Guardianship – Tilson – 1951

[1951] 1
1 I.R.
In the Matter of Tilson, Infants.
In the Matter of DAVID TILSON, ALAN TILSON, and PAUL TILSON, Infants, and In the Matter of the Courts of Justice Acts, 1924 to 1949, and In the Matter of the Constitution. MARY JOSEPHINE TILSON
, Applicant v.
ERNEST TILSON and Dr. T. O. GRAHAM, C. J. GUNNING, Miss VIVIAN SMYLY, Dr. CECIL P. SMYLY and Col. T. W. THOMPSON, the Trustees of Mrs. Smyly’s Homesand Schools
, Respondents.
High Court.
18 May 1950 24,25, 27 July 1950

Supreme Court.
31 July 1950 1,2, 3, 5 Aug. 1950

Infants – Habeas corpus – Custody and religious education – Protestant father and Roman Catholic mother – Ante-nuptial agreement by father that issue of marriage should be brought up in Roman Catholic religion – Infants baptized Roman Catholics and brought up as Roman Catholics – Father desiring infants to be brought up Protestants, removing them to Protestant Institution – Validity of ante-nuptial agreement – Welfare of infants- Whether mother entitled to custody – Whether right of father to direct religious education of children altered by the Constitution – Constitution of Ireland, Arts. 41, 42 and 44.
T. and B. were married on the 10th December, 1941, in a Roman Catholic church in Dublin, T. (the husband) being a Protestant, while B. was a Roman Catholic. T. signed an undertaking that any issue of the marriage would be brought up as Roman Catholics. There were four children born of the marriage, all boys, and all were duly baptized as Roman Catholics. Differences having arisen between T. and B., T. removed the three elder children from the home of B’s. parents (where T., B., and the children were then residing) and took them to live with his parents; he subsequently removed them to a Protestant institution. B. thereupon obtained a conditional order of habeas corpus ad subjiciendum, directed to the respondents, and, on the application to make absolute the conditional order, notwithstanding cause shown, it was
Held , by Gavan Duffy P., that the prospective general welfare of the children required that they should be returned to the mother to live in her home.
On appeal it was
Held by the Supreme Court (Maguire C.J., Murnaghan, O’Byrne and Lavery JJ.; Black J. dissenting).
1. Under the Constitution both parents have a joint power and duty in respect of the religious education of their children and if they together make a decision and put it into practice it is not in the power of either parent to revoke such decision against the will of the other.
2. An ante-nuptial agreement made by the parties to a marriage, dealing with matters which will arise during the marriage and put into force after the marriage, is effective and of binding force in law.
3. The former rule that the father has a right to break an ante-nuptial agreement as to the religion in which children of the marriage will be brought up has no place where the power of control over the religious education of the children of the marriage has been exercised; such a power is a joint power and is not revocable by one of the parties alone.
The Court accordingly directed that the children should be returned to the mother to be educated by her, if not by both parents, in the manner in which they had been taught pursuant to the ante-nuptial agreement.
In re Frost, Infants [1947] I. R. 3 distinguished.
Habeas Corpus .
Application to make absolute, notwithstanding cause shown, a conditional order of habeas corpus ad subjiciendum,
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dated the 18th May, 1950, directed to Ernest Tilson and other named persons being the trustees for the time being of Mrs. Smyly’s Homes and Schools, to have before the Court the bodies of David Tilson, Alan Tilson and Paul Tilson, infants, to abide the order of the Court. The application was made by Mary Josephine Tilson, mother of the infants. Affidavits by way of cause were filed on behalf of the said trustees.
The facts have been summarised in the headnote, and are fully stated in the judgment of Gavan Duffy P.
T. K. Liston, Senior Counsel , and J. R. Heavey for the prosecutrix.
W. H. Carson, Senior Counsel , and W. I. Hamill for Ernest Tilson.
E. S. FitzSimon , for the other respondents, undertook to abide by any order which the Court should make in the matter.
Gavan Duffy P. :— 27 July

This truly distressing case concerns four very young boys. Their father, Ernest Neville Tilson, a Protestant, married their mother, Mary Josephine Barnes, a Catholic girl, sixteen years old, in the Catholic Church, at Haddington Road, Dublin, on the 10th December, 1941, both parties having signed the promises that their children should be Catholics; he says that he married her, very properly, because she was expecting a baby. Of the four children, David had his eighth birthday in May, Alan is not yet six, Paul not quite six, and Neville about four-and-a-half; each boy was baptized in the Catholic Church, within a few days of his birth, with, as Mrs. Tilson says, her husband’s approval, and this averment is not denied. He is about thirty-three years old and now earns £5 14s. per week, as a labourer for the Corporation of Dublin; she is twenty-four and now earns £3 a week in a laundry, where she first began to work some years ago.
I extract the short history of this dispute laboriously from a confused mass of evidence, always hard to summarize when husband and wife fall out. I should certainly have convened a Court of three Judges, had it been practicable to do so, for a case of this kind, especially as this appears to be the first case to raise directly for decision a far-reaching issue, that is, the juristic value under the Constitution of an ante-nuptial agreement for the children’s religion, made by the parties to a “a mixed marriage.”
The parties first lived for some two years in the home of
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the wife’s parents at Turner’s Cottages, Ballsbridge, then for some eighteen months (a more promising plan) in a cottage of their own at Clontarf; then, again at Ballsbridge, where the wife’s parents sub-let one room to them for their sole use. They have spent most of their married life at Turner’s Cottages. The union has not been altogether happy; at times husband and wife have lived apart; there are charges and counter-charges, and I surmise that there have been faults on both sides. In 1949 Mrs. Tilson summoned her husband for maintenance and, eventually, last December, the District Justice effected a reconciliation and the parties resumed home life at Ballsbridge; Mr. Tilson undertook to pay his wife £4 a week and did so until last April. I see no need to review the evidence as to earlier disputes. He plainly resents her close association with her parents. He says that she twice refused to live with him elsewhere. She denies the charge in part and in part admits it, explaining her difficulties; but this is past history. He says that she dislikes house work.
The present dispute broke out on the 1st April, 1950. She says that he was drunk and violent and that in fear of him she sought refuge with her mother; he denies the charge and complains that she was keeping the boys away (as she had done before) in her parents’ rooms, and that, when he remonstrated, she brought back only the three elder boys. On the next day, a Sunday, according to the wife he went out and she spent the day with the boys; according to him, he did not go out, but his wife stayed all day with her people and left him to look after the boys and put them to bed. Whatever be the truth, he now embarked on a course which his best friends must realise to have been exceedingly ill-advised. It is typical of this kind of dispute that Mr. Carson in his vigorous argument for the husband, far from apologizing for his methods, indignantly denounces the wife because she is now resolved that he shall not live with her and the boys after his abreption of the boys, which I am about to describe, from their home, and their putting away in the “very suitable” academy of his choice, there to learn a new religion. Her statement, if indiscreet, was the honest and understandable cry of an anguished mother. On the 3rd April, while his wife was away at work, he suddenly and silently removed the three elder boys, first to the home of his parents at Oldcastle, fifty miles from Dublin, and then, about six weeks later, again without a word to their mother, he took the lads from Oldcastle to Dún Laoghaire, where he deposited the three boys in an institution called the “Birds’ Nest” or Mrs. Smyly’s Home, “designed for necessitous children,”
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arranging for their maintenance and education in that charitable retreat at the nominal charge of 5s. a week per head.
The mother’s affidavit avers that, on returning from work on the 3rd April, she found that all the children, except Neville, the youngest, were gone; that her husband refused to tell her where they were and said that she “would have a job finding out about them.” One can imagine the mother’s state of mind. She went to the police in vain. She went to an inspector of the Society for the Prevention of Cruelty to Children, with whom she had been in touch—in vain. Eventually, she says, her husband admitted having sent the children to his parents at Oldcastle; she arranged to go there, but before she could go she learned from her husband that he had removed them to the “Birds’ Nest.” She visited them there and immediately, on the 18th May, instituted these proceedings for habeas corpus to deliver and recover the three boys.
The father’s affidavit (sworn on the 19th June) says that on the morning of the 3rd April his wife left for her work and he decided to take the children to Oldcastle to his parents’ house “as there was nobody to look after them”; he then admits that up to this time his wife’s aunt, who lived in the house, was looking after the children while his wife was at work. He does not suggest that the aunt neglected the children; but he had always wanted his wife to give up her work and look after the children and not leave them to her aunt. This grievance is more understandable than the measures he took to correct it.
His affidavit then asks me to believe that “my wife did not ask me where the children were nor did I refuse to tell her”; she “knew there was only one place I could take them, namely, my parents’ house at Oldcastle.” He goes on to say that he sent her several notes from Oldcastle, asking her to come to see him; “I wanted to explain to her what I was going to do, namely, to put the children into the said Home, as I felt they were not being properly looked after in Turner’s Cottages.” So he had decided upon his drastic course of action in advance, but did not see fit to let her know in writing. He adds that she ignored his notes, and, when he met her, admitted having received them, but”walked away and said no more and would not talk to me”;and then, “I did not tell her that I had sent the children to Oldcastle, nor did I tell her that I had put the children into Mrs. Smyly’s Home; she found out that information for herself.” That, be it observed, is his own story.
He avows that, on the day when he took the children to the “Birds’ Nest,” he called and asked his wife (who did
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not know what he was.about to do) to let him take out Neville. This was the baby of the family, who was four-and-a-half years old. His pretext was a medical examination of the child (as the Home requires one); but his wife refused; he says that he wanted to put Neville with his brothers in order to have the children all together. One can only infer that the father’s feelings towards the mother of his children had become gravely embittered since the reconciliation in December; for nothing else explains (though nothing can condone) his monstrous behaviour towards his wife in removing her children surreptitiously and concealing their whereabouts.
Mr. Tilson signed three applications for the admission of the boys to the “Birds’ Nest”; the forms are exhibited on behalf of the Home, and, if I am to believe the endorsements written on them in the hand that filled up portions of the forms for him, he represented to the person who interviewed him that his wife had treated him very badly for some time”and has eventually deserted the children.” I make all possible allowances for a husband who has to live (as I infer that he thought he had to live) in an unfriendly atmosphere and for his annoyance with his wife, if he had or believed that he had just cause for it; but I find no excuse for the husband who commits her children and his to a paupers’ asylum upon a deliberately false allegation that their mother has deserted them. The rancour there displayed throws an unpleasant light on the whole episode. The secrecy remains unexplained.
Mr. Tilson, whose ante-nuptial promise does not give him any pause, then turns to religion; he deposes that he is a practising member of the Church of Ireland and wishes his children to be educated in his own faith. While he does not say that his wife is careless in her own personal observance of religious practices, he implies that she is not a good Catholic mother; he never knew her to teach the boys anything in the way of religious instruction, she only sent them to school and took them to Mass irregularly; he always objected; and he further objected, and told the priest that he objected, when David made his First Communion; his wife always knew that he did not wish the children to be brought up as Roman Catholics. His own relatives belong to the Church of Ireland, while all the members of his wife’s family at Turner’s Cottages are Roman Catholics. He goes on to say that he believes Mrs. Smyly’s Home to be a very suitable home for the children; he refers to an affidavit sworn by the secretary of the charity, who paints a charming picture of a delightful school for children, where (among other things) daily religious instruction is given; the affidavit does not
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specify the religion taught, nor does it bring before the Court the rules of the institution, nor the trusts under which it is administered; but I can safely ascribe the school to the Episcopalian Church, in view of Mr. Tilson’s anxiety that his boys should join that denomination, and the application form for admission is headed “Mrs. Smyly’s Homes for Necessitous Children in connexion with Irish Church Missions.”The secretary says that the children would be kept there, whether their father pays the 15s. a week or not; and I infer that their mother would be allowed, with their father’s consent, to visit her children there once a fortnight.
Mr. Tilson finally proposes, apparently as an afterthought, to send the children to his mother at Oldcastle, by way of alternative; I do not forget that they were lodged in the”Birds’ Nest” after spending some six weeks at Oldcastle, but an alternative is suggested, presumably, because it is realised that a Court will only send the children of living parents to a charity home with very great reluctance. There are seven rooms in the house at Oldcastle and a garden and an open field, where the children can play. Mr. Tilson’s father and mother and a brother and sister reside there in reasonably comfortable circumstances. There are a Protestant school and church close by. The family knows the children, and Mr. Tilson’s mother, who evinces no enthusiasm for this project, says that she is prepared, if necessary, to permit them to reside with her. It is clear, so far as comfort and amenities are concerned, that the boys would live in more attractive surroundings at Oldcastle than in Ballsbridge. As to their happiness, their father nowhere suggests that they have not been very happy with their mother.
One other statement in Mr. Tilson’s affidavit deserves attention. He says that last May eleven persons resided in the cottage at Ballsbridge, his wife and Neville, her father and mother and aunt, her brother and two sisters, her grandmother and two children of another sister. The four-roomed cottage is thus badly congested and the inference is that the boys would fare much better in the more spacious house at Oldcastle.
I find that upon the whole of the father’s evidence the outstanding fact still remains without adequate explanation; despite his reconciliation of last December, he has now himself uprooted his own family. That was really a dreadful measure to take, and his precipitate recourse to it required the most serious and convincing reasons to justify. I do not find them in his affidavits. The secrecy of the seclusion of the boys in Mrs. Smyly’s Home also called for any reasonable explanation that Mr. Tilson could advance.
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I come to the wife’s answering affidavit. She gives a satisfactory account of the children’s Catholic upbringing, corroborated as to David by two school-teachers. She pays David’s subscriptions to two Catholic magazines. She swears that their father never objected to their attending school or Mass, nor to their Catholic education, although he twice took them to a Protestant service; he never objected until David’s First Communion, in May, 1949, when he saw Father Harley, but he finally agreed; this he denies. She presents him as quite indifferent to the practice of his religion.
Mr. Tilson, she says, was anxious to marry her, but her parents objected strongly. Father Brendan Harley deposes that a first appeal for a dispensation for the “mixed marriage” was refused, but on a second application he was deputed by the parish priest, the Most Reverend Dr. Wall, Bishop of Thasos, to see Mr. Tilson, who came personally and convinced the priest that he was sincere and would keep his promise, with the result that a dispensation was granted on the promises written out by each party and signed in the presence of two Catholic priests; the marriage could not have been celebrated without the dispensation, which would have been refused had the fulfilment of the promises been in any doubt. (Throughout this opinion I think I may use the expressions, ante-nuptial “promises,” “undertaking”and “agreement,” indifferently where parental obligations and rights are concerned, as distinct from any claim asserted under the law of contract.)
The wife adds that, when the dispensation was refused, Mr. Tilson never suggested a marriage outside the Catholic Church. Further, she denies his objection to her going out to work and adds that last February he expressly agreed to her doing so. I note, too, that the family’s own room at Ballsbridge measures 18 feet by 12 feet.
Mr. Tilson replies; he denies having assented to her going out to work. He says he had no option but to marry in a Catholic church, as her parents insisted, though she would have married him in a Protestant church. He now says that he never knew his wife to say any prayers and, while at Clontarf, she never went to Mass; he never knew his wife to teach the boys their prayers; he repeats that he constantly objected to their going to Catholic schools and to Mass; they only went to Mass “periodically.” He says that he does take his religion seriously, as he goes to church regularly at least once a month and sometimes more often. He throws no further light on the vague, but serious, charge, made by way of explaining his resort to the “Birds’ Nest,”that he felt that the boys were not being properly looked
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after at Turner’s Cottages. But I think his main ground is her “avowed intention . . . to bring them up as Roman Catholics contrary to my wishes” (in his first affidavit), if she obtains their custody.
I have seen David. I was considerably impressed by evidence from his two teachers, showing that he has a good mother. Miss Ryder, who taught him for two years until the end of June, 1949, deposed that he was exceptionally clean in his habits and attended school most regularly; while Miss Traynor, who taught him from July, 1949, until March, 1950, found him to be a well-cared-for child and always exceptionally neat and clean. Those are notable tributes to the child’s upbringing. David is a nice, upright, but very young boy. He wants to be a soldier in the Irish army. He is happy at the “Birds’ Nest”; the boys have been allowed to see their mother and little Neville there every Sunday. He used to enjoy a holiday at Oldcastle and would like to live there, but he likes Turner’s Cottages better. He is very fond of one of his former teachers; he used to go to confession once a month and remembers his Catholic prayers. He is taught a different catechism now; he volunteered no preference and I found him too young to question on the two creeds; he gave me an extremely childish version of one of St. Patrick’s exploits. I think he is attached to both his parents. The boys seem to have been treated kindly at the “Birds’ Nest” and at Oldcastle, as well as at home.
The parties to this unhappy dispute are Irish citizens, domiciled in Ireland, and the consequences of their difference have to be determined in the light of the Constitution of Ireland, Article 50 of the Constitution preserved the laws in force, subject to the Constitution and to the extent to which those laws are not inconsistent with it. I shall therefore begin by touching upon the previous law.
Until the Constitution of 1922 was enacted the law in Ireland on the issue now before the Court followed the law of England as a matter of course, nor was our law notably altered before 1937, the year of our present Constitution. A father’s extensive rights (including posthumous authority) over his children were well settled; if mid-Victorian doctrinaires construed the paternal potestas as paternal despotism in such an extreme instance as the second Agar-Ellis Case (1) ,judicial opinion in England had mellowed before an Act of 1925 reformed the English law in favour of mothers; see the speech of Viscount Cave in Ward v. Laverty (2) . But, as long ago as 1828, a great jurist told an appellant father
1. (1) 24 Ch. D. 317.
1. (2) [1925] A. C. 101, at p. 108.
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(who was a reprobate) in the House of Lords that the custody of his children was given to a father, first, for their protection, and then, for their care and education, and declared —a position that has been constantly maintained—that the father’s power was always considered a trust: Lord Redesdale in Wellesley v. Wellesley (1) . Our own law, however, on paternal authority, generally, has been considered recently by the Supreme Court in In re Kindersley (2) , and In re Frost, Infants (3) , and In re Corcoran (unreported); so that I need only, before approaching the Constitution, make a brief survey of the former law for ante-nuptial agreements concerning the religion of the children, as that law gradually developed in the Courts of Ireland and of England, because our present law on that particular topic was expressly left open by the Supreme Court in Frost’s Case (3) .
I may pass over the earlier law, since the first reported case directly in point appears to be In re Browne, a Minor (4) ,concerning a girl of nine whose parents were both dead; a Catholic father was alleged to have agreed verbally before his marriage that the children were to be brought up as Protestants. A Master in Chancery refused to give effect to that agreement, because an agreement made in consideration of marriage is not enforceable, under the Statute of Frauds, if it is merely oral. On appeal, Cusack Smith M.R. found the evidence of the agreement unsatisfactory, but, assuming the existence of a contract for valuable consideration, he dwelt on the difficulty of enforcing it and proceeded to hold that an attempt by a Court of Equity to enforce it would be “detrimental to the interests of the public”; the learned Judge was not addressing himself to the legality of the agreement, but to its lack of binding force and to public policy as a reason for refusing to enforce it.
Hill v. Hill (5) was a case in England ten years later (1862) of another alleged ante-nuptial agreement, without writing, concerning his children’s religion by an indifferent Catholic, who died when his eldest child was seven years old; here, again, the agreement alleged was not proved. I cite the case only because Lord Hatherley (then Page Wood, V.-C.) spoke cautiously of a father’s duty to give religious instruction to his children as a duty which the Court would to a certain extent prevent him from abdicating.
Far more important is In re Meades, Minors (6) , in 1870— a contest after a Catholic mother’s death as to children of eight and nine years between her sister and their living
1. (1) 2 Bli.N.S. at pp. 124, 128, 129, 132.
1. (2) [1944] I. R. 111.
1. (3) [1947] I. R. 3.
1. (4) 2 Ir. Ch. R. 151.
1. (5) 31 L. J. (Ch.) 505; 10 W. R. 400.
1. (6) I. R. 5 Eq. 98.
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Protestant father; Lord O’Hagan L.C. declared (at p. 103) that a father’s authority to guide and govern the education of his children was a very sacred thing, bestowed by the Almighty and to be sustained to the uttermost by human law; it was not to be abrogated or abridged, without the most coercive reason; he then held (at p. 111) that an ante-nuptial agreement, though solemn and openly avowed, that the children should be Catholics “was not of binding force in law,” citing for that pregnant postulate In re Browne, a Minor. (1)
The leading English decision, Andrews v. Salt (2) followed in 1873. The Court of Appeal held an ante-nuptial agreemen as to the children’s religion not to be binding as a legal contract and not to be enforceable by a suit for specific performance in equity; “we think that a Father cannot bind himself conclusively by contract to exercise, in all events, in a particular way, rights which the law gives him for the benefit of his children, and not for his own” (at p. 636). The Court further held that a father might by his conduct lose his right even in his own lifetime; on the evidence, not only had the deceased father, a Catholic, promised his wife verbally before the marriage that any girls should be educated as Protestants, but that promise had actually been carried out without serious objection from the Catholic testamentary guardian after the father’s death until the girl before the Court was nearly nine years old; the Court was convinced that the father had not objected because, as between himself and his wife, he felt bound by the promise and dared not tell her that he intended to break it (as he had tried to do by his will). Accordingly, by reason of the acquiescence by the father in the performance of his promise, the Court left the little girl with her mother, to be brought up a Protestant.
Perhaps paternal prepotency reached its pinnacle in the distressing Agar-Ellis Cases , the first of them decided in 1878 and reported at 10 Ch. D. 49. The ante-nuptial promise had been made by a Protestant gentleman about to marry a Catholic; there were three girls, aged twelve, eleven and nine years, whom the Court found their mother to have brought up surreptitiously as Catholics on the faith of the promise. James L.J., after deploring the girls’ indoctrination with the peculiar tenets of the mother’s Church and the expression of those tenets in such practices as “the adoration of the Virgin,” said that it was conceded by counsel, and in truth was on principle and authority (quaere what authority?) settled so as to be beyond question or argument
1. (1) 2 Ir. Ch. R. 151.
1. (2) 8 Ch. App. 622.
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that the ante-nuptial promise was in point of law “absolutely void” (pp. 70-71); and the Court refused to interfere with the exercise of the father’s jurisdiction, because it recognised his “undoubted right as master of his own house, as king and ruler in his own family” (p. 75); the Court would not see even the older girls, holding that the Judges have no right to sit in appeal from the conclusion of a good and honest father who believes it to be right and for their welfare, temporal and spiritual, to take means to counteract the mother’s teaching and undo its effect (p. 74). Despite the vigour of this pronouncement, the English and Irish Courts, under the influence of equity, have constantly asserted the paramount importance of the welfare of the children.
The doctrine of Andrews v. Salt (1) discounting ante-nuptial agreements as to religion was accepted in such cases as In re Clarke (2) in 1882 and In re Violet Nevin, an Infant (3) ,and was well established in England and in Ireland before the Treaty. In In re Story (4) , Gibson J., in the course of a memorable judgment on the law of patria potestas , said that, save by a deed of separation, a father could not divest himself by contract, before or after marriage, of his paternal obligations and rights. Accordingly, I recognise that the law was settled against treating the ante-nuptial agreement as an enforceable contract, whatever effect a Court in its discretion might give to the spirit of the agreement for the benefit of a child of a “mixed marriage,” where a father had either acquiesced in the consequences of the agreement or disregarded his paternal trust.
I confess that, having delved into the case law, I discern there no clear principle to justify the doctrine that a father is free to repudiate his ante-nuptial agreement. Sometimes the doctrine seems to have rested on such practical considerations as that there can be no decree for specific performance, that no damages are recoverable, and that it would be hard to compel a father to pay for education in a religion that offends him; sometimes the doctrine sought refuge in an elusive public policy; but that may be a serious (and the only serious) argument, if it is valid.
The plea of public policy is perplexing; the law, while purporting to recognise “the voluntary union for life of one man with one woman to the exclusion of all others,” boggled at an agreement appointing for the children one creed to the exclusion of all others; though not renounced, the paternal trust was somehow impaired by an ante-nuptial pact committing a man in advance to exercising a holy
1. (1) 8 Ch. App. 622.
1. (2) 21 Ch. D. 817.
1. (3) [1891] 2 Ch. 299.
1. (4) [1916] 2. I. R. 328.
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mission in that particular way; if a man discovered, or rediscovered, a better religion during his marriage, his sacred trust, I suppose, required him to share the boon with his progeny. The plea implies that the paternal trust is more sacred in the eyes of the law than a man’s sacred ante-nuptial agreement; perhaps the explanation is that the paternal trust, being of divine origin in the eyes of the law itself, could not be abrogated by a pious promise bound up with the religious “forms and ceremonies” of a particular wedding, considered as the accidentals of a marriage which, in the eyes of the same law, could have been solemnised with equal efficacy in the office of a civil registrar.
I have the temerity to prefer a principle of public policy that would imperatively require a man to keep faith with the mother whom he has induced to wed him by his categorical engagement to respect her convictions in the supernatural domain of her children’s creed, at least when that promise is shown to have been of grave importance to her, as it must be to a Catholic. But, if the Constitution is found to have superseded the former judge-made law, saved in England by the rule of stare decisis when it became an anachronism with the decay of religion, the public policy of other days will have no significance for us.
I shall not decide this case on the law of contract and therefore need not consider whether under the form of promises in use in 1941 there was a valid “agreement made upon consideration of marriage” within s. 2 of the Statute of Frauds, 1695 (7 Wm. III, c. 12 (Ir.)).
I recall that Sir John Romilly M.R., in Laver v. Fielder (1) made the following impressive pronouncement:—”It is of great importance that all persons should understand that when a man makes a solemn engagement upon an important occasion, such as the marriage of his daughter, he is bound by the promise he then makes. If he induce a person to act upon a particular promise, with a particular view, which affects the interests in life of his own children and of the persons who become united to them, this Court will not permit him afterwards to forgo his own words, and say that he was not bound by what he then promised. It is upon these principles that the Court has acted in all such cases: it exercises its jurisdiction for the enforcement of the truth, and makes a man’s acts square with his words, by compelling him to perform what he has undertaken.” The Master of the Rolls was speaking of a father’s undertaking on his daughter’s marriage as to the property that she would take on his death. But his salutary rule was found quite
(1) 32 Beav. 1, at p. 12.
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inappropriate to an ante-nuptial agreement whereby a man had had the hardihood to commit his future children to a particular creed.
In the United States ante-nuptial agreements as to the religion of future children are, I understand, upheld generally (see Williston on Contracts, 1936, 1744a, note) and the compact has been recognised as an integral part of a Catholic wife’s consortium ( Jaynes v. Jaynes (1) ); these sources are cited in Ramon v. Ramon (2) , where O’Brien J., in the Domestic Relations Court of New York City, had to try a suit between a Catholic husband and his Protestant wife; their child, a girl of eight, had been baptized and brought up a Catholic; her mother sent her to a Protestant school in breach of a written ante-nuptial agreement, and the father sought redress. O’Brien J. in a trenchant judgment held the following (among others) to be established rules of law:—
(a ) An ante-nuptial agreement for the Catholic faith and education of the children, in reliance on which the status of the Catholic has been changed irrevocably, is an enforceable contract with a valid consideration.
(b ) The Court will take judicial notice of the religious and moral obligations of the parties.
(c ) The spiritual and Catholic training of a child amid religious persons or institutions of its own faith is paramount over any material considerations.
(f ) The Court will take judicial notice that the Catholic Church is the only church whose members are bound under penalty of excommunication to require Catholic training and education of their offspring.
(The judgment appears from an American Digest of 1949 to have stood unchallenged. By the Domestic Relations Law of New York a contract made in contemplation of marriage remains in full force after the marriage and the parents have equal rights and duties; but I think the extracts above given are manifestly the learned Judge’s pronouncements on the general law, and Mr. Liston for the prosecutrix relies on the judgment.)
I come to the Irish Constitution. We are a people of deep religious convictions. Accordingly, our fundamental law deliberately establishes a Christian constitution; the indifferentism of our decadent era is utterly rejected by us. The Irish code marks a new departure from time-honoured precedents which are not ours and gives us a polity conceived in a spirit and couched in a language unfamiliar to the jurisprudence which dominated the United Kingdom of Great Britain and Ireland.
1. (1) 39 Hun. 40.
1. (2) [1942] 34 N.Y. 2nd. 100.
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The Preamble—I use the official translation—opens the Constitution “In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred”; that initial invocation explicitly acknowledges the supremacy of the moral law founded on Christian doctrine. In the same spirit the Charter proceeds to derive all powers of government, under God, from the people and concludes, “Dochum Glóire Dé agus Onóra na hÉireann héireann .”
Under the title “Fundamental Rights” the Constitution devotes article 41 to “The Family,” article 42 to “Education”and article 44 to “Religion,” here again voicing the cherished convictions of a pious people who revere the Christian moral order. In article 44 the State “acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.” Then “the State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens”; and it recognises the Church of Ireland expressly, as well as other religious denominations (including the Jewish Congregations) existing in Ireland. Freedom of conscience and the free profession and practice of religion are guaranteed and the imposition by the State of any disabilities and the making of any discrimination on the ground of religious belief are forbidden.
Thus religion holds in the Constitution the place of honour which the community has always accorded to it in public opinion. The right of the Catholic Church to guard the faith of its children, the great majority, is registered in our fundamental document, while non-Catholics are assured that their principles shall be respected.
Articles 41 and 42, redolent as they are of the great papal Encyclicals in pari materiâ , formulate first principles with conspicuous power and clarity. In article 41 the State”recognises the Family as the natural primary and fundamental group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”; the State “guarantees to protect the Family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.” The State is pledged “to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack”; and”no law shall be enacted providing for the grant of a dissolution of marriage.”
Article 42 breathes the same spirit. The State “acknowledges
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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 exceptional cases, where the parents fail in their duty towards their children, the State, as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents,”but always with due regard for the natural and imprescriptible rights of the child.”
The strong language of these articles arrests attention; it must have been chosen of set purpose, because the grave subject-matter demanded that Ireland to-day should define her position in unequivocal terms. Thus, for religion, for marriage, for the family and the children, we have laid our own foundations. Much of the resultant polity is both remote from British precedent and alien to the English way of life, and, when the powerful torch of transmarine legal authority is flashed across our path to show us the way we should go, that disconformity may point decisively another way.
Unity of religious direction is necessary to any child’s instruction in any creed. A Victorian Court, seventy-five years ago, is said to have sent a minor to a place where she would experience both Catholicism and Protestantism and so judge for herself: Re Pennington (1) . In England Kekewich J. rejected a solution of that kind in In re W. v. M. (2) , and I recall the vagary only to emphasise the different outlook in Ireland, where religious instruction is, I think, well understood to mean education in a specific creed; and that is what the familiar ante-nuptial agreement seeks to ensure; and that is also the “religious education” contemplated by the Constitution.
The cardinal position ascribed to the family by our fundamental law is profoundly significant; the home is the pivot of our plan of life. The confused philosophy of law bequeathed to us by the nineteenth century is superseded by articles which exalt the family by proclaiming and adopting in the text of the Constitution itself the Christian conception of the place of the family in society and in the State; hence an ante-nuptial agreement, made to be effective within the ambit of the parental sphere and to reinforce in its vital religious role that indispensable moral institution, that fundamental unit of society, in a State which honours and respects religion, has a claim to the most serious consideration in our Courts.
1. (1) 2 V.L.R. (E.) 49.
1. (2) [1907] 2 Ch. 557, at pp. 561, 562.
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The ante-nuptial agreement in the present case took the form of separate promises by the spouses, as follows:—
“St. Mary’s, Haddington Road, Dublin.
I, the undersigned, do hereby solemnly promise and engage that all the children of both sexes who may be born of my marriage with Mary Barnes shall be baptized in the Catholic Church, and shall be carefully brought up in the knowledge and practice of the Catholic religion; and I also solemnly promise and engage that I will not interfere with the religious belief of Mary Barnes, my future wife, nor with her full and perfect liberty to fulfil all her duties as a Catholic.
(Sgd.) Ernest Neville Tilson,
12 Turner’s Cottages, Ballsbridge.
28th November, 1941.
“Witnesses:
Brendan R. Harley, C.C.,
St. Mary’s, Haddington Road,
Dublin.
Cornelius Skehan, C.C.,
St. Mary’s, Haddington Road,
Dublin.”
and
St. Mary’s, Haddington Road, Dublin.
I, the undersigned, do hereby solemnly promise and engage that all the children of both sexes who may be born of my marriage with Ernest Tilson shall be baptized in the Catholic Church, and shall be carefully brought up in the knowledge and practice of the Catholic religion.
(Sgd.) Mary Josephine Barnes,
12 Turner’s Cottages, Ballsbridge.
28th November, 1941.
“Witnesses:
Brendan R. Harley, C.C.,
St. Mary’s, Haddington Road,
Dublin.
Cornelius Skehan, C.C.,
St. Mary’s, Haddington Road,
Dublin.”
Mr. Tilson wrote out and signed his promise and Miss Barnes wrote out and signed hers and the same two priests witnessed each signature. These were the “required promises,” as Father Harley terms them; both spouses knew that they
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had to make them before the Catholic Church would permit their marriage.
In the absence of expert evidence on the directly relevant Canons of the Code of Canon Law (which I should have welcomed) I must confine myself to the briefest comments on these two documents: the making of them constituted one transaction; the promises were concurrent; and they were reciprocal, because each promisor promised on the understanding that the other was making his or her promise and for the immediate and common purpose of being enabled through the two promises to marry in the Catholic Church; that purpose was achieved at the price for the non-Catholic, not of any abandonment of duty (if he was sincerely able to make the promise), but of a curtailment of paternal power when he and his future wife concurred by their promises in defining in advance the manner in which the parental duty was to be exercised in the all-important matter of religious education. The non-Catholic was willing to pay that price in order to secure his marriage; the wife was satisfied with his undertaking which enabled her to marry him; and the Church accepted the solemn declaration of the non-Catholic, which it had reason to believe sincere, coupled with that of the Catholic spouse. I need make no closer analysis for my immediate purpose, if these conclusions are correct.
Even the formal proof of the Code without expert evidence would have been useful; without proof I cannot safely refer to the text. Perhaps the revelant Canons were part of the old Common Law and are again a part of it now that no Reformation law remains to suppress their vigour. Possibly the constitutional recognition of the special position of the Catholic Church would authorise our Courts to take judicial notice of Canon Law; but I cannot decide those questions without full debate. Observe that Canon Law is pertinent to the issue as being the key to the ante-nuptial agreement; the parties knew that agreement to be a pre-requisite to their intended marriage under Catholic law, though they had not seen the text, and it is settled law that in the construction of every document the Court ought to know all material facts known to the parties at its date. However, as the evidence stands, I must decide this case without reference to the text of the specific Canons; and Father Harley’s brief mention of the requirements of the Church will suffice for my purpose.
Quite apart from Canon Law, the doctrine of articles 41, 42 and 44 of the Constitution appears to me to present the ante-nuptial agreement of the parties upon the creed to be imparted to their future children in a new setting and,
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subject to the welfare of the particular infants concerned, to invite recognition of the agreement in our Courts as a compact that serves the social order in Ireland, because the agreement, far from conflicting in any way with those articles, is consonant with their spirit and purpose and tends directly 1, to safeguard a marriage which cannot be dissolved; 2, to safeguard the harmony of the projected family, and 3, to safeguard the innate and imprescriptible right of the child to religious education, its most precious inheritance in the eyes of a Christian State. I apprehend that this Court is bound under the Constitution to cherish that inheritance of helpless citizens. Consequently, however wide the unfettered patria potestas may be, a judicial theory, which, under cover of public policy would freely allow a father to spoil his children’s birthright by uprooting their creed at his pleasure in plain defiance of his gravest express obligations undertaken as husband and father, can find no place in a jurisprudence moulded to fit the Constitution of Ireland, whether the agreement be held to give them a moral claim before the Court or a legal right.
Let us reflect for a moment on the situation as it presents itself to a Catholic and a Protestant who propose to marry under the law of Ireland: they must contemplate a permanent union and nothing less, for they know well that the law of the Catholic Church and the law of the State combine to forbid divorce; since the end of marriage is “generatio et educatio prolis, ” they hope to found and rear a family; their children will have a constitutional right to religious instruction, which the parents will be bound to provide; for the Catholic parent that teaching will have to be instruction in the Catholic faith and in no other; but the Catholic spouse may not marry without securing the faith of the children in the manner prescribed by the Catholic Church and, therefore, a sincere Catholic must insist on having the ante-nuptial agreement signed by the Protestant spouse, if relations are not to be broken off. These marriages are sternly discouraged and the choice may sometimes be a hard one; when the Protestant believes the Catholic faith to be an offence against Almighty God, he or she cannot give the required promises in violation of conscience; on the other hand, where the Protestant is willing to sign and does sign and then marry in a Catholic church, the Catholic spouse will by means of the signature have been deliberately induced to accept an irrevocable change of status on the marriage and to enter upon a lifelong union. The execution of the agreement by the Protestant spouse is therefore a momentous act.
In may view, a man may vis-à-vis his wife estop himself
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in law by the agreement, followed by marriage and the birth of a child; and again by allowing the child to be baptized a Catholic, whether or not he knows of the status conferred by the sacrament according to Catholic doctrine; and again by allowing his child to be brought up a Catholic in compliance with his promise. But I take a broader ground.
The simple, clear and positive consequence of the ante-nuptial agreement, made to comply with the rule of the Catholic Church, is this—that by the express compact of the parents 1, the constitution of their particular family (which our Constitution protects) is to be Catholic to the extent required by their promises, and 2, their parental authority (which our Constitution protects) is to be exercised over the children of the marriage in the Catholic way to the extent required by their promises.
There are sincere persons who still accept the Victorian conceit which invoked the paternal trust and public policy to convert into waste paper a solemn pact as to the religion of his children made by a Protestant father before marriage with a Catholic in deference to the adamantine law of his wife’s Church. Under that judge-made doctrine a man could induce a lady, perhaps an heiress, to marry him by gross deception upon one of the most sacred matters of her life and then, after the wedding, repudiate his engagement at any time, leaving his victim, now his wife, without any redress in a Court of Justice.
In my opinion, that is not the law of Ireland and there is under our law no injustice, no impropriety and no denial of first principles in holding the man to his pledge; he is free in law to change his own religion, whether from conviction or caprice, but, as to his wife and children, the scrupulous performance of his religious undertaking is their due under a Constitution impregnated with deep respect for religion; I have said enough to make my reasons clear.
In my opinion, an order of the Court designed to secure the fulfilment of an agreement, peremptorily required before a “mixed marriage” by the Church whose special position in Ireland is officially recognised as the guardian of the faith of the Catholic spouse, cannot be withheld on any ground of public policy by the very State which pays that homage to that Church.
In my opinion, the highest interest of this community and of this State demands that the parties, whose marriage is permanent, shall be informed by the High Court of Justice that the ante-nuptial agreement upon religion is treated under the law of Ireland as a weighty factor in a contest between parents as to their children’s creed, and a factor by no means
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to be displaced except by a factor of greater weight. I discern no such factor here.
As to a “forced marriage,” whatever credit may be due to the man who makes it, I do not see how he can on that account claim to repudiate his ante-nuptial agreement.
I still have to examine the paramount consideration, the welfare of the little boys. It will be useful to survey the prospect first as if there were no religious controversy concerning the innocent victims of their parents’ disagreement.
I think the interest of the four children points to their mother’s custody. No argument is necessary to show that these lads ought to grow up together as one family and that the young family ought to be kept under its mother’s wing, unless there be a cogent reason for separating her children from her. It was not adequate reason, though a constant source of irritation, if true, that she went to work against her husband’s will and confided the boys to her aunt during her absence; more serious, if true, is his complaint that she would sequester herself and the boys in her parents’ part of the house without just cause, though I am left to guess how often and for how long she may have done so this year since the reconciliation in December last. But, if his story be true at this point and if he is not magnifying isolated incidents and if I assume that her conduct wounded him, he took very desperate methods to redress his grievance. He snatched the three elder boys from their home with a callousness —indeed, with a brutality towards his wife and their mother—that gravely discredits the perpetrator. To-day that brusque rupture of their home can still be partially repaired.
I need say nothing at all to underline the patent objections against consigning the boys to any institutional asylum, but to confirm their deportation to the “Birds’ Nest” by an order of the Court rejecting their mother’s prayer would be to make the State complete the final destruction of their home life and rob their childhood of a very precious possession, the watchful ward of their own mother at their own hearth. These boys of tender age need a mother’s loving care and she is naturally very near and dear to them. There is no reason to doubt that the boys themselves had a happy home at Turner’s Cottages; nor need I question their mother’s continued ability to maintain them, if she must, unless some unforeseen calamity occurs (though I expect her also to have such help as her husband may give or be required to give).
An alternative retreat is now proffered at Oldcastle as a substitute for their home. The place has one real advantage over the room in Ballsbridge in that it promises country air and plenty of space, indoors and out. But there are risks
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in the further disturbance of the boys and in the uncertainty of their acclimatisation. Moreover, this is the resort from which their father removed them to the “Birds’ Nest” at Dún Laoghaire and I feel not at all reassured as to the warmth of their welcome, if they are sent back; but I am sure that the boys would grow up there adoptive children in an emergency refuge, separated from a father who must live in Dublin, remote from a mother whose visits would be difficult, and away from the home which has become their natural habitat. Religion apart, I would not expose them to the obvious hazards and perhaps make them pay dearly for their fresh air. I feel that either of the father’s proposals is likely to be less conducive to their happiness as they grow up than their simple, accustomed home, now open to welcome them back, with their own mother; her mother and sister are free all day and would look after them during their mother’s absence at work.
I said “religion apart,” but one cannot treat the supernatural as a dissociated element in the boys’ lives, though for clarity I have to take the religious welfare separately. Sitting under a Christian constitution in a State publicly pledged to respect and honour religion, this Court is deeply concerned for the spiritual welfare of David, Alan, Paul and Neville, which, so far as a Court of Justice can appraise it, must be my first care.
If Mr. Tilson’s assertion, despite his deliberate and explicit undertaking, that he now prefers another creed for his boys is to be conclusive of their spiritual welfare, then there is no more to be said on this aspect of the matter; but I cannot hold that the problem is to be resolved by so naïve a postulate.
There is no question here of any attempt (such as no Court would entertain) to coerce into the Church of Rome any young person who by a Protestant education, in disregard of an ante-nuptial agreement, has in fact acquired Protestant convictions; the Church itself would condemn any such attempt. I know each one of the boys to have acquired, within a few days of birth, the status of a member of the Roman Catholic Church by his Catholic baptism in harmony with the ante-nuptial agreement of the parents; I know the boys to have been educated from birth as Catholics in accordance with the agreement. Mr. Tilson before his marriage evidently apprehended no spiritual injury to his offspring in the prospect of rearing them as Catholics; what has occurred since to induce a Court to conclude that a change of their religion to-day is likely to promote their spiritual welfare? The father has changed his mind about their creed; that is all. He now denies, in effect, that the boys, baptized and
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brought up in the Catholic Church, under their parents’ compact, enjoy in a Christian State a spiritual heritage entitled to protection; he intends, if allowed his way, to have his own tenets inculcated instead and, since even David, the eldest boy, is only eight years old, he anticipates that the reorientation of those very young minds can be effected smoothly, without any moral hurt. I know too little about the lad to venture into the psychiatric realm for the eldest; but, on their father’s hypothesis, he will endow them safely and painlessly with a better doctrine.
Mr. Tilson ignores the fact that to Catholics the baptism of these boys in the Catholic Church is of transcendent importance and bears directly on their proper upbringing; he forgets that that fact was pointedly brought home to him, and accepted by him, before he married a Catholic girl, as a factor that intimately concerned the spiritual welfare of any children that might be born to them. That baptism of each of the four boys stands, he cannot erase it by changing his mind. Again, he forgets their consistent upbringing as Catholics from the cradle. All that is to go for nothing, though he assented to the baptisms and acquiesced in the education.
If he adduces his own change of mind, and literally nothing more, as making some presumptive evidence that a change of creed will promote the spiritual welfare of his children, because he is their father, that presumption, such as it is, must be overborne in a Court speculating upon their welfare from the ascertainable data by the solemnity and permanence attaching to his own act, when, as a successful suppliant for a special dispensation in the circumstances recorded by Father Harley, he gave the promise which made the marriage possible after the dispensation; that promise was recorded under his hand in deference to the insistence of the Catholic Church on its indispensable condition precedent to the marriage, a positive undertaking from the non-Catholic party directed precisely to the spiritual welfare of the children. Under any system of law that does not disparage its natural materiality, that act cannot fail to abate the evidential value of his present recantation nearly nine years later. I must discount the unexplained change of mind of an inconstant father as furnishing by itself any serious evidence in this Court for the boys’ greater welfare to a man who thus stands wholly committed, and under the Constitution lawfully committed, to a Catholic education for his children; and, so discounting it, I discern no grounds, whether based on spiritual welfare or on any other rationale, to warrant this Court in countenancing against the mother any plan designed
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to upset the faith so acquired by the children. Incidentally I regret to have to record here, that I feel pique to have been his predominant motive in removing the children, and not religious sincerity.
One thing more I shall add, though I need not do so for the purpose of my decision. In my judgment the ante-nuptial agreement of the parents crystallised the imprescriptible right of the children under the Constitution to religious education and defined that right as a specific right in each of the four boys to instruction in the Roman Catholic religion, and no other, by their parents.
As I view the whole of this melancholy affair, it is a calamity for both parents, a really appalling calamity for both, involving the boys; but the little boys must be rescued from that calamity as far as possible. Their father has without just cause made a determined attempt to break up their home; and he has relegated them as mock-orphans to the care of a charity, where he would have them brought up as Protestants in defiance of his holy undertaking, cognisable by this Court. They have a good mother who will fulfil the ante-nuptial agreement and continue to bring up her Catholic children as good Catholics. And their prospective general welfare, as I see it, points clearly and unmistakably to their mother’s home as the best place for them.
Accordingly, I hold that the mother’s claim to an order of habeas corpus in respect of the three elder boys stands justified; the children must be restored to her. The cause shown will be disallowed and the conditional order made absolute. The husband must pay the wife’s costs of, and incidental to, these proceedings.
The husband Ernest Tilson, appealed to the Supreme Court (1) against the above judgment and the order made thereunder.
R. G. L. Leonard, K.C. , and E. C. Micks, Senior Counsel (with them W. I. Hamill ) for the appellant:—
The chief question for the decision of the Court in this case is whether an ante-nuptial agreement entered into by the parties to a marriage is or is not a valid agreement in law. We submit that prima facie the father has the right to the custody of the children and the right to decide the religion in which they will be brought up; admittedly, such right may be lost, as, e.g. , by the father’s misconduct. No agreement which tends to take away or limit that right is binding in law. That, we submit, is the effect of many of
(1) Before Maguire C.J. , Murnaghan , O’Byrne , Black and Lavery JJ.
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the decisions of the Courts, and notably The State (Kavanagh)v. O’Sullivan (1) ; In re Kindersley (2) and In re Frost, Infants (3) .
The Constitution gives the right to decide the children’s religion to the parents, but it does not define the particular rights of the respective parents. It was held in In re Frost, Infants (3) that in the event of a disagreement the father has the legal right to decide upon the religious education of the children. We submit that this Court must follow that decision and accordingly it must hold in the present case that the father’s right to decide upon the religious education is in no way affected by the ante-nuptial agreement into which he entered. It was contended by counsel on behalf of the mother in the High Court, that the Constitution altered the law previously in force with respect to the exclusive right of control of the father over the children and vested this control in both parents; but we submit that art. 40 of the Constitution takes over all the laws of the State in force at the time of the coming into operation of the Constitution, subject to their not being inconsistent with the Constitution. It was never contended, nor was it decided, in either Kindersley’s Case (2) or Frost’s Case (3) (both of which were decided after the adoption of the Constitution) that the Constitution had in any way altered the pre-existing law in this respect. We submit that this Court must give effect to the law of the land and that in doing so it cannot have regard, or give effect, to the domestic law of any Church. We submit that the law applicable to the facts of the case now before the Court is set out in the case of In re Frost, Infants (3) and that the law as there stated should be applied in the present case. The decision of this Court was followed in the two cases, In re Kevin Isherwood, an Infant (4) and In re Keenan, Infants, and Others (5) . It is, we submit, the law of the State that an ante-nuptial agreement, such as was signed by the parties in the case before the Court, is not binding. It would, we submit, be somewhat peculiar if the father has not the right to determine the religion in which his children shall be educated. The principle is very clearly enunciated in The State (Kavanagh) v. O’Sullivan (1) by Kennedy C.J. (at p. 637):—”The rules which determine the religion of an infant when brought in question in the Courts and the basis of those rules are well known and firmly established in this country. As against the rest of the world the parent, as between the lawful parents the father, has the right in law
1. (1) [1933] I. R. 618.
1. (2) [1944] I. R. 111.
1. (3) [1947] I. R. 3.
1. (4) 82 I. L. T. R. 85.
1. (5) 84 I. L. T. R. 169.
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to determine in what religion the child shall be educated and brought up—speaking at any rate with reference to the Christian Churches with which only we are concerned here.”That is the clearest authority for the father’s right and we submit that there is nothing whatever in the Constitution which alters that statement of the law as laid down in the year 1931. From the point of view of obtaining the custody or directing the religion of her child, the mother is now no better off than she was before the Constitution took effect. Article 42, we submit, merely recognises principles which were already in existence and firmly established prior to the adoption of the Constitution. The special position of the Roman Catholic Church, mentioned in art. 44, does not give to that Church any rights over and above those to which Protestant Churches are entitled under the Constitution.
The Attorney General and T. K. Liston, Senior Counsel (with them J. R. Heavey ) for the respondent:—
We submit that the law does not entitle the father in this case to alter the religion in which his children have hitherto been educated. Moreover, the religion in which they have been brought up is in accordance with the appellant’s ante-nuptial agreement. That agreement was indorsed by his marriage, and we submit that his course of conduct after his marriage disentitles him to change his mind at this stage as to the religion in which his children should be brought up. That contention is based on two grounds: first, the Constitution gives him no such right, for the right of deciding the religion of the children is, by the Constitution, vested in both parents equally and one parent alone cannot change that decision against the wishes of the other; secondly, the common law, on the facts of this case, gives him no such right.
It is important when considering the Constitution to take notice of the nature of the ante-nuptial undertaking signed by the appellant. It is two-fold, being concerned 1, with the children, and 2, with his future wife; both of those aspects are important considerations for the Court. The document shows on its face, we submit, that it is an engagement to his wife, witnessed by two Roman Catholic priests. It is dated, 1941, the same year as that in which the marriage took place and it is an engagement, we submit, that the children shall be brought up Roman Catholics. This case is not in any way governed by In re Frost, Infants (1) , as
(1) [1947] I. R. 3.
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1 I.R. Gavan Duffy P. Supreme Court.
it is distinguishable on its own facts. The last paragraph of the judgment of Sullivan C.J. in that case clearly leaves this case, with its different facts, open for the decision of this Court. We submit that it was not the settled law of this country either before or after the coming into operation of the Constitution, that an agreement made before marriage, such as the agreement now under review, was not binding. We submit that the decision in In re Frost, Infants (1) means that the father has the right to decide the religion of the children where there is a disagreement between the parents, but not where there has been an agreement such as exists in this case.
The position at common law is not readily ascertainable, for from an examination of the numerous cases already reported it would appear that this is the first case in any Court of law, either in this country or in England, in which the actual form of undertaking has been exhibited. There is, admittedly, a long line of authority against the proposition for which we are contending. It is not proposed here to examine all of the relevant decisions exhaustively, but merely to direct the attention of the Court to the more important cases. We submit that the ante-nuptial agreement was interpreted as a contract, but the enforcement of such contract presented great difficulty to the Courts. Nevertheless, we submit that that contract is enforceable at common law, despite the fact that damages could not be awarded for a breach nor could specific performance be granted: In re Browne, a Minor (2) .The case of Hill v. Hill (3) is we submit of considerable interest and help to the Court, for 1, the agreement referred to therein was not in writing, and 2, it establishes that the conduct of the father in permitting his children to be brought up in a particular faith for some time will disentitle him to exercise the rights which he had at common law of dictating the religion of his children. In that case his conduct showed that he had no real interest in the religion of his children. We submit that exactly the same observation might be applied to the present case. In the case of Andrews v. Salt (4) ,Malins V.-C., at pp. 627 and 628, makes it clear, we submit, that the mother’s rights, as well as the father’s, must be considered on the question of religion. In that case, the only two remedies contemplated for a breach of contract were damages and specific performance. In all of the authorities the Courts appear to have acted on the same basis, viz. that, if damages cannot be awarded or specific performance granted, all of the available remedies are exhausted. We
1. (1) [1947] I. R. 3.
1. (2) 2 Ir. Ch. R. 151 at pp. 160 and 162.
1. (3) (1862) 31 L. J. (Ch.) 505.
1. (4) L. R. 8 Ch. App. 622.
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[1951] In the Matter of Tilson, Infants. 27
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submit, however, that that is not the true position. In re Meades, Minors (1) is distinguishable from the present case, as there the law as to ante-nuptial agreements was not argued. In the recent case of In re Collins, an Infant (2) it was held that by reason of s. 1 of the Guardianship of Infants Act, 1925 (15 & 16 Geo. 5, c. 45), the father’s religion is no longer the paramount consideration in England.
We submit that, in view of the prominence given to religion in the Constitution, an agreement such as was signed by the parties in this case should be held to be binding. It has been contended that the agreement in this case was not a contract, but was merely a promise made by the father to the priest; but we submit that it is clear from the first affidavit sworn by the father that the mother was not willing to marry him except in a Roman Catholic church and we submit that it therefore follows that there was a complete and binding contract, the consideration therefor being the marriage. Accordingly, all the essentials of a valid contract were present. It is, we submit, a contract similar to that in Clarke v. Earl of Dunraven (3) . Each party, in the present case, made a promise to the priest.
On an examination of the authorities there appears to be one principle underlying the decisions, and dating from the hearing of the case of In re Browne, a Minor (4) , and it is the principle that to enforce such an undertaking would be contrary to public policy. All the decisions since Browne’s Case (4) seem to have been decided on the same basic principle. We submit that since the enactment of the Constitution that principle can no longer apply in this country. The Constitution gives the right of deciding the religious education of the children to both parents. Once, therefore, there has been an agreement on how they shall be brought up it is, we submit, beyond the power of either parent to alter that agreement. The learned President of the High Court stated that the agreement was a very weighty factor in the case and that he would give effect to it unless he could find some more weighty factor. He could not find in the case any factor which carried more weight and he accordingly gave effect to the agreement; we submit that he was right in so doing and that this Court ought to affirm his judgment and order. [They also cited In re Agar-Ellis, Agar-Ellisv. Lascelles (5) ; Hawkesworth v. Hawkesworth (6) ; In re Story (7) ].
1. (1) I. R. 5 Eq. 98.
1. (2) [ 1950] W. N. 242.
1. (3) [1897] A. C. 59.
1. (4) 2 Ir. Ch. R. 151.
1. (5) 10 Ch. D. 49; 24 Ch. D. 317.
1. (6) 6 Ch. App. 539.
1. (7) [1916] 2 I. R. 328.
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[1951] In the Matter of Tilson, Infants. 28
1 I.R. Gavan Duffy P. Supreme Court.
R. G. L. Leonard, K.C. , in reply:—
It is submitted that everything which could be said on the constitutional aspect of this case has been said by counsel for the respondent. Nevertheless, we submit, that the father has, in law, the right, in spite of any agreement to the contrary, to dictate the religion in which the children of his marriage shall be educated, provided he does not permit them to acquire settled religious convictions in any particular faith from which he wants them to change. We submit that that is the law and that there is nothing whatever in the Constitution to alter that in any way. The real question for the decision of the Court is whether the father, even assuming that he may have acted badly, has done anything which, in law, disentitles him to the custody of his children, and we submit that in this case he has done nothing which so disentitles him.
The basis or principle underlying the older authorities is immaterial. They are settled law and as such should bind the Court, no matter upon what basis they may be founded. We submit that there is nothing whatever in our Constitution which in any way alters the old law as to the unenforceability of ante-nuptial agreements. The overriding consideration for the Court is the welfare of the children, and we submit that their welfare will best be served by leaving them under their father’s control. [He referred to In re Grey (1) ; In re Scanlan, Infants (2) ; In re Frost, Infants (3) ; In re Collins, an Infant (4) ].
Cur. adv. vult.
Maguire C.J. :— 5 Aug. 1950

I have read the Judgment which Mr. Justice Murnaghan is about to deliver and I agree with it.
Murnaghan J. :—
The appeal in this matter has been brought by Ernest Tilson against an order of the High Court (The President) dated the 28th July, 1950, whereby a conditional order ofhabeas corpus for the production of three children, David Tilson, Alan Tilson, and Paul Tilson, was made absolute on the application of Mary Josephine Tilson, the mother. Ernest Tilson obtained ex parte a stay of proceedings under the order on the terms that he should serve short notice of appeal for hearing on Monday the 31st July, 1950, and the appeal has been at hearing on that day and the three following days.
1. (1) [1902] 2 I. R. 684.
1. (2) 40 Ch. D. 200.
1. (3) [1947] I. R. 3.
1. (4) [ 1950] W. N. 242.
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The affidavits filed in the matter detail the facts as presented by Ernest Tilson, who is the father of the children, in answer to the affidavits made by or on behalf of Mary Josephine Tilson, the mother. Many of the facts are in controversy but the decision of the learned President was based mainly on a point of law, viz., the binding force of an ante-nuptial agreement as to the religious education of the children. The point of law thus involved raises a question of very great importance and it will be necessary to state the facts in relation to this ante-nuptial agreement and to the conduct of the parties in relation to the matters dealt with by this agreement; but it is to be remembered that apart from this point there are other facts which would raise issues to be considered, if the ante-nuptial agreement were held not binding in law.
Ernest Tilson was employed in the Cleansing Department of the Dublin Corporation and in the year, 1941, had as wages, £3 3s. 0d. per week, rising to £5 3s. 0d. at the present time. He was about 24 years of age in 1941. Mary Josephine Barnes was aged between 15 and 16 years at that date. They desired to be married in a Roman Catholic church— the girl professing that religion but, as Ernest Tilson was a member of the Church of Ireland, it was necessary to obtain a dispensation on account of the religion of the intended husband. Miss Barnes twice made application for this dispensation but was refused on each occasion. The Reverend Father Harley in his affidavit explains how a dispensation was finally obtained, as follows:—
“2. Mr Ernest Tilson—the Protestant party—took the unusual course of applying for a personal interview with the Parish Priest. I was deputed by the Most Rev. Dr. Wall to interview him. I saw him and he pressed his case very strongly. He intimated that he was taking instructions in the Catholic Faith. He gave every assurance that he would do all in his power to safeguard the religion of Miss Barnes and he undertook to bring up any children born of the proposed marriage in the religion of the Catholic Church. I was convinced of his sincerity and on the basis of his sincerity and the moral certainty of his keeping his promises I recommended that the application for dispensation be allowed. If there had been any doubt that the promises would not be kept the dispensation would not have been granted and the marriage would not have taken place.
3. Dispensation was granted on the required promises being given.” The paragraph then exhibits the original papers on which the promises were written by, and signed
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by, each of the parties to the intended marriage. That of Mary Josephine Barnes is:—
St. Mary’s, Haddington Road, Dublin
I, the undersigned, do hereby solemnly promise and engage that all the children of both sexes who may be born of my marriage with Ernest Tilson, shall be baptized in the Catholic Church, and shall be carefully brought up in the knowledge and practice of the Catholic religion.” It is signed by “Mary Josephine Barnes, 12 Turner’s Cottages, Ballsbridge, 28th November, 1941,” and the signature is witnessed by the Reverend Father Harley, C.C., and the Reverend Cornelius Skehan, C.C.
The other paper is similarly headed and reads:—
“I, the undersigned, do hereby solemnly promise and engage that all the children of both sexes who may be born of my marriage with Mary Barnes shall be baptized in the Catholic Church, and shall be carefully brought up in the knowledge and practice of the Catholic religion and I also solemnly promise and engage that I will not interfere with the religious belief of Mary Barnes, my future wife, nor with her full and perfect liberty to fulfil all her duties as a Catholic.
Ernest Neville Tilson,
12 Turner’s Cottages, Ballsbridge.
28th November, 1941.”
The signature is also witnessed by the same two witnesses.
The only answer to these paragraphs is in para. 16 of Ernest Tilson’s affidavit, filed the 20th July, 1950, in which he says:—”. . . I never intimated to him at any time that I was taking instructions in the Roman Catholic faith or made any mention about any instruction.” The dispensation was on the admitted facts obtained by the personal intervention of Ernest Tilson who fully realised the engagements which he was entering into.
The children of the marriage, four in number—David, born on the 10th May, 1942, Alan, born on the 24th September, 1943, Paul, born on the 26th August, 1944, and Neville Tilson, born on the 21st November, 1945—were baptized according to the rites of the Roman Catholic Church. The elder children as they grew in years were taken by the mother to Mass. David and Alan attended the Convent National Schools of Saint Mary’s, Haddington Road, and David made his First Holy Communion in May, 1949.
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Ernest Tilson says he made objection at different times and especially to David making his First Holy Communion at Haddington Road, in reference to which he had an interview with the Reverend Father Harley. Mrs. Tilson says that this was the first time he made any objection to any of his children being brought up as Roman Catholics.
The point of law which was argued was whether under the Constitution the agreement of Ernest Tilson and Mary Josephine Tilson to bring up the children of the marriage as Roman Catholics had in law a binding force. In the law of England until 1882 a married woman, both as to property and in other respects, occupied in law a position of inferiority as respects her husband. By marriage her personal property —unless protected by the device of settlement to her separate use—passed to him, and he had also extensive rights over her real property. At common law the father had complete control over the children of the marriage and the wife had no voice against the wishes of the husband. In the Court of Chancery the absolute power of the father was in some respects subject to control, the King through this Court exercising a power as parens patriae and proceeding on the principle that the legal power of the father was in the nature of a trust which must not be abused. In the Court of Chancery the wishes of the mother in relation to a child were regarded only in so far as they affected the interest and well-being of the child. Even after the passing of the Guardianship of Infants Act, 1886, which many learned judges spoke of as a mothers’ Act, the Courts respected the father’s sole right to direct the religion of his children, and departed from this right only when the interests of the children required it or where the father by his conduct had abandoned his right or had relinquished it. The principles of the Court of Chancery as followed in the Chancery Division of the High Court of Justice were stated by the Court of Appeal in England in the Agar-Ellis Case (1) which has been said to reach the high-water mark of the father’s authority.
The position of married women was greatly improved in relation to property by the Married Women’s Property Act, 1882; women were given a share in local government under the Local Government Act, 1898; subsequently they obtained the suffrage at parliamentary elections. The Constitution of 1922 recognised the equality of women (article 14), and article 16 of the Constitution gave the important rights dealt with by it to “every citizen without distinction of sex.”
In the light of these facts I have to interpret the Constitution adopted by the people in 1937. The Constitution
(1) 10 Ch. D. 49.
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states fundamental principles, and, however these principles may have been reached, when they are enshrined in the Constitution they become, and are, the fundamental law of the State. Previously existing laws and principles are of no force in the State unless they derive efficacy from article 50 of the Constitution, which is as follows:—
“Article 50.
1. Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.”
The Constitution, under the heading, “Fundamental Rights,” includes an article 42 under the heading, “Education.”Article 42, 1, reads:—
“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.”
This article includes among “Fundamental Rights” 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. Where the father and mother of children are alive this article recognises a joint right and duty in them to provide for the religious education of their children. The word, “parents,” is in the plural and, naturally, should include both father and mother. Common sense and reason lead to the view that the mother is under the duty of educating the children as well as the father; and both must do so according to their means.
The Court was, however, asked to say that the word,”parents,” was used in some generic sense that included only the father when he was living. The archaic law of England rapidly disintegrating under modern conditions need not be a guide for the fundamental principles of a modern state. It is not a proper method of construing a new constitution of a modern state to make an approach in the light of legal survivals of an earlier law. This Court in In re Frost, Infants (1) has already construed article 42 in the sense which I have indicated and has recognised that the
(1) [1947] I. R. 3.
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mother, as well as the father, was a joint sharer of the right and duty. The point involved in Frost’s Case (1) , however, was this. A father and mother had made ante-nuptial engagements to bring the children of the marriage up in the Roman Catholic religion. Subsequently, the wife—the Catholic party—entered into a deed with the husband by which the children were to be brought up in the Protestant religion and they were educated as Protestants for several years. Notwithstanding this agreement of father and mother, the mother, after the father’s death, claimed the right to depart from the agreement and to make of her own authority a new arrangement by which the children should be brought up as Roman Catholics. The Court rejected this contention and did not agree that the Constitution gave to the wife as surviving parent a right to prescribe the religious education. In the judgment delivered by Sullivan C.J. he deals with a case where there has been no agreement between the parents and approves of the rule that in general and apart from special circumstances the Court in such a case will determine the religion of the children according to the wishes of the father. The Court did not decide that where an agreement had been made by the father and mother and had been put into practice for years that the father alone could rescind it.
In the facts of Frost’s Case (1) there had been an ante-nuptial agreement to bring up the children as Roman Catholics, but the father and mother had made a solemn agreement to the contrary and this new agreement had been acted on for years. The Court, however, made this reservation:—
“It is not necessary in this case to consider the question whether the provisions of the Constitution affect what had been the established law as to the validity and effect of ante-nuptial agreements in respect of the religion of children, in view of the fact that subsequent to their marriage the parents agreed that their children should be educated in a different religion from that stated in the ante-nuptial agreement.”
Reference to an ante-nuptial agreement possibly having a binding force under the Constitution would have no meaning if the Constitution had not given to the mother in the opinion of the Court a right greater than she enjoyed before the Constitution, nor would Sullivan C.J. have said, at p. 28, that”the Constitution does not define the respective rights of the parents during their lifetime,” if the mother had no rights during the lifetime of her husband. In the passage quoted, Sullivan C.J. treats it as established law that before the Constitution of 1937 an ante-nuptial agreement by the father to bring up his children in a particular religion was not
(1) [1947] I. R. 3.
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binding in law. The cases in which this doctrine was laid down, In re Browne, a Minor (1) , Hill v. Hill (2) , In re Meades, Minors (3) , and Andrews v. Salt (4) , were fully discussed in the argument. These cases, were criticised either as based on no sound principle, or, if based on public policy, as based on a public policy which was contrary to the Constitution. I do think that there underlies these cases some principle that in Chancery the father was in the position of a trustee, and that being a trustee he could not predetermine how in all circumstances he would execute his trust. The Court in Frost’s Case (5) does refer to the principle as an established one. On the other hand, if the principle was established on any view of public policy, the law in force so established becomes part of our law unless inconsistent with the Constitution or some provision thereof.
In my opinion the true principle under our Constitution is this. The parents—father and mother—have a joint power and duty in respect of the religious education of their children. If they together make a decision and put it into practice it is not in the power of the father—nor is it in the power of the mother—to revoke such decision against the will of the other party. Such an exercise of their power may be made after marriage when the occasion arises; but an agreement made before marriage dealing with matters which will arise during the marriage and put into force after the marriage is equally effective and of as binding force in law. It is a mere commonplace to say that the former rule of English law, whereby a husband could break a promise without which in many cases his wife would not have married him, enabled fathers to take a line of conduct which, if legal, was accounted by many persons as not honourable. This rule has no place, however, where the power which is a joint power has been exercised—such a joint power cannot be revoked by the action of one of the parties.
The Constitution, in article 42, 5, does deal with the case where the parents fail in their duty. This article reads as follows:—
“Article 42.
5. In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
1. (1) 2 Ir. Ch. R. 151.
1. (2) 31 L. J. Ch. 505; 10 W. R. 400.
1. (3) I. R. 5 Eq.
1. (4) 8 Ch. App. 622.
1. (5) [1947] I. R. 3.
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If a difference between father and mother leads to a situation in which the child is neglected the State, through the Courts, is to endeavour to supply the place of the parents. It is to a case of this kind that Sullivan C.J. refers in Frost’s Case (1) . I cannot accept the contention of counsel for the appellant that this Court in Frost’s Case (1) decided that where a joint agreement has been made by a father and mother entitled under the Constitution to make it, the father at his mere wish can substitute an arrangement of his own.
Counsel for the respondent, while relying on article 42, 1 and 5, above referred to, sought to support the argument by reference to article 41 and article 44 of the Constitution, as well as to the Preamble. If the Court is able to arrive at a decision of the case upon the construction of article 42, and article 42, 5, alone and without reference to article 41 and article 44, nothing is to be gained by discussing these last-mentioned articles in the present case. It is right, however, to say that the Court, in arriving at its decision, is not now holding that these last-mentioned articles confer any privileged position before the law upon members of the Roman Catholic Church, and during the argument counsel for the respondent expressly disclaimed any such privileged position.
The affidavits disclose a state of affairs between husband and wife which has been unfortunate and there has been unhappiness, save for brief intervals. The husband appears to be, if not intemperate, fond of drinking and I do not think he has accepted his obligations as a husband to provide for his family. In December, 1949, he was summoned before a District Justice and the summons was dismissed under an undertaking by which he bound himself to pay £4 per week for the support of the family. I cannot help inferring that he thought out an ingenious way of relieving himself from the payment which he had been obliged to agree to. The manner in which he removed the children from the dwelling in which they were living with him and the mother and his representations that his wife had deserted the children lead to a very unfavourable impression. The children had been in fact well cared for and were living with the mother when Tilson took them away to get them supported and maintained at little or no expense. It may be that Tilson had cause for some recriminations, but when he comes to state them they are not very clear. Mrs. Tilson works in a laundry and earns £3 per week. Tilson objects to this, but without this money I fear the family would have to do without much which they have up to the present been enjoying.
Unless compelled to do so by strong reason the Court
(1) [1947] I. R. 3.
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would, I think, be loath to allow children—especially children of tender years—who were being brought up well at home to be delivered to a home for necessitous children. These matters which I have briefly mentioned do not, however, call for any consideration in the present case. In my opinion the appeal can be, and ought to be, decided on the point of law that in the circumstances Tilson had no justification on the ground of religious upbringing or any other ground for taking the children from the family home. In my opinion they ought to be returned to the mother to be educated by her, if not by the parents jointly, in the manner in which they had been taught pursuant to the ante-nuptial agreement.
O’Byrne J. :—
I concur.
Black J. :—
The facts here have been stated by Mr. Justice Murnaghan, and so I shall come at once to the point of law involved. That point is whether the pre-nuptial undertaking of the father of these infants to have them brought up as Catholics is enforceable in law. The Attorney General contended that it was not, first, by reason of the Constitution, and, secondly, even at common law, apart from the Constitution. I may not have heard or understood him correctly, and, if so, I should be glad to be corrected; but I took him down as saying what I have stated, and also as admitting that in so far as the common law was concerned, he went further than the learned President. If he did contend that such an undertaking was enforceable at common law, he certainly went further than the learned President; for the President said:—”Accordingly, I recognise that the law was settled against treating the ante-nuptial agreement as an enforceable contract, whatever effect a Court in its discretion might give to the spirit of the agreement for the benefit of a child of a ‘mixed marriage,’ where a father had either acquiesced in the consequences of the agreement or disregarded his paternal trust.” That is a clear recognition of the principle that such an undertaking was not enforceable at common law. However, apart from what I understood to be the Attorney General’s contention, when reference was made to the almost countless decisions for a century past in which this principle has been consistently affirmed, Mr. Justice Murnaghan asked whether this Court was bound by these decisions, seeing that they were not decisions of a Court of
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final appeal. From this I inferred that the unenforceability of such undertakings at common law might really be seriously in question. I then bethought myself of the words of Kennedy C.J. in In re Byrne, Decd., Shaw v. Attorney-General and Others (1) , where he said that where there had been a long line of decisions, though never one of a Court of final appeal, and that for a century, he would leave it for the Legislature to overrule them. However, in view of the clear pronouncements in Kavanagh’s Case (2) by Kennedy C.J., at p. 641, and by Fitzgibbon J., at p. 655, it seemed to me a waste of time to contend that such undertakings were not unenforceable at common law, and, later, I understood Mr. Liston, for the mother in this case, to renounce any such contention and to base his case entirely upon the Constitution of 1937. This was fully in accord with the view taken by the learned President.
If the Constitution alters the common law in the way mentioned, it must be by specific articles, and the articles which are said to have this effect have been specified as numbers 41, 42, and 44, together with the Preamble, on all of which the President seems to have based his judgment. For myself, I see nothing in either the Preamble, or in articles 41 or 44, that lends the slightest countenance to the inference to which the learned President seemed to think they contributed support. Further, Mr. Justice Murnaghan has based his view solely upon article 42. I have to admit that article 42, 1, is, in itself, open to two constructions. I think it is highly desirable to construe it as altering the common law if that can properly be done, and I wish first to state why I think that construction highly desirable.
I think this construction would be desirable, if legitimate, because I regard the common law, which makes these solemn ante-nuptial agreements unenforceable, as an archaic law and a relic of barbarism. I have not waited for this present case to declare that opinion. When a dissenting Judge in the recent Corcoran Case [unreported], I expressed that opinion with some emphasis. This law was derived from another law—that of the serfdom of women—which I doubt not emanated from the cave-man, long ages before the art of writing was discovered. Yet, it survived nineteen centuries of the Christian era, some ugly aspects of it being ended only within living memory. One of these seems to me to be the absolute dictatorship of the father in the matter of his children’s religion. I think this perished in England with the Guardianship of Infants Act, 1925, and our present
1. (1) [1935] I. R. 782, at pp. 803, 804.
1. (2) [1933] I. R. 618.
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problem is whether it has disappeared in Ireland by the Constitution, and that by virtue of article 42, at least in these ante-nuptial agreements cases. In Corcoran’s Case [unreported] I ventured to suggest that the fanatical extremity to which this dictatorship has been carried is “shown by the rule that it must be upheld even if the father has induced the mother to marry him on the faith of a solemn undertaking that he will . . . let the children be brought up in the mother’s religion.”
Here, I must recall that in In re Meades, Minors (1) , Lord O’Hagan L.C. said, at p. 103, that “The authority of a father to guide and govern the education of his child is a very sacred thing, bestowed by the Almighty, and to be sustained to the uttermost by human law.” Now, Lord O’Hagan was a great Judge and an eminent Catholic, and I should have felt a little shy at having to question his theology, had it not been that I find that the learned President seems to have questioned it himself and, indeed, rejected it in toto. For, surely, if he had thought that this dictatorship of the father was “a sacred thing, bestowed by the Almighty,” he could never have believed that our Constitution, with its intense religious invocations, could have interfered with a trust so bestowed or imposed; for, let there be no mistake, the trust so derived, according to Lord O’Hagan, was one that overrode any ante-nuptial undertaking by a father to renounce it. However, I have trouble enough trying to reconcile learned judges’ differences on questions of law without embroiling myself in their divergences on points of theology. Yet, in this case I fear I must commit myself, as indeed I have done already, and range myself with the learned President and against Lord O’Hagan, as regards the origin of this paternal dictatorship.
I have still a word more to say as to why I deem it so desirable, if it be possible, to hold that our Constitution has altered the common law in the way mentioned. If it has, it means that the mother in this case is entitled to get back her young children so cruelly abducted from her, and that they are entitled to the continued benefit of their mother’s intimacy and care. I am no new convert to the belief that this intimacy and care is such a priceless asset to a child that it ought to outweigh almost every counter-consideration. This belief was the chief, though not the only, basis of my humble dissenting judgment in the recent case of In re Corcoran [unreported], in which I ventured to associate myself with the feeling words of Holmes L.J. in In re O’Hara (2) , when he spoke of “that peculiar tenderness which
1. (1) I. R. 5 Eq. 98.
1. (2) [1900] 2 I. R. 232, at p. 248.
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distinguishes a mother’s love from all other kinds of affection.” That asset was a very important one to weigh in the scales in Corcoran’s Case [unreported], and I think I can claim to have been the only Judge in that case who expressly alluded to this asset at all, save for a casual remark of Davitt J. in the High Court that “normally . . . a child of tender years is better off with its mother than anywhere else.” I thought a loving mother’s intimacy and care was a supreme asset for a child in the case of the Protestant mother in Corcoran’s Case [unreported], and, consistently, I think exactly the same in the case of the Catholic mother here. I think a law which would deprive this mother of her children is an abomination. Yet, such a law existed until 1937. Has article 42 of our Constitution put an end to it? If it has, it is a great mercy. If it has not, then I have no power to prevent its baneful operation. The question is one of pure law.
Article 42, 1, 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.”
It is said that by the use of the word, “parents,” in the plural, the absolute right which the father previously had in the last resort to direct the religious education of the child is now conferred on the father and mother alike, and that the ultimate paternal decisive right is gone. I think this must be the argument; for, if the father has still an ultimate decisive right, it can no more be abrogated by an agreement than it could at common law.
Now, if I confine myself to the words of this article and clause alone, it does not appear to me necessarily to confer any new right or duty upon parents at all, and so far as reported cases show, since the year, 1937, I see no evidence that such an idea of the possible effect of this Article ever occurred to any judge or lawyer until the learned President promulgated it a few days ago. On a bare reading of the provision in question, it would have seemed to me that the State’s guarantee of the inalienable right and duty of parents to provide for the religious and moral education of their children was merely a guarantee to respect a right and duty that previously existed. If the ordinary sensible man-in-the-street had been asked before 1937 whether parents had the right and duty in question, I think he would have said at once that they had. If I myself had been asked the same question, I should have given the same reply. I should
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have thought it obvious. But, still, it is always consoling to find one’s hasty and instinctive opinions fortified by high judicial concurrence; and so I turn to In re Grey (1) , where Lord O’Brien L.C.J. (at p. 689) quoted and adopted a statement of Mr. Justice Farwell, the opening words of which were:—”One of the first and most sacred duties of the parents is to imbue the mind of the child with some religious belief . . .” Apparently, Lord O’Brien and Mr. Justice Farwell were under the same impression as I should have been, and as I suggest the average sensible man-in-the-street would have been, nearly forty years before our Constitution of 1937, that the rights and duties of parents now specified in article 42, 1, existed already. Yet, in those days at least, we know that if those rights and duties could not be effectively implemented, through the disagreement of the parents, the ultimate and decisive right rested with the father alone. These learned judges thought, as I do, that it is perfectly possible for both parents, and each of them, to have the rights and duties in question, and at the same time for the father alone to have the decisive right, where the mother’s right and his cannot be harmonised in execution. Moreover, it seems rather unusual to speak of”conferring” an “inalienable right”; and the words,”guarantees to respect the inalienable right,” seem more appropriate if used to imply “respecting an existing right”than if used to refer to “conferring a new inalienable right”that did not previously exist. Further, if the right conferred on each parent is inalienable, it does not seem to be quite clear how the father can renounce the right so conferred upon him, which would appear to be something like alienation. On the whole, then, it would seem to me at least improbable that article 42, 1, was intended to invest the mother with any different right in regard to her children’s religion than she had previously, namely, a right subordinate in the last resort to the father’s overriding dictatorship as recognised by the common law. Therefore, so far as the language of article 42, 1, standing alone, is concerned, I should not, to say the least of it, feel satisfied that it should be construed as abrogating the common law right of the father. If that were all, it would suffice to prevent me from holding that the Constitution has changed the common law in the way indicated. But it is not all.
I then turn to see if I can get any further help on the point from authority. The report of In re Frost, Infants (2) comes to my aid. I find that in that case, decided in 1945, this Court upheld the right of the trustees of the very Home
1. (1) [1902] 2 I. R. 684.
1. (2) [1947] I. R. 3.
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with which we are concerned in this case to keep the custody of certain young children, against their mother’s claim, on the ground that their deceased father wished them to be brought up in his religion and that the mother was of a different religion. Giving the unanimous judgment of this Court, Sullivan C.J. upheld the common law doctrine of the father’s overriding right, and said that it was not affected by any article of the Constitution of 1937. Now, that case differed from the present in that, although there had been a pre-nuptial agreement, it was abrogated by a subsequent agreement. The position was that the parents did not agree and, therefore, their duty of directing the religious education of the children could not be carried out. In that predicament, this Court applied the common law rule. The Chief Justice said (at p. 29):—”The rule which the Courts both in this country and in England have consistently followed, is that the father has that legal right, and that when that right has been exercised by him, the children must be educated in the religion which he has chosen, by his wife should she survive him. In my opinion that rule is not inconsistent with any article of the Constitution, and the Courts are entitled to act upon it.” I take these words to be a clear recognition that the common law rule is still a rule, as the Chief Justice called it, and that when the parents differed as to their children’s religious education, that rule was to be applied. If that is so, then the rule was still alive in 1945, and was not killed by the Constitution of 1937. Earlier, on pp. 23, 24, the Chief Justice quoted Kavanagh’s Case (1) , in reference to the father’s right to determine his child’s religion, as deciding that “this right is not abrogated by an ante-nuptial agreement to the contrary.”
Now, it is quite true that in Frost’s Case (2) the question was expressly left undecided as to whether the Constitution affects what had been the established law as to the validity of ante-nuptial agreements in respect of the religion of children. The Court did not consider that question at all, one way or the other, which means that the judicial minds of its members were not applied to it. So far as they were concerned, there might have been other articles of the Constitution than those cited to them in that case (viz. ,Articles 41 and 42) that would throw some light upon the problem in a case where there was an ante-nuptial agreement. But, it does not follow that if the only article that could be seriously alleged to throw light upon the problem had been article 42 (as is the position here) they might not have felt able to decide at once that it did not affect the established
1. (1) [1933] I. R. 618, at p. 639.
1. (2) [1947] I. R. 3.
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law on the question of the father’s right. In my opinion, we could have done so, if we had deemed it right to think of the point at all. I say so because, in my judgment, we recognised that the common law rule as to the father’s right was not abrogated by article 42 of the Constitution, since it was operative in a case where there was no ante-nuptial agreement. If it was not abrogated by article 42 in such a case, then the right, whatever it was, that this article recognised in the mother, must have been subject, as at common law, to the overriding right of the father. Therefore, the words of article 42, 1, could not have conferred a new right upon the mother freed from the overriding right of the father. It can only have recognised and guaranteed the right she had already to provide for her children’s education, subject to the veto, so to speak, of the father, if he found it necessary to exercise a veto. It seems to me, then, to follow logically that once it emerges, as I have sought to show it does, that the right of the mother guaranteed by article 42, 1, could only be a subordinate right, capable of being overridden by the father, its character as a subordinate right could no more be altered by an agreement between the parties than the like subordinate right that existed before 1937 could have been altered by such an agreement. I am, therefore, with much regret, unable to agree with the view that other members of the Court have felt able to take as to the effect of article 42 of the Constitution, and, further, apart from what I have said about the implications of In re Frost, Infants (1) , and about what the language of the article in itself appears to me to mean, I do not believe that the framers of the Constitution ever intended that article to affect the common law rights of either father or mother.
I might interpolate here, incidentally, that as regards Mr. Liston’s citation of the case of Clarke v. Earl of Dunraven (2) at the opening of his able argument, I think that case strongly supports his contention that the undertaking given by the father to the priest in this case to the knowledge of the mother (a like undertaking being given by her to his knowledge) constitutes in legal effect an agreement between the father and the mother; and even before being referred to Clarke v. Earl of Dunraven (2) I should have been strongly disposed so to hold.
I now come to another point to which I feel it my imperative duty to allude. I asked Mr. Liston in the course of his argument whether he suggested that the Constitution, if it had the effect for which he contended in the case of the
1. (1) [1947] I. R. 3.
1. (2) [1897] A. C. 59.
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present mother, was discriminatory as between different religions, and I was much relieved by his answer that he did not. What was in my mind was this. In various reported cases persons who professed to be Catholics entered into ante-nuptial agreements that their children should be brought up Protestants. I envisaged such a case in the future where a Catholic father, ignoring his religious obligations, made such an ante-nuptial agreement with a Protestant woman and went through the marriage ceremony with her in a Protestant church. Then, I imagined that after a child was born he was advised that he had not been properly married at all in the eyes of his Church, whereupon, being unable to persuade his wife to be married in a Catholic church, he elected to leave her, taking the children with him. I wondered whether in that case his solemn promise in the Protestant church to love and cherish his legal wife till death parted them would be considered as morally binding; for I understand that in the present case there has been some difference of opinion amongst theologians as to whether the present father’s promise as to his children’s religion was morally binding. Then, recollecting that such questions were none of my business, I turned to the legal query (which is my business) whether if the Catholic father I have postulated took away his children from the wife he had married in the Protestant church, having promised to bring them up Protestants, article 42 of the Constitution would make his promise enforceable and enable the Protestant wife to get back the children on habeas corpus . That may happen any day, as it has happened in reported cases, and I gathered that Mr. Liston admitted that in such a case, under article 42, the relapsed, but repentant, Catholic father’s children would have to be returned to the mother to be brought up as Protestants. After the present decision that will be the position, unless the Constitution is discriminative as between Catholics and Protestants, which Mr. Liston admits it is not. However, on reading the summary of the learned President’s judgment, which was available to all the public, the first impression I got was that Mr. Liston’s view was not his view as to the effect of the Constitution, from which I concluded that a great many other people might have got the same impression. I confess that on reading later his full judgment, as placed before us here, this first impression was appreciably weakened. Nevertheless, even now, having regard to his reference to Canon Law and to the Preamble, and, particularly, article 44, 2, of the Constitution, I am not at all sure as to whether the learned President thought that in regard to these
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ante-nuptial agreements the Constitution was discriminatory as between different religions or whether he thought that it was not. Ever since this Constitution was enacted I was firmly convinced, as I am still, that in respect of all legal rights and privileges, it admitted of no discrimination as between persons of different religions. If I had thought it did, I never could have made a public declaration that I would uphold it; and if, in fact, it did, I imagine it would gain for us an unenviable distinction amongst the democratic peoples of the world. On this point, it is not merely what the learned President’s judgment meant, but what it may reasonably have been thought to have meant, and what many who read summaries of it may quite probably have supposed it did mean, that seems to me to matter. In these circumstances I should think it in the highest degree desirable that this Court should make it clear that the Constitution has no such discriminatory effect. Mr. Justice Murnaghan has dealt with this matter by saying:—”If the Court is able to arrive at a decision of the case upon the construction of article 42, 1, and article 42, 5, alone and without reference to article 41 and article 44, nothing is to be gained by discussing these last-mentioned articles in the present case. It is right, however, to say that the Court, in arriving at its decision, is not now holding that these last-mentioned articles confer any privileged position before the law upon members of the Roman Catholic Church, and during the argument counsel for the respondent expressly disclaimed any such privileged position.”
I have mentioned this matter because I am unable to feel that this statement suffices. It is not in my view enough to say that we are not now holding that these articles confer any privileged position, etc.; for that might be read as admitting of a mental reservation that these articles do confer such a privileged position, and that although not now held to do so, they may at some future time be held to do so. I think it would be in the national interest, and in that of our jurisprudence, that we should here and now unequivocally declare that our Constitution does not confer any such privileged position before the law upon members of any religious denomination whatsoever. For my part, I declare that such is my opinion. Further, Mr. Liston, while making the disclaimer alluded to, seemed reluctant to answer my query as to whether the non-discrimination in the matter of ante-nuptial contracts was confined to those whose religion is Christian. This leads me to add that in my opinion it is not so confined. I devoutly hope I am right in that opinion.
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As my view on the main legal question here does not prevail, in strictness I need say no more. Withal, I should like to state what my opinion would be, if it did prevail, as regards the respondent’s children. The father’s exclusive right to their custody in the circumstances (if I were right in my belief that he has that right) could only be because of his right to see that they are brought up to believe in his religion. I do not think that right would be materially frustrated by their being taught another religion during the years when they are still too young really to understand the distinctive points of conflicting creeds and to form impressions which it would be detrimental to remove later. There has been a great consensus of judicial opinion, with which I humbly and fully agree, that children under seven or eight years, as two of these children are, cannot rationally be supposed capable of receiving such fixed impressions. Thus, in In re Frost, Infants (1) this Court approved of the action of Haugh and Davitt JJ. in handing over two younger children, aged respectively eight years and six years, to their Protestant father, although they had been for several years in Catholic institutions, receiving Catholic instruction. This was done on the ground that they were not old enough to have acquired fixed religious convictions which it would be dangerous to disturb. In the same way, if the two younger children of the respondent, now in Mrs. Smyly’s Home, were handed over to their mother, each until he reaches eight years of age, the mother undertaking meantime not to take them out of the jurisdiction, leaving it open to the father to take proceedings, if he should be so advised, to recover their custody at the age of eight years, I think that the father’s right to have them brought up in his religion would be substantially preserved. Owing to their tender age they would not have received, in the meantime, such fixed convictions as it would be dangerous to remove after they reached eight years. That course would accord with the course taken by Sir John Romilly M.R. and approved of by Lord Westbury L.C. in Austin v. Austin (2) and it would give these two children the priceless advantage of their mother’s care in the meantime, which, in my view, outweighs all the advantages they could possibly gain by being kept in Mrs. Smyly’s Home, however excellently it may be managed, and all the advantages of the alternative offered them of residence in the home of their paternal grandparents. I take this view because I fully indorse the opinion expressed by Sir John Romilly in Austin v. Austin when he said “No thing, and no person, and no combination of them, can, in my opinion, with regard to a child of tender years,
1. (1) [1947] I. R. 3.
1. (2) 34 Beav. 257.
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supply the place of a mother, and the welfare of the child is so intimately connected with its being under the care of the mother, that no extent of kindness on the part of any other person can supply that place.” It is because I share this view that I regret so much that my opinion of the law would not permit me to interfere with the present custody of the eldest of the three children. The Legislature can alter this law. I cannot touch it.
Coals of fire have been heaped on the head of the husband in this case. He gave wrong dates about the birth dates of of his children and other matters. I do not see that he had anything to gain by this, and the errors may quite probably have been mistakes which many fathers make in such matters when they do not think it necessary to check their memories. I regard these as petty reproaches. As to his statement that his wife had deserted his children, I think Mr. Leonard gave a quite possible explanation of that, consistent with the man’s belief at the time; but, in any case, even if he deliberately lied in these matters, to help in getting the children into the Home, I should not regard this as any evidence of insincerity on his part as regards wishing the children to be brought up in his religion, in the hope that it would make them better than it had made him. Even fanatics—the sincerest of all people—are sometimes great liars, especially when lying could aid their pious projects. I can even see something in Mr. Leonard’s excuse for the abduction of the children, from his point of view, if he was sincere; but I can see no excuse for his vicious refusal to tell his wife where he had taken the children. I mention these points because, although I do not think much of this man, I still believe in giving even the devil what may be his due. It may well be that his real object in sending his children to Mrs. Smyly’s Home was to save himself the cost of their maintenance or most of it. That is a reasonable suspicion to entertain and it may be the truth. But, if I were a juror I should not feel able to find it as a fact. As regards the responsible parties in Mrs. Smyly’s Home, it was complained, I think, that they should have made more inquiries, although I feel that counsel were very fair to them. If a father brings his children to them, alleging that they are destitute, I should not think it incumbent upon them to turn the children away until they are able to make inquiries, with possible cruel consequences to the children. They may not have means of making adequate inquiries. I think the humane course is to take the children in on the father’s word, if he seems credible, and await inquiries being made by anyone interested and a determination by those competent to investigate such
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matters. Though my views have no legal effect, I have felt bound to state them.
Lavery J. :—
I agree with the judgment which has been delivered by Mr. Justice Murnaghan.
Solicitor for the applicant, Mary Josephine Tilson: George C. McGrath.
Solicitor for the respondent, Ernest Tilson: W. H. Richardson.
Solicitor for the Trustees of Mrs. Smyly’s Homes:T. G. McVeagh.
L. J. W.
[1951] I.R. 1