The Gazette 1967/71

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the religious and other education which children were to receive. It was held by Davitt P. that where a husband and wife agree upon the religion in which their children are to be brought up and educated, and such agreement is acted upon and put into force, it cannot be abrogated by either husband or wife alone. In the course of his judgment Mr. Justice Davitt stated at p.76: "In the Tilson case (supra) there was a formal and solemn pre-nuptial undertaking by the husband that the children should be edu cated as Catholics. Here there is no such formal agreement and indeed no express agreement at all. In my opinion such an agreement must, however, in the circumstances, be implied, particularly as up to now the father has consented to the children being educated as Catholics. The case of In re. J., an infant (1966) I.R.295 involved a dispute on the one hand, between the parents of a child who had been born out of wed lock, but who had later been legitimated by the subsequent marriage of the parents, and, on the other hand, a husband and wife who were the adopters of the child under the Adoption Act, 1952. It was held by a Divisional High Court that custody of the infant should be given to the parents. Murnaghan J. held that, taking all the facts into consideration and applying the provis ions of section 3 of the Guardianship of Infants Act, 1964, custody of the infant should be awarded to the parents. It was further held by Teevan and Henchy J.J. that the parents had an absolute right to the custody of the infant and that the enforcement r>f that right did not involve a con flict with the provisions of section 3 of that Act of 1964. As, according to Article 42 of the Con stitution the State acknowledges that the primary and natural educator of the child is the family, this right could only be supplanted if the parents for physical or moral reasons fail in their duty towards their children. This is not relevant, in a case where these parents are able and willing to educate this child, who is now only 17 months of age. The Guardianship of Infants Act, 1964 (No. 7 of 1964) repealed, inter-alia, the Guardianship of Infants Act '186 and the Custody of Children Act, 1891 a,,u restated in Section 3 the long 240

The Supreme Court accordingly, directed that the children would be returned to the mother to be educated by her, if not by both parents, in the manner on which they had been taught pursuant to the ante-nuptial agreement. In the course of his judgment, James Mur- naghan J. (with whom Maguire C.J., O'Byrne and Lavery JJ. agreed) stated at p.34: "In my opinion the true principle of our Constitution is this. — The parents — father and mother — have a joint power and duty in respect of the religious education of their children. If they together make a decision and put it into practice it is not in the power of the father — nor is it in the power of the mother — to revoke such decision against the will of the other party. Such an exercise of their power may be made after marriage when the occasion arises; but an agreement made before marriage dealing with matters which will arise during the marriage, and put into force after the marriage, is equally effective and of as binding force in law. It is a mere commonplace to say that the former rule of English law whereby a husband could break a promise without which in many cases his wife would not have married him, enabled fathers to take a line of conduct which, if legal, was accounted by many persons as not honourable. This rule has not place, however, where the power> which is a joint power cannot be revoked by the action of one of the parties". The Supreme Court distinguished their decision from the earlier case of In re Frost, Infants (1947) I.R.3. The case of In re May, Minors (1959) I.R.74 involved a case where both parties to the marriage were Catholics and were married in a Catholic Church in 1944. There were five children to the marriage the youngest being born in 1956. Until 1954 the parents educated and brought up their children in the Catholic faith. In July 1955 the husband became a member of the group known as Jehovah's Witnesses. Since becoming a member of this group he had wished his children to cease their former religious education and, instead, to be instructed according to the principles of Jehovah's Witnesses. The five children of the marriage were made Wards of Court upon the application of their mother and an application was brought to the Court to determine the nature of