MacD. v MacD

• Jurisdiction: Ireland
• Judgment Date: 01 January 1980
• Date: 01 January 1980
• Court: Supreme Court

(S.C.)

MacD

and

MacD

Welfare of child - Different religion of father and mother - Marriage in Roman Catholic Church in England - Return to Ireland - Children brought up as Roman Catholics - Adultery of wife - Separation deed.

The plaintiff, who was the mother of the children, was aged thirty five. She was born and reared in Scotland and was, and remained, a member of Church of Ireland. The defendant who was the father was brought up as a Roman Catholic in the Republic of Ireland, but lived and worked for over twenty years in Scotland and England. The parties were married in a Roman Catholic Church in England and the two children of the marriage, a girl aged six and a half and a boy aged four and a half years were reared as Roman Catholics. The family returned to the Republic of Ireland early in 1973 and made the acquaintance of a man named D. The wife established an adulterous relationship with D which was not discovered by the husband until 1976. The husband had custody of the children. The wife took proceedings for custody and these proceedings were compromised. The parties agreed to separate, and the wife was given custody of the children but with the proviso that she would not allow them to come into contact with D at any time. The agreement was received by the President of the High Court when it was, by consent, ordered that its provisions should be carried out. The wife did so, for a time, but ultimately, she moved into D's house, with the children, and they lived together as man and wife. The husband then brought proceedings to have the children returned to his custody. Held(Finlay P.) 1. The first and paramount consideration in these proceedings was the welfare —religious, moral, intellectual, physical and social —of the children. 2. The wife by her actions had firmly and clearly repudiated the family as a fundamental and integral unit of Irish society as outlined by the Constitution and failed to condemn and disapprove of adultery. 3. That custody of the children be given to the father, having given consideration to the possible risk of emotional disturbance or psychiatric upset likely to arise therefrom. This risk was so slight that it should not outweigh the other considerations. 4. That access to the children by the mother should not...