The Gazette 1977

DECEMBER 1977

GAZE1TE

compelled by the law to give them to their father, I would not do so. I have no doubt that giving them to their father would cause permanent psychological damage to them. "Counsel for the plaintiff relied strongly on the decision of the Irish Court of Appeal in Re O'Hara [1900] 2 I. R. 233 in support of his contention that there is a prima facie parental right to custody. I deny that there is any natural or prima facie right of a parent to custody of his children: there is a rule of prudence that in most cases the best place for a child is with its parent (Reg. v Gyngall 1893 2 Q. B. 243). It seems to me that Re O'Hara [1900] 21. R. 233 supports our decision in this case. . . . ."The Constitution has not in my opinion altered this. Article 41 deals with the Family: the children are part of that unit and the authority of the Family referred to Art. 41 section 2 is that of the parents and children considered as a unit. It does not alter the principles stated by Lord Justice Holmes in disputes relating to custody. Counsel for the plaintiff when asked whether he wished to argue that s.3 of the Guardianship of Infants Act, 1964, was repugnant to the Constitution, said that he did not". Parke J. concurred, affirming the High Court Judgment of Murnaghan J. Appeal dismissed. J. v. D. and others — Supreme Court (O'Higgins C. J., Parke and Kenny JJ.) — unreported — 22 June, 1977. Landlord and Tenant Act 1931 — Definition of Tenement — Premises not "In" Village The Applicants held the premises (described in the Lease as "lands with the out-offices erected thereon") under a Lease dated 18 October, 1966, for a period of 10 years from the 13 August, 1966. The land comprised 2.29 acres, on part of which were the remains of old gravel pits. The Applicants had changed the out-offices into a canteen, built a toilet, four bays to store aggregate, two aggregate bins, a batching office and a concrete plant on the lands. The premises were close to the village of Palmerstown in County Dublin. There is a group of houses and other LANDLORD AND TENANT

out-buildings properly called "The Village" of Palmerstown. At its centre and running at right angles to the main road there is a short cul-de- sac known as Waterstown Avenue. At the end of it are entrance gates leading to a Driveway, which passes through agricultural land to a house called Waterstown House. The premises comprised in the Lease are just off the driveway and from their nearest point to the nearest house on Waterstown Avenue is a distance of 175 yards. Having considered Hardman v Jones [1964] 1 I.R. 1, Edmonson v Earl of Pembroke [1910] 2 I.R. 76 and Waterpark v Fennell, (51.C.L.R. 120, 7H.1. 650), held (Costello J.) that the mere fact that the entrance was "in" the village did not result in the premises being so situated, and that the premises did not constitute a tenement within the meaning of Section 2(a) (i) of the Landlord and Tenant Act, 1931, not being situate in an Urban Area. The Court did not have to rule on a further submission that the premises did not constitute a "tenement" within the meaning of the 1931 Act because the land demised by the Lease was covered only in part by buildings, and that the part not so covered was not subsidiary and ancilliary to the buildings. Readymlx Limited (formerly Readymlx (Eire) Limited) Applicants — Ltffey Sandpit Company Limited, Respondents — High Court — Costello J. — unreported — 8 June, 1977. Landlord and Tenant: Right to new Lease — Rent to be fixed by Court — No power to insert rent reviews — Power to fix rent so as to allow for ftiture Inflation. The High Court in a Circuit Court Appeal in Cork found as a fact that at the present time a Landlord would not willingly make a Lease of a business premises in Cork for a term of 21 years without inserting in the Lease a Clause for periodic review of the rent throughout the continuance of the term. The High Court Judge (Murnaghan J.) asked the Supreme Court to determine two questions: (1) Whether in view of his aforesaid finding of fact and of his decision that he was not empowered

first defendant and her husband since December, 1973. The next child, T. (a boy) had been living with the third defendant and her husband (and three daughters), and the youngest child, A. (another girl) had been living with the second defendant and her husband since the mother's death in October, 1975. The children of the plaintiff saw one another once a week, usually on Sundays. Each of the children was attending a Catholic school. The plaintiff married the other woman in the case, in December, 1976, and then claimed custody of all his children. The High Court Judge (Murnaghan J.), in considering the facts, had stated that the paramount consideration must be the welfare of these children. He had not been satisfied that the plaintiff was competent to look after the religious and moral welfare of the children as Catholics. The High Court also found that the plaintiff's second wife, from the manner in which she treated her own children, did not appear to be a suitable person to look after the children. The High Court had accordingly rejected the plaintiff's application and ordered that the children were to remain with their respective aunts, and further ordered that, as the mother was dead, the three aunts of the children should, respectively with the father, be joint guardians of the children in this case. The plaintiff appealed to the Supreme Court. Held (per O'Higgins C.J.) that in this case there were complicating factors of such a nature as to drastically alter the father's right as parent. First, the infants had been living away from the father in Ireland for years. The girls, M. and G. had been living with one aunt for three and a half years since December, 1973, and would grow up in domestic comfort and security. The boy T. had been living comfortably with another aunt since the mother's death in October, 1975; as he suffered from asthma, he was receiving special care. The girl, A., had been living with a third aunt since October, 1975, and she was happy and contented. It was clear that from September, 1973, the father had virtually abandoned his children to whatever fate would have in store for them. Per Kenny J. (in a separate assenting judgment) "It would be monstrous to hand them over to their father: they have roots, a settled way of life and a feeling of security where they now are and unless I was 22