The Gazette 1967/71

dent should 'adopt' the infant. The respondent had it baptized and its birth registered, and on both occasions described the child as being that of herself and her husband. In August, 1944, the prosecutrix first met the respondent, and asked for the child's return which was refused. Nine months later she made a similar request which was again refused. The respondent lived with her husband in a three-room flat and the household had a weekly income of £6. The prosecutrix, who had no per manent home but resided at her places of em ployment, which she frequently changed, was, at the time of the hearing, employed as the man ageress of a cafe at the weekly wage of £1, to gether witht certain gratuities. She proposed to bring her child to reside with her there. It was alleged by the respondent that the prosecutrix could not adequately provide for the child and that the prosecutrix, if she obtained custody of the infant, was going to live with the father, a married man, or would use the child as a means of obtain ing material benefits, for herself, from the father. Delivering judgement, Gavan Duffy P., said that Irish decisions were scanty on the rights of an unmarried mother. On the generally accepted view at Common Law, in England, an illegitimate child derived no rights from either parent, and neither was liable to support it. His Lordship then dealt at considerable length with the history of this subject from the Elizabethan era, and, con tinuing, said: Under Irish Law, while I do not think that the constitutional guarantee for the family avails the mother of an illegitimate child, I regard the innocent little girl as having the same natural and imprescriptible rights as a child born in wedlock, to religious and moral, intellectual, physical and social education, and her care and upbringing during her coming, formative years must be the decisive con sideration in our judgment. It is as true in Irish Law as it is in English Law that the claim of a father to his child normally pre vails, unless the Court is judicially satisfied that the child's welfare requires the parental right to be superseded. And, by analogy, I think the Court should go a long way towards recognizing the force of the natural claim of

to contribute to the cost of maintenance of his wife and family. If the circumstances show that he has not disentitled himself, I rather lean in favour of conceding to him a greater claim than to the mother. This, however, is subject to an important exception, namely, that where the child is of very tender years her claim is substantially increased. There is a certain class of care that only a mother can give, and even if, from merely a worldly point of view, it would be better to leave the child with its father, still in the case of a young child the Court may properly take the view that it is preferable for the child to be with the mother. In the circumstances of the case the Court recog nised the right of the mother to the custody of the child. On the application, however, for an order of habeas corpus for the custody of a boy over fourteen years of age or a girl over sixteen years, the Court must have regard to the wishes of the infant. Thus in the case of The State (Meagari) v. Meagan, 1 " where the father applied for the cus tody of his six children who were in the custody of their mother, and the eldest boy who was over fourteen years of age and a daughter who was over sixteen years wished to remain with their mother, the application in their case was refused, notwith standing that the Court was of opinion that it was clearly in the interests of both these infants that they should be in the custody of their father, the Court, however, granting the application in the case of the four younger infants. In coming to his decision, Maguire P. followed the judgment in In re Connor. w The next reported case on this subject was also one of the most interesting. This is the case of In re M., an Infant.* 7 Some days after its birth in 1943, the prosecutrix gave her illegitimate child into the custody of the respondent, together with the sum of £60. The respondent, a married woman with no children, did not meet the prosecutrix, but received the child from the nurse in whose home the child was born. Before its birth the prosecutrix had arranged through the doctor that the respon- 15(1942) I. R., p. 180. m(1863) 16 Ir. C L. R. p. 112. 17(1946) I. R., p.'334.

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