S v S

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCarthy J.,O'FLAHERTY J.,EGAN J.
• Judgment Date: 21 February 1992
• Judgment citation (vLex): [1992] 2 JIC 2102
• Court: Supreme Court
• Date: 21 February 1992

(S.C.)

S

and

S

- Trial judge granting custody to husband - Trial judge's findings of fact - Appeal to Supreme Court -Trial judge's inferences from primary findings of fact - Whether legal principles correctly applied to findings - References to previous decisions of courts in custody cases - Guardianship of Infants Act, 1964 (No. 7), s. 11 - Judicial Separation and Family Law Reform Act, 1989 (No.6), s. 3.

The plaintiff wife instituted High Court proceedings against the defendant husband seeking a judicial separation and ancillary orders including an order for sole custody of their three children, all girls aged 13, 10 and 7 years. The wife, then aged 25 had married the husband aged 34 in 1973. In August, 1988, the wife left the family home taking the children with her. In the High Court (before Morris J.) oral evidence lasted eight days. Morris J. made certain findings regarding the husband and wife. He held that the wife had left the family home without justification, that she was involved in a relationship with another man and was often with him in the presence of the children, that she left the children on their own at home at night while she was in a public house and that on the evidence she had attempted to make a false and bogus allegation against the husband of improper sexual behaviour. Morris J. found the husband a thrifty, hardworking, responsible, retiring man, a non-drinker, not interested in socialising and who believed strongly in traditional values and in his religion. On the negative side the husband had difficulty relating to the children. Morris J. granted, inter alia, an order for judicial separation and concluded that in the light of his finding of facts that the welfare of the children would be best served by awarding custody to the husband with access provisions for the wife not to include overnight access. The plaintiff wife appealed to the Supreme Court where a stay was granted on the High Court order pending the full appeal. Held by the Supreme Court (Finlay C.J., McCarthy, O'Flaherty and Egan JJ.; Hederman J. concurring) in dismissing the appeal on the custody issue and in remitting the matter to the High Court for the purpose of arranging the actual transfer of custody that, 1, the first and paramount consideration of the court in a custody case was the welfare of the children and global consideration must be given to the religious and moral, intellectual, physical and social aspects...