. In that year also differ ences came to a head, and, finally, the respondent left the marital home and went to Northern Ire land, taking her two children with her. The two children attended the Shankill Mission Sunday School in Belfast from June, 1942, until the date of the hearing of the case in May, 1943. They both expressed a desire to remain with their mother in Northern Ireland while the elder boy, then aged about twelve years, expressed a prefer ence for the Presbyterian faith. The wife expressed her sympathy with that faith, and stated that she desired to retain custody of the children, and to remain in Belfast. The means of the parties were approximately equal. Delivering judgment, Andrews L.C.J., after stressing that the main question for the Court was to consider was the welfare of the children, taking every consideration into account of which religion was only one — though an important — factor, stated: There can never be any discrimination by the Court in favour of any particular form of religion; the Catholic and Presbyterian forms of worship are equal in merit in the eyes of the law. It is obviously a matter of great im portance to the two boys in this case in which religion they are brought up. The authorities show that the rights of the parents are equal since the Guardianship of Infants Act, 1886, and the common law practice of regarding

n(1944) I. R., p. 508.

io(1944) 78 IT.. L. T. R.. p. 68.

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