Re Frost, Infants

• Jurisdiction: Ireland
• Judgment Date: 01 January 1948
• Date: 01 January 1948
• Court: Supreme Court

In re Frost, Infants

In the Matter of CHARLES VICTOR FROST, EDWARD FROST, ISOBEL FROST, GEORGE FROST, AND JOYCE FROST, Infants, and in the Matter of the Courts of Justice Act, 1924,and In the Matter of the Constitution (1)

High Court

Supreme Court

Infants - Habeas corpus - Custody and religious education - Protestant father and Roman Catholic mother - Agreement that infants be brought up Roman Catholics - Infants baptised Roman Catholics, but brought up Protestants up to father's death - Whether mother entitled after father's death to disregard father's wishes as to religious education - Welfare of infants - Power of Court to interview infants upon hearing of application - Guardianship of Infants Act, 1886 (49 & 50 Vict. c. 27), ss. 2 and 5; The Constitution,1937, Articles 41 and 42.

F., a Protestant, married the prosecutrix, a Roman Catholic, in 1930 and, prior to the marriage, he signed an undertaking that children of the marriage should be brought up as Roman Catholics. There were five children of the marriage (as well as one child born prior to it) and, with the exception of the youngest, they were baptised in a Roman Catholic Church. In 1939, as a result of differences between them, the prosecutrix and F. agreed to separate, and a deed executed by them provided, inter alia, for the payment by F. of a weekly sum for the use and benefit of the prosecutrix and for the maintenance and education of the three younger children, of whom she was to have the custody, but who were to be brought up Protestants and were to be taken charge of by F. on their reaching 8 years of age respectively; and that the three elder children were to remain in F.'s custody to be educated in a suitable school to be agreed upon by the parties. F. thereupon placed the three elder children in a Protestant Home. Shortly after the execution of the said deed the prosecutrix, under pressure of economic difficulties, handed the three younger children over to F. on his undertaking to maintain them, and he placed them in the same Home. F. having died, the trustees of the said Home refused a request by the prosecutrix that the children should be handed over to her. On the 9th July, 1945, the prosecutrix obtained a conditional order of habeas corpus directed to the trustees to have the five younger children before the Court to abide the order of the Court, the children then being aged 14, 12, 10, 8 and 6 years respectively. Upon the application to make absolute the conditional order, the trustees having filed affidavits by way of cause, the Court interviewed the four elder children and asked the eldest of them whether he wished to remain in the Home, which he said he did.

Held by Maguire P. that, as the eldest child, being a boy over 14 years of age, had expressed a wish to remain at the Home, the Court must respect that wish; that the mother, since F.'s death, had the right to control the education of her younger children and as she was of opinion that their welfare would not suffer by their being brought up as Roman Catholics, and as the Court was not entitled to substitute its judgment for hers, the custody of the four younger children must accordingly be given to her.

Held by Haugh and Davitt JJ., that the welfare of the three eldest children required that they should continue to be educated in the Protestant faith and, accordingly, they should remain in the Home.

Held further by Haugh J. that as the two younger children could have no fixed religious views, their future welfare was not likely to be injured by returning them to their mother, who was entitled to their custody by right.

Held by Davitt J. that the father had the right to determine the religion in which his children should be educated, and the Court was not entitled to ignore the father's wishes in that matter, and, as the mother intended that the children, if returned to her control, should be brought up as Roman Catholics, the mother's application must be refused.

Accordingly the Court held that, as the mother had only established her right to the custody of the two youngest children, the conditional order forhabeas corpus must be made absolute in respect of them only and otherwise discharged.

On appeal it was contended on behalf of the prosecutrix that the legal principles which, prior to the Constitution of 1937, governed the right of a parent to the custody of a child had been altered by Arts. 41 and 42 of that Constitution.

Held by the Supreme Court that Arts. 41 and 42 of the Constitution had not altered these legal principles, that it was settled law that, where the father of children is dead, and the mother is living, the religion of the father is that in which the children are to be brought up, unless the father's right be displaced by considerations of the children's welfare, and that the father's right is not abrogated by an ante-nuptial agreement to the contrary with the mother.

Accordingly the question for the Supreme Court was: Did the welfare of the children require that their father's determination that they should be educated as Protestants should be disregarded? and the Supreme Courtheld that it did not.

Accordingly the cause shewn must be allowed and the conditional order discharged.

The Supreme Court also held that upon an application relating to the custody of infants the Court is entitled to interview the infants and, in the case of a boy over 14 years of age, to ask him whether he consents to remain where he is, and the proper time to ascertain the boy's wishes is before the conditional order is made absolute.

The Supreme Court dissented from the view of Maguire P. that, as the mother had made up her mind that the welfare of the four younger children would not suffer if they were in future brought up as Roman Catholics, the Court was not entitled to substitute its judgment for hers, the Supreme Court holding that the Court was not only entitled, but bound, to form an opinion of its own on that matter, and to not upon it.

Habeas Corpus.

Application to make absolute, notwithstanding cause shewn, a conditional order of habeas corpus ad subjiciendumdated the 9th July, 1945, directed to certain named persons, being the trustees for the time being of Mrs. Smyly's Homes and Schools, to have before the Court the bodies of Charles Victor Frost, Edward Frost, Isobel Frost, George Frost, and Joyce Frost, infants, to abide the order of the Court. The application was made by Margaret Frost, mother of the infants. Two affidavits by way of cause were filed on behalf of the said trustees.

The facts have been summarised in the head-note, and are fully stated in the judgment of Maguire P.

Cur. adv. vult.

Maguire P. :—

Margaret Frost, on the 9th day of July, 1945, obtained a conditional order of habeas corpus addressed to Thomas Ottiwell Graham, John S. Gunning, Gerald E. Grove White, Reverend Richard J. Coates, Miss Vivienne Smyly, Cecil P. Smyly and Colonel T. W. Thomson, calling on them to shew cause why an order of habeas corpus ad subjiciendum should not issue to them directing them to produce her children, Charles Victor Frost, Edward Frost, Isobel Frost, George Frost and Joyce Frost, to abide the order of the Court.

This is an application to make absolute the conditional order.

The facts of the case are as follows:—

The prosecutrix on the 21st day of June, 1930, married Charles Frost at the Catholic church of St. Joseph's, Terenure, Dublin. Charles Frost professed the Protestant faith, being a member of the Church of Ireland. The prosecutrix at the date of the marriage was, and still is, a Catholic. She was a widow with two children by her first husband, one of whom, Seán Nolan, is now aged nineteen years and the other is dead. The prosecutrix states that prior to the marriage to Charles Frost, he had signed the usual undertaking that the children of the marriage would be brought up in the Catholic Faith. Of the children of the marriage to whom the application relates all except Joyce Frost, the youngest, were baptised Catholics. Joyce was baptised a Protestant.

It would seem that the marriage was not a very happy one. The prosecutrix in her affidavit states that the unhappiness which developed, was caused by the insistence of her husband that the children should be brought up as Protestants. She says that in the year 1938, her husband insisted on taking the eldest child, Mary Margaret Frost, from the Model School, Inchicore, and despite the objections of the prosecutrix, sent the child to a Methodist School. Margaret Mary has since then been educated as a Protestant. She is now aged 15. No application is before the Court with reference to her. A further step was taken by Charles Frost when in June, 1939, the youngest child, Joyce, was born. He had her baptised a Protestant.

On the 15th April, 1940, the prosecutrix and her husband entered into a separation deed. By the terms of this deed the parties were to live apart. The husband agreed to allow his wife a sum of £1 15s. per week out of his salary of approximately £5 per week. Out of this sum she had to maintain herself and the two children of her earlier marriage in addition to the three children of whom she was by the deed given the custody. The three eldest children were to remain with the father, while the three youngest were to remain with the mother. The prosecutrix complains that, despite the stipulation that the elder children were to be placed in a suitable school and other suitable care to be agreed upon by the husband and wife, her husband without her consent or approval placed the three children of whom he was given custody in the Bird's Nest, York Road, Dun Laoghaire. In view, however, of the fact that the prosecutrix agreed that the three younger children were to be brought up Protestants, it is difficult to believe that she would have opposed the placing of the elder children in this Protestant Home.

The prosecutrix states that in October, 1940...