The Gazette 1967/71

a mother to her child born out of wedlock, even though her legal right be less coercive. The learned Judge commented on the absence then from our Statute Roll of an Adoption Act on the lines of the English Adoption of Children Act, 1926, saying that it was regrettable, and was an urgent matter for reform. Here we have to determine (he continued) whether or not in Equity we should give any effect at all to the transfer of the child; a mother cannot disregard her liability to maintain a child born out of wedlock, nor the responsibility for its upbringing; in the eyes of the law, her rights over the child are given to her, as Stirling L.J., said in Humphrys v. Polak,18 not for her own gratifi cation or benefit, but in order to enable her to discharge her duties to the infant and for its benefit. On the circumstances of the case it was, how ever, held by the Court (Gavan Duffy P., Haugh, and Davitt J.J.) that, notwithstanding the natural right of the mother to the custody of her child, it would not be for the child's welfare to be taken from the care of the respondent and given to the prosecutrix. Accordingly, the cause shown against making the conditional order of haseas corpus absolute should be allowed, and the conditional order discharged. [See also In re J., an Infant (infra) ]. The leading case of In re. Tilson Infants (1951) I.R.I, which was a decision of the Supreme Court, dealt with the legal effect of an ante-nuptial agree ment made by the parties to a marriage relating to the religion of the children. The marriage took place in 1941 in a Catholic Church the husband being a Protestant and the wife a Catholic. They signed an undertaking that any issue of • the marriage would be brought up as Catholics. Four children were born of the marriage and all were baptized as Catholics. Differences having arisen between the parents, the three eldest children were removed by their father to a Protestant in stitution. In the subsequent proceedings, it was held by Gavan Duffy P. that the prospective should be returned to the mother to live in her general welfare of the children required that they is(1901) 2 K. B. 385, p. 389.

home. The President stated inter alia: — "I confess that having delved into the case law, I discern there is no clear principle to justify the doctrine that a father is free to repudiate his ante nuptial agreement; I have the temerity to prefer a principle of public policy that would impera tively require a man to keep faith with the mother whom he has induced to wed him by his cate gorical engagement to respect her convictions in the supernatural domain of her children's creed. We are a people of deep religious conviction. Accordingly our fundamental law deliberately establishes a Christian constitution; the indifferen- tism of our decadent era is utterly rejected by us. The Irish code marks a new departure from time- honoured precedents which are not ours and gives us a policy conceived in a spirit unfamiliar to British jurisprudence, and alien to the English way of life. Under the Victorian judge-made law, a man could induce a lady to marry him by gross de ception upon one of the most sacred matters of her life and then, after the wedding, repudiate his engagement at any time. In my opinion that is not the law of Ireland, and there is no injustice or impropriety in holding the man to his pledge." On appeal the Supreme Court affirmed the strong lead given by the President's decision as follows: — (1) Under the Constitution both parents have a joint power and duty in respect of the religious education of their children and if they together make a decision, and put it into practice, it is not in the power of either parent to revoke such decision against the will of the other. (2) An an^-nuptial agreement made by the parties to a marriage, dealing with the matters which will arise during the marriage and put into force after the marriage, is effective and of binding force in law. (3) The former rule that the father has a right to break an ante-nuptial agreement as to the re ligion in which the children of the marraige will be brought up has not place where the power of control over the religious education of the child ren of the marriage has been exercised; such a power is a joint power and is not revocable by one of the parents alone. 239