DIGEST 1
Interlocutory nature of order – Rights of guardians – Supreme Court -Appellate jurisdiction – Additional evidence -Rules of the Superior Courts, 1962 (S.I. No. 72), Or. 58, r. 8 – Guardianship of Infants Act,1964 (No. 7), ss. 11, 12 – Courts (Supplemental Provisions) Act, 1961 (No. 39), s. 7 – Constitution of Ireland, 1937, Article 34, s. 4, sub-s.3.
The plaintiff and defendant were wife and husband and they had separated; they were the joint guardians of the three children of their marriage. The wife brought an action in the High Court and claimed the custody of her two sons and of her daughter. The High Court awarded the custody of the elder son, and of the daughter, to the husband and awarded the custody of the younger son to the wife. Each parent had ample and independent resources to provide for the maintenance and education of all three children. The parties appealed to the Supreme Court against the order of the High Court and, during the hearing of the appeal, the wife tendered evidence on affidavit which attacked the character of the husband. The Supreme Court refused to admit evidence on affidavit but allowed each party to furnish additional oral evidence in relation to events which had occurrd since the date of the Order of the High Court. At the date of the hearing of the appeal the elder son was nearly ten years old, the daughter was nine years old and the younger son was six years old. Held by the Supreme Court ( Ó Dálaigh C.J., Walsh, Budd, FitzGerald and McLoughlin JJ.), in disallowing the appeals, 1, that an order made pursuant to s. 11 of the Guardianship of Infants Act, 1964, in relation to the custody of an infant must be considered to have been of an interlocutory nature if, subsequently, the welfare of the infant requires that the court should make new arrangements for the custody of that infant. 2. That, apart from regulating the custody of an infant, such order does not affect the other rights and duties of the parents as guardians of the infant named in the order. 3. (Budd and FitzGerald JJ. dissenting). That the decision of the High Court relating to the custody of the daughter should be affirmed. 4. (McLoughlin J. dissenting). That the additional oral evidence had been relevant to the issues in the appeal and had been properly admitted in exercise of the appellate jurisdiction conferred on the Court by Article 34 of the Constitution.
B v. B
 I.R. 54  I.R. 54
B. v. B.
24th April 1970
Husband and wife – Infant – Custody – Interlocutory nature of order – Rights of guardians – Supreme Court – Appellate jurisdiction – Additional evidence – Rules of the Superior Courts, 1962 (S.I. No. 72), Or. 58, r. 8 – Guardianship of Infants Act, 1964 (No. 7), ss. 11, 12 – Courts (Supplemental Provisions) Act, 1961 (No. 39), s. 7 – Constitution of Ireland, 1937, Article 34, s. 4, sub-s. 3.
The plaintiff and defendant were wife and husband and they had separated; they were the joint guardians of the three children of their marriage. The wife brought an action in the High Court and claimed the custody of her two sons and of her daughter. The High Court awarded the custody of the elder son, and of the daughter, to the husband and awarded the custody of the younger son to the wife. Each parent had ample and independent resources to provide for the maintenance and education of all three children. The parties appealed to the Supreme Court against the order of the High Court and, during the hearing of the appeal, the wife tendered evidence on affidavit which attacked the character of the husband. The Supreme Court refused to admit evidence on affidavit but allowed each party to furnish additional oral evidence in relation to events which had occurred since the date of the order of the High Court. At the date of the hearing of the appeal the elder son was nearly ten years old, the daughter was nine years old and the younger son was six years old.
Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh, Budd, FitzGerald and McLoughlin JJ.), in disallowing the appeals, 1, that an order made pursuant to s. 11 of the Guardianship of Infants Act, 1964, in relation to the custody of an infant must be considered to have been of an interlocutory nature if, subsequently, the welfare of the infant requires that the court should make new arrangements for the custody of that infant.
2. That, apart from regulating the custody of an infant, such order does not affect the other rights and duties of the parents as guardians of the infant named in the order.
3. (Budd and FitzGerald JJ. dissenting) That the decision of the High Court relating to the custody of the daughter should be affirmed.
4. (McLoughlin J. dissenting) That the additional oral evidence had been relevant to the issues in the appeal and had been properly admitted in exercise of the appellate jurisdiction conferred on the Court by Article 34 of the Constitution.
Appeal from the High Court.
The plaintiff and her husband, the defendant, had married in a Roman Catholic church in the year 1959 and had come to reside in Ireland at the end of 1960. Their first son was born on the 13th June, 1960; their daughter was born on the 6th November, 1961; and their second son was born on the 25th September, 1963. After a series of disputes the wife left the matrimonial home in 1968 and went to reside elsewhere in Ireland. Each party had ample independent means. At the date of the marriage
 B. v. B. 55
1 I.R. S.C.
the husband was a Roman Catholic and the wife was a member of the Church of England; the wife gave an undertaking that all the children of the marriage would be brought up in the Roman Catholic religion.
In the year 1968 the wife issued a special summons in the High Court and claimed the custody of all her children. The proceedings were heard in camera by Kenny J. for ten days and the trial judge delivered a reserved judgment on the 13th January, 1969. The trial judge awarded the custody of the elder son and of the daughter to the husband, and awarded the custody of the younger son to the wife. Each party appealed to the Supreme Court against the judgment and order of the High Court.
The appeal was heard on 9-11th, 15th December, 1969, and on 20-23rd, 26th and 27th January, 1970. On the 21st January the Supreme Court decided that it would not receive, as evidence, an affidavit sworn on behalf of the wife which the Court had examined. In the affidavit the deponent made serious charges against the husband and attacked his character in relation to events which were alleged to have occurred after the date of the High Court order. However, the Supreme Court gave permission to each party to adduce oral evidence on oath in the Supreme Court upon the matters mentioned in the affidavit. The additional oral evidence was adduced in the Supreme Court on the 16-20th, 23-25th February, 1970. On the 27th February, the members of the Court met and spoke to the children in chambers.
The introduction of additional evidence in the course of an appeal to the Supreme Court has been considered at  I.R. 149;  I.R. 27, 180; and  I.R. at p. 3.
Section 3 of the Guardianship of Infants Act, 1964, provides:—”Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.” Section 2 of the Act of 1964 defines “infant” as meaning a person under 21 years of age; and it defines “welfare”, in relation to an infant, as comprising “the religious and moral, intellectual, physical and social welfare of the infant.” Section 6, sub-s. 1, of the Act states:—”The father and mother of an infant shall be guardians of the infant jointly.”
Section 11 in Part II of the Act of 1964 provides:—
“(1) Any person being a guardian of an infant may apply to the court
 B. v. B. 56
1 I.R. S.C.
for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.
(2) The court may by an order under this section:—
1. (a ) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father and mother;
2. (b ) order the father or mother to pay towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the father or mother, the court considers reasonable.
(3) An order under this section may be made on the application of either parent notwithstanding that the parents are then residing together but an order made under subsection (2) shall not be enforceable and no liability thereunder shall accrue while they reside together, and the order shall cease to have effect if for a period of three months after it is made they continue to reside together . . .”
Section 12 of the Act of 1964 states:—”The court may vary or discharge any order previously made by the court under this Part.”
Order 58, r. 1, of the Rules of the Superior Courts, 1962, provides that all appeals to the Supreme Court shall be by way of re-hearing.
Order 58, r. 8, of the said Rules provides as follows:—
“8. The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon any appeal from a final judgment or order such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Supreme Court (obtained upon application therefor by motion on notice setting forth such special grounds). The Supreme Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made and to make such further or other order as the case may require. The powers aforesaid may be exercised by the Supreme Court, notwithstanding that the notice of appeal asks that part only of the decision be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties,
 B. v. B. 57
1 I.R. S.C.
although such respondents or parties may not have appealed from or complained of the decision. The Supreme Court shall have power to make such order as to the whole or any part of the costs of the appeal as may be just.”
Article 34, s. 3, sub-s. 1, of the Constitution of Ireland, 1937, provides:—
“1 The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.”
Article 34, s. 4, sub-ss. 1-3, of the Constitution provides:—
“1 The Court of Final Appeal shall be called the Supreme Court.
2 The president of the Supreme Court shall be called the Chief Justice.
3 The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
Section 7, sub-ss. 1 and 2, of the Courts (Supplemental Provisions) Act, 1961, provides:—
“(1) The Supreme Court shall be a superior court of record with such appellate and other jurisdiction as is prescribed by the Constitution.
(2) There shall be vested in the Supreme Court—
1. (a ) all jurisdiction which was, immediately before the commencement of Part I of the Act of 1924, vested in or capable of being exercised by the former Court of Appeal in Southern Ireland or any judge or judges thereof and was, immediately before the operative date, vested in or capable of being exercised by the existing Supreme Court,
2. (b ) all jurisdiction which, by virtue of any enactment which is applied by section 48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing Supreme Court.”
E. M. Wood S.C. and P. D. Maguire S.C. (with them R. P. Barr ), for the plaintiff, referred to In re O .1
W. D. Finlay S.C. and N. St. J. McCarthy S.C. (with them F. R. Morris ), for the defendant.
Cur. adv. vult.
1  1 W.L.R. 724.
 B. v. B. 58
1 I.R. Ó Dálaigh C.J. S.C.
Ó Dálaigh ó dálaigh C.J. 24th April 1970
The appeal and cross appeal in this matter are respectively taken against certain parts of the order of Mr. Justice Kenny dated the 20th January, 1969, and made on foot of the claim by the wife in proceedings under the Guardianship of Infants Act, 1964, against the husband. She sought an order directing that she should have custody of the three children of the marriage. By his order Mr. Justice Kenny awarded the custody of the elder son and of the daughter to the father and the judge awarded the custody of the younger son to the mother, with the usual ancillary directions as to access and as to temporary custody during school holidays. On this appeal and cross appeal the parties respectively seek to have an order for custody of all three children.
The parties were married in 1959 and they came to live in Ireland in 1960. In 1962 a large residence, standing on several hundred acres, was acquired in Ireland and became the family home. After unhappy differences and quarrels, details of which are set out in Mr. Justice Kenny’s judgment, the wife effectively left the family home on the 1st May, 1968, and she now resides elsewhere in Ireland.
The cardinal provision of the Act of 1964 is contained in s. 3 of the Act. Omitting words which are not relevant, the section says:—
“Where in any proceedings before any court the custody . . . of an infant . . . is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.”
The Act also affirms at s. 6, sub-s. 1, that “the father and mother of an infant shall be guardians of the infant jointly,” but this is no more than a reiteration of the principle enunciated in Article 42 of the Constitution that “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.” Attention has also to be called to the provision in s. 11, sub-s. 1, of the Act of 1964 that “any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.” This last provision underlines that any order as to the custody of an infant, whether in the High Court or this Court, is not final but interlocutory in character and is capable of being varied as changing circumstances and the exigencies of the infant’s welfare may require.
 B. v. B. 59
1 I.R. Ó Dálaigh C.J. S.C.
Therefore, in disposing of the custody of children, it will be clear that a court must take parents as it finds them—faults and all. Where a marriage has broken down, whether temporarily or permanently, it may be possible to show that the welfare of the children requires that one or other parent should, by reason of character or conduct, be excluded from consideration, as being a person unfit to have custody. In my opinion, the Court should always be reluctant to reach such a conclusion, because the welfare of children will rarely be advanced by a verdict of condemnation of one or other of the parents.
I do not find it necessary to examine in detail the evidence given before Mr. Justice Kenny, nor the fresh evidence which was permitted to be tendered in this Court. I would confine myself to saying that I wholly reject the charges contained in the evidence of Miss R. and that I do not find in any of the subsidiary matters dealt with by her (or in the ancillary evidence, or in the evidence before Mr. Justice Kenny or in his findings) anything that would warrant the Court in holding that the husband is not a fit and proper person to have custody of the children of the marriage.
Therefore, in my view, the Court can come directly to the difficult question as to what the welfare of the children requires. After the separation of the parents, there remain two lesser points of unity around which one would wish, if possible, to build: the first of these is the unity or comradeship of the three children, and the second is the family home where these children have grown up together. If the homes of the separated parents were close enough to a single suitable school, I would favour maintaining the unity of the children and allowing them to reside for half the year with one parent and the other half with the other parent. This solution, however, is impracticable; the distance which separates the respective homes is too great and one could not contemplate in the realm of the possible a half-yearly change of school. I shall come later to consider what role the other point of unity, the home in which the children have grown up, can properly play in endeavouring to weigh what will best serve the welfare of the children.
The younger son is now aged 6 years and 5 months. Since the date of Mr. Justice Kenny’s order, he has been residing with his mother and, pursuant to that order, he has spent portion of his holidays at the family home with his elder brother and his sister; and they, in turn, have spent holidays with the younger son at the wife’s residence. In my view, nothing we have heard in this case would warrant the Court in altering Mr. Justice Kenny’s order in respect of the younger son. In view of his tender age, there can be no doubt that the younger son should continue in the custody of his mother as no device can be found whereby the three children can be kept together—short
 B. v. B. 60
1 I.R. Ó Dálaigh C.J. S.C.
of excluding one parent from enjoying custody. Equally, so far as the elder son is concerned. I entertain no doubt that, as matters now stand, he should continue in the custody of his father. In a few months the elder son will be 10 years old, and either next autumn or in the autumn of 1971 he will very probably leave home for boarding school. It is in his interest and for his welfare that he should not be disturbed from the home in which he has grown up. His remaining at the family home will serve, in my opinion, as a stabilising influence and should help minimise the upset which must necessarily have been suffered as a result of the differences which have arisen between his parents, and as a result of his mother’s departure from the family home.
Like Mr. Justice Kenny, I find the question of the daughter’s custody the most difficult of the questions which the Court has to decide. Ordinarily a girl of 8 years and 3 months would be more suitably placed in her mother’s custody rather than in her father’s custody. However, I think Mr. Justice Kenny was right to leave the daughter at the family home. This is no reflection on the wife. The family home has been the home in which the daughter has grown up; and I accept what Mr. Justice Kenny has found about the spirit of comradeship which exists between the daughter and the elder son. This is a very valuable asset in the present broken state of their parents’ marriage, and nothing should be done to waste or squander it. The welfare of both children requires that it should be preserved. In two or three years at most, the daughter is likely to be sent to a boarding school; and the interval at the family home (although for the latter part of it the elder son will very probably be away at school) should serve as a useful stabilising influence in her life.
It only remains to repeat that the court’s order in respect of the custody of the children is interlocutory in character; moreover, the court’s order does not diminish the duty of the parents to be concerned about the welfare and education of their children. The parents, whatever their own difficulties and differences, should be concerned to remain in closest consultation in all that concerns the welfare of the children. Specifically, the parents should seek agreement with regard to their plans for the future education of their children to avoid the necessity of invoking the direction of the court. The affection in which they both manifestly hold all their children should assist them to help the children over the difficulties which, whatever their source, are not of the children’s making. In my view, both appeal and cross-appeal should be dismissed.
As to the question of the jurisdiction of this Court to hear the further evidence, I should add that I concur in what Mr. Justice Walsh says in the judgment he has prepared.
 B. v. B. 61
1 I.R. Walsh J. S.C.
I agree with the order proposed by the learned Chief Justice in the judgment which he has just delivered and for the reasons he has given.
However, there are a number of points on which I wish to express my opinion. The main purpose of the Guardianship of Infants Act, 1964, was to give to both parents of an infant equal rights in guardianship matters. In doing so, it provided a statutory expression of the rights already guaranteed by the Constitution and, in addition, defined an infant as being a person under the age of 21 years. Section 6 of the Act states the equality of the parents and recognises them as the guardians of the infant; there is nothing in any provision of the Act which purports to confer on the court or any other body the power to displace either one or both of the parents from the position of guardian or guardians.
The Act recognises that situations may arise from time to time where the parents do not agree as to questions affecting the welfare of the infant and it provides machinery whereby applications may be made to the court for such order as the court thinks proper. It is clear from the provisions2 of s. 11 of the Act that in the case of parents who are guardians such situations may arise even when the parents are not living apart and sub-s. 1 of that section provides, inter alia, for the making of orders concerning the welfare of an infant in such circumstances. Sub-sections 2 and 3 of s. 11 deal with the circumstance where the parents are not residing together and it is to be noted that it is only in the instance where they are not residing together that the question of the custody of the infant may be made the subject of an order. It is also, in my view, quite clear from the provisions of s. 11 (not merely from their own content but when taken in context with the other sections of the Act and the relevant constitutional provisions upon which the Act is founded) that if one parent is given custody of an infant to the exclusion, whether total or partial, of the other parent, that does not mean that the parent who loses the custody is deprived of the other rights which accrue to him (or her) as guardian of the infant. A parent so deprived of custody can continue to exercise the rights of a guardian and, in my view, must be consulted on all matters affecting the “welfare” of the child which, by the definition of that word contained in s. 2 of the Act and taken verbatim from the Constitution, comprises the religious, moral, intellectual, physical and social welfare of the infant. It is when the parents do not agree on these matters that it may be necessary to apply to the court under the procedure provided by s. 11, sub-s. 1, of the Act irrespective of who has custody of the child. The Act does not purport to encourage any alteration of the established
2 See pp. 55-6, ante .
 B. v. B. 62
1 I.R. Walsh J. S.C.
practice of the Courts that they must act very cautiously in exercising the jurisdiction to interfere with parental rights, and the court will act in opposition to the parent or parents only when judicially satisfied that the welfare of the child requires that the wishes of the parent or parents should be overruled.
I agree with the Chief Justice when he says that the provisions of s. 11 also underline that any order as to the custody of an infant, or any other order it may make affecting the welfare of the infant under that section, is necessarily only interlocutory in character because circumstances may change from time to time. The change of circumstances may be due to the current position of the parent or parents or the growing up of the child and the changes which the passage of time may bring about, not merely in the relationship of the parents to one another but in their relationship to the child, and the change which may be brought about in the fortunes or health or opportunities of any of the parties concerned. In a case such as this where one is dealing with young children, it appears to me that, in the absence of agreement between the parents from time to time as to what the welfare of the child requires, the court invoked under s. 11 of the Act may have to exercise something in the nature of a continuous supervision during the infancy of the child.
On the facts of this case as given in evidence before Mr. Justice Kenny, and as given in evidence at considerable length in this Court, in my view there is nothing which would warrant a finding that either of the parents is not a fit and proper person to have custody of the children of the marriage. I also wholly reject, as being completely unsubstantiated, the reckless charges made against the father of the children; they were based wholly upon the evidence of Miss R. which discredited itself and was unsupported by any evidence which, even if accepted, could amount to corroboration.
At the conclusion of all the evidence, the members of the Court met in chambers the three young children who were accompanied only by the solicitor for each party. In my opinion they are very happy children and have all the marks of children who have been the objects of lavish love and affection from each of their parents and, at the moment at least, they show no ill effects of the regrettable separation of their parents. Bearing in mind that for some time past one of the children has been with one parent and two with the other parent, and even taking into account the access which each parent has to the child not in his or her custody under the order of the High Court, the children are quite obviously very affectionate to each other and each one is a credit to the separated parent with whom he or she is at present residing under the order of the High Court.
I wish now to turn to the subject of the jurisdiction of this Court raised
 B. v. B. 63
1 I.R. Walsh J. S.C.
in the judgment of Mr. Justice McLoughlin which I have already had the advantage of studying. This Court’s jurisdiction may be grouped under three heads, namely, its appellate, its original and its consultative jurisdictions. As this subject has already been dealt with in some detail by this Court, it is unnecessary to go into the matter in the same detail again: see The State (Browne) v. Feran 3 ; The State (Sheerin) v. Kennedy 4 ; The People (Attorney General) v. McGlynn 5 ; The People (Attorney General) v. Bell 6 ; and In re Morelli, Vella v. Morelli .7
The only functions of the Court which arise for consideration on the views about to be expressed by Mr. Justice McLoughlin are those connected with the appellate jurisdiction of the Court. Nothing in this present case was done by virtue of any original jurisdiction of the Court; the hearing and examination of the evidence which was tendered in this Court was done in exercise of its appellate jurisdiction. The appellate jurisdiction of this Court from all decisions of the High Court is conferred directly by Article 34 of the Constitution: see The State (Browne) v. Feran .3 The Court also has appellate jurisdiction in respect of decisions of courts other than the High Court, but that jurisdiction does not arise in this case and is in any event conferred by statute only. In this case we are only concerned with the question of the appellate jurisdiction of this Court from the decision of the High Court.
This Court is entirely the creation of the Constitution and, as was pointed out in the decisions in The State (Quinn) v. Ryan 8 and The People (Attorney General) v. Bell 6 , it is not in any way the successor of the former Court of Appeal in Southern Ireland or of the House of Lords. Article 34, s. 4, sub-s. 3, of the Constitution provides that “the Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court . . .” The only statutory exceptions to this appellate jurisdiction are to be found in s. 52 of the Courts (Supplemental Provisions) Act, 1961, which provides that there should be no appeal to the Supreme Court from the High Court’s determination on a consultative case stated from the District Court save by the leave of the High Court, and s. 39 of the Courts of Justice Act, 1936 (which is applied by s. 48 of the Act of 1961) which provides that the decision of the High Court on an appeal from the Circuit Court under Part IV of the Act of 1936 “shall be final and conclusive and not appealable.” The only
1. 3  I.R. 147.
1. 4  I.R. 379.
1. 5  I.R. 232.
1. 6  I.R. 24.
1. 7  I.R. 11.
1. 8  I.R. 70.
 B. v. B. 64
1 I.R. Walsh J. S.C.
regulations which might be said to apply are those contained in the Rules of the Superior Courts, 1962, which came into operation on the 1st January, 1963. As the appellate jurisdiction concerned is one conferred directly by the Constitution then, subject to such exceptions and regulations as may be validly prescribed by law, the scope, extent and procedure of the appeal is entirely a matter for this Court.
The provisions9 of sub-s. 2 of s. 7 of the Act of 1961 cannot in any way be construed as limiting the jurisdiction already mentioned in sub-s. 1 of the same section which is that conferred by the Constitution itself in sub-s. 3 of s. 4 of Article 34. The jurisdiction conferred on this Court by sub-s. 2 of s. 7 of the Act of 1961 is additional jurisdiction which is operative only in so far as the subject matter of a particular appeal is not covered by the jurisdiction conferred by the Constitution and mentioned in sub-s. 1 of s. 7 of the Act of 1961. Furthermore, the High Court mentioned in Article 34 of the Constitution did not come into existence10 until 1961 and, therefore, there cannot be any question of the jurisdiction formerly exercised by the Court of Appeal in Southern Ireland or in the former Supreme Court of Justice limiting the appellate jurisdiction of this Court from decisions of the High Court established in 1961.
In the present case this Court decided to embark on an examination of evidence of facts which came into existence only after the determination of the proceedings in the High Court. This evidence was tendered, and the witness was cross-examined, for the first time in this Court and the evidence was undeniably relevant to the matters at issue.
For the reasons I have already stated, the power of this Court to take such evidence for the purpose of determining the appeal is inherent in the Court by virtue of its establishment and by virtue of the appellate jurisdiction conferred upon it by the Constitution. Section 24 of the Supreme Court of Judicature Act (Ireland), 1877, which dealt with the jurisdiction of the Court of Appeal in Ireland, has no application to this jurisdiction of the Supreme Court and is not in any way the statutory basis of the practice or jurisdiction of this Court and is of historical interest only: see The People (Attorney General) v. Bell .11 Order 58, r. 8, of the Rules of the Superior Courts, 1962 (which Rules owe nothing for their authority to the Act of 1877) does not confer this jurisdiction upon this Court but rather recognises the existence of the jurisdiction; the rule12 seeks to regulate to a very limited extent the hearing of further evidence by this Court when distinguishing between matters
1. 9 See p. 57, ante .
1. 10 See  I.R. at p. 16.
1. 11  I.R. 24.
1. 12 See p. 56, ante .
 B. v. B. 65
1 I.R. Walsh J. S.C.
which have occurred after the date of the decision from which the appeal was brought and other matters.
The examination of the further evidence in this case which was conducted in this Court was not the exercise of an original jurisdiction or a usurpation of a jurisdiction solely vested in the High Court. The right to hear evidence in determining issues of fact for the first time is not a function reserved solely to the High Court by the Constitution or otherwise. Furthermore, in my view the term “original jurisdiction” refers to the jurisdiction or the right to institute proceedings in a particular court and is something far more comprehensive than simply the hearing and determining of evidence in the determination of an appeal where that evidence forms but a portion or part of the total evidence upon which the appeal will be decided. If in the opinion of this Court on the hearing of any appeal the examination of further evidence by this Court is necessary or desirable then, in my view, the Court has ample jurisdiction within its appellate function to allow the appeal to be conducted on that basis. This is subject to such regulations or statutory provisions as may for the time being exist dealing with that topic.
I do not wish to express any opinion as to whether the Court has any jurisdiction, in circumstances such as arose in the present case, to send the particular issue back to the judge of the High Court for determination as a separate issue with a view to his findings on that issue being incorporated with his original findings so that the adjourned appeal could be continued in this Court with the new determinations of fact. In my view, however, if that could be done it would in most instances be the better course to follow because it would probably be both inconvenient and undesirable for this Court, except in the most exceptional circumstances, to delay the other business of the Court by conducting a time-consuming examination of oral evidence. If, however, the only alternative is to direct a whole new trial of the action because of the emergence of new evidence, then in my view that would be such an unjustifiably costly procedure that this Court would be more than justified in avoiding it by conducting the examination itself.
This present case was unusual in very many respects, not least of which were the length, complexity and gravity of the further evidence which was examined in this Court. It is, however, to be noted that in other proceedings in this Court, particularly in appeals in bail cases and appeals in habeas corpus applications, the hearing of further evidence is quite usual and in many of these cases it is absolutely necessary.
Having regard to the particular nature of the present case, I am of opinion that the Court was not merely acting within its jurisdiction but was fully justified in taking the course which it did.
 B. v. B. 66
1 I.R. Budd J. S.C.
[Having stated the facts, the judge continued . . .] Section 12 of the Act of 1964 provides that the court may vary or discharge any order previously made by the court under Part II of the Act which includes section 11. The most important provision of the Act is contained in s. 3 which provides:— “Where in any proceedings before any court the custody . . . of an infant . . . is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.” Section 2 of the Act provides that, except where the context otherwise requires, the word “welfare”, in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant.
The case was at hearing in private in the High Court for some 12 days. The transcript shows that it received a most careful and conscientious hearing by the learned trial judge. As he said in the course of his judgment, a lot of the evidence was directed towards fixing responsibility for the collapse of the marriage and much of it was irrelevant in determining the issue with regard to the custody of the children. This Court has the benefit of having before it the judge’s findings on the matters in conflict between the parties, and his views as to the characters of the parties from the point of view of their suitability to have custody of the infants in the context of what is best for their welfare. I do not intend to examine the details of the evidence given but rather to have regard to the overall effect of it together with the judge’s findings of fact thereon. I should add that the Court thought it desirable to see the children and, for my part, I would say that they seemed to me to be normal healthy and intelligent children.
The evidence reveals a most unhappy state of affairs as existing between the husband and wife owing to their incessant quarrels, many of a vicious nature. The husband has a violent temper and has been found guilty of assaults on the wife, at least one of them was of a very serious nature and caused the wife considerable pain and suffering. But the wife has a bad temper also and appears to have contributed in some measure to the break-down of the marriage. Her continued association with friends of hers, a married couple, against the express wishes of her husband who believed they were spreading unsavoury rumours about him, appears to be one of the major causes of the break-down of the marriage. However, the trial judge took the view that the husband must bear the bigger share of the blame for what occurred. This does not mean that the husband by his conduct has forfeited the right to have the custody of the children, if it be found that it is in the best interests of any one or more of the children to be placed in his custody.
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There is one particular matter bearing on the husband’s reputation which I feel should be dealt with. The Court decided by a majority to hear oral evidence with regard to certain charges of a very serious nature brought by a Miss R. against the husband. I concurred in the majority decision and I wish to say that I agree with the reasons for arriving at that decision which have been stated in the judgment just delivered by Mr. Justice Walsh. These charges were very fully investigated and I wish to say that I entirely reject the evidence of Miss R. In my view the charges made were completely untrue.
There are, I am glad to say, some further facts emerging from the evidence which alleviate the gloomy side of the family history. Both parents are wealthy and each of them is in a position to provide for the material comforts and the suitable education of any child who may be in his or her custody. This wealth also places both of them in the position of being free to devote their time to the children and their upbringing. Most important of all, it appears that both are extremely fond of and, indeed, devoted to the children.
In my view, the matter of the younger son’s custody does not give rise to any great problem. He is only six years old and I entirely agree with Mr. Justice Kenny in his view that young children are notoriously nearer to their mother than to their father. He is of an age when he requires the care that a mother can give to his physical needs, and he needs her maternal affection. From the point of view of the suitability of the wife to have the custody of the younger son, she has been found to be passionately devoted to her children. She has also been described as exceedingly intelligent and she has all the means necessary to provide for the material welfare and education of the younger son. His future education will be a matter for the concern of both his parents as joint guardians and it is to be hoped that its nature will be amicably agreed; if it is not, it can be decided on an application to the High Court when the views of both parents will be heard. I would affirm the order made as regards the custody of the younger son.
The learned judge’s order was made against the background that the elder son was at a preparatory school in Ireland of high standing which prepares boys for a secondary-school education. The judge’s understanding on the matter was that the elder son would go to one of the more expensive Roman Catholic schools in England. Some time after the order of Mr. Justice Kenny was made, the husband removed the boy from his preparatory school and did so without informing the wife, who is the boy’s other guardian, or the Court. The elder son has since been at a local day-school near the family home with his sister where the other pupils are boys and girls whom
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he would, in the ordinary way, be associating with in his everyday life. It is right to say that there were reasons connected with the health of the elder son which the husband felt justified his action in bringing the boy home, but that did not justify his failure to notify his wife of his intention. It is the husband’s own fault if a suspicion arises that he was not wholly motivated by a desire to do what would have been in the boy’s best interests in keeping him at home up to the present. It looks rather as if he were swayed by a wish to have the boy where he would be nearer to him than to his wife. His action was, in my view, an irresponsible one. Despite this incident, and forming the best view that one can in all the circumstances, it would still seem to be the most likely course of events that the elder son will in the near future go to a preparatory school, and that this probability should be kept in mind in considering what is the best course to adopt with regard to his custody.
It has to be reckoned against the husband that the learned judge found that he was unable to accept the husband’s evidence on some very material points and further found that the husband was guilty of assaults on his wife of a violent nature. These are matters which must count against him from the point of view of his suitability to have custody of the elder son in that the husband’s lack of veracity on some matters and an apparent streak of violence in his character are serious blemishes in his character and, at least, make one reflect seriously before committing a young boy to his sole custody. However, there are other aspects of the matter which claim attention also in considering the husband’s suitability to have custody of the elder son. The overall impression which I have received of the husband in his relationship with the elder son is that the husband is altogether unlikely to use violence towards him or to give him a bad example in matters pertaining to his moral upbringing. The judge has found that the husband is a devoted parent and takes the view that he gets on well with the elder son and is keenly interested in his education. It has also to be borne in mind that, if what I regard as the most probable course of events comes about, the elder son will have the benefit of having his moral and intellectual welfare looked after during the course of his school education.
There is another matter which has an important bearing from the point of view of all the children, including the elder son. I agree entirely that, in so far as it can be achieved with due regard to the paramount interest of each child, anything which may tend towards the unity of the family should be preserved. Anything which gives some hope for the reconciliation of husband and wife is of outstanding importance from the point of view of the welfare of the children. If the husband were to be deprived of all the children, I feel
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that the consequent ill feeling that would be bound to arise would be a major stumbling block to any worthwhile type of reconciliation between the parents. I feel that if the elder son is left in the custody of his father, for the present at any rate, a family link will have been preserved which is much in the interest of the elder son.
In considering the welfare of the elder son, I feel that it is a matter that should carry weight that he is now coming to the age where a boy tends to turn to his father for help and guidance in matters which perplex and worry a young lad. I do not think that what has been said against the husband is such that would militate against an ultimate decision to leave the elder son with his father in the boy’s best interests. I have some misgivings, but they are not such as would cause me to interfere with that part of the learned judge’s order concerning the custody of the elder son, whom I would leave in the custody of his father.
Mr. Justice Kenny found the decision that had to be made with regard to the daughter’s custody agonizingly difficult, and I would deduce that he found a good deal to be said on both sides of the problem. He appears to have been influenced in his decision in her case to some extent by his view that young children should have stability in their lives which he thought would be in part achieved by their having roots in some particular place which they would regard as “home,” and he pointed out that the family home was the place where she had grown up. I would also discern that he felt that it was an important factor regarding their welfare that the children should have the companionship of one another as much as possible. He felt that it would be better for the daughter to be in the place where the elder son would be during his holidays. In so far as the judge’s opinion on these matters reflects a view that it is of importance to preserve as much unity as possible in the family relationship between the children, I would agree with it; but I feel that the order does not achieve this object. The order was based on the understanding that the elder son would be left at his preparatory school. He has not in fact been left there; but it is still the most likely course that he will in the near future be at some preparatory school. Whether he be at his former school or elsewhere, the result of the order as it stands would be that the daughter will be alone with her father during the greater portion of the year while the younger son will be alone with his mother for the same period. I cannot feel that this is a happy result or that it is in the best interests of the daughter. On the other hand, if the custody of the daughter is transferred to the wife, the two younger children will be together in the same home which would be very much in the best interests of the daughter. Moreover, while I see the force of what the learned judge says about the
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advantages of a stable home, I see no reason why the daughter should not have such a home with her mother.
There is a most important further factor. I have already stated my agreement with the learned judge’s view that young children are nearer to their mother than their father, and that they need a mother’s care and affection. In my view, the daughter is still of such an age that she needs maternal care; more particularly so because she is a girl. I regard the importance of a young girl being with her mother as far outweighing such advantages as there are in her remaining in a particular house such as the family home, which is not an ancestral home.
Children of the daughter’s age adjust themselves quite quickly to changes of surroundings. Since I accept the learned trial judge’s view that the wife is unlikely to give way to fits of temper in so far as the children are concerned, there is no really substantial or sustainable objection to the wife as a person fit to have the custody of the daughter, any more than there is to the wife having custody of the younger son. The evidence, in my view, shows that the wife is a person entirely suitable to have the custody of the daughter and that view is supported by the learned judge’s finding that the wife has been friendly with and attached to her stepdaughters and has treated them with tact and affection. So far as the daughter’s education is concerned, the wife has ample means to provide suitable education at her home or elsewhere, and later to send her daughter to a convent boarding school which seems to be the present plan of both the parents. Again this is a matter on which it is much to be hoped that they will come to an arrangement which will be in the best interests of their daughter.
For these reasons I find myself unable to agree with so much of the order of Mr. Justice Kenny as places the daughter in the custody of her father. I would vary the order by directing that the custody of the daughter should be given to the wife in lieu of the husband subject, however, to similar provisions as to temporary changes in the care and control of the children as are contained in the order. I would also make it a condition of the transfer of the daughter’s custody that the wife should undertake not to allow her daughter to associate with Miss R. in any way; otherwise I would not interfere with the order. The wife’s appeal should, in my view, be allowed in part in the manner that I have indicated, and the appeal of the husband should be dismissed.
In the view which I have taken it is obvious that questions will arise as to the education of the elder son and the daughter. The elder son has been removed from his preparatory school against the spirit of the High Court order and without the concurrence of the wife. New plans for the daughter’s
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education would also have to be made if she is transferred to her mother’s custody. It is to be hoped that the parents will come to an agreement on this matter which will be in the best interests of the children. If they do not agree, the matter will have to be decided on application to the High Court by one of the parties.
I agree with the judgment of Mr. Justice Walsh as to the jurisdiction of this Court to hear oral evidence in relation to an issue of fact, when the necessity or desirability of so doing arises. I also agree that in the present case such a situation did arise and that the course adopted was correct. The evidence heard by this Court related to serious charges against the husband made by Miss R. I have no doubt that her evidence should be rejected and that the husband is entitled to a finding by this Court that the charges she made against him are completely unfounded.
The issue before this Court between the husband and the wife, who are now living apart, is in relation to the custody of their three children; the result will not affect the rights or responsibilities of either party as joint guardians of the children. That is the same issue which Mr. Justice Kenny had to determine when the matter was before him in January, 1969. Since that time some circumstances have changed and these matters must be taken into account by this Court in deciding upon the proper order to be made now. Inevitably, circumstances will again change in the future and, in the event of a disagreement between the husband and the wife, the matter may require to be re-submitted to a High Court judge from time to time to consider whether different arrangements in relation to custody should then be made.
[The judge referred to the facts, and continued . . .] Mr. Justice Kenny was satisfied that it was unnecessary for him to differentiate between the husband and the wife on the ground of financial ability to provide an adequate home and a suitable education, as each parent has independent and adequate financial resources. The judge was also satisfied that both parents had genuine affection for all three children. On the hearing before him, most of the evidence appeared to have been directed to a protracted and detailed investigation of the behaviour of each parent which was alleged to have contributed to, or caused, the break-down of the marriage. So far as the custody of the children is concerned, such evidence was relevant only to the character of the particular parent with a view to deciding whether the welfare of each child would best be served by its being left in the custody of that parent rather than the other. In the course of his judgment, Mr.
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Justice Kenny found that the major responsibility for the break-down of the marriage must be attributed to the husband, and the judge made a number of findings of fact which led him to this conclusion. Those findings of fact are, however, material in relation to the character of the respective parents and their suitability to have custody of the individual children.
I accept Mr. Justice Kenny’s findings of fact in so far as they relate to the conduct of the respective parents. I do not, however, accept his conclusions as to the proper order to make in the circumstances. First, I consider that he failed to have due regard to his own findings of fact in assessing the characters of the respective parties and their consequent suitability to have custody, having regard to the welfare of the respective children. Secondly, even assuming him to have been justified in regarding the parents as equally suitable to have custody of a child, I cannot accept that his decision to place the daughter in the same household as her elder brother, rather than with her younger brother, was justifiable on any basis—much less the basis upon which he put it.
In normal circumstances where a husband and wife have parted but are equally suitable to have custody of a child or children, it seems to be generally accepted that children of tender years should be left in the custody of the mother while they are of an age where they naturally turn to their mother for the care and attention which she naturally provides for them, and which the father cannot so readily supply. It also appears to have been generally accepted that as time passes the child’s demands upon its mother lessen somewhat with its development, and that the father is called upon to concern himself increasingly with the day-to-day problems of his son or daughter and has a capacity to cope with these problems. There is no hard and fast rule as to the age at which a court should consider the child sufficiently advanced to require the custody to be transferred from the mother to the father. There is a further matter which, in my opinion, is highly relevant and that is the sex of the child. While not wishing to lay down any hard and fast rule, I would think that in the case of a boy it is for his benefit, assuming that he is of normal health and mental development, that he should remain in the custody of his mother until he has reached the age of about eight years. In the case of a girl, I consider that it is not proper or for her welfare that she should be deprived of day-to-day contact with her mother at anything less than twelve years of age.
Mr. Justice Kenny, having (as I think) erroneously failed to relate his own findings of fact to the characters of the respective parents, dealt with the matter on the basis that they were equally suitable to have custody of the children and he gave custody of the elder son to the husband and custody
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of the younger son to the wife. He found the making of a decision in relation to the custody of the daughter to be “agonisingly difficult” but, in the result, he placed her in the custody of her father. His reasons for doing so do not commend themselves to me. The first is that he thought it would be better for the daughter to be in the place where the elder son will be during the holidays. The effect of the order of the High Court in relation to the holidays of the elder son, and his custody during that period, would have produced this result in any event as the holiday period in respect of all three children was equally divided, so that they spent one half of each holiday together in the custody of the wife and the other half in the custody of the husband. He next stated that he thought it probable that the daughter was closer to the elder son in affection and outlook than she was to the younger son. The members of this Court have interviewed the children and I found them healthy, normal children with obvious affection between them and nothing to indicate that the daughter’s affection was directed more towards the elder son than towards the younger son. Mr. Justice Kenny had not the advantage of interviewing the children; his supposition that the daughter was closer to the elder son in affection and outlook appears to me to be ill-founded. He further appears to have been influenced by his view that the wife’s intentions were vague in regard to what she would do if she was given custody of the daughter. At that time, having regard to the child’s age and the fact that the wife was in process of setting up her own home, I fail to see how she could be expected to have a cut and dried course for the daughter’s education. The situation is now different as the wife has acquired a permanent home and has made the necessary enquiries and arrangements to have both the daughter and the younger son attend the local schools which appear to be suitable for children of their age. If other things were equal and the character of the respective parents made them equally suitable as custodians, I would agree to Mr. Justice Kenny’s view that the elder son should be in the custody of the husband and that the younger son should be in the custody of the wife. But even on this basis I cannot agree that the daughter should join the elder son rather than the younger son. Mr. Justice Kenny went on to say that it is undesirable to divide the custody of children between husband and wife but that he thought that giving the custody of two children to the husband and one to the wife might lead both of them to make another attempt to live together. This I do not follow in so far as it relates to the custody of the daughter. The same object would be just as likely to be achieved if the wife had custody of two children and the husband had custody of one. I agree with Mr. Justice Budd that the advantage to the children of living at the family home rather than at the wife’s residence.
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if there be any advantage, is of minor significance in relation to the other factors to be considered.
Since the hearing before Mr. Justice Kenny the children have advanced by some 15 months in age. The wife has acquired a permanent residence convenient to schools for both boys and girls. The husband, without reference to the High Court and without consulting his wife, has removed the elder son from his preparatory school and has sent him as a day pupil to a school near the family home. The removal of the elder son from his school was necessary in view of the fact that he was ill consequent on picking up an infection and would clearly be better at home than finishing out the term in school. The husband’s decision to remove him permanently from his school does not appear to me to have been justified and certainly was not justified in the absence of consultation with his wife and having her consent to the withdrawal. In the absence of such consent, his failure to bring the matter before the High Court was, to say the least of it, high-handed. The husband must have realised that Mr. Justice Kenny’s decision on the custody of the elder son was on the basis that he would continue as a pupil at his preparatory school. This matter appears to me to be highly relevant in an assessment of the husband’s character.
In the course of the oral hearing before us, and quite independent of the unfounded charges made by Miss R., further facts emerged in relation to the domestic situation at the family home which indicated that, with the exception of a woman of mature years who has been employed since 1962, the rest of the staff on the female side were young and not experienced to a degree sufficient to be a reasonable substitute for the wife in the organisation or running of the house. It is to be noted that this mature woman was the one member of the present staff who was not called by the husband to give evidence. It further appeared that the husband’s eldest daughter by an earlier marriage, who is now aged 20 years and is at school abroad, has not been at home with her father since the summer of 1968 and has not been in communication with her father since December of that year. This fact was established by the evidence of the husband himself and was expressed by him in the terms that “so far as I am aware” she was still attending college. His evidence gives no indication as to the cause of the rift, if such there be, between himself and his eldest daughter, but it is of some significance that he offered no explanation of his failure to take any steps to re-establish communication with her. It is also to be noted that when the husband’s eldest daughter was at home in August, 1968, she met with an accident causing her an injury and that her stepmother (the wife), who had already left the family home and was living apart from her husband, returned and stayed in the house for the purpose of nursing her stepdaughter.
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I have regretfully come to the conclusion that, subject to a qualification in relation to the eldest son, the welfare of all three children would be better served at the present time by placing them in the custody of their mother. Mr. Justice Kenny in his judgment has dealt in detail, but not completely, with the allegations and counter-allegations made by each parent in relation to the other. In relation to the wife, he deals with the question of her conduct and behaviour under nine headings, of which at least two relate to the attitude towards the husband adopted by third parties. In regard to the remaining seven, he finds every fact in her favour except one which is to the effect that she has a very bad temper and becomes hysterical very quickly and sometimes uses very unpleasant language. He concludes, however, that he thinks it unlikely that she will get into a bad temper or use this kind of language when she is with the children, provided that her husband is not there. Consequently it appears to me that Mr. Justice Kenny was satisfied that the character of the mother was such that she was a suitable person to have custody of the three children, unless there was a better alternative available. He then goes on to set out the grounds upon which he thinks the father is competent to provide for the children. He does not specifically at that stage of his judgment state his conclusions on the various charges raised by the wife against the husband. It appears, however, from the rest of his judgment that the judge came to the conclusion that the husband had been untruthful in the witness box, that he had assaulted his wife on a number of occasions as a result of losing his temper, that he had assaulted his mother-in-law, and that some of the assaults on his wife were committed in the presence of the children. This finding, in my view, is of considerable importance.
I am forced to the conclusion that, taken by any reasonable standard, the husband’s appreciation of his own rights and responsibilities as a father is abnormal and that this, coupled with a temper which he is not capable of controlling, renders him at the present time unsuitable to have the custody of any of the three children, having due regard to their welfare.
His profession of his adherence to the requirements of his religion are somewhat difficult to reconcile with his first marriage outside the Church and his taking advantage of the divorce from his first wife to enable him to marry legally again. His charge against the wife that she would not be prepared to have the children educated as Catholics, in breach of the undertaking she gave prior to the marriage, has been found by Mr. Justice Kenny to be unjustified. The husband’s ridiculous performance in the witness box in the High Court, when he produced his rosary beads, indicates that his attitude on the religious topic is either irrational or bogus.
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While I accept that a father is justified in taking the view that he should be master in his own house, there appear to me to be certain limits within which a father is entitled to assert that authority. The husband claims the right to administer physical chastisement to his wife if, in his opinion, the circumstances require it. That view is not generally accepted nowadays. He further claims the right to administer physical chastisement to his children, but limited to cases in which the child has failed to tell the truth. He apparently regards any transgression by a child, no matter how serious, which is not connected with telling lies as not justifying him in administering corporal punishment. In my view, the distinction which he purports to draw between his rights in relation to correction of the wife on the one hand and the correction of a child on the other is quite irrational. His conduct in relation to a number of other matters also indicates a lack of stability and responsibility which leaves much to be desired. The letter which he wrote to his mother-in-law prior to his marriage, phrased as it was in coarse language, was quite disgraceful.
In addition to the nine headings under which Mr. Justice Kenny considered the wife’s conduct, he also found her guilty of a lack of loyalty to her husband in continuing to associate with a particular married couple having regard to her husband’s objection to that association. While I accept that such a finding was justified, it is difficult to reconcile the husband’s objection to this association with his somewhat tame interview with that married man when the husband purported to protest against that man’s conduct in publishing defamatory statements about the husband. I have considerable doubt as to whether this conflict between the husband and wife was really a major factor in the break-down of the marriage.
It is, I think, clear that the husband’s view of his rights and responsibilities are unsound. He appears to regard his rights as a father to be superior to those of the children’s mother. He further appears to regard his position as custodian of a child as excluding the wife, as a guardian, from having any rights relating to the care and upbringing of the particular child—and even as excluding the jurisdiction of the Courts in relation to these matters. He took it upon himself to come to a decision as to the schooling of the elder son when he took that son from the preparatory school without consulting his wife and without bringing the matter before the High Court, which had already made an order based on the boy continuing to attend that school. In the present proceedings he claimed the custody of the younger son and appealed against Mr. Justice Kenny’s finding that the boy should remain with the wife. Any serious consideration by the husband should have brought him to realise that, having regard to the boy’s age, it was obviously better that
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the child should remain with his mother. In my view, the husband’s persistent efforts to gain the custody of the younger son were not prompted by any real belief that the child would be better with him, but by a desire to deprive the wife of the pleasure and comfort of having the child with her. The husband appears to lay great store on his ability to organise the academic education of his children and on his ability to give them adequate instruction at home. It does not appear to have occurred to him that the education of children in the home depends very largely on the sort of example which parents give by their own conduct. In my view, the husband’s conduct in the home and in the presence of his children provides a very bad example for them.
With some hesitation I have come to the conclusion that I am entitled to take into account the possible effect of leaving the elder son in the husband’s custody subject to the boy returning to his preparatory school. It appears to me that, if he has custody of the elder son, the husband is more likely to maintain contact with his wife and the other two children than if they were all given into the custody of the wife. It would probably improve the chances, however remote, of the parents coming together. If it led the husband to a more rational appreciation of his continuing responsibility as a joint guardian and to a realisation of his responsibility for the break-down of the marriage and the splitting up of his family, it would undoubtedly be for the benefit of all the children. In these circumstances I think that the custody of the elder son should be left with the husband subject to the boy being sent back to his preparatory school, or some similar school.
Consequently I am of the opinion that the appeal by the wife in relation to the custody of the daughter should be allowed, and that the husband’s appeal in relation to the custody of the younger son should be dismissed.
I agree with the Chief Justice that these appeals should be dismissed and I agree in every respect with the reasons upon which he has based his decision. However, there is one matter which arose in the course of the hearing of these appeals upon which I feel bound to express an opinion. During the hearing an application was made on behalf of the wife to have received in evidence an affidavit sworn by Miss R. on the 20th January, 1970; this application was refused. Application was then made pursuant to Order 58, r. 8, of the Rules of the Superior Courts, 1962, for leave to introduce, by way of oral evidence, the matters of fact contained in the affidavit. Counsel for the husband consented to such leave being granted if he was permitted to produce oral evidence to rebut the allegations contained in the affidavit. The Court reserved its decision on this application until the arguments on the appeals
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originally taken had concluded, and at that stage counsel was informed that the Court, by a majority decision, would give leave for oral evidence to be given on behalf of both parties relating to the matters contained in the affidavit. It was my view that such leave should not have been granted; but it was not desirable that I should state my view until now.
The reasons upon which I base my view are twofold. The first raises a question as to the jurisdiction of the Supreme Court, and the second raises a question as to the particular nature of the relief sought and the relief that may be granted on an application in a case of this kind under s. 11 of the Guardianship of Infants Act, 1964.
As to jurisdiction, it is necessary to recite the relevant provisions of the Constitution and of the Courts (Supplemental Provisions) Act, 1961. Article 34, s. 3, sub-s. 1, of the Constitution provides:—”The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.” Section 4, sub-s. 1, of that Article provides:—”The Court of Final Appeal shall be called the Supreme Court.” Section 4, sub-s. 3, of that Article provides:—”The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court . . .” Apart from its jurisdiction as an appellate court, the Supreme Court has original jurisdiction under Articles 12 and 26 of the Constitution.
The Constitution does not define “appellate jurisdiction” but it does not limit its meaning and the Supreme Court is entitled to decide for itself, as it has done, that its appellate jurisdiction is not limited but is free and unfettered unless it is limited in some way by an Act of the Oireachtas which is not itself unconstitutional. The superior courts were established by the Courts (Establishment and Constitution) Act, 1961.
Section 7 of the Courts (Supplemental Provisions) Act, 1961, deals with the general jurisdiction of the Supreme Court as follows:—
“(1) The Supreme Court shall be a superior court of record with such appellate and other jurisdiction as is prescribed by the Constitution.
(2) There shall be vested in the Supreme Court—(a ) all jurisdiction which was, immediately before the commencement of Part I of the Act of 1924, vested in or capable of being exercised by the former Court of Appeal in Southern Ireland or any judge or judges thereof and was, immediately before the operative date, vested in or capable of being exercised by the existing Supreme Court . . .”
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The effect of this is to vest in the Supreme Court a statutory original jurisdiction of a limited kind because the former Court of Appeal in Southern Ireland had, in Southern Ireland, the jurisdiction of the Court of Appeal in Ireland and in particular the jurisdiction conferred by s. 24 of the Supreme Court of Judicature Act (Ireland) 1877, as follows:—
“24. The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment or order . . . of the High Court of Justice . . . For all the purposes of and incidental to the hearing and determination of any appeal within its jurisdiction, and the amendment, execution, and enforcement of any judgment or order made on any such appeal, and for the purpose of every other authority expressly given to the Court of Appeal by this Act, the said Court of Appeal shall have all the power, authority, and jurisdiction by this Act vested in the High Court of Justice.”
Order 58, r. 8, of the Rules of 1962 is similar in its terms13 to Order LVIII, r. 4, of the rules made under the Act of 1877. It is sufficient to quote this portion of rule 8:—”The Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact . . .” The terms of this rule are very wide but, in my opinion, they do not operate to confer on the Court a jurisdiction it does not otherwise have, and neither does the consent of the parties to the course that was adopted here operate to confer such jurisdiction.
Therefore, it is necessary to ascertain the extent of the jurisdiction of this Court to exercise High Court jurisdiction and the Court’s jurisdiction to receive evidence further to the evidence upon which the appeal is taken: in doing so it is important to have in mind the constitutional provisions that the High Court is invested with full original jurisdiction and that the Supreme Court has, as regards decisions of the High Court, appellate jurisdiction only. I concede that the Supreme Court is master of its own jurisdiction and of the manner in which it may exercise it. It is, of course, limited to the extent that it cannot entertain originating proceedings; but where an appeal brings an order of the High Court before this Court to determine whether such order should stand or be reversed (in whole or in part), or be amended, or to direct a new trial, this Court would clearly have jurisdiction to receive such evidence as it considers necessary for such determination. In my view, however, such evidence should be directed to an issue upon which the order of the High Court was based and not upon
13 See p. 56, ante .
 B. v. B. 80
1 I.R. McLoughlin J. S.C.
an entirely different and substantial issue of fact originating for the first time during the hearing of the appeal.
In this case the issue raised by the affidavit of Miss R., and by the oral evidence tendered, was an entirely new issue of fact alleging grave imputations of moral misconduct by the defendant committed at times subsequent to the decision of the High Court judge; the alleged misconduct was of such a nature as, if substantiated, would supersede any determination on the issues of fact raised before the trial judge and the subject matter of the appeals. The decision of this Court to entertain the further evidence was an appropriation by this Court of a jurisdiction not vested in it; it was an ousting of the jurisdiction of the High Court. As I see it, the proper decision to have given in the circumstances would have been to refer the case back to the trial judge for further hearing on the issue raised. Even if I am wrong in the view I have formed as to jurisdiction, I think that the Court in its discretion should have declined to receive the further evidence tendered, having regard to the nature of the order under appeal.
The order was made on an application under s. 11 of the Guardianship of Infants Act, 1964. Under s. 12 of the Act it is provided that “the court may vary or discharge any order previously made by the court . . .” An order made under s. 11 is, in no sense, a final order. Any new circumstances arising after the making of the order by the High Court judge (such as a change in the circumstances of the parents, a significant increase in the ages of the children, the conduct of the parents etc.) might justify a further application to the judge to vary the order previously made by him. On any such application evidence can be given of these changed circumstances; including the circumstances raised in the course of the fresh evidence given before this Court, and as to this fresh evidence the High Court judge would not be bound by any findings of fact which might have been made by this Court. A procedure which could result in conflicting findings of fact by the two Superior Courts is obviously undesirable.
Solicitors for the plaintiff: Matheson, Ormsby & Prentice .
Solicitors for the defendant: John P. Carrigan & Son .
 I.R. 54