The Gazette 1983

N O V E M B E R

1983

GAZETTE

The Sex of a Parent as a Factor in Custody Disputes

by William Binchy, B.A., B.C.L., LL.M., Barrister-at-Law, Research Counsellor, The Law Reform Commission.

L ITTLE has been written in this country on the approach of the courts to the sex of the parent as a factor in determining the custody of children. Yet the courts have shown considerable interest in this theme. In this article we will examine briefly what the various Judges have said on this question and consider possible future developments in the law. The Guardianship of Infants Act 1964 1 has nothing directly to say on this question. Of course, section 6( 1) of the Act provides that "the father and mother of an infant shall be guardians of the infant jointly", thereby giving statutory expression 2 to the principle of equality recognised in the Tilson 3 case fourteen years previously as being required by the Constitution. The Act did not go further in attempting to specify the circumstances in which custody of a child would be awarded to the father or the mother. Section 3 merely provides in the most general terms that, in determining the question of custody, the court is to "regard the welfare of the infant as the first and paramount consideration". "Welfare" in this context comprises the religious, moral, intellectual, physical and social welfare of the child 4 . In determining the welfare of children, the courts have frequently addressed the competing claims of spouses in terms of the sex of either claimant. In the Supreme Court decision of B. -v-B. J in 1970, Budd J. said of a six-year-old boy: "He is of an age when he requires the care that a mother can give to his physical needs, and he needs her maternal affection." Budd J. agreed with the view of the trial judge, Kenny J., that: "Young children are nearer to their mother than their father, and that they need a mother's care and affection. In my mind, the daughter [aged 8] is still of such an age that she needs maternal care; more particularly so because she is a girl. I regard the importance of a young girl being with her mother as far outweighing such advantages as there are in her remaining in a particular house such as the family home " 6

"it is a matter that should carry weight that he is now coming to the age where a boy tends to turn to his father for help and guidance in matters which perplex and worry a young lad." 7 FitzGerald J. expressed his understanding of the law on this question as follows: "In normal circumstances where a husband and wife have parted but are equally suitable to have custody of a child or children, it seems to be generally accepted that children of tender years should be left in the custody of the mother while they are of an age where they naturally turn to their mother for the care and attention which she naturally provides for them, and which the father cannot so readily supply. It also appears to have been generally accepted that as time passes the child's demands upon its mother lessen somewhat with its development, and that the father is called upon to concern himself increasingly with the day- to-day problems of his son or daughter and has a capacity to cope with these problems. There is no hard and fast rule as to the age at which a court should consider the child sufficiently advanced to require the custody to be transferred from the mother to the father. There is a further matter which, in my opinion, is highly relevant and that is the sex of the child. While not wishing to lay down any hard and fast rule, I would think that in the case of a boy it is for his benefit, assuming that he is of normal health and mental development, that he should remain in the custody of his mother until he has reached the age of about eight years. In the case of a girl, I consider that it is not proper or for her welfare that she should be deprived of day-to-day contact with her mother at anything less than twelve years of age." 8 the following year, the trial judge, Kenny J. began his legal analysis by noting that [njeither the father nor the mother has any superior or special right of custody". But shortly afterwards he expressed a view of suitability based on the sex of the parent that may appear difficult to reconcile with this neutral introduction. The children in the case were all girls, aged 9, 7 and 3, respectively. Kenny J. stated: In J.J. W. -v- B.M.W ; 9 ,

In considering the welfare of the girl's brother, who was just under ten years old, Budd !l. felt that:

"What factors favour the wife? The ages of the

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