The Gazette 1983

GAZETTE

N O V E M B E R

1983

children strongly favour her case because mothers are very much closer in sympathy and affection to young children than fathers are. His {sic.) role becomes much more important when the children are over 12. As all the children are girls this also supports the mother's case because fathers find it difficult to understand the minds and the physical and psychological needs of young girls. This intimate, intuitive relationship between mothers and young girls has assumed a particular importance today when there is a television in almost every household on which matters in relation to sex (which would have been unmention- able twenty-five years ago) are discussed openly and without restraint of any kind. Although some of us may deplore it and indeed, find much of it in appalling taste, we have to educate children who live with it and who are profoundly shaped by it. Therefore children must be given sex education and this should be done primarily by a parent. Fathers and grand-parents cannot give this instruction." 10 Kenny J. awarded custody of the children to the mother. The several other considerations involved in deciding whether to make this order are not of present relevance. The Supreme Court reversed Kenny J. — again for reasons that need not now be considered. It is worth noting, however, that FitzGerald J. "readily a c c e p t e d] that children of tender age, and particularly girls, would, other things being equal, be better in the custody of their mother . . . ."" In E. K. -v- M. A'. 12 , in 1974, Kenny J. stated of a girl aged 3'/ : years that: "it is notorious that children of that age are much closer to and more dependent on their mothers than on their father."" In Kenny J.'s view, "the same considerations of emotional attachment and dependence" 14 applied to a boy 5'/ : years old. He observed that: "fathers are ill qualified to look after children who are 5 and 3". 15 Kenny J. awarded custody of the children to the mother — again after taking into account other considerations not relevant to the present article. The Supreme Court reversed. Walsh J. noted that the children were: "at an age when their relationship with their mother is a very close one and if all other things were equal there could be no question that in a choice between a father and mother children of this age should be given into the custody of their mother. However, other things are not equal but even when they are not equal a removal of the children from the custody of their mother at such an age would be justified only when it has been found that the mother has been so greatly wanting in her duty to the children that the removal wou ld be warranted." 16

"The very fact that it is widely accepted, as I myself accept, that the best place for young children of this age is with their mother is based upon the under- standing and assumption that the mother is constantly to hand to care for the children if they should wake at night or require the many small attentions which children of this very tender age require." 17 "It is also mentioned that because the little girl suffers from a skin ailment which requires constant application of ointment that somebody should always be on hand to do this and that the mother does it effectively at the moment. So far as the medication or the application of medication is concerned it appears to me that the husband is sufficiently well-to-do to provide if necessary a properly trained children's nurse to look after his children." 18 Budd J. said that he thought it: "true to say that if there is no great difference between the conduct of the parents the custody of very young children is usually given to the mother . . . ." Budd J.'s slightly more restrictive statement later in his judgment should be noted: ". . . . I accept the position that other things being equal the custody and control of very young children at any rate is normally given to the mother." (Emphasis added.) In the more recent decision of Mac D. -v- Mac D. ", in 1979 the Supreme Court returned to the theme. Henchy J. expressed the following criterion: "In the case of very young children, having regard to ties of nature, the person prima facie entitled to their custody, where the parents are estranged, is the mother, for by reason of her motherhood she will usually be the person primarily and uniquely capable of ministering to their welfare. If the case is being made that by reason of her character, her conduct, or any other circumstances, she should be held to be disentitled to the custody, the onus of proof of that disentitlement should lie on the person making that case." 20 Also worthy of note are Henchy J.'s observations that the children in the case had: "a daily need of their parents, especially their mother . . . ." 21 ; that "custody with the mother is more likely to promote the physical and social welfare of the children . . . ." 22 and that "so long as she is ready as a loving and caring mother to do her best to see to the [moral and religious] welfare [of the children], the obvious need of these young children for her as a mother should weigh heavily in the balance in favour of her claim to be given custody." 21 He noted that:

Later in his judgment, Walsh J. observed:

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