This is a Bill to reform and consolidate the law relating to the guardianship and custody of infants. Its main purpose is to give both parents of an infant equal rights in guardianship matters and to declare in statutory form the principle that, in any proceedings concerning an infant or his property, the welfare of the infant is to be the first and paramount consideration. The Bill also provides for the guardianship and custody of illegitimate infants.
At present, guardianship of infants is regulated by the common law as modified by statute. There are four statutes dealing with the subject, namely, the Tenures Abolition Act, 1662, the Custody of Infants Act, 1873, the Guardianship of Infants Act, 1886, and the Custody of Children Act, 1891. The Act of 1662 was primarily a measure to abolish certain feudal systems of land tenure, but it also contained provisions supplementing the common law rights of the father as sole guardian of his infant children. It gave him a right to appoint a person to act as guardian of his children after his own death and it set out the powers and duties of a guardian so appointed. The three later statutes modified the common law rights of the father in favour of the mother and, in general, sought to improve the status of women in respect of the guardianship and custody of their children. I shall have more to say about that aspect of the matter in a moment.
For the purposes of the Bill an infant is defined in section 2 as a person under the age of 21 years. This follows the existing common law which has long regarded persons under 21 as not possessing full legal competence. During the course of the debates on the Bill in Dáil Éireann it was suggested that 21 years of age was too high a limit for determining minority in guardianship matters. There may be something to be said for this point of view, but, having thought the matter over very carefully, I must say I am strongly disposed to recommend that the age limit be left at 21 years unless it can be demonstrated that there are very good and very cogent reasons for adopting a lower figure.
I believe that most parents would object to any attempt to reduce the age to, say, 16 or 17. It would, in my opinion, be undesirable to provide by statute for any lessening of the responsibility which parents have in respect of their children, especially in present-day circumstances when lack of parental control is generally regarded as a reason for increased juvenile delinquency. Another factor to be borne in mind is that 21 years is the age limit for reaching majority in Britain and in certain other Western Europe countries, including France and Germany. I think there is a lot to be said for keeping in line with other European nations in this matter.
Section 3 of the Bill sets out the general principle that, in any proceedings affecting an infant or his property, the court, in coming to a decision, must regard the welfare of the infant as the first and paramount consideration. This is a well established rule of law which was always acted upon by the old Courts of Chancery when they exercised jurisdiction in matters concerning infants. The Supreme Court of Judicature Act (Ireland), 1877, abolished the Courts of Chancery, and the jurisdiction formerly exercised by those Courts in guardianship matters is now exercised by the High Court and Circuit Court.
Part II of the Bill sets out the jurisdiction of the High Court and Circuit Court in guardanship matters and provides for the rights of parents to the guardianship of their children, their right to appoint testamentary guardians, and the powers and duties of guardians. The provisions of this Part reflect the principle that the father and mother of an infant should have equal rights in guardianship matters. The Bill thus sets out the seal on the long process of the emancipation of women in regard to the guardianship of their children. Senators may, perhaps, find it helpful if I trace very briefly the history of that process. At the time the Tenures Abolition Act was passed in 1662, and for over two hundred years after that, the paternal potestas of the common law was absolute. It was settled law that the father was alone guardian of his children. If the father appointed a guardian under the 1662 Act, that guardian took over the father's full rights to the complete exclusion of the mother. If no such guardian were appointed the mother became guardian by nature and nurture, which, however, was not full guardianship. The courts would not interfere with the father's paramount authority unless there were grave reasons for doing so in the interests of the infant.
It was not until 1873 that statute interfered with this absolute power of the father. In the Custody of Infants Act of that year the power was given to the mother of an infant to petition the court for the custody of, and the right of access to, her infant. The Guardianship of Infants Act, 1886, has often in the past been referred to as "the Mothers Act". It re-enacted the provision in the 1873 Act giving the mother a right to apply for custody and also gave her additional rights. Now, for the first time, the mother was declared to be guardian of her child on the death of her husband—either alone or jointly with any guardian appointed by him. The mother was given the right to appoint a testamentary guardian, although this was not the same right as the father enjoyed. The guardian appointed by the mother could act only after the death of both herself and the father. She could also provisionally nominate some fit person who would be empowered by the court to act as joint guardian with the father, after her death, if the court was satisfied that the father was unfit to be sole guardian. The court was given power to remove a testamentary guardian and to deal with guardianship and custody in cases of legal separation.
The Custody of Children Act, 1891, dealt with applications to the High Court for the production of the child by a parent who sought to enforce his right to the custody of the child. It limited that right where the parent had abandoned or deserted the infant or was otherwise unfit to have the custody. While the provisions of the 1891 Act apply to both parents, in the early years they were usually invoked to limit the father's common law right to the custody of his children.
As a result of these statutes, the original absolute power of the father in family affairs, although not totally abolished, was considerably reduced. In addition, since 1883 the tendency in the courts has been against a strict interpretation of paternal power. The year 1883 was the year of the noted Agar-Ellis cases which represent the high water mark of the father's common law rights. In later years, the courts have had an increasing regard for the mother's natural claims, particularly in the case of younger children.
The position in this country is now affected by the Constitution, Article 42, section 1, of which reads as follows:
The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
In the Supreme Court judgment in the well-known Tilson case in 1951 it was stated that the principle to be derived from this Article is that the parents “have a joint power and duty in respect of the religious education of their children” and that parents in this context could not be construed “in some generic sense that included only the father when he was living”. This judgment marked the establishment of the legal equality of the sexes in guardianship matters. The Bill accords statutory recognition to this equality. Subsection (1) of section 6 provides that the parents are guardlians of their children jointly. Subsection (2) of section 7 gives the mother the power, which only the father has at present, to appoint a testamentary guardian to act after her own death. Subsection (2) of section 8 enables the court to appoint a guardian to act jointly with a surviving father. At present it can only appoint a guardian to act with a surviving mother.
Under the common law an illegitimate child, being considered a filius nullius, has no legal guardian. The mother, however, prima facie has custody. The natural father has no rights. In the Bill, it is proposed to make the mother of an illegitimate child the full guardian of the child. Subsection (4) of section 6 provides for this. The effect of the provision will be that all the other relevant provisions of the Bill will apply to the mother of the child. She will be able to appoint a testamentary guardian and to apply to the court for directions on any question affecting the child's welfare. This latter right is also being given to the natural father of the illegitimate child by subsection (4) of section 11. This provision is aimed at the protection of the child. Circumstances could arise in which the mother of an illegitimate child neglected or abandoned the child and the father, having the infant's interest at heart, wished to get the custody.
Subsection (7) of section 6 of the Bill enables parents who are themselves under twenty-one years of age to appoint guardians by will. At present, by reason of section 7 of the Wills Act, 1837, persons under twenty-one years cannot make a valid will. Previous to the Wills Act, the father could, by reason of the Tenures Abolition Act, 1662, appoint testamentary guardians although he was himself under twenty-one. In effect, therefore, it is proposed to restore the law that applied between 1662 and 1837 and to extend it to both parents. This proposal is not inconsistent with the general principle that persons under 21 years of age should be treated as infants for guardianship purposes. If a person under 21 years of age marries and has children he becomes responsible in law for those children and it is clearly desirable that he should be able to exercise all the prerogatives of parenthood, including the right to appoint testamentary guardians. Such a case is an exception which does not detract from the validity of the general rule.
Subsection (2) of section 8 provides that the court may appoint a guardian to act jointly with a surviving parent where the deceased parent did not appoint a testamentary guardian or where such a guardian dies or refuses to act. Under the 1886 Act the court could take such action only where the surviving parent was the mother. The proposed extension of the court's power is in accordance with the principle of the equality of father and mother in all matters appertaining to guardianship. Fears were expressed in the Dáil that this provision might enable the courts to interfere unnecessarily and unreasonably with the natural rights of the surviving parent. I have since carefully re-examined the proposal and I am satisfied that these fears are groundless and that the provision should be retained. It is an established rule of law—which will not in any way be affected by this Bill— that the courts must act very cautiously in exercising the jurisdiction to interfere with parental rights. The rule is that the court must act in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded. This rule was restated by the Supreme Court in the Kindersley case in 1943.
Part III of the Bill provides for the re-enactment of the existing law dealing with the powers of the High Court in proceedings for the enforcement of the right to the custody of an infant. Sections 14 and 16 relate to the situation where the High Court has to consider an application by a parent for an order for the production of an infant, or an order for the handing over of the infant to him, in circumstances which prima facie indicate that it may not be in the infant's interest that the order should be granted. I should like to emphasise that in these, as in all other proceedings under this Bill, the rule of law to which I referred a moment ago—which restricts the powers of the courts to interfere with the natural rights of parents—will apply. Having regard to this rule and to section 3 of the Bill, which provides that the welfare of the infant is to be the first and paramount consideration, I think Senators need have no fears that the courts will interfere in unwarranted fashion with the affairs of the family or with the natural rights of parents.
I believe that the principles which are enunciated in this Bill accurately reflect the attitudes and values of present-day society in this country. The Bill deals in a progressive way with a subject which is of fundamental importance to society and I feel that, if enacted, it will represent a valuable addition to the Statute Book. I trust that the House will see fit to give it their approval.
