The Gazette 1967/71

mother. Budd and Fitzgerald J. J. agreed as regards the respective custody of the boys, but would have granted custody of the girl to the mother, after having inter viewed her. Per O'Dalaigh C. J.: — "In disposing of the custody of children, a court must take parents as it finds them. Where a marriage has broken down, temporarily or permanently, it may be possible that the welfare of the children requires that one or other parent should, by reason of character or conduct, the excluded from con sideration, as being a person unfit for custody. The Court should, in my opinion, always be reluctant to reach such a conclusion. If the homes of the separated parents were close enough to a single suitable school, I would favour maintaining the unity of the children, and allowing them to reside for half the year with one parent, and the other half with the other. But this is not practiuable here. Per Walsh I.: — "Under Section 1 of the Guardian ship of Infants Act 1964, if one parent is given custody of the infant to the exclusion, total or partial, of the other parent, that does not deprive the parent who loses the custody of the other rights which accrue to him or her as guardian of the infant." A parent so deyrived of custody can continue to exercise the rights of a guardian, and must be consulted in all matters affecting the religious, moral, intellectual, physical and social welfare of the child. The Act does not perport to encourage any alteration of the established practice of the Courts that they must act very cautiously in exercis ing their jurisdiction to interfere with parental rights, and the Court will act in oposition to the parent or parents onl where judicially satisfied that the welfare of the child requires that the wishes of the parent or parents should be over-ruled. [B. v. B. Supreme Court. Unreported. 24 April 1970.] The Supreme Court unanimously upheld Butler J. in granting custody of the eldest daughter of 17, and the youngest son of 6 to the mother, while the custody of the eldest boy of 16 and next eldest boy of 11 was granted to the father, as the parents were separated. The youngest boy however, as the husband and wife did not live far from one another, was to spend the week-ends with his father and brothers. [C. v. G. Supreme Court. Unreported. 8 May 1970.] The welfare of 4 children, two girls and two boys, aged from 6 to 10 years was at stake, whose full cus tody Kenny J. eventually awarded to the mother, as she had already obtained custody of them in 1966, and the husband was allegedly unfeeling and unemotional. The wife was living in her separate home, to which the husband contributed nothing, with an entertainer, with whom she was enamoured. A newspaper report in November 1970 stated that the enter tainer and the wife were to be married. It was also stated that the husband had not a proper home to bring the children to. The wife was given custody of the children on condition that she would give a solemn undertaking not to take the children out of the Republic, not to sell or mortgage her house. The husband was granted access to the children once a week. However before the end of January 1971, the wife committed contempt of court by fraudulently procuring passports for the children, and absconding with them and the entertainer, to Hawaii.

Per Kenny J.: — "Custody is not a reward for good matrimonial behaviour, nor should the Court deprive the parent of it as a way of showing disapproval of conduct which most people in this community regard as immoral. Neither the father nor the mother has a right superior to the other to the custody of the children; the emphasis now is on the rights of the children. I do not accept the proposition that a parent who has been guilty of matrimonial misconduct is necessarily unfit to have custody, and that the "innocent party is in every case the one who will best promote the interests of the child. If our aim is to produce happy, balanced and well integrated people, we should look at the condition which will produce this result, and at the qualities which th parents have, such as that the children should have security. They must be given the chance to grow roots. The element of unity of the children in this case favours the mother." [O'B. v. O'B. Kenny J. Unreported. 5 January 1971.] Master and Servant Two school teachers in Co. Durham who were sus pended because of their refusal to supervise school meals were held to be entitled to recover their accrued salary during the period of suspension. [Gorse and Another v. Durham County Council and Another. Q.B.D. The Times, 6 March, 1971.] Negligence A person whose car was borrowed without his consent and who told the borrower to bring it back was not liable for damages resulting from an accident which occurred while the borrower was returning it. [Klein v. Celuori. Q.B.D The Times, 18 February, 1971.] The Post Office were held not to be liable for the admitted negligence of a trainee employee when driving his father's van with another trainee as passenger on their way to their place of work. The driver was entitled to claim milage and passenger allowance for the journey, and the driver's liability for the passenger's injuries was held to be covered by the father's comprehensive insur- person "other than a passenger carried by reason of or ance policy, which excluded liability for injury to any in pursuance of a contract of employment." [Nottingham v. Aldridge and Another? Prudential Assurance Co. Ltd. (third party). Q.B.D. The Times, 25 February, 1971.] A groove down a highway caused by work done neg ligently by county council workmen when removing a double white line from the road surface was held to have created a danger in the special circumstances of the case so as to make the highway authority vicariously liable to a young man who came off his motor cycle when he went over a resulting rough patch and was severely injured. The court in so deciding emphasized that an uneveness in a road or pavement does not of itself give a cause of action to everyone who falls be cause of it. [Bright v. Attorney General. Court of Appeal. The Times, 26 February, 1971.] 257