The Gazette 1983

N O V E M B E R

1983

GAZETTE

Kenny J. spelt out his approach in unambiguous terms:

STORAGE PROBLEMS?

"The principal matter which must govern the approach to this case is the youth of the children (6'/ 2 and 4'/ 2 ). Young children have a much greater emotional need of their mother than they have of their father who, when they are young, seems to them to be a somewhat remote figure. A mother has an instinctive understanding of children's minds and needs. She provides warmth, visible signs of affection, love, a feeling of security, a last refuge in times of trouble and patience in listening to their petty complaints. The feeling that their mother is always available at home is an important element in the emotional life of a young child: from this comes confidence and courage to face the trials which life presents to a young child. In every case in which young children are involved, the factors I have mentioned create a strong prima facie case for giving them into the custody of their mother. The case may of course be rebutted if it is shown that the mother is an unfit person to have them in her custody. She may be promiscuous or addicted to alcohol or may be indifferent to the children (this last mentioned matter does occur in rare cases)". 24 Griffin J. (dissenting) expressed himself less fully on this question. He said that he "would accept without question that, all things being equal, when parents are estranged the custody of young children should be given to their mother" 25 ; but he pointed out immediately afterwards that "each case must depend on its own particular facts . . . ," 26 He considered that: "Ordinarily the interests of children of tender years would be best served in the custody of their mother, and unless there are features in this case which permit a departure from the normal position, the custody should be awarded to the mother." 27 Preference for the Mother This substantial body of case law indicates that the Supreme Court appears at present to be satisfied that, where young children are concerned, the mother is the appropriate custodian unless countervailing considera- tions require otherwise. As we have seen, Judges have differed somewhat in their articulation of the precise weight to be given to this assumption. It has been cast in terms of a "prima facie" rule, or "a strong prima facie rule" the onus of proof of disentitlement lying on the person who makes that case. The preference for the mother may arise in cases where "all things are otherwise equal" or, more generously, if there is "no great difference between the conduct of the parents". Proof of disentitlement may be through any relevant evidence or (in Kenny J.'s view, expressed in MacD. -v-MacD. n ), only by proof that the mother is "an unfit person" to have custody by reason of promiscuity, addiction to alchohol or indifference to the children. It would also seem fair to say that the Judges evince a

PROBLEM SOLVED Modular system designed for the Legal Profession. Easy to assemble. No nuts and bolts. Maximises storage space. Grows with your needs. Available in 3 tray sizes. System 1. 6 Trays 31" x 17" x 8" £120.00 + VAT System 2. 10 Trays 31" x 17" x 6" £139.00 + VAT System 3. 14 Trays 31" x 17" x 4" £175.00 + VAT ADVANCE HANDLING LTD. Fairgreen Road, Bray, Co. Wicklow. Telephone: 01-867917 - 862358 view of differences in parental functions between fathers and mothers. Fathers — especially of young children — tend to be regarded by the Court as remote figures in their children's lives; in contrast, mothers provide warmth, understanding and intimancy in responding to their children's "petty complaints". 2 ' The administration of medicine and telling the facts of life to girls are, in the Court's eyes, tasks for mothers rather than fathers. Of course it can be argued that the Court is only responding to actual realities in family life. This may be so, but the extracts from the several judgments that have been set out above appear to make it clear that the Judges have a perception of "motherhood" as a discrete and specific concept, identifiably different in its functions from that of "fatherhood"; mothers do a wide variety of tasks and are a certain type of person because they are mothers; conversely fathers do not do several tasks and are not a certain type of person by reason only of their father- hood. This view of parenting is likely to fall foul of the charge of sexism, in implying that parents, by reason only of their particular sex, have certain differences in their response to their children 30 and have separate functions regading their upbringing. It may well be only a matter of time before the constitutionality of this approach is challenged on the basis that it offends against the guarantee of equal protection in Article 40.1, or against the constitutional 278