W., P v W., A
| Jurisdiction | Ireland |
| Judge | ELLIS J.,Mr. Justice Ellis |
| Judgment Date | 21 April 1979 |
| Neutral Citation | 1980 WJSC-HC 1862 |
| Court | High Court |
| Date | 21 April 1979 |
1980 WJSC-HC 1862
THE HIGH COURT
BETWEEN:
and
and
JUDGMENT OF ELLIS J.Delivered the 21st day of April, 1979
Judgment of Mr. Justice Ellisdelivered the 21st day of April 1980
The Plaintiff, P.W. and the First Named Defendant, A.W. are husband and wife, and are the parents of Annette W. an Infant. The Second-Named Defendant M.M. is the Plaintiff's sister and therefore Annette'sAunt.
On 12th November 1976 in this Court, Hamilton J. ordered that M.M. be given custody of Annette. This is an Application by the First Named Defendant, A.W., Annette's Mother, to vary the said Order of Hamilton J. and for an Order directing that Annette's custody be given to her instead of M.M. In addition, in the event of my refusing to make such Order pursuant to Section 3 of the Guardianship of Infants' Act, 1964, (hereinafter referred to as the Act) the said A.W. seeksa declaration and Order that the said Section is in such event incompatible with and repugnant to the Constitution and is therefore invalid, and accordingly that she is entitled to the custody ofAnnette.
In accordance with the procedure to be followed as indicated by O'Higgins C.J. in McL -v- An Bord Uchtala (Supreme Court 1976 unreported) the first matter for consideration and decision is therefore the issue of Annette's custody, and then the constitutional issue if itarises.
The above named P.W. and A.W. were married on 2nd July 1963. There are four children of the marriage - Corina Concepta W. who was born on 21st January 1965; Paula W. who was born on 4th February, 1966; Peter William W. who was born on 31st July, 1969, and Annette W. who was born on 26th March, 1974. All except the youngest daughter, Annette, lived as a family in the family home in Ballygall, Finglas, Dublin, until 1976. P.W. and A.W. lived a normal happy life for the first six or seven years of their marriage. About 1971 unhappy differences arose between P.W. and A.W. and continued until 1976 when theirmarriage relationship finally and it appears permanently broke down. He then left or was caused to leave the family home in Finglas and went to live in his parents' home in Palmerstown, Dublin, where he now resides. A. W. is about forty years of age and her husband P.W. is a few yearsolder.
For some years prior to 1974 and until 1977, M.M. and her husband W.M. reslided in Chapelizod, Dublin. They were married in September 1968 and do not have any children. M.M. is a trained children's teacher and is aged about thirty three years. Her husband is a few years older. In 1977 he purchased a substantial licensed business premises with dwellinghouse attached in a village in County Carlow some five or six miles from Carlow, in which he, M.M. and Annette have since resided as a "family". All parties are Roman Catholics and there is no issue relating to religion in the case.
Since 1971 A.W. had been in ill health, primarily on account of a mental disorder and psychiatric illness which has required psychiatric care and treatment as an in-patient in various hospitals in Dublin from time to time, as well as medical treatment, observation and assistance as ahospitalout-patient and visits to her home by trained psychiatric socialworkers.
At the time of Annette's birth in hospital in March 1974, her mother A.W. was suffering from a severe nervous disorder and psychiatric illness. As a result of this and associated physical debilitation, A.W. felt unable to cope with the requirements of her home and children, or to care for and look after Annette. Family arrangements were thus made to have her home and three children, other than Annette, looked after until such time as she would be well enough to do this herself. Different arrangements were made for Annette. On account of A.W.'s expressed inability to cope with the requirements necessary for the care and looking after of Annette, and having regard to her mental and physical state of health, it was first arranged to have Annette cared for by her mother-in-law. It transpired that this was too much for this lady who with the consent of both parents gave or transferred Annette to M.M. who agreed to take and look after her. When M.M. first agreed to take and look after Annette it was envisaged that thisarrangement would only be for a temporary period until she would be returned to her mother's care when her health had recovered sufficiently for this purpose. Annette therefore was then taken care of by M.M. when she was a few weeks old. A.W. however, continued to be unwell and a few months later (M.M. having had the exclusive care and custody of Annette in the meantime), A.W. "gave" Annette to M.M. Her admitted reason for this was that because of her illness and its effects on her mental and physical health she felt unable to cope with the requirements of caring for and bringing up Annette. She felt that this could best be done by M.M. The conversation accompanying the "giving" of Annette by A.W. to M.M. took place when Annette was a few months old. There is a conflict of testimony between A.W. and M.M. as to what actually was said and mutually intended at the time of the agreement giving effect to this arrangement. M.M. is definite that she was being given Annette permanently as her child, in consequence of which she consulted her solicitor and was advised that as the baby was legitimate she could not adopt her. This she said was a matter, of major concern to her and her husband and their way of life,which would then have to be and was thereby considerably altered. In evidence, P.W. said that when he was visiting his wife in hospital she spoke about letting M.M. and her husband keep Annette permanently and that they discussed it frequently. He said that he told her not to make any decision then that she might regret later, but that one day after she had come out of hospital when they were in M.M's house, his wife told M.M. that she (A.W.) had decided that M.M. could keep Annette for good. He further said that following his wife's release from hospital in may 1974 she rarely mentioned Annette, and that when he discussed Annette with her, she said there was no way she could cope with a baby and that she would give her away for good to M.M. and her husband to bring up, and that they would give her a good family life. The difference of opinion between A.W. and M.M. as to the nature of the arrangement between them, however, is largely resolved by A.W's agreement in evidence that what she said and did could have caused M.M. genuinely to believe that Annette was being given permanently into her care and custody as her child. Since then, M.M. (and her husband) have brought up Annette as their own child in every way. The only occasion onwhich A.W. mentioned the return to her of Annette was in a casual conversation in the summer of 1975 which was not taken seriously by M.M. Nothing further in this regard was done by A.W. until she instructed a solicitor sometime in 1976 formally requesting the return ofAnnette.
In the meantime, the serious deterioration in the marriage of P.W. and A.W. which commenced in 1971 continued to get worse with P.W. being frequently locked out of his home in Finglas until finally he left it in 1976 as already mentioned. A.W. has since continued to reside there and bring up her three other children of which she has had the care and custody, but in respect of which there are proceedings in this Court, as in the title hereof, in which P.W. has claimed their custody. By Order of 12th November 1976 Hamilton J. has given custody of these three children to A.W.
It appears from the evidence given before me that the breakdown in the marriage of P.W. and A.W. is permanent and without any present prospect of reconciliation. I am satisfied that in all these happenings there has been nocollusion between P.W. and M.M. in regard to the obtaining of and the care and custody of Annette, and that both of them at all times have acted in what they considered the best interest and welfare of thechild.
As already mentioned, the immediate dispute and matter in issue for decision is whether Annette (now nearly six years of age) is to remain in the custody of her aunt M.M. according to the Order of Hamilton J. made on 12th November 1976, or whether such Order should now be varied by this Court on the application of A.W. for a Variation Order directing that she be given the custody of Annette. It is necessary to consider briefly the history of events leading up to this presentapplication.
By way of Special Summons herein issued on 16th July 1976, P.W. sued A.W. for the sole custody of their said three children other than Annette. By order of Hamilton J. of the 11th October 1976 (perfected on 14th October, 1976) P.W. was granted such access to his said three children as appears in the said Order. The Action itself was heard by Hamilton J. on 10th, 11th, and 12th November, 1976, and as appears from his said Order dated12th November, 1976, (perfected on 1st December, 1976) he ordered M.M. to be added as a Defendant and gave custody of the three children other than Annette to their mother, A.W. and the custody of Annette (who by amendment was added to and included in the said Special Summons) to M.M. pending further Order. By Order of 22nd December, 1977, Hamilton J. provided for A.W's access to Annette which was to be at A.W's home inFinglas.
I am informed that at the hearing of this Application on foot of which the Access Order was made, it was intimated on behalf of A.W. that she wanted a full hearing relating solely to the custody of Annette. There was no Appeal against Hamilton J's Order and Judgment of 12th November, 1976, but her Counsel has told me that instead, a Motion to vary at the appropriate time was advised. This full hearing then...
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