The Gazette 1974

UNREPORTED IRISH CASES

Court decision in Walsh v. Walsh, unreported, 10 D cC " 1971. But the facts in that case were different. Ther e the mother had taken the two younger of three children and gone with them to live adulterously in Engla n with a man who had left his wife and children. However the father, with the help of the mother's parents, quick') received the two children and took them to live w| tn him in Dublin. All Courts agreed that the a l t e r n a te home in England that was being offered by the mother would not be to the religious and moral welfare of th e children. Walsh v. Walsh is a decision on its own facts. Kenny J. had held that the bad example that the children will get in the household of the father and step' mother as they grow up, and are taught the important of marriage and chastity will operate against the ch»' dren's moral welfare. The majority of the Supreme Court held that the bad example will remain a tragic fact o life which the children will have to come to terms with-' To state this is merely to recognise the inevitable. * father and stepmother treat the children with care f° r their physical and moral needs, and the children re ' sponded with feelings of affection and confidence, and have become used to a domestic regime which has a degree of order, discipline and stability. The appeal w» 5 accordingly allowed by the majority of the Suprem c Court (Henchy and Griffin J.J.). Walsh J. (dissenting) would have held that *h e social, physical and intellectual welfare of the childr en should be considered globally, and not separately; ^ totality of the picture .presented must be considered» and "welfare" must be taken in its widest sense. In ^ Nicolaou case (1966) I.R. 567, it was held that, in th« provisions of the Constitution relating to the famity' the family is one founded on marriage, and the hous^' hold in which these children now reside is not a fam 1 ') in that sense. Walsh J. did not think that social welf* re meant happiness in the sense that the children we r< j going to enjoy more pleasure, or have greater materi* 1 benefits, or more interesting or stimulating company"' but rather what is best calculated to make them bed e | members of the society in which they lived. The p resel1 , atmosphere in which the children lived is a manif eS repudiation of the social and religious values with whi c they should be inculcated. The relationship of a motn c to her very young children is one that cannot be usurp*) by any other woman. In his view, the welfare of tl1 children requires that they should be returned to th e1 ^ mother to form a natural family unit. It was to be n ° t C j that the Guardianship of Infants Act 1964 had adopty the definition of "welfare" which was to be f o u n d f Article 41 of the Constitution relating to the fa.rruD' Accordingly the custody of the children was award e to the father. > [Supreme Court (Walsh, Henchy and Griffin, J-J"'! Walsh J. dissenting; separate judgments by each Judg c ' unreported; 5 April 1974.] . / f , Q ^ ^ ^ A prisoner on bail cannot be re-arrested to complete sentence if the warrant has expired. h* The prisoner, having been released on bail by ^ Supreme Court, served 18 months of a sentence oi 172

Custody of three children awarded to father living with another woman. The facts of the case were stated in the Gazette, November 1973, at page 234. It will be recalled that the husband and wife married in July 1966 and they had three children, two daughters and a son, between 1967 and 1969. The marriage eventually broke up in April 1970, when the husband first took the children to his sister in Cobh until September 1971. In July 1970 the parties signed a consent by which the husband was granted custody of the children, and the wife had access to them every Sunday and on other specified dates. From September 1971 to April 1972, as the father was working in Dublin, the children lived with his par- ents. In April 1972 the husband went to live with another woman, who had been divorced in England, and who had had another child from the husband born in November 1971, in Dundrum, Co. Dublin. The wife, a teacher who was living with her own parents in Cobh, applied to Kenny J. for custody of the three children, on the ground that the moral welfare of the children would be destroyed if they were to live with their father. Kenny J. acceded to this argument, and granted custody on 10 July 1973. On 30 July 1973 Kenny J.'s order was stayed pending the determination of the appeal. From the evidence, it appeared that, despite the consent, the mother tended to neglect the children, and did not visit them as required. Section 3 of the Guardianship of Infants Act 1964 provides that, where in any proceedings, the custody, guardianship or upbringing of an infant is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consid- eration. Welfare in relation to the infant comprises the religious and moral, intellectual, physical and social welfare of the infant. The three children have settled contentedly into the domestic environment of the father, and are being affec- tionately and efficiently looked after by the father and stepmother. As regards the intellectual welfare of the children, Kenny J. favoured the present arrangement on the ground that their formal education is pursued in suitable schools, and the home atmosphere is conducive to study and intellectual development, and the majority of the Court agreed. The majority also agreed with Kenny J. that the physical welfare of the children re- quired that they should reside with their father, as they are in a comfortable suburban home, and their health is being assiduously looked after. As regards the social welfare of the children, the majority agreed with Kenny J. that they lead an active, normal well-integrated existence with their father, and that a change to a fourth home in a large old house in the country would not be conducive to their welfare. As to the children's religious welfare, the majority of the Court held that as the children attend Catholic schools, attend Mass regularly, and they say family prayers to- gether the situation is therefore satisfactory. As to the children's moral welfare, Kenny J. considered that the bad example of the father and stepmother living together in their present relationship was adverse to it. Further- more, Kenny J. held that he was bound by the Supreme