B v B

• Jurisdiction: Ireland
• Judgment Date: 01 January 1975
• Date: 01 January 1975
• Court: Supreme Court

B. v. B.

B

and

B

Supreme Court

Husband and wife - Infant - Custody - Interlocutory nature of order - Rights of guardians - Supreme Court - Appellate jurisdiction - Additional evidence - Rules of the Superior Courts, 1962 (S.I. No. 72), Or. 58, r. 8 - Guardianship of Infants Act, 1964 (No. 7), ss. 11, 12 - Courts (Supplemental Provisions) Act, 1961 (No. 39), s. 7 - Constitution of Ireland, 1937, Article 34, s. 4, sub-s. 3.

The plaintiff and defendant were wife and husband and they had separated; they were the joint guardians of the three children of their marriage. The wife brought an action in the High Court and claimed the custody of her two sons and of her daughter. The High Court awarded the custody of the elder son, and of the daughter, to the husband and awarded the custody of the younger son to the wife. Each parent had ample and independent resources to provide for the maintenance and education of all three children. The parties appealed to the Supreme Court against the order of the High Court and, during the hearing of the appeal, the wife tendered evidence on affidavit which attacked the character of the husband. The Supreme Court refused to admit evidence on affidavit but allowed each party to furnish additional oral evidence in relation to events which had occurred since the date of the order of the High Court. At the date of the hearing of the appeal the elder son was nearly ten years old, the daughter was nine years old and the younger son was six years old.

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh, Budd, FitzGerald and McLoughlin JJ.), in disallowing the appeals, 1, that an order made pursuant to s. 11 of the Guardianship of Infants Act, 1964, in relation to the custody of an infant must be considered to have been of an interlocutory nature if, subsequently, the welfare of the infant requires that the court should make new arrangements for the custody of that infant.

2. That, apart from regulating the custody of an infant, such order does not affect the other rights and duties of the parents as guardians of the infant named in the order.

3. (Budd and FitzGerald JJ. dissenting) That the decision of the High Court relating to the custody of the daughter should be affirmed.

4. (McLoughlin J. dissenting) That the additional oral evidence had been relevant to the issues in the appeal and had been properly admitted in exercise of the appellate jurisdiction conferred on the Court by Article 34 of the Constitution.

Appeal from the High Court.

The plaintiff and her husband, the defendant, had married in a Roman Catholic church in the year 1959 and had come to reside in Ireland at the end of 1960. Their first son was born on the 13th June, 1960; their daughter was born on the 6th November, 1961; and their second son was born on the 25th September, 1963. After a series of disputes the wife left the matrimonial home in 1968 and went to reside elsewhere in Ireland. Each party had ample independent means. At the date of the marriage the husband was a Roman Catholic and the wife was a member of the Church of England; the wife gave an undertaking that all the children of the marriage would be brought up in the Roman Catholic religion.

In the year 1968 the wife issued a special summons in the High Court and claimed the custody of all her children. The proceedings were heard in camera by Kenny J. for ten days and the trial judge delivered a reserved judgment on the 13th January, 1969. The trial judge awarded the custody of the elder son and of the daughter to the husband, and awarded the custody of the younger son to the wife. Each party appealed to the Supreme Court against the judgment and order of the High Court.

The appeal was heard on 9-11th, 15th December, 1969, and on 20-23rd, 26th and 27th January, 1970. On the 21st January the Supreme Court decided that it would not receive, as evidence, an affidavit sworn on behalf of the wife which the Court had examined. In the affidavit the deponent made serious charges against the husband and attacked his character in relation to events which were alleged to have occurred after the date of the High Court order. However, the Supreme Court gave permission to each party to adduce oral evidence on oath in the Supreme Court upon the matters mentioned in the affidavit. The additional oral evidence was adduced in the Supreme Court on the 16-20th, 23-25th February, 1970. On the 27th February, the members of the Court met and spoke to the children in chambers.

The introduction of additional evidence in the course of an appeal to the Supreme Court has been considered at [1968] I.R. 149; [1970] I.R. 27, 180; and [1972] I.R. at p. 3.

Section 3 of the Guardianship of Infants Act, 1964, provides:—"Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration." Section 2 of the Act of 1964 defines "infant" as meaning a person under 21 years of age; and it defines "welfare", in relation to an infant, as comprising "the religious and moral, intellectual, physical and social welfare of the infant." Section 6, sub-s. 1, of the Act states:—"The father and mother of an infant shall be guardians of the infant jointly."

Section 11 in Part II of the Act of 1964 provides:—

"(1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.

(2) The court may by an order under this section:—

• (a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father and mother;

• (b) order the father or mother to pay towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the father or mother, the court considers reasonable.

(3) An order under this section may be made on the application of either parent notwithstanding that the parents are then residing together but an order made under subsection (2) shall not be enforceable and no liability thereunder shall accrue while they reside together, and the order shall cease to have effect if for a period of three months after it is made they continue to reside together . . ."

Section 12 of the Act of 1964 states:—"The court may vary or discharge any order previously made by the court under this Part."

Order 58, r. 1, of the Rules of the Superior Courts, 1962, provides that all appeals to the Supreme Court shall be by way of re-hearing.

Order 58, r. 8, of the said Rules provides as follows:—

"8. The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Supreme Court (obtained upon application therefor by motion on notice setting forth such special grounds). The Supreme Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made and to make such further or other order as the case may require. The powers aforesaid may be exercised by the Supreme Court, notwithstanding that the notice of appeal asks that part only of the decision be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Supreme Court shall have power to make such order as to the whole or any part of the costs of the appeal as may be just."

Article 34, s. 3, sub-s. 1, of the Constitution of Ireland, 1937, provides:—

"1 The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal."

Article 34, s. 4, sub-ss. 1-3, of the Constitution provides:—

"1 The Court of Final Appeal shall be called the Supreme Court.

2 The president of the Supreme Court shall be called the Chief Justice.

3 The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law."

Section 7, sub-ss. 1 and 2, of the Courts (Supplemental Provisions) Act, 1961, provides:—

"(1) The Supreme Court shall be a superior court of record with such appellate and other jurisdiction as is prescribed by the Constitution.

(2) There shall be vested in the Supreme Court—

• (a) all jurisdiction which was, immediately before the commencement of Part I of the Act of 1924, vested in or capable of being exercised by the former Court of Appeal in Southern Ireland or any judge or judges thereof and was, immediately before the operative date, vested in or capable of being exercised by the existing Supreme Court,

• (b) all jurisdiction which, by virtue of any enactment which is applied by section 48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing Supreme Court."

Cur....