The Gazette 1967/71

to maintain, educate and bring up the child in a proper manner and that it would receive proper religious instruction in accordance with the Articles of the Catholic Faith. It was held by the High Court that the application should be refused on the ground that, while there was little to choose between the material benefits available to the infant in the respective homes of the contending parties, his moral and religious welfare would be jeopardized if he were sent to live with persons whose way of life was contrary to the teachings of the Church. In the course of his judgment, Maguire P. said: It would, in our opinion, be a radical and disturbing change for the boy, at the most formative period of his life, to be removed from the moral atmosphere in which he has been reared, to a home in which the conduct of his mother is regarded by her own clergy with disapproval. There seems to our mind to be very little doubt that the child would be more than human if his morals were to remain unaffected by the position which exists in the home to which it is sought to send him, while the chances of his retaining re spect for the precepts of religion, in which all parties desire him to be brought up, must be exceedingly remote. The rather similar case of In re Mitchell12 in which, however, the conflict was between the husband and wife, illustrates the Court's finding that the age and sex of a child were not then, by themselves, sufficient grounds for depriving the father of the right of custody. The facts show that both husband and wife, who were citizens of the Irish Free State and Protestants, were resident in Glasgow where the husband was in permanent employment. The wife returned to her mother's house in Dublin shortly after the marriage and refused to return to Glasgow, as she alleged mis conduct on the part of the husband. A daughter was born to her in Dublin. On several occasions the husband, denying the allegations, asked his wife to return to him, and on her refusal, an appli cation was made by him to the Court asking for •the custody of the infant. It was held by the High Court, (Sullivan P., O'Byrne and Martin Maguire 12(1937) I. R.. p. 767.

J. J.), and an appeal to the Supreme Court (Fitz- gibbon, Meredith and Geoghegan J. J.) that it was for the welfare of the child that the custody of the child should be given to the father. Fitz- gibbon J., remarked that if the child were left in her mother's custody in the house of her grand parents it would be totally deprived, possibly for all time, of the society of her father, who was unable by reason of his permanent employment to live in Ireland, but that, on the other hand, 'so far as the evidence goes, there appears to be nothing except her own deliberate choice to pre vent the mother from going to Glasgow for the purpose of visiting the child or resuming that consortium with her husband which she abandoned of her own volition.' That the High Court in Dublin had not agreed with the statement of Andrews L.C.J. in the Northern Ireland case of Brady, Minors (supra) ;to the effect that the right of the parents to the custody of the children were equal since the Guardianship of Children Act, 1886, was clear from the case of In re N.P., an Infant.™ There the husband was the applicant in habeas corpus pro ceedings to take the youngest child out of the custody of the mother, and place him in a home. Giving an outline of the law applicable to the case, Maguire P. stated: At one time the father's right to have the custody of his child was paramount at Com mon Law. This right, however, has been steadily whittled down both by legislation and the trend of judicial opinion, and altogether in my opinion we have not yet reached the stage when it can be said that the respective right of the parents of a child are equal. The Guardianship of Infants Act, 1886, is, as Lord Lindley expressed it in In re A. and B., Infants,1* essentially a mother's Act,' and the Court in coming to its decision must have regard to her wishes. But the primary ques tion is the welfare of the infant. The father is the head of the household and is liable 13(1944) 78 Ir. L. T. R., p 32; See also In re MCNamara, Infants, 86 I. L. T. R., 75; and In re Begley, Infants, 82 I. L. T. R. 89; and In re Kindersley, an Infant, 78 I. L. T. R. 159, (1944) I. R., Ill; and In re McNally, an Infant, 84 I L. T. R. 7. "(1897) 1 Ch. D. p. 786.

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