Re Kindersley

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 15 December 1944
• Date: 15 December 1944

High Court.

Supreme Court.

In re Kindersley

In the Matter of GAY KINDERSLEY, an Infant, and In the Matter of the COURTS OF JUSTICE ACT, 1924, and In the Matter of the CONSTITUTION(1)

Infant - Custody - Parents divorced - Application by father - Father out of the jurisdiction - Infant in mother's custody within the jurisdiction - Father wishing infant to be sent to school in England - Mother's objection on account of war risks in England - Infant a ward of Court in England - Certificate of naturalisation in Éire éire issued to infant on application of mother without father's knowledge - Application on behalf of father for order of habeas corpus - Application made by father's secretary - Whether authority sufficient - Whether infant ought to be sent out of the jurisdiction - General jurisdiction of the Courts over infants and wards of Court - Principles stated - Comity of the Courts - Guardianship of Infants Act,1886 (49 & 50 Vic. c. 27) s. 5 - Judicature (Ireland) Act, 1877 (40 & 41Vic. c. 57) s. 28, sub-s. 10 - Courts of Justice Act, 1924 (No. 10 of 1924) -Constitution of Éire éire, Art. 40 - Irish Nationality and Citizenship Act,1935 (No. 13 of 1935) s. 7.

Habeas Corpus.

Application to make absolute, notwithstanding cause shown, a conditional order of habeas corpus ad subjiciendum,dated the 9th June, 1943, directed to Lady Oranmore and

Browne, mother, of Gay Kindersley, to have before the Court on Friday, the 3rd December, 1943, the body of the said Gay Kindersley.

The application was made by Miss Grace Charker, the business secretary and attorney under a power of attorney, dated the 7th June, 1941, of Philip Leyland Kindersley, the father of the said Gay Kindersley. Philip Leyland Kindersley was a Captain in the British Army, who was, and had been for the past year, a prisoner of war in Italy, and the application was made on his behalf. Affidavits in support of the conditional order were made by the said Grace Charker and by Lord Kindersley, the father of Captain Kindersley.

The facts have been summarised in the head-note and are fully stated in the judgment of Gavan Duffy J.

The arguments were similar to those in the Supreme Court, reported post.

From this judgment Lady Oranmore and Browne appealed to the Supreme Court (1).

On the 11th January, 1944—the day previous to the day fixed for the return to the order of habeas corpus—the infant, Gay Kindersley, was made a ward of Court, a suit having been instituted on that day to administer a sum of £100 settled upon him by his mother.

On the next day in the High Court (1):—

An English officer, who was a prisoner of war in Italy, wished his son, aged 13, to be educated at Eton. Both the boy's parents were domiciled in England at the time of their marriage. The marriage had been dissolved in England, and the English Courts had made certain orders as to the custody of the two children, the issue of the marriage—the said boy and his younger sister—both of whom had been made wards of Court in England. The mother hud married again and was living in Éire éire, and the boy was residing with her, contrary to the order of the English Court of Appeal. The mother had previously agreed that the boy should be educated at Eton, but she now refused to let him go to England on account of the dangers occurring there owing to the war. A conditional order of habeas corpus, directed to the mother, was obtained on behalf of the father by his secretary, to whom he had granted a power of attorney, and this application was supported by the boy's paternal grandfather. Shortly before the conditional order was obtained a certificate of naturalisation was issued to the boy by the Minister for Justice in Éire éire in pursuance of s. 7 of the Irish Nationality and Citizenship Act, 1935, on the application of the mother but without notice to the father. On the application to make absolute the conditional order:

Held by the Supreme Court, affirming the High Court, that the application for the conditional order was duly authorised by the father, and could be made on his behalf: R. v. Scherschewsky, 8 T. L. R. 571, distinguished; that the jurisdiction of the Court to allow an infant to be taken out of the jurisdiction had been decided in In re Westby, Minors, [1934] I. R. 311, and could not now be questioned, that that jurisdiction should be exercised in favour of the father, and that the conditional order must be made absolute.

Principles applicable to determine the question whether the father or the mother is entitled to the custody of their infant child re-capitulated by the Supreme Court, applying R. v. Gyngall, [1893] 2 Q. B. 232, In re O'Hara, [1900] 2 I. R. 232, In re Story, [1916] 2 I. R. 328, and In re Westby, Minors, [1934] I. R. 311, the Supreme Court pointing out that at the present day the predominating principle must always be the welfare of the child.

Cur. adv. vult.

Gavan Duffy J. :—

Gay Kindersley was born in London on 2nd June, 1930. His father and mother are both devoted to the boy, but the war has occasioned an unfortunate difference of opinion as to his immediate education.

His father, the Hon. Philip Leyland Kindersley, who is a British subject by birth and has at all times been domiciled in England, married the boy's mother, then Oonagh Guinness, of a well-known Irish family, in London on 24th June, 1929. The marriage was dissolved by the High Court of Justice in England on 21st April, 1936. Gay's mother has married again and is now the Baroness Oranmore and Browne and resides in County Mayo and County Wicklow in Ireland. The father, now Captain Kindersley, has been a prisoner of war on the Continent during the year 1943. Gay, after spending some time at a good preparatory school near Dublin, is now a pupil at a very well-known public school, St. Columba's College, Rathfarnham, at the foot of the Dublin mountains.

This is an application by way of habeas corpus to compel the boy's mother here to hand him over to a person or persons claiming to represent the absent father, in order that Gay may enter Eton College in England, his father's old school. A new boy usually goes to Eton at the beginning of the school year in September and the average age for entrance is stated to be 13¹/₄ years; the school is willing to receive Gay when the new term begins next January, but there is some doubt whether he would be accepted at all, if his entrance were further deferred.

The boy's own interest must be our paramount concern on this application, which we have to examine, with every possible consideration for each of the parents, in its setting as a sequel to earlier family arrangements.

On 13th March, 1935, very shortly before the divorce suit was begun, the High Court of Justice in England made an order, with the consent of both parents, for the custody, maintenance and education of the two children of the marriage, Gay and his sister, who were made wards of Court.Inter alia the order directed that the boy, after going to a preparatory school to be selected by his father (subject to his mother's reasonable approval) should be educated at Eton, while the girl was to be educated in such manner and to go to such schools as her mother (subject to the father's reasonable approval) should select; the boy was to spend the greater part of his school holidays with his mother, but a portion of them, accompanied by his sister, with his father, or the father's nominee, or the paternal grandparents. Lord Kindersley, the boy's paternal grand-father, deposes that Captain Kindersley entered Gay's name at Eton many years ago.

In the year 1939 Gay was sent to a suitable preparatory school in England, but on the outbreak of war in September of that year he was spending his holidays here and, when war seemed imminent, his mother received a letter from his father agreeing that both children should stay with her in Ireland during the war; Gay was then sent to a preparatory school near Dublin, with his father's assent to this course as a temporary measure.

In the year 1940 Captain Kindersley made up his mind that Gay ought to return to the preparatory school in England, with a view to going on to Eton, and on 24th May, 1940, upon hearing counsel for the father and mother on opposite sides, the High Court of Justice in England made an order, allowing Lady Oranmore and Browne to keep the boy until 31st July next and directing that he remain at the Irish preparatory school until further order. On 31st July, 1940, upon counter-applications by the parents, the Court ordered the boy's return to England, and on 5th August, 1940, upon the mother's appeal, the Court of Appeal in England ordered Gay, then 10 years old, to be returned to England within 10 days and delivered at the home in Sussex of his grandfather, Sir Robert (now Lord) Kindersley, there to remain until further order, with liberty to the parties to apply. Counsel for Captain Kindersley expressly admit that the arrangements made in 1935 for the children's holidays have not been varied by any order of the Courts in England; that, as this Court understands the orders made, is the true position, subject, of course, to the immediate effect intended for the summer of 1940 by the order of the Court of Appeal.

Lady Oranmore and Browne disobeyed the order of the Court of Appeal and Gay has continued to remain in her custody. I am satisfied that she took this course because, in the terrible period of air-raids that immediately ensued in England, she was convinced that her duty as a mother was paramount and ought to prevail over her duty to the Court.

Captain Kindersley took no steps whatever to attempt to enforce that order, representing, when it was made, his wishes as father, and he visited his children here; Lady Oranmore and Browne on her side has made no attempt to put herself right with the Court in England, where I feel sure that an application in the autumn of 1940 would have been heard with great...