Re O'Brien, an Infant

• Jurisdiction: Ireland
• Judgment Date: 14 October 1954
• Date: 14 October 1954
• Court: Supreme Court

Supreme Court.

In re O'Brien, an Infant.

In the Matter of ALICE O'BRIEN, an Infant, and In the Matter of the Courts of Justice Acts, 1924 to 1949, and In the Matter of the Constitution

Infant - Custody - Infant in custody of maternal grandmother - Death of infant's mother - Re-marriage of infant's father - Subsequent claim by father for custody of infant - Habeas corpus - Infant's welfare - Constitution of Ireland, Articles 41 and 42 - Custody of Children Act, 1891 (54 Vict., c. 3), s. 3.

Habeas Corpus.

Application to make absolute, notwithstanding cause shown, a conditional order of habeas corpus ad subjiciendum,dated the 13th day of June, 1952, directed to one, Mary Warfield.

On the 26th December, 1944, William O'Brien, the prosecutor, married Charlotte Warfield. There was issue of the marriage one child, Alice O'Brien, who was born on the 26th October, 1946. On the 26th November, 1946, the child's mother, Charlotte O'Brien, died. Shortly after her birth the said Alice O'Brien was put into the care and custody of her maternal grandmother, the respondent, Mary Warfield, as the infant's father had no female relatives living with him who could give the infant proper care and attention. On the 27th January, 1947, the prosecutor entered Crooksling Sanatorium, where he received treatment for pulmonary tuberculosis and where he remained until the 6th August, 1948, when he was discharged as cured. He obtained permanent employment and on the 4th June, 1949, he re-married. The prosecutor's present wife in an affidavit, on which she was cross-examined, stated that she was anxious that her husband should obtain custody of his daughter and that she was willing to assist him in the up-bringing of the child. The prosecutor had not at anytime contributed towards the upkeep of his daughter, nor did the infant's grandmother ever request him to do so, although her only means of support was voluntary contributions made to her by her two sons who were living with her.

The prosecutor on several occasions demanded the return of his child and his solicitor, by letters, dated the 21st November, 1951, and the 29th April, 1952, addressed to Mary Warfield, requested her to return the child to the prosecutor. Mary Warfield refused to accede to the prosecutor's requests, and, on the 13th June, 1952, a conditional order of habeas corpus ad subjiciendum, directed to Mary Warfield, was granted in the High Court to the prosecutor. On the application to the High Court to make absolute the conditional order, notwithstanding cause shown, affidavits showing cause were filed by the prosecutor, his wife, Bridget O'Brien, Joseph Lyons, Kevin Furlong and Kathleen Hickey. On behalf of the respondent affidavits were filed by the respondent, Patrick Warfield, James Warfield, and Patrick Kennedy.

From the above judgment the respondent appealed to the Supreme Court (1) on the grounds 1, that the order of the President of the High Court was made without due regard to the welfare of the infant; 2, that the finding that the welfare of the infant requires that she should be handed over to the custody of the applicant was (a) against the evidence and the weight of the evidence, and (b) contrary to law and the accepted principles of law and the equitable jurisdiction of the court; 3, that the President of the High Court, in finding that the welfare of the infant required that it should be handed over to the custody and control of the applicant and in making the conditional order absolute in respect of the said infant had not properly exercised his discretion in accordance with the legal principles available.

W. O'B. and C. O'B. were married in December, 1944, and a daughter, A. O'B,, was born on the 26th October, 1946. C. O'B., the mother, was in bad health and she died on the 26th November, 1946. When A. O'B, was about a fortnight old she was given into the custody of M. W., her maternal grandmother, since when A. O'B. had lived with and been cared for by M. W.

W. O'B. was a patient in a sanatorium from January, 1947, to August, 1948, and had been unable to provide a home for A. O'B. He had never been asked to contribute towards her upkeep, and had never done so. He was discharged from the sanatorium as being completely cured and on subsequent examinations received satisfactory reports. Since his discharge he had obtained a position and had re-married on the 4th June, 1949.

Having sought the custody of A. O'B., which was refused by M. W., he applied for, and obtained, in the High Court, a conditional order of habeas corpus ad subjiciendum, directed to M. W., and, on the application to make absolute the said conditional order it was

Held by Davitt P., that the cause shown should be disallowed and the conditional order made absolute.

On appeal by M. W. to the Supreme Court it was

Held by the Supreme Court (Maguire C.J., Murnaghan, O'Byrne, Lavery and Kingsmill Moore JJ.) that the appeal should be dismissed and the case referred back to the High Court to give effect to the order of the President making absolute the conditional order of habeas corpus.

Held also that the prosecutor was not unmindful of his parental duties within the meaning of s. 3 of the Custody of Children Act, 1891—assuming, but without deciding, that that section is consistent with the Constitution and is of full force and effect by virtue of Article 50 of the Constitution— and that he had not failed in his duty to his child within the meaning of Article 42...