Re Tilson, Infants

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1952
Date01 January 1952
S.C.),
In re Tilson
Infants

Custody and religious education - Protestant father and Roman Catholic mother - Ante-nuptial agreement by father that issue of marriage should be brought up in Roman Catholic religion - Infants baptized Roman Catholics and brought up as Roman Catholics - Father, desiring infants to be brought up Protestants, removing them to Protestant institution - Validity of ante-nuptial agreement - Welfare of infants -Whether mother entitled to custody - Whether right of father to direct religious education of children altered by the Constitution - Constitution of Ireland, Arts. 41, 42 and 44.

T. and B. were married on the 10th December, 1941, in a Roman Catholic church in Dublin, T. (the husband) being a Protestant, while B. was a Roman Catholic. T. signed an undertaking that any issue of the marriage would be brought up as Roman Catholics. There were four children born of the marriage, all boys, and all were duly baptized as Roman Catholics. Differences having arisen between T. and B., T. removed the three elder children from the home of B.'s parents (where T., B., and the children were then residing) and took them to live with his parents; he subsequently removed them to a Protestant institution. B. thereupon obtained a conditional order of habeas corpus ad subjiciendum directed to the respondents, and, on the application to make absolute the conditional order, notwithstanding cause shown, it was held, by Gavan Duffy P., that the prospective general welfare of the children required that they should be returned to the mother to live in her home. On appeal it was held by the Supreme Court (Maguire C.J., Murnaghan, O'Byrne and Lavery JJ.; Black J. dissenting): 1, Under the Constitution both parents have a joint power and duty in respect of the...

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17 cases
  • Child and Family Agency v McG and JC
    • Ireland
    • Supreme Court
    • 23 February 2017
    ...Article 40 inquiries relating to the custody of children in certain circumstances. She referred to that line of authority, including In re Tilson, Infants [1951] I.R. 1, The State (D & D) v. Groarke [1990] 1 I.R. 305, [1990] ILRM 10,130 and more recently, N v. The Health Service Executive ......
  • People v O'Shea
    • Ireland
    • Supreme Court
    • 1 January 1983
    ...Court, 16th March 1981. This is also the position adopted by the former Supreme Court of Justice: see InThe Matter of Tilson, Infants [1951] I.R. 1 at pp. 31-32 per Murnaghan J. In the case of The State (D.P.P.) v. Walsh and Conneely, the Court considered the common law defence in the crim......
  • Garvey v Ireland
    • Ireland
    • Supreme Court
    • 9 March 1979
    ...I.R. 62. 18 The State (Quinn) v. Ryan [1965] I.R. 70. 19 Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180. 20 In re Tilson [1951] I.R. 1. 21 Bagg's Case (1615) 11 Co. Rep. 93b. 22 R. v. University of Cambridge (1723) 1 Str. 557. 23 R. v. Darlington School Governors (1844) 6 Q.B. 6......
  • McG (S) & C (J) v Child & Family Agency
    • Ireland
    • High Court
    • 17 November 2015
    ...the procedures provided in Article 40.4.2 in matters relating to the welfare of children. Two Supreme Court cases of note are Re: Tilson [1951] IR 1 where the Court made a direction for the return of the children to their mother and did so under its jurisdiction in Article 40.4.2 and The St......
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6 books & journal articles
  • The Constitutional Protection of Children in Ireland ? Assessing the Need for Reform and the Available Alternatives
    • Ireland
    • Hibernian Law Journal No. 8-2008, January 2008
    • 1 January 2008
    ...Against the Best Interests of the Child” (1987) University of Chicago Law Review 54 U Chi L Rev. 196 One could imagine how, in a Re Tilson [1951] IR 1 situation, the best interests standard could have, somewhat unfairly, tilted the balance in favour of the parent with the more socially ‘acc......
  • Catholicism and the Judiciary in Ireland, 1922-1960
    • Ireland
    • Irish Judicial Studies Journal No. 1-20, January 2020
    • 1 January 2020
    ...81 [1945] IR 515. 82 [1945] IR 515, 517. 83 Whyte (n 11) 196-238. 84 ibid 205-208, 230. 85 ibid 199-226. 86 ibid 80. 87 ibid 171 Re Tilson [1951] IR 1. IRISH JUDICIAL STUDIES JOURNAL [2020] Irish Judicial Studies Journal Vol 4(1) 21 amongst many within the minority Protestant community. It ......
  • Illegality, Resulting Trusts and Twin Presumptions: Antiquated Law Meets Modern Society
    • Ireland
    • Cork Online Law Review No. 12-2013, January 2013
    • 1 January 2013
    ...na hÉireann 1937 Art 40.1 91 See fns. 65-66. 92 Delany (n 38). 93 ibid. 94 ibid. 95 ibid. 96 [1939] IR 1. 97 Delany (n 38). 98 ibid. 99 [1951] IR 1. 100 Delany (n 38). 101 Re Tilson (n 99) [33] (Murnaghan J). 28 [2013] COLR presumption of advancement applies between parents and children it ......
  • A Critical Analysis Of The Protection Of Families Under The Irish Constitution Of 1937
    • Ireland
    • Cork Online Law Review No. 11-2012, January 2012
    • 1 January 2012
    ...and Others v Divine [1966] 100 ILTR 53. 52 ibid 56. 53 Coppinger v Waterford County Council [1996] 2 ILRM 217. 54 Re Tilson , Infants [1951] 1 IR 1. 55 Guardianship of Infants Act 1967 s 6(a). 56 A Egan & R McNamara Grandparents and the Law in Ireland (2010) 13(2) Irish Journal of Family La......
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